Regina v Phomaranuphong

[2001] NSWSC 1157

CITATION:	Regina v Phomaranuphong [2001] NSWSC 1157
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC L70062/00
HEARING DATE(S):	26 November 2001, 28 November 2001
JUDGMENT DATE:	28 November 2001
PARTIES :	The Crown Cherdchai Phomaranuphong (Accused)
JUDGMENT OF:	McClellan J

COUNSEL :	C Patrick (Crown) B T Stratton QC (Accused)
SOLICITORS:	Director of Public Prosecutions Nyman Gibson & Co (Accused)
CATCHWORDS:	CRIMINAL LAW - SENTENCING - whether accused suffering from a disease of the mind - whether defence of mental illness established - accused not guilty on grounds of mental illness
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990, s 18, s 38, s 39
CASES CITED:	R v Ayoub (1984) 2 NSWLR 511 R v M'Naghten (1843) 4 State Trials NS847 R v Gomaa, unreported, NSWSC, 27 April 1994
DECISION:	See paras 54-56

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

McCLELLAN J

WEDNESDAY, 28 NOVEMBER 2001

70062/00 - REGINA v Cherdchai PHOMARANUPHONG

Judgment

1 HIS HONOUR: The accused, Cherdchai Phomaranuphong, was indicted on a charge of murder. On 1 December 2000, Barr J found him unfit to be tried. On 9 July 2001, the Mental Health Review Tribunal determined that the accused would not become fit to be tried for the offence, within twelve months of the finding of unfitness.

2 Having regard to these matters, the Attorney-General directed a special hearing be conducted in accordance with s 18 of the Mental Health (Criminal Procedure) Act 1990.

3 The accused has elected that the special hearing be conducted by a judge alone. In a separate judgment I determined that before making this election the accused had sought and received advice from his solicitor.

4 There has been tendered before me thirty-four statements from various persons. They include the transcript of a phone call to the emergency 000 number and a record of interview. There was no objection to the tender of any of this evidence.

5 The evidence discloses that on Friday, 24 December 1999 between 9 am and 10 am on that morning, the accused, aged twenty-five years, took a large knife from the kitchen of his home at unit 82/333 Bulwarra Road, Ultimo and went to the bathroom of the premises. In the bathroom he stabbed his girlfriend, Vachiraporn Punpanishku, (known as Fon), aged twenty-seven years, numerous times to the neck, chest and abdomen. As a result of her injuries she died.

6 At 10.03 am on that Friday, Mr Davison, an emergency telephone operator received a call from the accused. In a conversation the accused admitted killing his girlfriend. After being asked by the operator what the problem was the following conversation occurred:

“Accused: Could you come to get me, please.
Operator: What’s the problem?
Accused: Just come, please
Operator: No, what’s the problem? I don’t just send the police cause people ring up. I need you to find out what the problem …
Accused: Yes, I just kill my girlfriend.
Operator: Just what?
Accused: I just killed my girlfriend
Operator: How long ago?
Accused: Please.
Operator: When did this happen?
Accused: Just 1 hour.”

7 There was further conversation between the operator and the accused as they awaited the arrival of police and ambulance at the accused’s home. At 10.20 am Acting Sergeant Napier attended the accused’s address with three ambulance officers. The accused opened the door to his unit. As he did so he held out his arms, as if to be handcuffed. At this time there was blood on the front of the accused’s coat, which was a pink coloured shave coat. The officer said:

“Officer: What has happened?
Accused: I killed my girlfriend.
Officer: Where is she?
Accused: In the bathroom.
Officer: Where is the bathroom?
Accused: Down the end of the hall.”

8 The accused then provided a coin to the officer saying that the coin would be needed to unlock the bathroom door.

9 Ambulance officers gained entry to the bathroom. Upon opening the door the deceased was found lying on her back on the bathroom floor. She had multiple stab wounds to her chest and abdomen. She was naked, although partly covered with a towel. After removing the towel, the deceased’s bowel could be seen protruding. A knife was also found in the bathroom basin.

10 Shortly after 10.40 am Det O’Brien attended the scene. He was introduced to the accused, who had been placed under arrest and cautioned. Det O’Brien asked the accused what he had done:

“Accused: I kill her
Officer: How?
Accused: By knife, kitchen knife.
Officer: When?
Accused: About 9.30 am
Officer: Why?
Accused: Why, okay why because I can’t see her because of someone else. I don’t know what she wants to do to me. I got filthy and can’t think. She talk nice to me and she rude to me. I don’t know what happened. I tell her I do anything and she ran away last night and she want to kill by herself a long time ago so I don’t want that. I want to go to Brisbane to Mount Coot-tha. We start love together in that place, I want to go that place by myself by tomorrow or tonight. I want to in my mind. And I don’t know she knows everything, she talks, talks. I think I headache, she hit me last night. I did do anything to her, she hit me and she used her hands to try to kill me her hand to my neck.”

11 When speaking to the accused, the police became aware that he appeared injured. Ambulance officers attended him and found that he had sixteen scratch marks on his abdomen. He also had scratched into his abdomen, the deceased’s name “FON”. As a result of his injuries, the accused was taken to St Vincent’s Hospital.

12 On 25 December 1999, Dr Botterill conducted a post mortem on the deceased. He found that the cause of death to be multiple stab wounds to the neck, chest and abdomen. There was also damage to the left lung, the right side of the heart, the liver, the stomach, bowel and the bottom of the right kidney with collections of blood in the chest and belly cavities. Examination of the brain showed generalised pallor consistent with acute blood loss. There were nineteen stab wounds in total.

13 The knife recovered at the scene was a Kiwi Brand wooden handled knife 27.5 cm in length with a 16 cm blade and an 11.5 cm handle. The knife had blood and hair on both sides.

14 Inquiries with neighbours revealed that sounds of screaming had been heard coming from the accused’s premises. A witness, Mrs Wei-Yhi Liou, aged thirty-two years, who lived at 76/333 Bulwarra Road, Ultimo said that about 9 am on 24 December 1999 she awoke and could hear screaming of a woman coming from an apartment above hers. This lasted in her estimation, about five to six minutes. The woman was repeating two words and did so about five to six times. The screaming was very loud. This witness took no action. She fell asleep and woke up about 11 am.

15 Her husband, Chang Chiang Wang, recalls that between 9 am to 10 am he heard the sound of screaming. He said the screaming sounded like a woman and the screaming lasted for approximately one minute.

16 The deceased moved to Australia from Thailand in 1996. By 1998 she was in a relationship with the accused. The deceased and the accused moved together to Sydney from Queensland in about January 1999.

17 In early December 1999, the accused travelled to Thailand, but had returned by 20 December 1999. By this time the deceased had informed the accused that she wanted to end her relationship with him.

18 About 12 midnight on 20 December 1999, Sineenat Khantaracha (known as Kay) received a phone call from the deceased. During that conversation she heard the sound of something smashing and she heard the accused saying, “Fon, calm down. Don’t do this to me. Please don’t do this.” This witness then spoke to the accused who said “Fon not calmed down, she is upset.” There was further conversation and she heard the accused saying, “Fon don’t leave me.”

19 The accused was interviewed by police at St Vincents Hospital on the night of the offence. The interview was recorded on audiotape. Present at the time of the interview was a Thai interpreter.

20 When asked during the interview what occurred on this morning, the accused indicated that he woke up and spoke to the deceased. He said that in a conversation, the deceased said to him. “Tonight when I come back home I don’t want to see you. Wherever you want to go just go, I don’t care.” The accused also said that the previous night the deceased had told him that she wanted to go and stay with a friend. He said that on this morning, after a conversation with the deceased, he said to her:

“If you need some breakfast I can make for you. She didn’t answer me, she didn’t give me, answer anything, she just, I just take her to the bathroom and she just put me – she just put me out. Ok. I just out and I asked go in again and I asked her, don’t be like this, please give me one more chance. I don’t know what I did, please tell me. Give me one more chance. She just say, no, no. And I don’t know I very confusing. If she say something like this, no more share, why she come back, if she just talk nice to me, just come to stay with me, that way, she just do something like this. I don’t know what she want, you know.”

21 When asked what happened when he was in the bathroom, he said:

“In bathroom, ok. She push me, push me, go away, go away, I want to, I want to, I want to die, right. She say I want to die. No Fon, die better, I can’t see you die. Ok you say to me if I go somewhere else I go you don’t care me any more, I go and she say, Ok bye.”

22 He further said:

“She said in this life we two cannot love each other. If we die, after we’ve died the next life when we come back together we will be boyfriend and girlfriend again she said. I just go in and take a knife, get to the bathroom and she saw the knife, she just … a little bit, run, run, I just Ok come now, I don’t want to do like that. Just kill me.”

23 He said:

“She try to get the knife, I don’t want to but she just pulls the knife, I just pulled back, she just pulled back.
We try to struggle for the, each was trying to struggle for the knife, but and then I fell, like, the knife has hit something substantial but I didn’t see that.
She shout out loudly between the shower and the sink she was falling down and I saw that the knife was stuck into her tummy but the knife was within my hand. She said kill, kill, kill me now. I saw the blood.
At the time she was falling down and I thought of the words she said that in this life we will not be living together and in the next life we will be living together.”

24 When asked what happened when he had the knife in his hand and she fell down, the accused said:

“Kill me, you will kill me. I just hold the knife right, and she just hold my hand and said …. .”

25 He went on to say he saw her guts gushing out. He said that he tried to stab himself but he couldn’t get through. He said:

“I think she was trying to say to me, kill me. I will not cry, I will go first and you follow me. She try to get the knife from me, now she falling down, I sitting down. She try to get the knife, I don’t want to give it to her and I thought she going die, no one help her, I tried to … myself again … .”

26 He also said:

“I just take the knife right, she want to die, I take the knife.”

27 He went on to indicate he stabbed the deceased in an area near the heart. He said:

“She pointed to her neck she was, her hands were trembling as if pointing to her neck, grabbing my hand. I was holding the knife and I had such a tremendous headache I didn’t know what to do. She grabbed my hand with the knife and she was pointing the knife towards her neck as if asking me to stab on the neck as if to say I will not survive anyway, don’t let me suffer on. I did it, I stabbed, I stabbed twice on the neck.”

28 He continued:

“I felt that I was sinful at the time, I committed a sin. I killed someone whom I love. I tried to use the knife to stab myself and then I thought it wouldn’t help if I die also but I would repay this sin which I have committed by calling the police and then I will repay this debt in a better way. I will use by remaining life to do good towards the end when I will follow her. I think that will make her go to heaven.
I don’t know what she was thinking but she told me that she wanted to go to stay with a friend then she said, we can still be friends but we can’t be living together because of my parents

29 He was asked “How did that make you feel?” He answered:

“I’m hurt, I was hurt. Don’t’ know why because, she got back with me and live with me last night and morning, she still saying I will go. We can’t getting married because …
Q. Earlier when Det O’Brien asked you a question you said that you felt shocked. Could you just explain a bit further as to what you mean by that?
A. I cannot take the fact that for one moment she wanted to return to me and for another moment she would say she needs to leave me. I cannot accept that fact.
Q. You also said that when you asked her could you contact her and she said that you couldn’t, is that true? You’re nodding our head to indicate yes.
A. Yes.
Q. Could you tell me how that made you feel?
A. I have nothing left in my life.
Q. Did it make you feel angry towards Fon?
A. No.
Q. What did it make you feel?
A. Lonely, it made me feel lonely, alone.
Q. Do you not want to feel alone?
A. No.
Q. When you were in the bathroom and you were talking to Fon and she told you that you couldn’t contact her, did you go to the kitchen and get the knife?
A. No.
Q. Where did you get the knife from?
A. From the kitchen. After she pushed me and chased me outside of the residence and told me, don’t come back and let me see our face again.
Q. If you’d like a drink that’s Ok, just reach down by all means. At that point when she’d chased you out of the flat as you say did she then go back to have a shower?
A. I don’t know. I don’t know
Q. What did you do then?
A. I just walked through to the bathroom again.
Q. Ok and when you walked back into the bathroom was Fon already in the bathroom then?
A. Yeah.
Q. Whereabouts in the bathroom was she then?
A. She, she’s between, I’m not sure.
Q. She wasn’t in the shower at that point was she?
A. No, no.
Q. When you back in there is it at that point you already had the knife?
A. Yes.
Q. Why did you go into the bathroom with the knife?
A. Because I wanted to talk her, I want to kill myself in front of her because …
Q. You wanted to kill yourself in front of her? Why did you want to do that?
A. I told you …
Q. Would you like me to repeat the question?
A. Just, ok, we got, I got nothing left in my life. That why I just think things like that.”

30 Later in the interview he was asked this question:

“Q. You told us that her parents did not want you to see her. Can you tell us why her parents did not want her to see you?
A. Yes, that’s because I’ve already got a son but she has indicated to me that she would choose me whatever has happened before.”

31 The accused was shown the knife recovered by police and identified it as the weapon he used. When asked where he got it from he said:

“From the kitchen. After she pushed me and chased outside of the residence and told me, don’t come back and let me see your face again.”

32 The accused, at one point, said that after this he walked through to the bathroom where Fon was. At this time he had the knife. When asked why he went to the bathroom, the accused said: “Because I wanted to talk her, I want to kill myself in front of her.”

33 He was asked this question:

“Q. Before you stabbed her did you know within yourself that by stabbing her with the knife it would probably kill her.
A. I did know.”

34 When asked if it was his intention to kill the deceased when he stabbed her the accused said:

“Yes but I had no choice. The only thing I thought of was when she dies I will die also and then we’ll be able to live together and I know that by stabbing her I’m wrong. That was why I called the police. Come and get me.”

35 From this evidence it is plain, beyond any doubt, that the accused killed the deceased when he stabbed her in the bathroom of their residence on the morning of 24 December 1999.

36 However, the accused submits I should find him not guilty by reason of mental illness as provided by s 38 of the Mental Health (Criminal Procedure) Act 1990. It was conceded by the Crown that such a finding was open, it being submitted that there is a body of evidence which, if accepted, clearly indicates that at the relevant time, the accused was suffering from a disease of the mind that deprived him of the capacity to know the nature and quality of his act, or if he did, that what he was doing was wrong.

37 Notwithstanding this concession, the accused bears the onus of satisfying the court on the balance of probabilities (R v Ayoub (1984) 2 NSWLR 511) that at the time of the killing he was mentally ill, within the meaning of s 38 of the Act, so as not to be responsible, in law, for his actions.

38 The legislative provision embodies the common law concept in the M’Naghten Rules, according to which a person is not held criminally liable or responsible for his or her act which would otherwise be a crime if, at the time of committing that act, by reason of a disease of the mind, he or she did not know the nature and quality of the act or, if he or she did know it, he or she did not know that that act was wrong. R v M’Naghten (1843) 4 State Trials NS847.

39 In the present case, it is accepted that the accused knew the nature and quality of his actions which killed the deceased. However, the submission which is made is that the evidence would satisfy the court on, the balance of probabilities, that, by reason of a disease of the mind, the accused did not, at the time of his actions, know that they were wrong.

40 The test to be applied in determining these issues was considered by Badgery-Parker J in R v Gomaa, unreported, NSWSC, 27 April 1994, where his Honour said:

“The test embodied in the second branch of the M’Naghten Rules is as there stated deceptively simple: per Dixon J, Sodeman v The King (1936) 55 CLR 192 at 215. His Honour said:
‘When a derangement of the mind manifests itself only intermittently and in acts of passion, frenzy or the like, the question whether the party accused labours under such a disease of the mind that he did not know that what he was doing was wrong may well provoke in response two further questions -
namely, what is meant by ‘know’ and, at what stage in the course of his progress towards the commission of the acts charged must capacity to know cease? In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong … The conditions of irresponsibility must exist at the time when the prisoner commits the acts with which he is charged.’
Knowledge that an act is wrong is not the same as knowledge that the act is against the law: Stapleton v The Queen (1952) 86 CLR 358, where the opinion of the judges in M’Naghten’s case is extensively discussed. At 67 of the joint judgment the court said:
‘A case of this description must turn very largely upon the jury’s appreciation of what amounts to knowledge of the nature and quality of the act and of its wrongness. For it is evidence that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease, disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing.’

The court approved the terms in which Dixon J had explained to a jury the second branch of the M’Naghten Rules in the course of his summing up in R v Porter (1933) 55 CLR 182. It is worth quoting a more extensive portion of the summing up than was extracted by the court in Stapleton:
‘The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression ‘disease, disorder or disturbance of the mind.’ That does not mean … that there must be some physical deterioration of the cells of the brain … you are dealing with a very different thing – with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.
Then I have used the expression ‘know’, ‘knew that what he was doing was wrong’. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind He could not think rationally of the reasons which to ordinary people make that act right or wrong. If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.’
In Regina v Matheis (1958) 58 SR 321, The Court of Criminal Appeal held that there was no obligation upon a judge to direct a jury in the terms used by Dixon J in Porter and in particular it was not obligatory to direct the jury that ‘if through some disease or disorder of the mind the applicant was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act of killing the jury could take the view that he did not know that his act as wrong.’ Nevertheless, trial judges were urged to pay close heed to the form of summing up in Porter’s case. In R v Matusevich and Thompson (1976) VR 470, the court considered how this concept ought be explained to a jury and said at 476 ‘The jury ought to have been told at least that they should address their minds to the question whether Thompson was able to appreciate the wrongness of the particular act he was doing at the particular time. They might well have been told that if, through the disordered condition of his mind, he could not reason about the matter with a moderate degree of sense and composure, he could not ‘know’ that what he was doing was wrong. There may be many different ways of explaining to the jury the conceptual difficulties involved in a disordered mind ‘knowing’ that an act is wrong, but the language which we have adopted from Dixon J’s charge in R v Porter (1933) 55 CLR 182 at 189-190 has for long been accepted as a practical synthesis of the ideas involved. It must be admitted that it is difficult to contemplate any man, even if legally sane, being in a position, during the commission of a crime of great violence, to reason with a moderate degree of sense and composure or with a moderate degree of calmness as to the wrongness of his act. But the explanation based upon Porter’s case is directed to the capacity to reason of a mind affected by a mental disorder; it alerts the jury to the problem and it is sanctioned by high authority. Further, in this case, where there was evidence of actions on the part of Thompson from which the jury might infer that he was not insane, it would have been prudent to warn the jury of the danger of testing the defence of insanity by the kind of reasoning which a sane person would employ: see R v Weise (1969) VR 953 at 961 per Barry J. See also Mizzi v R (1960) 105 CLR 659.”
As these cases show, the tendency since Porter has been to focus on the issue of ability to reason with a moderate degree of sense and composure, rather than on the words used by Dixon J in the preceding sentence, ‘could not think rationally of the reasons which to ordinary people make that act right or wrong.’
At the time of the important High Court decisions to which reference has been made above (Porter, Sodeman and Stapleton) the partial defence of diminished responsibility (partial in the sense that although the defence when established entitles the accused to be acquitted of murder, it does not secure an outright acquittal – he or she is still liable to conviction of manslaughter) did not form part of the law of New South Wales. It was introduced in England in 1957 and in this State in 1974. As was pointed out by Hunt CJ at CL in his judgment on the trial of Maxwell Harold Trotter (unreported, 10 August 1993):
‘The particular aspects of mind to which attention is usually paid in relation to this defence are the accused’s perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people. A person’s mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts, and it too involves the extent of that person’s ability to exercise willpower to control his physical actions: Regina v Byrne (1960) 1 QB 396 at 403. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind.’
Notwithstanding the reference in that judgment and in Regina v Byrne to ‘the ability to form a rational judgment as to whether an act is right or wrong’ as a relevant factor in determining whether the defence of diminished responsibility is made out, the most frequent application of the principles of diminished responsibility has been in cases where an accused person relies upon a loss of the ability to exercise willpower to control physical acts.
Nevertheless, it is not so limited and all or any of the three aspects to which Hunt CJ at CL drew attention may be relevant in a particular case.
Dr Peter Gillies, Criminal Law 1985 at 214 said:
‘The judgment in Byrne highlights the differences between the statutory defence of diminished responsibility, and the common law defence of insanity. …
The defence of insanity will not be grounded by an irresistible impulse per se, even as the irresistible impulse derives from a disease of mind (in terms of the insanity defence). As the court in Byrne explained, the insanity defence is narrowly defined ‘The test is a rigid one, it relates solely to a person’s intellectual ability to appreciate: (a) the physical act that he is doing; and (b) whether it is wrong. If he has such intellectual ability, his power to control his physical act by exercise of his will is irrelevant.’ The insanity defence, then, recognises only two distortions of the mental processes as being relevant. In contrast, the defence of diminished responsibility, in requiring no more than that the relevant abnormality of mind should ‘substantially impair … [the defendant’s] mental responsibility’ for the murder, may be grounded by reference to a much wider spectrum of disorders or disruptions of the mental processes. In particular, the defence is so defined as to confer its protection upon the defendant whose cognitive processes are more or less normal, but whose emotional state at the time of the killing is such that it may be said that the defendant’s mental responsibility for this killing was substantially impaired, provided that this emotional state derived from a relevant abnormality of mind.’ “

41 In the present case, I am satisfied that the accused appreciated that his actions would kill the deceased. When questioned about the matter he admitted as much. His actions, in presenting his hands for securing when the police arrived at his home, and describing his actions as a sin, suggest that he may have understood, when committing the stabbing, that he knew that his actions were wrong. However, this evidence must be understood as part of the total sequence of events and, with the benefit of the opinion of the psychiatric evidence tendered by both the Crown and the accused.

42 It is apparent, from the extracts from the record of interview and other statements by the accused which I have included in these reasons, that it is not possible to reconstruct an entirely logical sequence of the events which occurred. In particular, I have not been able to construct from the statements by the accused, the thought processes which he had, at any particular time.

43 Dr Lewin, a forensic psychiatrist, was retained by the Crown. He reported, in relation to the accused, in the following terms:

“The history of a clearly entrenched mental illness was evidence in the hospital notes within days of Mr Phomaranuphong’s imprisonment. Given the long-term history of his illness since that time, it is my opinion that it is highly likely that he had a similar complex of mental symptoms in the weeks, and probably months, prior to the homicide. There is no firm evidence of psychosis in the materials which I read but a number of features are strongly suggestive of this. I refer to Mr Phomaranuphong’s decision to leave Queensland because of his feelings about how he was being treated. This suggested a persecutory flavour. I wondered about his apparent lack of success in tertiary studies but I noted that there were confounding variables which might give another explanation for his prolonged period of tertiary study. It is possible that this prolonged course of study at four different institutions was a reflection of mental disturbance.
I noted the material in the Records of Interview. I think it is difficult to interpret this particularly when it is considered that he was speaking in his second language. However, all these factors suggest that it is likely that he was mentally ill for a prolonged period before the event. Similarly, it is possible that the history of violence reported by the independent witnesses is a reflection of mental illness rather than merely a manifestation of bad behaviour.
It would be most unusual for a mental illness with this pattern of severity to arise suddenly. It is far more likely that there was a long prodromal phase of psychotic illness and a prolonged period of active psychosis before Mr Phomaranguphong’s imprisonment. When the current clinical course is considered, the most likely suggestion is that this illness was evident for, at least, a year and possibly longer before the homicide. I note that there is no clear evidence of this based upon direct observation or upon report of psychotic symptoms but rather an inference based upon the usual clinical course of such a condition.
On each of the three occasions when I examined Mr Phomaranuphong, he has manifested a marked degree of psychotic symptoms. His case is clearly towards the more extreme end of seriousness. The bizarre and enduring nature of his symptoms and the resistance of his case to a prolonged period of treatment in hospital with antipsychotic medication are noted. Mr Phomaranuphong described a range of persecutory delusions and far more bizarre delusions relating to special powers, passivity, the influence of occult forces upon his life and the effect of spirits. On the second and third occasion, Mr Phomaranuphong referred in detail to spiritual beings controlling his life. He also reported auditory hallucinations and visual hallucinations.
There are independent reports that Fon made a number of statements about killing herself, asking Mr Phomaranuphong to join her in this. When all the above is considered, I think it likely that Mr Phomaranuphong elaborated upon his own delusional experience in response to this dramatic statement by his partner … It appears that he incorporated Fon’s ideas about suicide in his own elaborate, delusional experience and then proceeded to act upon that basis. His subsequent statement about trying to do good by killing his girl friend and his belief that the woman’s mother had forgiven him within days is also consistent with this hypothesis.
I considered the legal tests with regard to insanity. It is my opinion that Mr Phomaranuphong was suffering from a Schizophrenic Illness at the time of the homicide and that he continues to suffer from that illness at the present time. The Schizophrenic Illness is a ‘disease of the mind.’ The delusional idea, that he was obliged to kill Fon for various altruistic reasons based upon delusional beliefs, appears to represent a ‘defect of reason.’
It is my opinion that the ideas and the reasoning underlying them were delusional in quality. I have somewhat greater difficulty with the legal test of wrongfulness. It appears that the killing occurred against the background of a long-established mental illness where the illness was manifest by a range of very odd beliefs and where his pattern of thought (as evidenced by later examinations) appears to have been grossly disorganised.
It appears that Mr Phomaranuphong incorporated his partner’s ideas about killing herself rather than obeying her parents’ instructions to return to Thailand and asking him to do likewise. It was noted that in the context of the homicide, Mr Phomaranuphong had also inflicted multiple stab wounds upon himself and that he suffered significant although not life-threatening injuries.”

44 The doctor concluded:

“it is my opinion that Mr Phomaranuphong acted upon the basis of an idea which he had picked up from his partner and then incorporated into his own highly disorganised delusional process of thinking. In the sense that he was responding to a delusion, it is my opinion that he did not know, at that time, that what he was doing was wrong.”

45 Dr Yolande Lucire also examined the accused, and the report was tendered before me. The report contains the following conclusions:

“Most religions that believe in an after-life would not see killing as a rational means of togetherness. This is just as psychotic for a Buddhist to kill in pursuit of togetherness in an after-life, as it would be if the same had been done by a Christian.
As religious beliefs do not possess the qualities of ‘truth’ or ‘falsehood’ such delusions are sometimes missed. A belief becomes a delusion when it is the organising principle of a person’s behaviour. For example many Christians believe ‘God loves me’. However, when a Christian starts becoming focussed on such an idea, neglecting the real world and organising his or her life in accordance with that belief, then a psychiatric could legitimately suspect that the belief ‘God loves me’ has the characteristics of a delusion. It would respond to medication.
Here, the notion that one kills to achieve perpetual union is a delusion as is his current belief that he has achieved that union. The union is achieved by hallucinations and delusions.
At Question 237, there is further evidence of disturbance the night before, Fon is alleged to have tried to strangle him in response to his request that she kill him.
On the basis of the written information available, Mr Phomaranuphong had a prior personality disturbance which was possibly the prodrome of this illness. This could account for his temperament, his occasional violence, his failing in his studies, his vulnerability to perceived abandonment.
The evidence is also that, at the time that the stress of impending abandonment and Fon’s behaviour, he developed a delusion to the effect that the solution to his problems was to kill her and to kill himself to achieve perpetual union.
A delusion which crystallises from a complex situation is called an ‘autochthonous’ delusion. Autochthonous means ‘springing from the ground’. [Dr Lewin and I discussed the possibility that this was an autochthonous delusion].
There followed an episode of frenzied behaviour, consistent with acute psychotic disturbance. During the next few minutes Mr Phomaranuphong inflicted 14 stab wounds on Fon and several on himself.
He also realised he was ‘sinful’ to kill her; he immediately telephoned police and made a full confession.
I believe that Mr Phomaranuphong killed in a psychotic state, driven by a delusional belief that he should kill her in order to achieve a spiritual union with Fon.
I believe that the homicide was motivated by this delusion.
I believe that this delusion is still in evidence and, if Mr Phomaranuphong has a remission, he will be able to again say why he did it. He will be able to reflect on how insane he must have been to have thought so then, and for such a long period after.”

46 Finally, the doctor expressed an opinion:

“Mr Phomaranuphong remains unfit to plead. He seems to have made the simple choice to have a judge alone.
He was at the relevant time, mentally ill.
His action of killing was motivated or propelled by a delusion, one he has maintained.
He knew afterwards that it was sinful. He killed in the delusional believe that Fon wanted to be killed so they could be together. He did not appreciate the nature and quality of the act and he still does not. The act was a product of mental illness.”

47 I have already indicated that I have been troubled by the statement by the accused that, at the time of the killing:

“I felt that I was sinful at the time, I committed a sin.”

48 This statement suggests that the accused, when killing the deceased, knew that his actions were wrong. However, I accept the evidence of Dr Lucire that at the time of the killing the accused was deluded.

49 The accused’s statement that he “believed he had no choice” but to kill the deceased, is, as I have indicated, in the opinion of Dr Lucire, evidence of such a delusion and not of a rational belief or a rational act.

50 I accept further, that, although he knew afterwards that his actions were sinful, because of his delusion he did not know of “the nature and quality of the act at the time it was committed.”

51 Dr Lewin’s evidence, which I also accept, is to similar effect.

52 I am satisfied that at the time of this tragic killing the accused was suffering from a disease of the mind. He had suffered in this way for some time and, faced with the prospect of the termination of his relationship with the deceased, acted upon the suggestion of the deceased about dying.

53 I am satisfied that, at the time of the stabbing, the accused was not able to reason rationally about the rightness of his act.

54 For these reasons I am satisfied, on the balance of probabilities, that the defence of mental illness is made out.

55 Accordingly, the verdict is that the accused is not guilty on the grounds of mental illness.

56 In accordance with s 39 of the Mental Health (Criminal Procedure) Act 1990 I am required to make an order providing for the accused’s further detention. I order that Cherdchai Phomaranuphong be detained at the Long Bay prison hospital, or at such other place as may from time to time be determined by the Minister for Health, until he is released by due process of law.

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Last Modified: 12/19/2001