R v Billy Krey

1. [1]

   Billy Krey is intellectually disabled. He is charged with murder. There is a question as to whether he is fit to be tried. He isn’t.

2. [2]

   In deference to his mental (or, more correctly, his language skills) age, I will refer to the accused as Billy. I mean no disrespect in doing so. I am also going to use language as simple as I can in the hope that his lawyers can explain this judgment to their client.

3. [3]

   Billy was exposed to extreme family violence when he was a little boy. When he was five years old, experts said he had a complex variety of conditions including a global developmental delay, Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiance Disorder, a language delay and he exhibited disruptive and aggressive behaviour. A paediatrician said he had “huge issues”. At nine, the same paediatrician diagnosed “[Post Traumatic Stress Disorder (PTSD)], high anxiety, learning disability … foetal alcohol effect.” He also had epilepsy. When Billy was 14 a report referred to PTSD, Reactive Attachment Disorder following early abuse and neglect, and ADHD. These problems continued throughout his childhood and adolescence. He had all sorts of difficulties at school and left in Year 10. There are many old reports and other evidence setting out Billy’s problems.

4. [4]

   Billy is now 20 years old. He has the language skills of a seven or eight year old. For the purpose of this hearing, he was assessed by two psychiatrists and two psychologists. They made reports and gave evidence at the hearing. Billy didn’t look like he really knew what was going at the fitness hearing, but the parties agreed I should put my own observations to one side. [1] If he stood trial for murder, on the basis of the evidence called at the fitness hearing, it is clear that Billy would be unable to follow or remember the evidence, could not instruct his lawyers, could not defend himself against the charges, and would be at a real disadvantage if he gave evidence at the trial.

The murder charge, the prosecution case, possible issues and the likely length of the trial

1. [5]

   On the fitness hearing, the prosecution case statement was tendered. The narrative that follows is a short summary of the allegations the prosecution makes against Billy.

2. [6]

   The prosecution alleges that Billy murdered his neighbour (Mr Ioakima Sini) by stabbing him multiple times. The incident happened on the afternoon of 15 July 2017 at Whalan in western Sydney. It started with an argument between Mr Krey and his mother. In the course of that argument, Billy shouted at his mother “I should slash your fucking throat … I am sick of you treating me like shit”. His girlfriend tried to intervene but Billy pushed her away. His mother, 8 year old brother and girlfriend then left the townhouse. Mr Sini asked if they were okay and the mother said not to worry, that Billy had just “woken up with the shits”. Mr Sini went to the door of the house but Billy did not answer and Mr Sini walked away. Billy left the townhouse by the back door and then came around to the front of the premises.

3. [7]

   There was a confrontation between Billy and Mr Sini in the front yard. Mr Sini said “why hit women Billy?” Billy pulled out a knife and stabbed Mr Sini to the left torso and chest. Mr Sini fell to the ground. Billy continued to stab Mr Sini while he was on the ground. There are a number of witnesses to this incident. Neighbours called an ambulance. Mr Sini was found to be dead at the scene. He had suffered twelve stab wounds over his torso and abdomen, left side of his face and left arm. Two of the wounds caused severe injury. They penetrated his heart, his left and right lung, his right kidney and his liver. A pathologist determined that the cause of death was multiple stab wounds.

4. [8]

   Billy ran to his grandfather’s house. He told his grandfather that he got into a big fight and “I think I’ve hurt him pretty bad”. His grandfather saw blood on Billy’s hands, feet, face and neck, and on his clothing. He put the clothes into the washing machine and told Billy to have a shower to wash the blood off. Police arrived at the grandfather’s house about 40 minutes later. Billy tried to run away but was arrested in the backyard. He has been in custody since then.

5. [9]

   Billy was interviewed by police twice. The police must have recognised that Billy had some difficulties because they told him they would get him a support person. Even so, the first interview was conducted without a support person. In the first interview, Billy told the police that he had “stabbed Kimmer about an hour ago”, that he didn’t know why he stabbed him and that he had “blanked out”. In the second interview, he told the police officers that he woke up in a bad mood, got annoyed with his mother and had an argument with her. She left. He went outside and got the knife from the front yard and put it in his pants. He went for a walk and when he came back Kimmer said something about an “f’n dog” and something that ticked him off. Then “everything just went black”. After he went back to normal “I seen this guy with two, like bars in his hand”. This was his neighbour from across the road. He saw there was blood on his hand and on the knife. He didn’t see Kimmer and he started to run. He dropped the knife and went to his grandfather’s house and told him he thought he had stabbed somebody.

6. [10]

   The prosecution case statement says that the prosecution will allege that Billy stabbed Mr Sini with the intention to kill him, or to inflict grievous bodily harm, or that he did so with reckless indifference to human life.

7. [11]

   It is not possible to predict with any certainty the issues that will arise at the trial. At first blush, it is a relatively simple case. However, on closer examination, there are number of issues that are likely to arise that have some complexity.

8. [12]

   An issue that may well arise concerns the admissibility of the interviews with police. Given Billy’s intellectual disability, there may be a number of bases upon which it could be contended that one or other or both of the interviews ought not to be excluded from the evidence at the trial.

9. [13]

   Another issue will concern precisely what happened and the credibility of the witnesses to be called by the prosecution to give eye-witness accounts of the incident.

10. [14]

    A third issue concerns intention. While the first two bases upon which the prosecution will put its case are conceptually straightforward, there would be some complexity if the prosecution proceeds on the basis of reckless indifference.

11. [15]

    Another issue that is likely to arise is the issue of substantial impairment. Dr Allnutt, the psychiatrist called by the prosecution on the fitness hearing, provided an opinion that suggested that the defence may be open to the accused. [2] It might be expected that the same expert witnesses who gave evidence on the fitness hearing, and perhaps more, would be called on this issue.

12. [16]

    Along with the psychiatric and psychological evidence, there is likely to be an amount of expert evidence of a forensic kind.

13. [17]

    A witness list tendered on the fitness hearing suggests there are over 60 witnesses. I was told that there are potentially 40 witnesses to be called in the trial, although one would expect this number to be reduced further as the lawyers refine the true issues in the case and work out what is, and is not, in dispute.

14. [18]

    The trial has an estimate of three weeks but I was told that this estimate was based on a trial “without difficulties”. The kind of support that Billy would need if the trial proceeds, and the number of breaks that would need to be taken, led the prosecutor to revise that estimate to “at least six” [3] weeks.

The evidence tendered on the fitness hearing

1. [19]

   The prosecution called Dr Stephen Allnutt, a forensic psychiatrist, and Dr Susan Pulman, a clinical psychologist and neuropsychologist. Each provided a report which concluded that Billy was fit to stand trial. In the course of submissions, the Prosecutor indicated that he did not rely on Dr Pulman’s opinion on this (ultimate) issue. That was because Dr Pulman was not briefed to provide an opinion on the issue of fitness and had offered her opinion without reference to the relevant criteria. She was asked about those criteria in evidence but was unable to comment on some of them because she had not addressed those issues when she interviewed the accused. However, on other issues such as the extent of Billy’s intellectual impairment Dr Pulman’s evidence was relevant and helpful.

2. [20]

   The accused called Dr Olav Nielssen, forensic psychiatrist, and Dr Molly Schafer, neuropsychologist. Each provided reports in which they concluded that Billy was not fit to stand trial. They maintained this position in their evidence.

3. [21]

   Along with a prosecution case statement, the reports of the four experts became Exhibit A. Each gave evidence on the fitness hearing. All of the witnesses were impressive. They had appropriate qualifications to express the opinions they did although, as I have said, Dr Pulman’s opinion on the central issue of fitness was not pressed.

4. [22]

   Dr Allnutt expressed, and maintained, his opinion that the accused was fit to be tried. However, when it came to an assessment of Billy’s intellectual capacity, he repeatedly (and appropriately) deferred to the expertise of, and the testing undertaken by, the neuropsychologists. Dr Pulman had not undertaken independent testing, but had relied on Dr Schafer’s testing in coming to her opinions. Dr Schafer was a most impressive witness and I have given her evidence particular weight.

5. [23]

   Each of the experts was provided with a number of documents providing some historical context to the issues upon which they were briefed. The experts did not have precisely the same documents. However, the documents each expert received included some of the reports and records evidencing Billy’s mental health and intellectual background. There was also material from the prosecution brief. That entire body of material became Exhibit B. This volume of 338 pages included:

6. [24]

   Exhibits D and E were tables in which counsel set out the opinions of the various experts in respect of the relevant criteria generally used to consider whether an accused person is considered fit to stand trial. While these tables were extremely helpful, they are really just a very useful summary of a far larger body of evidence. I have taken into account all of the evidence (with the exception of Dr Pulman’s opinion on the fitness issue) in reaching my conclusion.

7. [25]

   In the course of the hearing, the parties invited me to listen to the recording of the first electronically recorded interview. The disc was tendered as exhibit F and played in court.

8. [26]

   Exhibit G is an index and very brief summary of the prosecution brief. It provided some context to the submissions about the complexity of the trial and its likely duration.

Billy’s early life and symptoms of various relevant conditions

1. [27]

   The historical material in Exhibit B (Tabs 16-38), and the summaries of some of that material in the reports of Dr Allnut and both neuropsychologists, makes for distressing reading. The preponderance of the evidence suggests that Billy was exposed to foetal alcohol syndrome. There was a family history of ADHD and learning difficulties. As an infant, Billy was exposed to “domestic violence and other traumatising events”. He was abused and/or neglected by parents who had significant drug and alcohol problems. As a result, and in a few years, he was diagnosed with PTSD. He was also taken away from his parents for his own safety. For a time he lived with his grandmother. He was made a ward of the State. By the age of 5 years, he was living in Armidale under the witness protection programme. The precise details of that are a little hazy.

2. [28]

   From that time, he displayed a variety of symptoms and was diagnosed with various conditions consistent with a mild intellectual disability and poor adaptive functioning resulting from exposure to early trauma. He displayed aggression and a lack of self-control from a very young age. He was pre-occupied with knives and lighting fires and was removed from his mother’s care at age 8. The older reports contain a diverse range of diagnoses and symptoms including:

3. [29]

   The historical documentation shows that Billy was treated with medication, counselling and a variety of other interventions. His response was variable. At times he was coping quite well. At others, he was impossible to manage.

4. [30]

   Dr Pulman noted that the evidence of early abuse and trauma was important in an understanding of Billy’s present condition. She said:

5. [31]

   Dr Schafer gave evidence of another important connection between Billy’s childhood (or, in this instance, pre-natal) experience and his various diagnoses. She gave evidence that “42% of people with foetal alcohol spectrum disorder will also have a diagnosis of ADHD.” [6]

6. [32]

   In the end, the cause of Billy’s various disorders is not important or central to the question of whether he is fit to stand trial. That question is to be determined by reference to the impact of those conditions on various criteria that determine whether an accused person is fit for trial. It is to be considered in the light of Billy’s present state of mental health and intellectual functioning.

Psychometric testing and the opinions of the experts

1. [33]

   Dr Schafer did comprehensive psychometric and other psychological testing to determine Billy’s intellectual capacity and other skills relevant to an assessment of his fitness to stand trial. No challenge was made to her methods and the other experts adopted and relied on her results in formulating their opinions.

2. [34]

   The first thing to observe is that the testing includes internal measures calculated to determine whether the subject is responding honestly and with sufficient “effort” to produce accurate results. This indicated that Billy’s “overall performance across these measures indicated satisfactory levels of effort”. Dr Schafer agreed that there was nothing to suggest that Billy was doing other than his best and that he was not malingering in any way. [7]

3. [35]

   In terms of Billy’s current level of intellectual functioning, the testing threw up an interesting inconsistency or conundrum. This was that there was a marked discrepancy between his performance in relation to two of the categories of assessment and the remaining categories. His “visual constructional skills” were in average range and his “Perceptual Reasoning Index” was in the “63rd percentile”. The latter is, in most subjects, the most useful indicator of a person’s intelligence. However, in all other categories, the scores indicated the accused performed less well than 95% of the population and, in some cases, was in the lowest one percent. These scores indicated significant intellectual impairment. As Dr Schafer put it in her report:

4. [36]

   As to those areas of performance where Billy scored in the borderline impaired range, Ms Schafer summarised the results as follows:

5. [37]

   He was better with shapes and designs than he was with words and his results in those areas were much better. One of the suggestions made in evidence was that his ability to follow the trial may be enhanced if he was shown pictures and diagrams as the evidence was given. How this would work in practice, and in an actual trial, is unclear. [10]

6. [38]

   Dr Schafer summarised the testing, explained the basis of her opinion, and provided the following summary of Billy’s particular intellectual deficits:

7. [39]

   Based on these results and interviews with Billy, Dr Schafer was of the opinion that he was someone with “an intellectual disability due to his poor expressive language skills”. However, “based on his cognitive profile, he is not functioning in the intellectual disability range”. [11]

8. [40]

   Dr Schafer was of the opinion that Billy was not fit to stand trial because: [12]

9. [41]

   Based on these results, and her own interview with the accused, Dr Pulman was of the opinion that Billy “is functioning within the range of mild intellectual disability” and that this was consistent with a “specific learning disorder or language impairment.” [13]

10. [42]

    The impact of Billy’s difficulties on his ability to engage in and follow a criminal trial was explored in Dr Schafer’s evidence:

11. [43]

    Dr Allnutt maintained the view that Billy was fit to stand trial but acknowledged that he should defer to the opinions of the neuropsychologists when it came to questions of intellectual impairment. He also acknowledged that Billy “might be” at a considerable disadvantage if he gave evidence and was cross-examined about things that had been said earlier.

The mental health legislation and the “Presser” test

1. [44]

   The Act provides the manner in which the issue of fitness is to be raised, the procedure to be adopted when the issue arises and the manner in which the inquiry into fitness is to be conducted. [14] It also provides the consequences of a finding that a person is not fit. [15] The Act provides that the issue is to be determined on the balance of probabilities, that the process is not adversarial and that “the onus of proof … does not rest on any particular party to the proceedings.” [16] The Act does not purport to explain what it means for a person to be fit (or unfit) to be tried or provide the content of the inquiry or any legal test.

2. [45]

   In 1958, Smith J was confronted with the issue of fitness in the course of a trial of a man called Presser. [17] His Honour’s judgment provided a kind of legal test that has endured ever since. The critical passage is at 48:

3. [46]

   This statement was approved and adopted by the High Court in Kesavarajah, [18] a case in which the Court said that another factor to be considered was the expected duration of the trial.

4. [47]

   The test has been applied in New South Wales to “developmental disability” as well as mental illnesses. [19] In Robinson v R, [20] Hulme J, dissenting in the outcome, reproduced the Presser test in “tabulated” form. The accused must be able:

5. [48]

   In R v Bugmy, Hidden J found the accused unfit to be tried for murder because he “would not be able to sustain attention throughout the length of the trial and … not be able to inform his legal team about important matters relevant to his defence.” [21] Mr Bugmy was found fit to be tried a year later. [22] In Tarantello, [23] Davies J found the accused unfit on the basis that he would have difficulty appreciating the substantial effect of the evidence and instructing legal counsel, he could not give a version of the facts, he had difficulty deciding what defence to make and would be unable to give evidence. These cases are simply examples of the practical application of the test articulated by Smith J in 1958.

Application of the Presser test to the facts of Billy’s case

1. [49]

   Based on a consideration of all of the evidence, I will now deal with the various aspects of the Presser test, and state my conclusions in relation to each:

2. [50]

   Based on the responses Billy gave to the various experts, I am satisfied that Billy understands that he is charged with murder, that manslaughter is a less serious charge, and that there would be an advantage in terms of penalty if he were to plead to the less serious offence. He expressed the view that he might want to plead guilty to manslaughter. It is less clear to me that he understands the elements of the two forms of homicide or the basis upon which he might be not guilty of the more serious offence but guilty of the less serious charge.

3. [51]

   However, more generally, I am satisfied (albeit with more reservations than expressed by the experts) that he understands that he is charged with murdering Mr Sini and is able to enter a plea to that charge.

4. [52]

   The evidence on this issue was rather slight. However, with the assistance of his lawyers, and the availability of a qualified support person, I am satisfied that Billy would be able to take part in the process of challenging potential jurors.

5. [53]

   Based on the responses of the experts, I am satisfied that Billy understands, in a very general way, that the trial is an inquiry into whether he is guilty of the offence with which he is charged.

6. [54]

   I am positively satisfied that Billy would not be able to follow the course of the proceedings in any meaningful way. The evidence concerning his verbal and communication deficits is very strong and consistent. He would have trouble understanding significant parts of the evidence to begin with and, based of Dr Schafer’s unchallenged evidence, he would be unable to recall the evidence he did understand very soon after that evidence was given. I am not satisfied that there is any realistic way of providing him with the kind of support that would overcome these difficulties. The idea of “visual cues” is not workable, except in the most basic aspects of the evidence. Similarly, the suggestion that regular breaks might alleviate the problem is unconvincing. Even if the Court broke every 15-30 minutes to allow his lawyers to explain in simple language the evidence that had just been given, the evidence suggests that Billy would not recall that evidence, or any explanation of the evidence, after a very short period of time.

7. [55]

   Billy would understand some of the simple evidence given against him. For example, he would (I think) understand the evidence of his mother and neighbours about what happened at the time of the stabbing. However, he would not understand evidence of any complexity, including expert and forensic, or evidence given in other than the most simple language.

8. [56]

   Billy could give general instructions to his lawyers in advance of the trial even if those instructions were patchy as a result of gaps in his memory or other neurological deficits. The fact that he is unable to provide a comprehensive set of instructions does not mean he is unfit to stand trial.

9. [57]

   However, given the fluidity of trial proceedings and inevitable surprises that arise, Billy would have substantial difficulties in engaging in the trial process and giving instructions as the trial progressed.

10. [58]

    Billy would be at a substantial disadvantage if he was called to give evidence at his trial. However, those disadvantages – such as his inability to recall verbal information a short time after he processes it – could conceivably be explained to a jury by expert evidence. Even so, there is a real question around his ability to defend himself at the trial. While this issue is troubling, I would not find Billy unfit to stand trial by reason of this issue alone.

Conclusion: Billy is not fit to stand trial

1. [59]

   At the conclusion of the evidence, the learned Prosecutor – with his customary and exemplary fairness – conceded that it would be open to conclude that the accused is not currently fit to stand trial.

2. [60]

   That concession is not the end of the matter. This is not a straightforward case.

3. [61]

   On one view of the electronically recorded interviews, Billy is able to interact with others, understand the basic factual concepts, and answer questions put to him. Similarly, the responses he made to the experts about the nature of the trial process, the charge he faces, the roles of people in Court and the pleas available to him suggest that he has a basic and general understanding of his options in terms of his plea and what will happen during the court case. Dr Allnutt is a well-qualified and respected expert and his opinion is that Billy is fit to stand trial. Dr Nielssen, who is equally qualified and respected, came to a different view. Even so, this is not a case of psychiatric illness but rather one involving an assessment of neurological and intellectual disability. Dr Allnutt preferred to defer to the opinions of the neuropsychologist on these issues.

4. [62]

   The evidence of Dr Schafer was compelling. It emphasised the extent of Billy’s intellectual deficits, explained the apparently inconsistent test results, and provided a practical analysis of the impact that these things would have on Billy’s ability to understand and participate in his murder trial.

5. [63]

   I am satisfied (on the balance of probabilities) that Billy:

   1. (1)

      Would be unable to follow the evidence and trial process of the trial in any meaningful way,

   2. (2)

      Would not understand the more complex aspects of the evidence and its implications on the issues in the trial,

   3. (3)

      Would not recall the evidence he did understand for sufficient time to enable him to participate in the trial,

   4. (4)

      Would not be able to provide instructions in the course of the trial, if there were variations or complexities in the evidence (which is almost inevitable in a criminal trial involving lay and expert witnesses).

6. [64]

   I am unable to conceive of any procedures that could be adopted in practice that would alleviate these difficulties.

7. [65]

   I find that Billy Krey is unfit to stand trial.

Orders

1. [66]

   I make the following orders:

   1. (1)

      The accused is unfit to be tried.

   2. (2)

      In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990, I refer the matter to the Mental Health Review Tribunal.

   3. (3)

      In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990, I remand the accused in custody until the determination of the Tribunal pursuant to s 16 of the Act or he is released to bail or in accordance with the law.

   4. (4)

      I direct the Registrar of the Supreme Court to provide the following documentation to the Tribunal within 21 days: