R v Kerollos

1. [1]

   HIS HONOUR: Mourad Kerollos is charged with the murder of his wife Gihan Kerollos on the evening of 18 May 2019. He has pleaded not guilty. The next phase of the proceedings is to set a trial date. The availability of trial dates depends upon whether it will be by jury or judge-alone. The availability of courts is limited because of restrictions applying in consequence of the COVID-19 pandemic.

2. [2]

   Mr Kerollos has applied to be tried by judge-alone. The Crown opposed the application. They have agreed that the dispute may be determined by me on the papers. They have provided the Crown Case Statement, reports of two forensic psychiatrists and written submissions. I am grateful for all of this to have occurred at relative short notice.

Crown Case

1. [3]

   The Crown Case Statement sets it out in more detail but the following will suffice to describe the case upon which the prosecution is based.

2. [4]

   There is no dispute that the accused killed the deceased on the night of 18 May 2019.

3. [5]

   The marriage of the accused and deceased had become strained in the period leading up to that event. He had an affair, which was discovered. They were living in separate bedrooms. He then became apparently obsessed with the idea that the deceased was involved in multiple extra-marital relationships.

4. [6]

   The accused told others about recordings he had of the deceased that he claimed proved her involvement with other men. The others, including his sons, listened to the recordings but they were muffled and indistinct. They appeared to accept that it was the deceased's voice but no-one thought they provided any confirmation of the accused's claims.

5. [7]

   According to Phillip Kerollos, one of the three sons to the marriage, a general practitioner had told the accused he was suffering from schizophrenia/bipolar but the accused did not believe it. He stopped going to this doctor because he did not like to hear about his deteriorating mental health. A psychologist, Dr Onsy Mattar, reported that the accused had complained of being unhappy in his marriage and of suffering from mood swings, poor sleep, hallucinations and hearing voices in his head. (The relevance of matters such as these is that they are indications of questions being raised about the accused’s mental health prior to him being charged with the murder of his wife.)

6. [8]

   A fortnight prior to 18 May 2019, the arguments between the couple intensified. A week later, Ms Kerollos went to visit her cousin in Newcastle. Mr Kerollos travelled to Newcastle and brought her home, accusing her of having an affair.

7. [9]

   Ms Kerollos worked as an administrator at the Prince of Wales Hospital. The accused worked as a security officer at Auburn Hospital.

8. [10]

   Ms Kerollos went to work on the afternoon of 18 May 2019. Her shift was due to end at 8.00pm. Usually, Mr Kerollos would pick her up afterwards.

9. [11]

   Meanwhile, Mr Kerollos went to Auburn Hospital despite not being rostered to work that day. He entered the security office and left carrying a Coles plastic bag.

10. [12]

    At around 8.21pm, Mr Kerollos was seen on CCTV outside an entrance to the Prince of Wales Hospital holding the Coles plastic bag. Ms Kerollos exited the building at 8.30pm and Mr Kerollos followed her.

11. [13]

    Seven minutes later, Mr Kerollos was seen driving haphazardly out of a car park. At 8.39pm, he called triple-zero and told the operator that he had killed his wife with a knife. Police attended and he was arrested. A bloody knife was found on the passenger seat along with half a bottle of whiskey.

12. [14]

    At about 8.50pm, a passer-by located Ms Kerollos’ body in a pool of blood. There was a Coles plastic bag over her head. The passer-by called triple-zero. Police and paramedics attended and found a deep cut in Ms Kerollos’ neck. Sadly, she could not be revived. The autopsy confirmed that the cause of death was a stab wound to the neck.

Defence case

1. [15]

   The defence contend that the only issue in this case is whether Mr Kerollos is not guilty by reason of mental illness or, pursuant to s 23A of the Crimes Act 1900 (NSW), guilty of manslaughter because of substantial impairment by an abnormality of mind.

2. [16]

   Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) recognises the longstanding availability of the defence of mental illness:

3. [17]

   The defence is not there defined. It derives from R v M’Naghten (1843) 8 ER 718 and applies if an accused person was suffering from a defect of reason from a disease of the mind such that the accused did not appreciate the nature and quality of the physical act, or that it was wrong.

4. [18]

   A "defect of reason" is an inability to think rationally: R v Porter (1933) 55 CLR 182 at 189. A disease of the mind must be "an underlying pathological infirmity of the mind": Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 at [89]. The defence is not available where the accused's condition is the product of self-induced intoxication by alcohol or drugs: ample authority for this proposition is collected and discussed in Fang v R.

5. [19]

   A person does not appreciate the nature and quality of their act if they do not know the physical nature of what they are doing, or the implications of it: R v Porter at 188. A person does not know that what is being done is wrong if they do not know it is wrong according to ordinary standards of right and wrong adopted by reasonable persons, or where the person cannot reason with some moderate degree of calmness in relation to the moral quality of what they are doing: Stapleton v The Queen (1952) 86 CLR 358 at 367; Sodeman v The Queen (1936) 55 CLR 192 at 202 (Latham CJ), 215 (Dixon J).

6. [20]

   Section 23A of the Crimes Act provides:

7. [21]

   The expert evidence available in this case which is reviewed below is confined to the first limb of the partial defence, the matter in s 23A(1)(a), given the prohibition in sub-s (2).

8. [22]

   Dr Stephen Allnutt prepared a report for the defence dated 21 February 2020. Mr Kerollos told Dr Allnutt that he had chosen his wife to marry because she looked like his mother (who had died in 1994). He was very saddened by the death of his mother. He had visions of her and she continued to speak to him.

9. [23]

   Mr Kerollos told Dr Allnutt that his relationship with his wife was "routine" until 2015. She began to make derogatory comments about him and withdrew sexual intimacy. He claimed to have discovered in early 2019 that she was working in the sex trade. He recorded her making phone calls that he said confirmed this. By 18 May 2019, he believed that his wife was having affairs with people including priests and others in the church. She was also prostituting herself, making pornography and hiding the money.

10. [24]

    Mr Kerollos told Dr Allnutt that he went to show his wife some bills and they argued. He put his hand into the bag to get the bills but instead picked up the knife, which he had accidentally brought. He did not recall what happened thereafter.

11. [25]

    Dr Allnutt's "impression" was that Mr Kerollos developed unresolved symptoms of grief following his mother's death and had probably suffered from fluctuating symptoms of depression and anxiety since then. When his wife rejected him and their relationship broke down around 2015, there was a further deterioration in his mental state with the emergence of more significant depressive symptoms which were active at the material time of the alleged offending.

12. [26]

    Dr Allnutt considered that by January 2019, Mr Kerollos had developed the delusional belief that his wife was having affairs and making pornographic videos consistent with a delusion of infidelity. He said, "Both his depressive symptoms and delusional beliefs were present at the material time of the alleged offending".

13. [27]

    In terms of the availability of the mental illness defence, Dr Allnutt is of the opinion that Mr Kerollos suffered from a “disease of the mind” (major depressive disorder with an associated delusion) causing a “defect of reason” at the time of the offence. He could probably appreciate the nature and quality of his actions but there is doubt as to whether he could “reason about his behaviour with a moderate degree of sense and composure”. Dr Allnutt was conscious of the dearth of evidence as to what actually occurred when Mr Kerollos stabbed Ms Kerollos. Nevertheless, his delusions and irrational belief system would have undermined his capacity for moral judgment.

14. [28]

    As to the availability of the partial defence in s 23A of the Crimes Act, Dr Allnutt said:

15. [29]

    Dr Kerri Eagle examined Mr Kerollos at the behest of the Crown. Mr Kerollos gave a similar account to Dr Eagle as he did to Dr Allnutt. The Crown submitted: "there are some inconsistencies in the accused's account of his symptoms given to the two psychiatrists". None were identified and nor is anything of significance apparent.

16. [30]

    Dr Eagle diagnosed Mr Kerollos as having a psychotic disorder. It may be a major depressive disorder with psychotic features or a chronic psychotic disorder such as schizophrenia or schizoaffective disorder. After discussing the features tending to one or the other, she expressed a preference for the probability that it is the latter. She also diagnosed Mr Kerollos as likely having an alcohol use disorder, in remission in a controlled environment. She noted that the offending is alleged to have occurred in the context of alcohol intoxication that has impaired his judgment.

17. [31]

    Dr Eagle concluded in relation to the availability of a mental illness defence:

18. [32]

    As to the availability of the partial defence in s 23A, Dr Eagle considered that Mr Kerollos was experiencing an abnormality of mind as a result of his underlying condition arising from symptoms of psychosis, such as delusions and auditory hallucinations and depressive symptoms. She said that "subject to the findings of fact by the Court", Mr Kerollos' thought processes appeared significantly impaired by his symptoms of psychosis, particularly his delusion of infidelity. His capacity to reason may have been further impaired by his reported experience of hearing auditory hallucinations, potentially increasing his confusion and heightened emotional response. Additionally, however, his judgment and emotional response would likely have been further impaired by alcohol intoxication.

19. [33]

    Dr Eagle was of the view that Mr Kerollos was significantly impaired in his capacity to judge whether his actions were right or wrong. Also, his capacity to understand events due to a delusion and his capacity to control himself due to a heightened emotional response and in the context of distressing auditory hallucinations were also likely significantly impaired at the relevant time.

Section 132 of the Criminal Procedure Act

1. [34]

   Section 132 of the Criminal Procedure Act 1986 (NSW) provides:

2. [35]

   The necessary prerequisites for the making of an order have been satisfied: there has been an application made by the accused and he has sought and received advice from a lawyer: sub-ss (1) and (6). The matter raised by sub-s (7) does not arise in this case.

3. [36]

   It will be seen in the discussion of the submissions below that the key issues are whether "it is in the interests of justice" to make a trial by judge order and that the court may refuse to make an order if it is considered that the trial will involve a factual issue that "requires the application of objective community standards".

The application

1. [37]

   Senior counsel for Mr Kerollos submitted that given the experts agree on the availability of the defence of mental illness, there is no issue requiring the application of community standards and therefore it is in the interests of justice to proceed by way of judge-alone.

2. [38]

   The Crown opposes the application on the basis that there are significant issues of credit that are better left to a jury. The Crown suggests that Mr Kerollos lied to the psychiatrists about his symptoms and that in fact the killing was the horrific culmination of a jealous, angry and controlling relationship.

3. [39]

   The Crown also submitted that the defence of substantial impairment is best left to a jury because it requires a value judgment involving consideration of objective community standards. The Crown cited decisions of Button J in support: R v Gokhan Eyuboglu [2019] NSWSC 181 and R v Flame [2020] NSWSC 1013.

4. [40]

   Senior counsel for Mr Kerollos noted in reply that no issue of his credibility will arise because she does not intend to call him at trial. To the extent that there is any question of credit, it is neutral. In addition, reference was made to evidence that Mr Kerollos complained of symptoms prior to the offending and he had resisted any diagnosis, instead insisting he was sane.

Determination

1. [41]

   At the outset it is appropriate to refer to what have been described as "collateral advantages of trial by jury". McClellan CJ at CL drew upon the judgment of Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [7] in saying in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [97]:

2. [42]

   Hidden J in the same case noted that "an accused cannot have a trial by judge alone for the asking": R v Belghar at [118].

3. [43]

   In relation to the issue of the accused's credibility, the submissions for both parties included reference to the judgment of Hamill J in R v Simmons; R v Moore (No 4) (2015) 249 A Crim R 120; [2015] NSWSC 259, including at [81]-[82]:

4. [44]

   Whether it is in the interests of justice for credibility disputes to be determined by a jury is a matter to be assessed on a case by case basis. It is true that jury determination can be considered desirable. For example, that was the opinion expressed by Johnson J in R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 at [102] ("in my view this factor may operate in favour of a jury trial"). In R v Mackie (No 2) [2018] NSWSC 1654 at [25], Lonergan J expressed the view that "the general assessment of the credibility and reliability of the accused's representations to the undercover operative is more properly made using the collective wisdom of a jury of twelve, rather than a single judge". However, as Hamill J has noted, judges are perfectly capable of assessing credit when required, and do so on a daily basis.

5. [45]

   The dispute as to the credibility of Mr Kerollos’ accounts to the psychiatrists will entail the tribunal of fact assessing them on their own merit but also with comparison to the position before Mr Kerollos was charged with his wife's murder. It seems apparent from the document review helpfully included in the first report of Dr Allnutt that there is a reasonable amount of evidence from quite a number of witnesses that will bear upon the issue of Mr Kerollos' mental condition. Neither a jury nor judge is better qualified to determine this credibility issue.

6. [46]

   The defence of mental illness will rise or fall on the question of whether the histories provided by Mr Kerollos to the experts are accepted as sufficiently credible. No issue of community standards arises.

7. [47]

   The partial defence of substantial impairment raises an issue often thought of as giving rise to a consideration of community standards. In R v Flame [2020] NSWSC 1013, the experts disagreed on whether the accused’s psychosis was a result of an underlying condition or of his drug usage. The accused contended that substantial impairment would not practically arise – either the jury would find that the psychosis was underlying and return a verdict of not guilty on the grounds of mental illness, or they would find it was external and therefore find that there was no abnormality of mind. They would never be required to consider the second limb of the partial defence.

8. [48]

   Button J, noting that no one can definitively predict how a trial will run, held that since substantial impairment could not be ruled out the matter should go to a jury. [1] His Honour found that he, as a judge, would be poorly equipped to answer "the normative question" within substantial impairment because of his over-exposure to criminal law and the criminal justice system. He considered himself "anti-qualified"; his legal knowledge and practical experience in relation to the offence of homicide would be "a positive disadvantage". [2]

9. [49]

   Judges do answer such questions when the need arises. In R v Hadler [2018] NSWSC 1151, Wilson J accepted that substantial impairment, "arguably", is best left to the collective wisdom of a jury. Nevertheless, her Honour granted a judge-alone application because of a risk the accused would become “floridly ill” and unfit to be tried during the trial, resulting in the discharge of the jury and consequential delay in the determination of the matter. [3]

10. [50]

    Mr Kerollos differs from Mr Flame in that Dr Eagle and Dr Allnutt agree that both defences are available. The Crown suggests that he lied to the experts and was an abusive and jealous husband. If that was accepted, it is difficult to see how a finding of substantial impairment (which would be founded on the account Mr Kerollos gave to the psychiatrists) could then arise.

11. [51]

    Ordinarily, the potential availability of a defence of substantial impairment might be persuasive in determining a contested application for a judge-alone trial. However, the coronavirus pandemic continues to disrupt and delay criminal jury trials by the need to wait for test results and by the reduced availability of suitable courts. The COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 (NSW) inserted s 365 into the Criminal Procedure Act, empowering the court to order judge alone trials on its own motion. It is notable that s 365 does not include any explicit reference to objective community standards as appears in s 132(5). Clearly, this was to enable more judge-alone trials to proceed until the pandemic is resolved. The present application, however, is for determination under s 132.

12. [52]

    Davies J in R v Jaghbir (No 2) [2020] NSWSC 955 at [30]-[31] aligned himself with a prior judicial pronouncement that "the interests of justice also extend to the public interest in the due administration of justice". He considered in the context of the case before him that the interests of justice include that "criminal trials should proceed with the least chance of interruption and delay during the current crisis". Regrettably, restrictions imposed because of the COVID-19 pandemic continue to apply. Notwithstanding some recent relaxations to various aspects of social interaction, this Court continues to have a substantially decreased capacity to list criminal trials and will continue to do so for the foreseeable future.

13. [53]

    It is not only the potentially available trial dates for the present matter that are affected by the decision as to whether it proceeds with a jury or by judge-alone. Every trial in this Court that proceeds with a jury has an impact upon the available time for future trials to be listed. The Court presently has pending trials with accused persons who have been in custody for four years or more.

14. [54]

    I am satisfied that the interests of justice in the present case extend also to the interests of everyone involved in seeing it proceed as soon as possible. In this regard, I have in mind those who grieve the loss of Ms Kerollos, witnesses who will be pressed for their best memory of events that occurred more than 18 months ago, and the accused himself. As Wilson J found in R v Hadler at [74], “a speedier resolution to a criminal trial is always to be preferred where that is not inconsistent with a just outcome”.

15. [55]

    For these reasons I am satisfied that it is in the interests of justice that Mr Kerollos be tried by judge alone.