R v Okumu

HIS HONOUR : The accused Bernard Laboke Okumu stands charged with the murder on 5 July 2006 at Rankin Park of Martha Opiyo. He has pleaded not guilty to the charge.

At the commencement of the trial the Court received evidence of the election by the accused for trial by judge alone, dated 1 February 2008 and of the Crown’s consent dated 19 February 2008. Together those statements constitute exhibit A. Between the time of the events giving rise to the charge and the commencement of this trial the accused has been held in custody under the supervision of psychiatrists, who have treated him. I shall make further reference to the psychiatric evidence, but it suffices for present purposes for me to say that I am satisfied on the evidence of Dr Nielssen that the accused had the mental capacity necessary to make his election.

The accused has raised the defence of mental illness and has asked the Court to return the special verdict that he is not guilty by reason of mental illness. The burden of proving that defence lies on the accused. The standard of proof is on the balance of probabilities . The statement of the test for a defence of mental illness may for present purposes be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through 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. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong.

The accused was born on 1 January 1965 and was 41 years of age at the time of the events giving rise to the charge. The deceased, Martha Opiyo, was born on 1 January 1966. They married in East Africa and migrated to Australia in October 2004 together with their seven children. A further child was born to them in July 2005. Between 2004 and the time of the death of the deceased the family lived in a house at Rankin Park, a suburb of Newcastle. During the months leading up to the death, the accused was working away from Newcastle in various jobs. When he returned to Newcastle he slept in a room separate from that used by the deceased. On 28 June 2006 the accused returned to Newcastle after a spell of work away. He appeared in good spirits, but by Friday 30 June his mood had changed and he was keeping to himself. On 1 July the deceased was absent from the house at church for most of the day. She came home at about 4pm. The family watched television until about 830pm. One of the children of the marriage, a youth aged 15 years, was asleep in the lounge at about 10pm. He awoke and saw the accused enter the room. The youth asked his father what he was looking for and he said that he was just looking to see that everyone was alright. He sat in the chair for a few minutes and then returned to his room. During the night the youth I have spoken of was woken by the cries of his infant sister. He turned the light on in the room where he was sleeping. That was where the deceased ordinarily slept. He looked towards her and saw that she was bleeding from the head. The youngest child was lying next to her mother and she had blood on her clothes. It is common ground in this trial that the accused killed the deceased, intending to kill her. He delivered two or more blows hard to the head with a hammer. The skull was fractured and the brain exposed. The deceased was taken to hospital and kept in intensive care, but was declared on 5 July 2006 to be brain dead. Life support was withdrawn and she died on that day.

The evidence satisfies me beyond reasonable doubt that the accused did the act that caused the death of the deceased and that when he did so he intended to kill her.

The accused left the Newcastle district. In the early hours of 2 July he made a call from a public telephone, asking the operator to have police attend at his house as he had accidentally killed his wife. He identified himself as Bernard. He told the operator where the house was. On the following day he went to the police station at Gulgong to hand himself in. Police took him to Mudgee and interviewed him. In a long interview he admitted killing the deceased. He told them that following the death of his step-father in Uganda in 1971 he had been experiencing disturbing dreams. His answers included these - Yeah, these things in fact it’s ah, it’s fighting me when I sleep and causing me not to pay him back, to pay him back with how to kill my wife, so with me this fighting cause…also to do that,…I cannot kill my wife, except I can remove myself from the wife, when I go to work I will be aside from where my wife is, to be outside every time, I’m very…on that, that what made to be more than…years because of that, if I could stay with the wife without going anywhere, to be in the house I would have done this crime ever since.

He said that he had woken at about 12.50am, had dressed and had been to the toilet. He returned to his room for a short time and went to the lounge. He got a plumber’s pipe and began fighting the deceased. He said that he was awake at the time. He said - I was alright, I can feel I was alright, then I come back…

When asked whether he was under control he said that he was a bit confused. When asked what he was confused about he replied - I was confused that, like I’m going to commit a crime, yeah. He continued - The dream was telling me that this woman if you leave her she will kill you, you better kill her and …she will kill you. Then I wake up right away. Q Ah hmm. A I say O.K., which mean my dream has come true. This woman she kill my life, by spoiling that this person have got disability, I’ve been stopped from work, which means she lose my life, so my dream must come true. If I didn’t kill her, she will kill me, I better go and kill her..will kill me, yes, I decide… Q Had you been thinking about it before? A Not killing her, I was not thinking, because sometimes we feel that this woman, what can I do with this woman, she’s spoiling my life, but I think that who will take care of the children? I questioned myself after that, yeah, who will take care of the children? Q Mmm. A So…that’s O.K. The children the government can take care of that, let we two lose our life, so I decide to take that. Q So the dream, who was, was someone talking to you in the dream or did you just see things. Can you tell me about that? A Yeah, somebody was telling me that, you, this woman, if you leave her she will kill you, she will kill you, you better kill her then let the government…because women if she kills you, there will be nothing…just keep on looking.

Later in the interview the accused repeated - Yeah, because as I declare before I hit, you, you wanted to kill me, I kill you before you kill me, then let the government kill me…

Those advising the accused asked him to see a consultant psychiatrist, Dr Nielssen. Dr Nielssen wrote a report on 16 October 2007. The report was served on the Crown and the Crown responded by inviting the accused to be interviewed by a psychiatrist of its own nomination, Dr Wilcox. The accused complied and Dr Wilcox wrote a report on 21 December 2007. Both psychiatrists were furnished with copies of the statements of witnesses and of the Crown statement of facts, of a transcript of interviews held between investigating police officers and the accused and with other documents, notably the file, maintained by the Department of Health, of observations about and treatment of the accused during his time in custody. He had been arrested immediately after his visit to the police station on 3 July 2006 and has been held in custody continuously since then. He gave a history of having experienced imaginary voices, which were considered by the psychiatrists to be auditory hallucinations, for over 20 years. The voice was primarily male. It recurred regularly throughout the day and asked him why he was living in Australia. That frightened him. When he slept he thought that the voice was on his body. Before coming to Australia, the voice had come to him like a human form or a lion. He felt that it followed him. He believed the voice belonged to his deceased uncle, who was killed in Sudan. His father knew the murderer and reported it to the court. As a result his father was paid money for the loss of his brother but instead of giving the money to his dead brother’s child, he it for himself. A witch doctor told the accused that his uncle’s spirit was inside him because of his father’s wrongful action. He used to talk out loud to the voice. As well as hearing voices he had visions at night of humans running. He was afraid because he believed that his uncle could kill him or send someone to kill him via the voice.

On the night that he killed the deceased he had slept, and on waking, his mind was confused by a dream that he had had. The dream told him that someone was hitting him in his sleep. He was not sure who that was. The dream told him that his wife had brought a man into the house to kill him. He went to talk to his wife. He took with him the pipe from the kitchen. He asked her whether she wanted to kill him. He could not remember whether she had replied and hit her with the pipe twice over the side of the head. He said these things to Dr Nielssen and to Dr Wilcox. He had previously told the police that he killed his wife because he believed from what he had been told in the dream that she would otherwise kill him.

Dr Wilcox noted that the accused was assessed on 8 August 2006 as having experienced auditory hallucinations. He told those then having the care of him that he had been hearing the voice of his step-father since 1984. He linked the voices with the squandering of the money. He told Dr Kavanagh that an evil spirit had been following him since 1984. Dr Kavanagh came to the conclusion that he had been suffering from untreated schizophrenia for over 19 years and that his illness had been initially complicated by his use of alcohol in an attempt to allay the distress associated with his symptoms. Dr Kavanagh prescribed the anti-psychotic drug Risperidone.

Dr Wilcox had the impression that since the accused had been treated for his mental illness he had become more reticent to discuss his symptoms because he recognised the absurdity of many of his beliefs. She is of the view that he suffers from chronic paranoid schizophrenia. She is of the view that he was suffering from that illness when he killed his wife and that he killed her in response to his mental illness. He had a defect of reason caused by a disease of the mind, namely paranoid schizophrenia. The defect took the form of a delusion that his wife was responsible for the problems in his life and was associated with auditory hallucinations that told him that if he did not kill her she would kill him. As a result of his defect of mind he could not reason with a moderate degree of sense and composure that his actions were morally wrong.

Dr Nielssen reviewed the same material. He too diagnosed chronic schizophrenia. He thought that the illness had been present for a long time and thought it had taken an unusual course in that the symptoms began early in adult life but that the accused was able to work at refugee camps, complete courses and even undertake teacher training. Dr Nielssen noted the description of an increase in the severity of symptoms after the accused came to Australia as a refugee. He noted the higher rate of psychotic illness that has been observed among some groups of migrants, including refugees, and the stress of migration, which is thought to be a factor that triggers acute mental illness in some people. Like Dr Wilcox, Dr Nielssen is of the view that the accused was mentally ill when he killed his wife, that he did so in response to symptoms of mental illness. He had a defect of reason in the form of a delusional belief about his wife. In his delusional state he believed that he had to kill his wife or she would kill him. He therefore did not appreciate that his act was morally wrong.

I accept the medical opinions of the psychiatrists and the reported opinion of Dr Kavanagh. I am satisfied that the accused was suffering from a psychotic mental illness, namely schizophrenia, when he killed the deceased. I am satisfied that the delusional component of that illness, namely his fixed and unreasonable belief that if he did not kill his wife she would kill him, robbed him of the ability to know that the act he was committing was morally wrong. He has satisfied me on the balance of probabilities that defence of not guilty by reason of mental illness is open to him.

The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health (Criminal Procedure) Act . A strict statutory regime will then come into effect.

The Mental Health Review Tribunal is a body of professional experts. The Tribunal will as soon as practicable commence a review of the case of the accused. When it has done its review the Tribunal will make a recommendation to the Minister for Health. That recommendation may be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, it may make a recommendation as to his release. If it makes such a recommendation that will be considered by the Minister, who will either make an order for the detention of the accused or for his release, conditional or unconditional. The Minister may only make an order for release where the Tribunal itself has recommended release. Assuming that no recommendation for release is made after the first hearing the Tribunal can at any later time, and must at least once every six months, review the case of the accused.

After hearing the evidence at any later review, it must make a recommendation to the Minister as to the continued detention, care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. Again following such a review and recommendation the matter goes to the Minister. Any recommendation so made can be carried into effect only if the Minister approves.

If the accused were at any time released back into the public on conditions and there were a breach of any of those conditions, the Minister might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again.

The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused will remain in strict custody within one of the psychiatric institutions catering for forensic patients.

The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released or is released upon conditions which include a condition as to the time when his release should become unconditional. If that time expires, his release becomes unconditional and he ceases to be a forensic patient. However, as I have previously explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered.

I find that the accused is not guilty by reason of mental illness. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.