Excuse 9
‘I was insane’
Grandma Wan was a fearsomely bad-tempered, friendless resident of her old-age home for Chinese speakers. Her name was Che Kien but almost everybody in the hostel knew her by her Chinese nickname of Ah Wan or Mrs Wan or Grandma Wan. Other than the occasional game of mah-jong, she had very little friendly contact with other residents or staff. She often quarrelled over the tiniest things. ‘She used to talk to herself because no-one else would actually like to talk to her,’ the old-age home’s manager, Nancy Tam said. Mrs Kien was, she said, ‘a difficult resident’. The hostel’s cook, Tran Boi ‘Peggy’ Tran said she tried not to gainsay Mrs Kien too often. ‘Normally Mrs Wan’s temper is not good. I don’t argue with her normally’.
Born in July 1918 in China, Mrs Kien and her well-to-do family endured the cruel Japanese occupation before fleeing the Communists in 1949. At the age of 31, she and the sailor she married when she was 16 had to build a new life in Vietnam. They started with nothing and had to learn a new language, but eventually got by with Mrs Kien running a grocery wholesale business and her husband working in a factory. Unable to have children, Mrs Kien adopted her sister’s two daughters—a baby and a 15-year-old—thereby freeing up her sister to remarry. In 1978, she was again forced to flee her home—first to Malaysia for five months and then to Australia. In the same year her husband died, so Mrs Kien found herself again in a new country, unable to speak the local language and destitute, but this time she was a 60-year-old widow with two daughters. By 1984, after her youngest daughter married, Mrs Kien was living alone. She whiled away her days playing mah-jong with a friend or watching Cantonese or Vietnamese-language videos. In 1994, at the age of 76, she moved into the Victorian Elderly Chinese Hostel in the north-western Melbourne suburb of Ascot Vale. At first one of her daughters visited her once a week, but soon those visits became much more infrequent.
In 1995—a few months after moving into the hostel—staff found knives and choppers hoarded under Mrs Kien’s bed. She said she used them to chase away ghosts and evil spirits. She was promptly put in a psychiatric hospital for treatment of her paranoid delusions. The following year she was briefly readmitted after a relapse of her persecution complex.
Over the next couple of years, Mrs Kien did not exhibit any more signs of insanity but became increasingly convinced hostel residents and staff were trying to get her evicted from the hostel, that they were plotting behind her back. She was wrong, but that did not mean her paranoia was deluded. Nobody was plotting her eviction but she was unpopular. She was too quarrelsome and too sharp-tongued for most of the elderly residents.
One resident who Mrs Kien particularly believed was conspiring to have her evicted, was her neighbour Shau Fan Lai. Mrs Kien was in room six, Mrs Lai—or Au Fung as the residents called her—lived in room eight. Four years older than Mrs Kien, Mrs Lai was in many ways her opposite. She was gregarious and popular. She loved Chinese opera. She loved listening to it and singing it, particularly at parties. Despite her age, Mrs Lai was an active member of her local Catholic church. Even though she had migrated to Australia when she was already in her 70s, she had enthusiastically taken on the challenge of learning English. ‘She wasn’t scared of what people thought and would try to talk English even though it was very difficult for her,’ one of her sons-in-law, Dominic Au-Yeung, said.
On 17 February 1999, Mrs Kien’s paranoid beliefs about the other residents conspiring to evict her ended in her taking an overdose of sleeping tablets and Chinese arthritis ointment. For a woman who had been forced to flee from two homes in horrific circumstances, eviction from another home in her 80s was unthinkable. She was rushed to hospital and revived.
A week later—on the morning of Wednesday 24 February —Mrs Kien told the hostel’s manager she had had a bad dream about her long-dead father. He had asked her, ‘Ah Wan, why you stay so comfortable in the hostel?’
Ms Tam: At that stage she was actually frightened and got a sweat on her forehead and she said her heart was throbbing.
…In the Chinese culture when you see somebody in a dream that is deceased already you know there is something wrong.
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It’s almost a symbol you’re going [to die] as well.
Mrs Kien was distressed about her dream and was acting ‘a bit odd’, so Ms Tam called in a psychiatrist. About 2.30 pm, Mrs Kien was given some anti-psychotic medication.
About 5 pm, Ms Tam checked that Mrs Kien was resting comfortably in her room and left for home. About 30 minutes later one of the hostel’s personal care attendants, Sek Pang, responded to a buzzer from Mrs Kien’s room. She wanted a glass of milk. Mr Pang noticed a small smear of blood on the old lady’s left cheek and a cut on the back of her right hand. He asked her about the injury but got no reply. He treated the injury anyway.
About 6.30 pm, Mrs Kien was seen going to the hostel’s laundry with a pile of clothes. At 7.15 pm one of the residents told Peggy Tran, Mrs Kien had been seen walking out of the hostel. Ms Tran rushed out and found the AWOL oldie had shuffled three house-lengths away. When she caught up with her, she asked Mrs Kien why she had not told anybody she was leaving.
Ms Tran: Mrs Wan said, ‘I’m only going for a walk. It’s nothing to do with you, please don’t follow me’.
Mrs Kien pushed Ms Tran away two or three times, and then tried to hail a taxi but it already had a passenger in it. Ms Tran then persuaded Mrs Kien to return to the hostel by promising to phone for a taxi for her from there. As the pair were returning, with Ms Tran holding the old woman’s hand, Mrs Kien dropped her bombshell.
Ms Tran: Mrs Wan said, ‘Do you believe me if I tell you that I have killed Fan in No. 8? It’s real…Go back and report it to police’.
Back at the hostel, Ms Tran asked Mr Pang to check on Mrs Lai in No. 8.
What he found there was the stuff of nightmares. Mrs Lai was indeed dead. She had certainly been killed. Blood was everywhere. The 84-year-old woman had been stabbed 49 times in the head and neck. Chillingly, disturbingly, most of the stab wounds were around her eyes.
Police found the bloodied vegetable knife that had been used in the fatal attack in a drain in the hostel’s courtyard.
Ms Tam was immediately called back to her hostel. She asked Mrs Kien, ‘What did you hit Ah Fung with?’ Mrs Kien said she couldn’t remember.
Ms Tam: Did you hit her with something sharp?
Mrs Kien: A pen.
Ms Tam: Did you hit her with a glass?
Mrs Kien: Maybe.
Later, through an interpreter, Mrs Kien gave a much more detailed description to psychiatrist Dr Douglas Bell about how and why she killed Mrs Lai. She started by telling him how upset she was.
Mrs Kien (through an interpreter): My heart is broken. I have spent one year crying.
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Ah Fung was a very wicked woman. I did not intend to kill her. All my wrist joints are deformed by her actions. She pushed me and I fell. I did not intend to kill her. We lived in the nursing home next to each other. I was in room six. She was in room eight. That night the chef, who was responsible for the catering, hadn’t prepared our meals. Then the one in charge brought us some Chinese plants like a dried vegetable and a boiling chicken and made a soup. I was doing the laundry. Ah Fung said, ‘We have made some fantastic soup tonight but you can’t have any’. I said, ‘I can have some’.
I sat at the doorway peeling an orange. Ah Fung walked past and poked me in the back with her finger and said, ‘You shouldn’t have the soup’. I said, ‘Why do you probe me. You are cruel all the time’.
I rose up and said, ‘You are always so cruel. I don’t want to compete with you. I am poor, not so rich as you’.
She tried to push me back. I said, ‘Why are you so cruel? Don’t be so cruel’.
I had problems with arthritis. She pushed me back and I dropped.
…
I rose again. The orange dropped then we fought against each other. She pushed me and I pushed her back. She kept shouting at me. I was in pain. I rose up. We fought against each other and rolled into a bundle. We kept fighting. I was holding the knife. We dropped and I rose up. She didn’t. She lay down. I said, ‘Why don’t you rise up?’ and then I walked into the kitchen.
Dr Bell said when he asked Mrs Kien why she thought she was in prison, Mrs Kien’s interpreted reply was, ‘I murdered Ah Fung. I was in prison for two nights and then I went to a psychiatric hospital. My wrists were very swollen and painful’. He said when he pressed her to see whether she realised what it meant to be charged with murder, Mrs Kien had difficulty in saying the word ‘murder’.
Dr Bell: She repeatedly insisted on impressing upon me that although she had killed her victim, she had not intended to do so. But, eventually, Mrs Kien without specific prompting from myself used the word ‘murder’ in describing the charge and when I asked her to explain what murder meant, again after some period of saying she hadn’t intended to kill her victim, she said, ‘It means killing someone…I admit I have done it but I didn’t mean to’.
When Dr Bell asked Mrs Kien what would happen if she was found guilty of murder, she told him, ‘I am old. I killed her by mistake, unintentional’.
Mrs Kien (through an interpreter): Ah Fung swore at me. She hit me on my shoulder. She bullied me because I have no money.
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They charge me that I beat her till she died. I did not plan to kill her. They had food didn’t catch for us. [Dr Bell said he did not understand the last sentence.]
Dr Bell said even though Mrs Kien insisted she had not intended killing Mrs Lai, she told him, ‘I was very angry’. Mrs Kien told him that for years Mrs Lai had taunted and scolded her. One of Mrs Lai’s insults, according to Mrs Kien, was that despite Mrs Kien’s age she was ‘still trying to induce men’.
Dr Bell: She talked about not having heard the call for the evening meal, about missing her meal and stated that while cutting herself a piece of bread, the victim had walked past making further insults.
She then described becoming angry, picking up a knife and pointing it towards the victim’s eyes, threatening to poke her eyes out in order to frighten her.
Dr Bell said when he asked Mrs Kien what the role of the judge was, she said, ‘Up to judge what will happen to me’.
The path to trial for Mrs Kien was more torturous than for most accused.
A few days after her arrest, she was rushed to hospital after another suicide attempt. She stayed in hospital for nearly two months. About three months after returning to jail, she again was sent to hospital when she seemed seriously confused. It was discovered she had a serious urinary tract infection. A month later she was back in prison. Another five months later—on 27 February 2000—she was again taken to hospital, this time for a subarachnoid haemorrhage (bleeding in her brain). She had surgery on 5 March. Five months later she was in front of a Supreme Court jury.
Unlike most juries, this jury was not deciding whether Mrs Kien was guilty of any crime. Indeed, they hardly heard anything about the crime she was supposed to have committed. They were just being asked whether she was mentally fit to stand trial. They had to decide which of two psychiatrists they believed.
Dr Lester Walton told them he believed that the ‘massive explosion of blood’ in Mrs Kien’s brain in February had left her with ‘significant and appreciable brain damage’. He said that after interviewing her, he was convinced she did not ‘have the foggiest idea of what happened in court’. He said that Mrs Kien had been thoroughly vulnerable to psychiatric problems for several years—starting with the hoarding of the knives and forks under her bed to ward away ghosts. Dr Walton said that Mrs Kien thought some of the staff and residents of the hostel were trying to blind her.
Dr Bell, however, told the jury he believed Mrs Kien had made a remarkable recovery from her brain-bleeding scare, and that any damage to her brain was not enough to prevent her from standing trial.
Dr Bell: She has been able to say, ‘Yes I killed the woman but I didn’t mean to’.
After deliberating for just an hour, the jury agreed with Dr Bell and declared Mrs Kien sane enough to stand trial for Mrs Lai’s murder.
Despite this verdict, a week later—just before her trial was to start—defence barrister, Wayne Toohey, made the extraordinary move of calling for a permanent stay of the trial. He said, despite the jury’s verdict, Mrs Kien could not get a fair trial because she was too mentally unwell to give proper advice on her defence to him or even to two Cantonese-speaking solicitors.
One of those solicitors, Sheh How Young, said he and his solicitor wife, Chien Imm Young, had failed to get any sensible response from Mrs Kien in 20 interviews even though they had talked to her in Cantonese.
Mr Young: For example if you were to ask her, ‘Do you recall that incident that happened in the hostel in February?’ She would talk about her father, or if you, for example, asked about interviews with police she would be talking about other incidents that happened in the hostel.
The solicitor said he had been quite disturbed when he first went to visit Mrs Kien in the prison.
Mr Young: The moment I stepped into the visitors centre of the prison she laughed in a maniacal fashion.
He said sometimes Mrs Kien would refer to him as her doctor. Sometimes she would refer to the woman she killed as if she was alive.
Mr Young: She indicated that both of them [she and Ah Fung] were applying to live jointly in a flat. She said Ah Fung is now living in a broken down old home. They were good friends and they are applying to live together in an apartment.
He said when asked what the role of a judge was, Mrs Kien had said, ‘He’s the person who tells the truth’, before rambling on incoherently.
Mrs Young: If you asked her A, she says B or says something that makes no sense. That’s pretty spooky.
She said when she asked her what murder was, Mrs Kien told her, ‘It’s when someone is angry with someone’. Mrs Kien told her bemused lawyers different things at different times.
Mrs Young: Once she said, ‘Someone mentioned Ah Fung to me. Someone told me about Ah Fung. Someone told me about Ah Fung. Who’s Ah Fung?’
…
Another time she said: ‘I saw Ah Fung recently’…[Another time] ‘We’re good friends. She’s very kind. We’re good friends.’ She kept saying they were good friends. She’s very kind.
…
She asks about Ah Fung as if she is alive, ‘How is Ah Fung?’
Asked if something bad happened at the hostel, Mrs Kien told her lawyers, ‘I lived in the hostel for more than 10 years. They like me very much’. When they asked if she felt shame about anything, she told them, ‘Shame? I’ve done nothing wrong that I should be ashamed of’.
Mrs Young said her client, then 81, made it clear she wanted her independence.
Mrs Young: She kept saying, ‘I can look after myself. I can cook. I can clean. I can look after myself. I am old. I’m 85. I’m 83. I’m sad’.
Mrs Kien also constantly talked about her long-dead father.
Mrs Young: She said she had seen him from time to time. That’s what I mean about spooky. She says she sees him from time to time and then subsequently she says, ‘He died when I was 20’ and then she says, ‘I saw him recently’.
The solicitor said when she asked Mrs Kien what she knew about the legal system she wept and said, ‘I don’t know anything. I don’t know anything’.
Mr Young said he could not explain how Dr Bell had been able to get Mrs Kien to talk sense.
Mr Young: My own personal view is Dr Bell has been able to perform a miracle in being able to elicit admissions from my client which I have not been able to do during the last 20 or so conferences I have had with her.
Dr Bell said he believed Mrs Kien spoke more sensibly to him than to her Cantonese-speaking lawyers or to Dr Walton because she liked and trusted him.
Dr Bell: Mrs Kien always looked at me with a bright smile when I see her. She sees me as a doctor. She sees me as someone who is there to help her.
He said Mrs Kien rambled sometimes in her answers not because she was mentally impaired or insane, but because of her ‘very strong sense of shame about the situation she finds herself in’. Dr Bell also noted it was not surprising that an elderly woman who did not speak English, had no familiarity with the Australian legal system, and was accused of the most serious of crimes, would feel stressed and confused.
While acknowledging the defence would have difficulties getting instructions from their client, Justice Philip Cummins refused to permanently stay the proceedings saying a jury had decided she was mentally fit to stand trial. The judge said it appeared to him, from viewing the video of her police interview, Mrs Kien was ‘simply uninterested in the Western legal process’.
Finally, in August 2000, a second jury got to decide whether Mrs Kien had been sane enough back on Wednesday 24 February 1999 to murder—to deliberately intend to kill or really seriously injure—Mrs Lai. It was soon apparent they were judging no ordinary accused when she coughed so much, the prosecutor had to interrupt his opening. The trial was delayed for a few days when Mrs Kien was unwell. When she returned, a special heater was brought in because she was shivering from the cold of the high-ceilinged court. Instead of sitting in the dock like most accused, Mrs Kien sat behind her lawyers wrapped in a blanket, huddled next to the heater. A light blue beanie covered her wispy grey hair.
Prosecutor Paul Coghlan, QC, acknowledged that Mrs Kien had suffered some ‘mental impairment’ on the day she killed Mrs Lai, but said it did not amount to a defence of mental impairment. He said Mrs Kien’s attempt to flee the scene, her washing her bloodied clothes and throwing away the knife in the drain showed sensible thought.
Mr Coghlan: At the very least, the accused intended to blind Mrs Lai and she intended to do so by stabbing her in the eyes.
Dr Bell told the court, ‘I believe that Mrs Kien knew that she was inflicting a serious assault on her victim’.
Dr Bell: I came to the conclusion that at the time of the crime…Mrs Kien was beginning to experience a relapse of a paranoid psychotic illness but that the severity of that illness, at that point in time, was not such as to place her in a position that she did not know right from wrong.
Mr Toohey told the jury there was clear evidence—in Mrs Kien’s hallucinating about her father—that her psychiatric problems had resurfaced just before ‘this awful event’. He pointed out that just a few hours before stabbing Mrs Lai, she had taken anti-psychotic medication. The bizarre injuries—dozens of stab wounds around Mrs Lai’s eyes—were also not injuries inflicted by a sane person.
After deliberating for six hours, the jury disagreed and declared Mrs Kien guilty of murder. The old lady in the wheelchair, wrapped in a blanket beside a heater, betrayed no emotion.
Outside the court Mr Au-Yeung told of the profound shock the murder had caused his family.
Mr Au-Yeung: My wife had to see a psychologist. She was very upset. She was very close to her mother and became very depressed.
I, we, couldn’t believe that someone that old could do that to someone like my mother-in-law.
He said that he had not been able to tell the gruesome truth to friends and relatives in Hong Kong. Instead, he told them that his life-of-the-party mother-in-law had died peacefully of natural causes.
A week after the verdict, Mrs Kien wept in court as her barrister detailed her traumatic life and pleaded for mercy from Justice Cummins.
Mr Toohey: She is now a very physically and emotionally frail old lady who spends most of her time in a wheelchair although she can walk.
He said that in prison Mrs Kien had to rely on prisoners who could speak Vietnamese and Cantonese to help her with most things, even her toileting.
Mr Toohey: Her future, Your Honour, is very bleak.
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I ask Your Honour, in conclusion, to extend to her as much mercy as you are able to.
Dr Bell told Justice Cummins that Mrs Kien was coping with jail as well as could be expected. He said she had her own room in a house shared with eight other prisoners, that she had her own toilet and bathroom. She complained her bed was rather hard but that she slept reasonably. She had little to do with other prisoners because most did not speak her languages. She slept much of the time, but did go on short walks. Each morning she cooked enough rice and other food to last her the day.
Dr Bell: Although undoubtedly unhappy at being in prison, and expressing a manifest desire to be able to live freely in accommodation of her own in the community, Mrs Kien did not express any particular dissatisfaction with her current undoubtedly spartan circumstances.
The prosecutor said Mrs Kien’s sentence should be at the lower end, but that mercy should not go too far.
Mr Coghlan: You are here dealing with a murder.
…
It’s a slightly special case where there is more room to manoeuvre in terms of sentence but it is still a murder.
In sentencing Mrs Kien on 15 September 2000, Justice Cummins said it was plain she had been seriously mentally disturbed when she killed Mrs Lai, but said her washing of her bloodied clothes, throwing away the knife and attempting to flee showed ‘knowledge of your fatal actions’.
Justice Cummins: Your purpose in attacking the deceased was to blind her so that she did not see you being removed from the hostel which you thought was about to occur. You also had some jealousy of the deceased. Your fear and belief that you were to be removed from the hostel seriously oppressed you.
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Plainly…you were suffering a serious mental disturbance, as the very nature of your attack upon the deceased tragically demonstrates, but not sufficiently to be mentally impaired as defined by law.
The judge noted that one of Mrs Lai’s daughters had told him that ‘her mother being brutally murdered in a supposedly safe environment has caused her to lose faith completely’. He specifically cleared the hostel of any blame for the killing saying its management and staff impressed him as being ‘competent, responsible and caring’.
Justice Cummins said, with the aging of the population, one consideration that was becoming increasingly important in sentencing older criminals was deterring other elderly people from committing crimes.
Justice Cummins: More and more cases coming before these courts are cases of elderly persons convicted of serious offences.
The judge said he had taken into account Mrs Kien’s age, illnesses, loneliness, difficulties of coping with prison life, her mental disturbance at the time of the killing and that ‘you quite possibly will die in prison, a sad conclusion to your long and otherwise good life’.
Justice Cummins: I also take into account the terrible end of life that the 84-year-old deceased suffered at your hands and the ongoing distress imposed upon her family by your actions.
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Mrs Kien, for the murder of Shau Fan Lai I sentence you to 10 years imprisonment. I direct that you serve a minimum seven years before you are eligible for parole.
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That means, Mrs Kien, you will be eligible for parole at the age of 87 and the sentence will expire when you are 90.
Upon hearing this Mrs Kien at first betrayed no emotion—just as she did at the verdict—but seconds later she uttered a high-pitched anguished scream and threw herself to the floor sobbing. It took two guards to force the struggling, screaming, sobbing old lady into her wheelchair for her journey to the cells.
Outside the court, Mr Au-Yeung welcomed the jailing of the woman who killed his wife’s beloved mother.
Mr Au-Yeung: We were worried because of her age, she might get away with it.
So we are very glad she will be punished for what she has done but this will be very hard for her.
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She [his mother-in-law] was so popular at the hostel. She was always so friendly and so eager to help and always singing opera or playing some of her hundreds of tapes.
I could never understand why.
Mrs Kien was the only one who didn’t like her.