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Supreme Court 13 November 2013

R v Krbavac

[2013] NSWSC 1671

Homicide
CRIMINAL LAW MURDER ACCUSED UNFIT TO PLEAD SPECIAL HEARING SPECIAL VERDICT.

Citation: R v Krbavac [2013] NSWSC 1671
Court: Supreme Court of New South Wales
Date: 13 November 2013
Judge(s): Price J

Background

The accused was charged with the murder of his uncle at Auburn on 27 March 2012. He had a prior finding of unfitness to be tried, made in April 2013 on the basis of chronic treatment-resistant schizophrenia. The Mental Health Review Tribunal subsequently determined that the accused was unlikely to become fit to stand trial within the following 12 months.

The Director of Public Prosecutions elected to proceed with the murder charge, triggering a special hearing under the Mental Health (Forensic Provisions) Act 1990. Both the Crown and counsel for the accused agreed that the evidence supported a special verdict of not guilty on the ground of mental illness.

The accused had previously delivered a handwritten letter to the deceased and his wife threatening to strike them with a hammer. On the morning of the killing, he took a hammer from his father's car without their knowledge, walked to his uncle's home, and struck his uncle approximately twenty times on the head, causing his death.

  • Whether the Crown had proved beyond reasonable doubt that the accused's act of striking the deceased was deliberate and voluntary.
  • Whether the accused had established, on the balance of probabilities, the defence of mental illness at the time of the killing.
  • What special verdict should be entered under s 38 of the Mental Health (Forensic Provisions) Act 1990, and what orders should follow.

Decision

Price J first addressed the question of the accused's act and its voluntary nature. The evidence, including admissions in a recorded police conversation and a subsequent ERISP interview, established beyond reasonable doubt that the accused deliberately and voluntarily struck the deceased multiple times with a hammer, causing his death. The forensic pathologist's findings confirmed approximately twenty blows to the head.

The court then turned to the defence of mental illness. Under the applicable legal test, an accused must establish that, as a result of a defect of reason arising from a disease of the mind, he did not appreciate the nature and quality of his physical act, or did not know that what he was doing was wrong. Three psychiatrists gave evidence, and their opinions were uncontested. The accused was suffering from chronic treatment-resistant schizophrenia, and the psychiatric evidence satisfied the court that the defence of mental illness was made out on the balance of probabilities.

Because the mental illness defence was established, the court did not need to determine whether the accused had the requisite intention to kill, consistent with the approach confirmed in Hawkins v The Queen (1994) 179 CLR 500 and R v Minani (2005) 63 NSWLR 490. Price J entered a special verdict of not guilty on the ground of mental illness pursuant to s 38 of the Act.

Price J took care to explain the practical effect of the verdict to those present in court. The verdict does not mean the accused was acquitted in any conventional sense; it means that, due to the severity of his mental illness at the time of the offence, he is not held criminally responsible. No sentence would be imposed, but the accused would remain in detention subject to ongoing review by the Mental Health Review Tribunal.

Orders Made

  • The accused is to be detained at the Forensic Hospital at Long Bay Correctional Centre, or at such other place as the Mental Health Review Tribunal may determine, until released by due process of law (s 39 of the Act).
  • The Registrar is to notify the Minister for Health as soon as reasonably practicable of the judgment and orders.
  • The Registrar is to notify the Mental Health Review Tribunal as soon as reasonably practicable of the judgment and orders.
  • The Court Registry is directed to provide the Mental Health Review Tribunal with copies of the judgment, the transcript of proceedings, the Crown tender bundle, and the reports of Dr Furst.

Key Takeaways

  • In a special hearing under the Mental Health (Forensic Provisions) Act 1990, the Crown must still prove beyond reasonable doubt that the accused's act causing death was deliberate and voluntary, even where the mental illness defence is ultimately in issue.
  • Where the defence of mental illness is established, the court is not required to go on to determine whether the accused had the requisite intent for murder. That question only arises if mental illness is not made out, consistent with the High Court's approach in Hawkins v The Queen.
  • A special verdict of not guilty on the ground of mental illness does not result in unconditional release. The accused remains in detention and is subject to ongoing review by the Mental Health Review Tribunal, which may only authorise release if satisfied that the safety of the accused or any member of the public will not be seriously endangered.
  • Uncontested psychiatric evidence from multiple experts, combined with a diagnosis of chronic treatment-resistant schizophrenia, was sufficient to establish the defence of mental illness on the balance of probabilities in this case.
  • Price J specifically brought to the Tribunal's attention evidence that the accused had expressed an intention to kill both the deceased and his aunt, noting the relevance of that finding to any future assessment of risk by the Tribunal.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW): ss 14(a), 19(2), 21(1), 21B(2), 38, 39

Cases:
- Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
- King v Porter [1933] HCA 1; (1933) 55 CLR 182
- R v Krbavac [2013] NSWSC 313 (the earlier unfitness finding)
- R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490