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Supreme Court 8 April 2013

R v Krbavac

[2013] NSWSC 313

HomicidePublic order & justice offences
CRIMINAL LAW PROCEDURE FITNESS TO PLEAD MURDER SCHIZOPHRENIA MENTAL ILLNESS

Citation: R v Krbavac [2013] NSWSC 313
Court: Supreme Court of New South Wales
Date: 8 April 2013
Judge(s): Price J

Background

The accused faced a charge of murder under s 18(1)(a) of the Crimes Act 1900, arising from an incident at Auburn on 27 March 2012. Police attended the deceased's home and found the accused apparently covered in blood and holding a hammer. The deceased, the accused's uncle, later died in hospital from severe head injuries.

A question arose as to whether the accused was mentally fit to stand trial. Latham J had earlier directed that a formal inquiry be conducted under ss 8 and 10 of the Mental Health (Forensic Provisions) Act 1990. The accused himself opposed a finding of unfitness and maintained throughout that he wished to be tried.

  • Whether the accused met the fitness-to-stand-trial criteria established in R v Presser [1958] VR 45, as applied to a State offence under the Mental Health (Forensic Provisions) Act 1990
  • Whether the accused could understand the proceedings, give rational instructions to his counsel, and meaningfully participate in his own defence
  • Whether the accused's condition was likely to persist, having regard to the anticipated two-week trial length

Decision

Price J applied the well-established Presser criteria, which require an accused to be able to understand the charge, plead, follow the proceedings in a general sense, understand the substantial effect of evidence, and give instructions to counsel. The High Court's refinement in Kesavarajah was also applied: fitness must be assessed not only at the outset but with regard to the accused's likely condition throughout the trial.

Two forensic psychiatrists, Dr Richard Furst and Dr Olav Nielssen, each independently diagnosed the accused with chronic treatment-resistant paranoid schizophrenia. Both psychiatrists found that the accused continued to suffer from paranoia, auditory hallucinations, and thought disorder. Both concluded he was unfit to be tried and that this condition was unlikely to resolve within twelve months.

Price J accepted the opinions of both psychiatrists. The court was satisfied that the accused could not rationally plead to the charge, could not give reliable instructions to his counsel, and lacked sufficient capacity to decide on a defence or communicate his version of events. The inquiry proceeded on a non-adversarial basis, and the question was determined on the balance of probabilities, with neither party bearing the onus of proof.

Orders Made

  • The accused was found unfit to be tried for murder contrary to s 18(1)(a) of the Crimes Act 1900
  • The accused was referred to the Mental Health Review Tribunal pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990
  • The accused was remanded in custody pending the determination of the Mental Health Review Tribunal, pursuant to s 14(b)(iii) of the Act
  • The Court Registry was directed to provide the Tribunal with the finding and reasons, orders made, transcript, psychiatrist reports, and crown case statement

Key Takeaways

  • Fitness to stand trial is assessed against the Presser criteria, which require the accused to understand the charge, follow proceedings in a general sense, and give rational instructions to counsel; an accused need not have legal expertise but must have sufficient capacity to meaningfully participate.
  • Under Kesavarajah, fitness must be evaluated with reference to the likely duration of the trial, not merely the accused's condition at the point of commencement.
  • A fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 proceeds on the balance of probabilities, is conducted non-adversarially, and neither the Crown nor the defence bears the onus of proof.
  • Persistent treatment-resistant schizophrenia, manifesting in auditory hallucinations, paranoia, thought disorder, and an absence of insight, was found sufficient to establish unfitness where the accused could not give reliable or rational instructions and was likely to enter a plea influenced by psychotic symptoms.
  • An accused's personal opposition to a finding of unfitness does not prevent the court from making such a finding where the psychiatric evidence clearly supports it.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 8, 10, 11, 12, 14
- Crimes Act 1900 (NSW), s 18(1)(a)

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
- Ngatayi v The Queen (1980) 147 CLR 1