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Supreme Court 7 August 2018

R v Ivanoff

[2018] NSWSC 1225

HomicideDomestic & family violence
CRIME ACCUSED CHARGED WITH WIFE’S MURDER PREVIOUSLY FOUND UNFIT TO BE TRIED SPECIAL HEARING ELDERLY AND FRAIL ACCUSED QUESTION OF RISK POSED IF RELEASED

Citation: R v Ivanoff [2018] NSWSC 1225
Court: Supreme Court of New South Wales
Date: 7 August 2018
Judge: Wilson J

Background

The accused, an elderly man with dementia, was charged with murdering his wife at their Umina Beach home on 8 January 2017. The couple had been married for approximately 55 years. In the period before the offence, the accused had developed a delusional belief that his wife was having an affair, and his cognitive condition had been deteriorating noticeably.

In December 2017, the Supreme Court found the accused unfit to stand trial. The Mental Health Review Tribunal subsequently determined in January 2018 that he would likely remain unfit for the duration of the relevant twelve-month period. The accused was detained at the Aged Care Unit of Long Bay Gaol pending any further court order.

The Crown elected to proceed, triggering the special hearing mechanism under the Mental Health (Forensic Provisions) Act 1990 (NSW). The accused was represented by senior counsel throughout the hearing.

  • Whether the Crown could prove, on the limited evidence available at a special hearing, that the accused committed the murder of his wife
  • Whether the accused had established the defence of mental illness (the M'Naghten defence) on the balance of probabilities
  • What orders were appropriate upon a finding of not guilty on the ground of mental illness, including whether the accused could be safely released to a residential aged care facility rather than detained

Decision

Wilson J conducted the special hearing without a jury, as no election was made by either party for jury involvement. Under section 19(2) of the Act, a special hearing exists to ensure that an unfit accused is acquitted unless the Crown can prove to the criminal standard that the accused committed the offence, based on the limited evidence available. The accused was taken to have entered a plea of not guilty.

The evidence before the Court, presented through witness statements without cross-examination, established the facts surrounding the death of the accused's wife. The Crown case on the act itself was not in dispute. The central question was whether the accused was mentally ill at the time so as not to be legally responsible for his actions, within the meaning of the M'Naghten rules as applied under section 38(1) of the Act.

Wilson J found that the defence of mental illness was made out. The accused's dementia and associated delusional thinking at the time of the offence were sufficient to satisfy the defence on the balance of probabilities. No issue arose as to the availability of that defence on the facts.

On the question of release, Wilson J accepted expert evidence from Dr Watts and a forensic social worker, Ms Stoupas, that the accused posed a low risk to others. His conduct during more than twelve months of custody had been non-violent, and there was no history of prior violence. The Court was satisfied that release to a secure residential aged care facility, specifically Opal Annandale, was appropriate, subject to conditions requiring Mental Health Review Tribunal oversight and engagement with a specialist older persons' mental health service.

Orders Made

  • The accused was found not guilty of murder on the grounds of mental illness.
  • Pursuant to section 39 of the Mental Health (Forensic Provisions) Act 1990, the accused was released from custody forthwith on the following conditions:
  • He is to reside at Opal Annandale, or such other place as approved from time to time by the Mental Health Review Tribunal.
  • He is not to leave that residence without the consent of the Mental Health Review Tribunal.
  • Within 14 days of taking up residence, he is to meet with a staff member of the Camperdown Older Persons Mental Health Team and accept recommended treatment from that service, or a comparable service approved by the Tribunal.
  • The Registrar was directed to forward a copy of the judgment to the Mental Health Review Tribunal forthwith.

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 is not a full criminal trial but is conducted as closely as possible to one, with the accused taken to have pleaded not guilty and legally represented throughout.
  • The defence of mental illness requires the accused to prove, on the balance of probabilities, that he or she was mentally ill at the time of the act so as not to be legally responsible, following the M'Naghten rules confirmed in The Queen v Falconer (1990) 171 CLR 30.
  • A verdict of not guilty on the ground of mental illness at a special hearing is treated as equivalent to the special verdict under section 38(1) of the Act, triggering the Court's powers under section 39 to order detention or conditional release.
  • Release to the community rather than continued detention is available following such a verdict where expert evidence supports a finding of low risk, even in a murder case.
  • The absence of any prior history of violence, combined with expert risk assessments and the availability of a suitable supervised residential placement, underpinned the Court's decision to order release on conditions rather than ongoing custodial detention.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 16, 19, 21, 21A, 21B, 22, 38, 39
- Crimes Act 1900 (NSW), s 18(1)(a)

Cases:
- R v Ivanoff [2017] NSWSC 1707 (prior unfitness finding)
- R v M'Naghten (1843) 8 ER 718 (foundational statement of the mental illness defence)
- The Queen v Falconer (1990) 171 CLR 30 (standard and onus of proof for the mental illness defence)