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Supreme Court 20 November 2019

R v Bojnovic

[2019] NSWSC 1613

Homicide

Citation: R v Bojnovic [2019] NSWSC 1613
Court: Supreme Court of New South Wales
Date: 20 November 2019
Judge: Cavanagh J

Background

The accused was charged with murdering his elderly father at their shared home in Liverpool on 29 September 2017. The accused had lived with one or both parents his entire life and had not worked since a fatal motor vehicle accident in 2006, after which he was diagnosed with post-traumatic stress disorder and developed depression, anxiety, and chronic insomnia. He had a documented history of psychotic episodes, anti-psychotic medication, and intermittent treatment through community mental health services.

In the years leading up to the offence, the accused's condition deteriorated markedly. His general practitioner noted increasing aggression toward the deceased, and neighbours reported erratic behaviour. In the days immediately before the death, the accused attended Liverpool Police Station twice in one night, appearing agitated and making incoherent reports. His general practitioner had referred him for urgent psychiatric assessment shortly before the events in question.

The accused pleaded not guilty, relying solely on the defence of mental illness. He elected to be tried by judge alone under the Criminal Procedure Act 1986 (NSW). Both the accused and the Crown agreed that a special verdict of not guilty by reason of mental illness was appropriate, though the court was required to consider all evidence and reach its own conclusion.

  • Whether the Crown had established, beyond reasonable doubt, the elements of murder under s 18 of the Crimes Act 1900 (NSW).
  • Whether the accused was entitled to a special verdict of not guilty by reason of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • What orders should follow from such a verdict under s 39 of the same Act.

Decision

Cavanagh J was satisfied, on the agreed facts, that the elements of murder were established beyond reasonable doubt. The deceased died as a result of injuries inflicted by deliberate acts of the accused, and the accused had the relevant intention at the time. This was not disputed by either party.

The central question was whether the mental illness defence was made out on the balance of probabilities. Under the test derived from R v M'Naghten and confirmed in R v Porter, the defence requires that, at the time of the act, the accused was suffering from a disease of the mind that deprived him of the capacity to know the nature of the act, or to know that it was wrong. The court applied this standard by reference to the expert psychiatric evidence.

The expert evidence was unanimous and consistent. The accused had been suffering from a severe mental illness, described as consistent with schizophrenia or schizoaffective disorder, which had been inadequately treated for years. At the time of the killing, he was in a psychotic episode characterised by delusional thinking about his father and an inability to reason or appreciate that what he was doing was wrong. His condition had, with proper treatment since 2017, significantly stabilised.

Cavanagh J entered a special verdict of not guilty by reason of mental illness. The court noted that the verdict does not result in the accused's release, but in his detention as a forensic patient under supervision of the Mental Health Review Tribunal, which must be satisfied that his release would not endanger public safety before any release could occur.

Orders Made

  • The accused is detained in the Hamden accommodation area at the Metropolitan Remand and Reception Centre, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
  • The Registrar is directed to notify the Minister for Health of the order as soon as practicable.
  • The Registrar is directed to notify the Mental Health Review Tribunal as soon as practicable and provide the Tribunal with a copy of the reasons and orders, a transcript of proceedings, and copies of all exhibits.

Key Takeaways

  • The Supreme Court confirmed that, even where both parties agree a special verdict is appropriate, the court must independently consider all evidence and be satisfied on the balance of probabilities that the mental illness defence is established before entering a verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • Under the M'Naghten test as applied in New South Wales, a defence of mental illness requires proof that the accused, at the time of the relevant acts, suffered from a disease of the mind that deprived him of the capacity to know the nature of the act or to know it was wrong.
  • A special verdict of not guilty by reason of mental illness does not result in unconditional release. The accused is detained as a forensic patient, and release requires satisfaction of the Mental Health Review Tribunal that neither the accused nor the public would be endangered.
  • Consistent and unanimous expert psychiatric evidence, combined with agreed facts, can be sufficient to found a special verdict in a judge-alone trial without any oral examination of experts.
  • Long-term failure to treat an underlying psychotic illness, documented over many years, was central to the court's findings about the accused's mental state at the time of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 23A
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW), s 191
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39

Cases:
- R v M'Naghten [1843] 8 ER 718
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77
- R v Pratt [2009] NSWSC 1108
- R v Rodriguez [2010] NSWSC 198