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Supreme Court 17 June 2019

R v Zdravkovic

[2019] NSWSC 736

Homicide
CRIMINAL LAW MENTAL HEALTH DEFENCE PSYCHIATRIC EVIDENCE ACCUSED SUFFERED DEFECT OF REASONING ACCUSED UNABLE TO REASON WRONGFULNESS ACCUSED MENTALLY ILL AT TIME OF OFFENCE

Citation: R v Zdravkovic [2019] NSWSC 736
Court: Supreme Court of New South Wales
Date: 17 June 2019
Judge(s): Walton J

Background

The accused was charged with the murder of his father, which occurred on 6 December 2017 at Maryland, NSW. It was not disputed that the accused stabbed his father with at least the intention to cause grievous bodily harm, and that the stabbing directly caused the death. The accused entered a plea of not guilty and the trial proceeded before a judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW).

The sole issue at trial was whether the accused was mentally ill at the time of the offence within the meaning of s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The accused contended that, due to a defect of reasoning arising from a disease of the mind, he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure.

Witness evidence established a history of family conflict at the shared premises in the period leading up to the offence. On the evening of the stabbing, a neighbour heard a loud argument between the accused and his father, including threatening language from the accused.

  • Whether the accused was mentally ill at the time of the offence for the purposes of s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the accused suffered from a defect of reasoning arising from a disease of the mind such that he did not know his actions were wrong
  • What order should be made under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) following a special verdict of not guilty by reason of mental illness

Decision

Walton J applied the well-established McNaghten test, as articulated by Dixon J in R v Porter (1933) 55 CLR 182. Under the relevant limb of that test, the accused must establish that, at the time of the act, a disease or defect of the mind prevented him from reasoning about the wrongfulness of his conduct with a moderate degree of sense and composure. The accused bore the onus of proving the defence on the balance of probabilities.

Walton J accepted the psychiatric evidence of Dr Furst and Dr Adams, which was unanimous in its conclusions. Consistent with Tumanako v R (1992) 64 A Crim R 149, the court held that unanimous, uncontradicted psychiatric evidence cannot be rejected by the tribunal of fact in the absence of other material casting doubt on it. No such contrary material was present.

On the basis of that evidence, Walton J found that the accused was suffering from a defect of reasoning arising from a disease of the mind at the time of the offence, rendering him unable to reason about the wrongfulness of his actions. The accused had therefore established the mental health defence and was entitled to a special verdict of not guilty by reason of mental illness.

Turning to s 39 of the Act, the court was required to make a determination about the accused's immediate future. Counsel for the accused did not seek his release into the community, and the court accepted that position, finding that the accused required ongoing assertive psychiatric care from Justice Health and forensic mental health services.

Orders Made

  • The accused was found not guilty of murder on the grounds of mental illness.
  • Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, the accused was ordered to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
  • The Registrar was directed to notify the Attorney General, the Minister for Health, and the Mental Health Review Tribunal of the orders as soon as practicable.
  • The Registrar was directed to provide the Mental Health Review Tribunal with a copy of the reasons and the reports of Dr Furst and Dr Adams.

Key Takeaways

  • The Supreme Court applied the McNaghten test, as explained in Porter, confirming that the second limb of the mental illness defence is satisfied where a disease of the mind prevents an accused from reasoning about the wrongfulness of their actions with a moderate degree of sense and composure.
  • Where psychiatric evidence in support of the mental illness defence is unanimous and uncontradicted, it cannot be rejected by the tribunal of fact without some other material casting doubt on it, following Tumanako v R.
  • A special verdict of not guilty by reason of mental illness does not result in unconditional release: under s 39 of the Mental Health (Forensic Provisions) Act 1990, the court must make a further order, and release from custody requires satisfaction on the balance of probabilities that the safety of the person or a member of the public will not be seriously endangered.
  • In judge-alone trials involving the mental illness defence, the court must first determine whether the accused's act caused the relevant harm, then whether the accused was criminally responsible (the mental illness question), before considering specific intent, which only arises if the mental illness defence fails.
  • Ongoing forensic psychiatric care through Justice Health was considered an appropriate and necessary basis for continued detention in this case, reflecting the court's assessment of the medical evidence presented.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), s 132
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39

Cases:
- McNaghten's Case (1843) 8 ER 718
- R v Porter (1933) 55 CLR 182
- Stapleton v R (1952) 86 CLR 358
- Mizzi v R (1960) 105 CLR 659
- R v Falconer (1990) 171 CLR 30
- Tumanako v R (1992) 64 A Crim R 149
- Hawkins v The Queen (1994) 179 CLR 500
- R v Minani [2005] NSWCCA 226
- R v Gourlay [2015] NSWSC 67