Regina v Zaharic [2000] NSWSC 963

New South Wales Supreme Court

CITATION : Regina v Zaharic [2000] NSWSC 963 revised - 20/10/2000 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70042/92 HEARING DATE(S) : 11 August 2000 JUDGMENT DATE : 11 August 2000

PARTIES : The Crown (Crown) Stevan Zaharic (Accused) JUDGMENT OF : Newman J

COUNSEL : W L Robinson QC (Crown) C J Lyons (Accused) SOLICITORS : S E O'Connor (Crown) Legal Aid of New South Wales (Accused) LEGISLATION CITED : Criminal Procedure Act 1986 DECISION : See para 29

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

NEWMAN J

FRIDAY, 11 AUGUST 2000

70042/92 - REGINA v Stevan ZAHARIC

SENTENCE

1 HIS HONOUR: The accused, Stevan Zaharic, is indicted before the court today on a charge that he, on 14 January 1999, at Liverpool in this State did murder Milan Gajic. When arraigned the accused pleaded not guilty on the grounds of mental illness. 2 The accused has, pursuant to s 32(1) of the Criminal Procedure Act 1986 signed an election in which he consented to be tried by a judge alone. The Crown has consented to that election and accordingly the trial has proceeded in that form before myself. I should at the outset indicate that prior to the accused being arraigned before me the Crown with the consent of the accused's representatives forwarded to me reports from three forensic psychiatrists, Drs Westmore, Nielssen and Canaris. I have read those reports. 3 In addition, prior to coming to court, in view of the nature of the proceedings, I read what is commonly described as a hand up brief which was prepared for the purpose of the committal proceedings. 4 This morning I have been presented with a bundle of documents incorporating agreed facts between the parties and a number of statements. Those statements are the autopsy report of Dr Ellis, a statement of facts from Det Sgt Hardie, together with a transcript of an ERISP interview held with the accused, statement of Ranka Markovic, the statement of Zarka Canak and the statement of Dragica Savic, the statement of Zoran Gajic and a statement of Wayne Peter Debus. All those documents I had read before coming into court because they were in fact incorporated in the material which was earlier available to me. 5 Because there is in fact no issue that the defence raised by the accused has in fact been made out, there being no evidence to the contrary, I believe it is appropriate for me to give judgment giving my reasons forthwith. 6 I turn first to the facts relating to the episode which brings the accused before the court this morning. 7 At about 4.45 am on Thursday, 14 January 1999 the victim, Milan Gajic, left his unit at 1/43 Castlereagh Street, Liverpool to go to work at Circular Quay. The victim generally left for work at the same time every day and walked to Liverpool railway station. 8 As Mr Gajic walked out of the front entrance of his unit, the accused, who was known to Gajic, approached him and produced a kitchen knife and commenced to inflict multiple stab wounds to Mr Gajic. The victim screamed for help, however the wounds inflicted by the accused, in particular those to the chest and neck, were sufficient to kill the victim almost immediately. The accused dropped the knife and quickly walked back to his unit at 1/61 Castlereagh Street, Liverpool which is about 100 metres away from the scene. 9 About 8 am that morning, the accused attended Blacktown police station with his wife and two other family members. He admitted to police his involvement in the stabbing of the victim, stating he did it because he regarded the victim as responsible for he and his wife having acquired a herpes virus infection. 10 Detectives from Liverpool attended Blacktown police station, where he was interviewed by way of ERISP with the assistance of a Serbian interpreter. During the ERISP he repeated his admission as to the stabbing of Gajic. 11 The background to the events to 14 January 1999 involved a relationship which had developed between the accused and his victim. The material does not specify with any great accuracy when it was the accused and the victim first met but it is apparent from the ERISP and also from witness statements which have been tendered this morning that certainly they knew each other in the year 1997. 12 The accused claimed that the victim was instrumental in the accused going to Canberra and meeting with a girl with whom ultimately he engaged in sexual intercourse. The accused claimed that not long after his visit to Canberra in November 1997 he developed genital herpes which was diagnosed by a Dr Moran. The accused as I understand the material before me, did not continue with his relationship with that person but in fact in about May 1998 formed a relationship with his present wife whom he married on 1 November 1998. 13 There is contained in medical records a reference to an unsuccessful suicide attempt being carried out by the accused on 5 April 1998. However, the material does not disclose anything of an untoward nature occurring between April 1998 and his marriage to his present wife on 1 November 1998. 14 It seems that shortly after the accused and his wife married he suffered a further outbreak of genital herpes that caused him and his wife to see a medical practitioner. 15 It was the accused's belief that his wife as well as himself had become infected with that malady, although the evidence by no means is certain that the wife was so afflicted. 16 In any event such was the accused's ruminations about the condition of herpes that his mental condition became such that in late November 1998 he was admitted as a psychiatric patient to the Liverpool hospital. 17 He was there diagnosed as having depression of a psychotic variety, including delusional episodes, so much so that in fact he was scheduled as a patient pursuant to the Mental Health Act. It seems that he was discharged from Liverpool hospital some time in the middle of December 1998. 18 In his ERISP and in histories given to the three psychiatrists, the accused has stated that he formed the view that the herpes condition which he suffered afflicted him much more powerfully that the physical manifestation of that condition. He concluded that because it was the deceased who had arranged his introduction to the woman in Canberra that somehow the deceased had plotted his downfall. 19 In Dr Canaris' report he observed that the accused claimed that the deceased had said to him, having arranged his introduction to the woman in Canberra "now you are trapped, you have to go" or words to that effect. Dr Canaris observed that he did not know whether that account was true or whether it derived from delusional beliefs. 20 All three psychiatrists who saw him found that the accused's belief as to the part played in his problems by the deceased, were in fact delusional. All three psychiatrists concluded that the accused was suffering from a psychiatric condition at the time when he carried out his attack upon the deceased. 21 Not unusually, the three psychiatrists labelled the condition they diagnosed in different terms. Dr Westmore diagnosed the accused as suffering from a major depressive illness with psychotic features. 22 Dr Nielssen diagnosed a delusional disorder accompanied by a severe depressive illness. 23 Dr Canaris concluded that he was suffering from a condition formerly described as psychotic depression which is now apparently in modern parlance, in the psychiatric field, described as major depressive disorder with psychotic features or paranoid schizophrenia with depressive features. 24 However, despite the different nomenclature, all three psychiatrists in their description of the mental illness which they diagnosed used exactly the same language. In other words, despite giving the illness they diagnosed different labels, in fact they described exactly the same condition. 25 All three psychiatrists were of the view that the accused was aware at the time when he stabbed his victim that he was aware of the nature and quality of his act, that is he intended to stab and he intended to kill. Thus the first leg of what is colloquially described in the law as the M'Naughten rule is not made out. I should say that the onus of proof is upon an accused person raising the defence of mental illness to establish that his actions fell within the M'Naughten rules but only on a balance of probabilities. 26 Thus the question arises as to whether or not the accused is able to establish that he knew that what he was doing was wrong. All three doctors are of the view that the accused was, because of his underlying mental illness, incapable of distinguishing right from wrong in the usually accepted sense. That being so, the accused has established on a balance of probabilities that he does fall within the second leg of the M'Naughten rules and accordingly he has made out his defence. 27 It follows that the verdict of the court would be not guilty on the grounds of mental illness. I should add that that does not mean that the accused will be released into the general community. In fact as I will subsequently order, he will in fact be detained in custody. He comes under the Mental Health Review Tribunal. That tribunal reports to the Minister of Health and can only recommend his release if it is of the view that the safety of the accused himself or any member of the public would not be seriously endangered by his release. Ultimately that recommendation goes to the Executive Government and in fact if the accused is to be released he is only released by an order made by the State Governor. 28 It is unnecessary for me to go into the exact mechanics as to how the system works but I could shorthandedly state that it consists of regular reviews of the prisoner's condition by psychiatrists under the aegis of Mental Health Review Tribunal. 29 Accordingly, the order the court makes is in the following terms. The court finds the accused not guilty by reason of mental illness. The court orders that Stevan Zaharic is to be detained in his present custody at the hospital at Long Bay prison complex or at such other place as determined by the Minister of Health or his delegate until released by due process of law. **********