Supreme Court New South Wales Medium Neutral Citation: R v Krbavac [2013] NSWSC 313 Hearing dates: 8 April 2013 Decision date: 08 April 2013 Jurisdiction: Common Law Before: Price J Decision: Accused unfit to be tried. Matter referred to the Mental Health Review Tribunal. Catchwords: CRIMINAL LAW - procedure - fitness to plead - murder - schizophrenia - mental illness - unfit to be tried Legislation Cited: Mental Health (Forensic Provisions) Act 1990 s 6, s 8, s 10, s 11, s 12 Crimes Act 1900 s 18(1)(a) Cases Cited: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 R v Presser [1958] VR 45 Category: Principal judgment Parties: Director of Public Prosecutions Anthony Vjekoslav Krbavac Representation: Counsel: Mr L Lungo (Crown) Ms J Manuell SC (Defence) File Number(s): 2012/97753 Judgment 1HIS HONOUR: Anthony Vjekoslav Krbavac, the accused, is charged with the murder of his uncle, Ervin Krbavac, on 27 March 2012 at Auburn. 2It is the Crown case that on 27 March 2012, the police arrived at the deceased's home at Auburn to find him on the ground. The accused appeared to be covered in blood and was holding a hammer. The accused is alleged to have hit the deceased numerous times in the head with a hammer and a chisel. The deceased was conveyed to Westmead hospital where he died as a result of severe head injuries. The accused was arrested and during a police interview made admissions about the death. 3A question of the accused's fitness to be tried has been raised, and pursuant to ss 8 and 10 of Mental Health (Forensic Provisions) Act 1990, Latham J determined that an inquiry should be conducted. Section 11 of the Mental Health (Forensic Provisions) Act provides that the question of a person's fitness to be tried for an offence is to be determined by the judge alone. 4The principles that apply in determining an accused's fitness to stand trial for State offences are well-settled. They are stated in R v Presser [1958] VR 45 by Smith J at [48]: "[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 5Presser has been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230. The length of the trial is also a relevant factor. In Kesavarajah the plurality (Mason CJ, Toohey J and Gaudron J) observed at p 246: "In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J. in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried. Of course, that is not to exclude from the jury's consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise." 6The Mental Health (Forensic Provisions) Act governs the approach to be taken in a fitness inquiry for the offence. The Court is required to approach the inquiry in a non-adversarial manner and to determine the question of fitness on the balance of probabilities: ss 6, 11, and 12 Mental Health (Forensic Provisions) Act. Neither party bears the onus of proof. 7Psychiatrist reports have been tendered. I turn to that material. 8The accused who is 41 years old has a documented history of treatment-resistant paranoid schizophrenia for which he has, over the last 16 years, been receiving treatment. Prior to the commission of the alleged offence, the accused has had admissions to Cumberland Hospital and case management, together with treatment for a psychotic illness with antipsychotic medication. 9There are three reports that discuss the issue of fitness to plead. Dr Richard Furst, Forensic Psychiatrist, prepared two reports dated 28 April 2012 and 6 September 2012. Dr Olav Nielssen, Psychiatrist, prepared a report dated 30 October 2012. 10Dr Furst interviewed the accused at the request of the Legal Aid Commission on 29 March 2012. Dr Furst diagnosed the accused with chronic treatment-resistant schizophrenia. The diagnosis was made on the accused's presentation, who continued to suffer from symptoms of paranoia, auditory hallucinations, and prominent thought disorder. Dr Furst was of the opinion that the accused remained acutely psychotic and lacked insight into his illness On the issue of fitness, Dr Furst writes (ex D p 7): "[The accused] understood that he had been charged with murder and that this was a serious charge. When asked about his options to enter a plea, he said "I will plead guilty...the Judge is a chicken. 28 years...32 years. I don't know. The voices say that in 2-months I will wake up from this dream." He did not appear to understand the gravity of his legal predicament and did not wish to raise the defence of mental illness, probably because he lacks insight into his schizophrenia. When asked if he could explain his version of events to his lawyer, he said "I will plead guilty...I don't want to talk to him. He would punch out people and say that my dad is the greatest if he was on my side." [The accused] continues to suffer from acute symptoms of psychosis, has limited understanding of legal concepts, and has little if any insight into his illness or the seriousness of his legal issues, believing that things will "go away in 2 months." He does not trust his lawyer and would be unable to communicate his version of events, give instructions accept cogent legal advice, and attend to relevant legal issues in a Court setting. Having regards to the standards of Presser and Kesavarajah, I was of the opinion that [the accused] was not fit to plead and not fit to be tried." 11Dr Furst next interviewed the accused on 22 August 2012 and confirmed as well as elaborated on the views expressed in his previous report. Dr Furst reports that "the persistence of [the accused's] acute and disabling psychotic symptoms over the last 5 months in custody confirms the diagnosis of chronic treatment resistant schizophrenia. He has made some progress, but continues to suffer from symptoms of paranoia, auditory hallucinations, and thought disorder. He remains acutely psychotic, is insightless into his illness, and is likely to require long-term hospitalisation under the Mental Health Act" (ex E p 3). Dr Furst was of the opinion that the accused continues to suffer from acute symptoms of psychosis, has limited understanding of legal concepts, and has no insight into his illness. The accused gave "thought disordered irrational responses when taken to the Presser criteria" (ex E p 4). Dr Furst reported that the accused was very likely to have difficulties working with his legal counsel, giving instructions and accepting legal advice. 12Dr Furst concluded that the accused is "likely to enter an irrational plea based on his lack of insight into his mental illness. He does not appear to understand that the defence of mental illness is available to him, or if he is aware of the mental illness defence, he does not think it applies to him as a consequence of his ongoing delusional beliefs and absence of insight into his schizophrenia. He would also struggle to pay attention and understand what was said in Court because of his persistent psychotic symptoms" (ex E p 4). 13Dr Furst remained of the opinion that the accused is not fit to be tried. 14Dr Nielssen interviewed the accused on 25 October 2012 at the request of the Office of the Director of Public Prosecutions. Dr Nielssen also diagnosed chronic treatment-resistant schizophrenia, which was made on the basis of the history of constant hallucinations of voices, the corroborative information in the documents and aspects of the accused's presentation, in particular, his disorganised thinking and bizarre explanation for his symptoms. 15Dr Nielssen concluded that the accused was unfit to be tried. He reports (ex C p 7): "I concur with the opinion of Dr Furst that [the accused] is unfit for trial. He is aware of the charge and that he has the option of entering a plea of guilty or not guilty, because he did not believe he was mentally ill and also because "voices" had told him that he might be in custody longer if he was found not guilty due to mental illness. Hence, I believe that he is unable to respond to the charge or provide rational or reliable instructions to his solicitors because he is unable to properly appraise the potential responses to the charges, and any instructions that he does give are likely to be influenced by the content of continuing symptoms of schizophrenia." 16Both Dr Furst and Dr Nielssen are of the view that the accused will not become fit to stand trial within twelve months. Conclusion 17The Presser criteria are to be considered in light of the complexity and the length of the accused's trial. The Crown estimates, though without any certainty, that the trial will take some 2 weeks. 18The Crown submits that the accused is unfit to be tried but the accused, through his counsel, Ms Manuell SC, maintains that he is. The accused does not wish to be found unfit to be tried, which is the position he has maintained throughout the interviews with the psychiatrists. 19It is the opinion of Dr Furst and Dr Nielssen that the accused is unfit to be tried. I accept their opinions. 20I am satisfied that the accused is unable to plead to the charge and to make his answer to it. He is not able to give any rational or reliable instructions to his counsel. He does not have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the Court. 21Accordingly, I find on the balance of probabilities that the accused is unfit to stand trial. 22I make the following orders: (1)I find that the accused Anthony Vjekoslav Krbavac is unfit to be tried for the murder of his uncle, Ervin Krbavac, on 27 March 2012 at Auburn contrary to section 18(1)(a) of the Crimes Act. (2)In accordance with s 14(a) of Mental Health (Forensic Provisions) Act, I refer Anthony Vjekoslav Krbavac to the Mental Health Review Tribunal. (3)Pursuant to s 14(b)(iii) of Mental Health (Forensic Provisions) Act, remand the accused in custody until the determination of the Mental Health Review Tribunal has taken effect. (4)I direct the Court Registry to provide copies of the following documentation to the Mental Health Review Tribunal: (a)this finding and reasons; (b)the orders made; (c)the transcript of these proceedings. (d)psychiatrist reports; and (e)the crown case statement. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2013