Supreme Court New South Wales Medium Neutral Citation: R v Krbavac [2013] NSWSC 1671 Hearing dates: 11 November 2013 12 November 2013 Decision date: 13 November 2013 Before: Price J Decision: Pursuant to s 38 of the Act, I return a special verdict of not guilty on the ground of mental illness. Catchwords: CRIMINAL LAW - murder - accused unfit to plead - special hearing - chronic treatment resistant schizophrenia - whether defence of mental illness established - special verdict. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 s 14(a), s 19(2), s 21(1), s 21B(2), s 38, s 39 Cases Cited: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 King v Porter [1933] HCA 1; (1933) 55 CLR 182 R v Krbavac [2013] NSWSC 313 R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 Category: Principal judgment Parties: Anthony Vjekoslav Krbavac Regina Representation: Counsel: Mr P Lynch (Crown) Ms J Manuell SC (Accused) Solicitors: Ms P Webb (Director of Public Prosecutions) Ms K Robinson (Legal Aid) File Number(s): 2012/97753 Judgment 1HIS HONOUR: Anthony Vjekoslav Krbavac is charged with the murder of his uncle Ervin Krbavac on 27 March 2012 at Auburn in the State of New South Wales. 2On 8 April 2013, I found the accused unfit to be tried and referred him to the Mental Health Review Tribunal ('the Tribunal') in accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (the Act): R v Krbavac [2013] NSWSC 313. 3On 16 May 2013, the Tribunal formed the opinion that the accused has not become fit to be tried for the offence of murder and determined that he, on the balance of probabilities, will not, during the period of 12 months after the finding of unfitness, become fit to be tried for that offence. 4The Director of Public Prosecutions in a letter dated 25 July 2013 to the Registrar of this Court advised that he intended to proceed with the charge of murder against the accused and sought a special hearing. 5A special hearing is defined in s 19(2) of the Act as: "... a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged." 6Section 21(1) of the Act provides that except as provided by the Act, "a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings." My determination must include the principles of law applied by me and the findings of fact upon which I rely: s 21B(2) of the Act. 7During the special hearing, Mr P Lynch appeared for the Crown and Ms J Manuell SC for the accused. There has been no dispute between the parties about the facts established by the evidence and the opinions expressed by the three psychiatrists. Both Mr Crown and Ms Manuell submitted that a special verdict of not guilty of the charge of murder by reason of mental illness pursuant to s 38 of the Act was appropriate in all the circumstances of this case. Legal principle 8In deciding whether a special verdict should be entered, I am not required to decide whether the requisite intent for the offence of murder, that is in this case an intention to kill has been proved. That question only arises if I do not find that the defence of mental illness is established: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 at 517; R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 per Hunt AJA at [32]. 9The Crown, however, must prove beyond reasonable doubt that it was a deliberate act of the accused that caused the death of the deceased. An act is not deliberate if it was not voluntary that is, not willed by the accused. The Crown case 10The special hearing has proceeded by way of the tender of witness statements, Dr Szentmariay's autopsy report, photographs of the crime scene and the reports of psychiatrists. Detective Sergeant Winch and Dr Nielssen gave oral evidence. The accused's ERISP interview with police on 27 March 2012 was played to the Court. 11I will refer to some of the witness statements as succinctly as possible. The accused was the nephew of the deceased (the accused's father and the deceased were brothers). The accused lived with his parents at xxxx xxxxx Auburn and the deceased lived nearby with his wife at xxxx xxxxx Street. The two families were very close and saw each other frequently. 12Shortly after 1pm on Tuesday 27 March 2012, Carolyn Newton who was sitting on the verandah of her home in xxxxxxx Auburn saw a young male and their next door neighbour who she knew as "Eddie" standing on the verandah of xxxxxxxxxxxx Street. Mrs Newton saw what appeared to be blood spatter on both the young male's face and Eddie's face. She recounted that there was more blood on Eddie's face than the young males. About a minute later, Mrs Newton saw Eddie collapse to the ground. Mrs Newton's husband then rang police. 13Constable Polley with Constable Ghoriani arrived at xxxxx Street at about 1:38pm. The accused was covered in blood from the top of his head to his shoes. He had a claw hammer with a wooden handle in his hand with blood all over it. When Detective Sergeant Leis arrived, he cautioned the accused and then asked him a number of questions. The conversation was recorded by a handheld device. 14During the conversation, the accused admitted hitting his uncle with the hammer a number of times. 15Police found the deceased near the front porch. He was not moving and there were a number of open wounds to his skull. He was taken by ambulance to Westmead Hospital where he died soon afterwards. 16The accused was conveyed to Auburn Police Station where he entered into an ERISP interview that was conducted by Detective Sergeant Leis with Detective Sergeant Winch. During the interview, the accused made admissions about the death. 17Shortly stated, the evidence establishes that some time before 27 March 2012, the accused went to the deceased's residence with a hand written letter addressed to the deceased and his wife Grace, threatening to hit them on the head with a hammer (ex E TB 10). 18The deceased gave the letter to the accused's mother. The letter was subsequently brought to the attention of the accused's mental health case worker and Dr Cottrell-Dormer, his treating psychiatrist. Dr Cottrell-Dormer's statement discloses that a clinical decision was proposed to attempt to manage the accused in the community. This was to entail close involvement of the case manager, but prompt admission to hospital would follow should the case manager or family feel it was necessary in the case of any further concern. A review date was set for three weeks with the understanding that the accused would be seen earlier if necessary. The accused's medication was changed to 150mg of "paliperidone" injection, to be given monthly (ex E TB 21 p 3). 19Early in the morning of 27 March 2012, the accused took a hammer from his father's car without the knowledge of his parents. The accused's parents left home some time later that morning to visit a relative. After they were gone, the accused armed with the hammer walked to the deceased's home. The deceased was working in the bathroom on the ground floor of his house. He was home alone as his wife had gone to purchase bathroom tiles. The accused walked into the house through a closed (but not locked) screen door and an open glass door. He saw the deceased and immediately began to inflict hammer blows to the deceased's head. The deceased tried to fight off the accused and the ensuing struggle led down the hallway, to the outside of the house. The deceased fell to the ground and the accused continued to inflict hammer blows. As I have previously recounted, the police were called and the accused was arrested. 20Dr Istvan Szentmariay, a forensic pathologist, conducted an autopsy on the body of the deceased. Post-mortem examination "showed the presence of extensive blunt force injuries involving the front, top and the back of the head" (ex E TB 16 p 3). Dr Szentmariay observed that "[t]he injuries mostly consisted of slightly curved lacerations, many surrounded by varying sizes of abrasions. Underlying some of these injuries, patterned (occasionally) depressed fractures were noted. These injuries were most severe on the back of the head where the brain was exposed due to extensive fracturing of the skull" (ex E TB 16 p 3). 21The forensic pathologist concluded that "[t]he deceased had been struck with a blunt object on the head which left multiple surface marks (on the skull) that seemed to represent the size and shape of a hammer head" (ex E TB 16 p 3). Multiple blunt injuries, that is blows inflicted by the hammer, not only involved the back of the head and neck area but also the top of the head and the forehead and facial area. Dr Szentmariay found that the overall number of blows was in the vicinity of twenty. He determined that the direct cause of death was multiple blunt force head injuries. 22Having regard to the evidence, I am satisfied beyond reasonable doubt that the accused deliberately struck the deceased multiple times on the head with the hammer which caused the deceased's death. I am satisfied beyond reasonable doubt that these actions were willed by the accused and were voluntary. 23I turn to the next question for consideration, which is whether the accused at the time of the stabbing was mentally ill so as not to be responsible according to law. The defence of mental illness 24The accused bears the onus of proof, on the balance of probabilities, of establishing mental illness: Hawkins v The Queen. To establish that the accused was mentally ill so as not to be responsible according to law for his actions, the accused must show that as a result of a defect of reason from a disease of the mind he did not appreciate the nature and quality of the physical act of hitting his uncle on the head with the hammer or did not know what he was doing was wrong. 25What then is meant by a disease of the mind which produces such a defect of reason? The law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition which may be temporary or longstanding, whether curable or incurable. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what he was doing, in that he did not know the physical nature or quality of the act or did not know that the act was wrong but wrong according to the ordinary standards of reasonable people in our community. 26In King v Porter [1933] HCA 1; (1933) 55 CLR 182, Dixon J (as his Honour then was) in summing up said at p 189-190: "If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people." The evidence of the psychiatrists 27The accused who is 42 years old has a well documented history of chronic treatment-resistant 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. 28In addition to the oral testimony of Dr Nielssen, there are two reports and an expert statement that discuss the defence of mental illness. Dr Furst prepared a report dated 28 April 2012. Dr Nielssen's report is dated 30 October 2012 and the expert statement from Dr Cottrell-Dormer is dated 3 July 2012. 29Dr Nielssen interviewed the accused on 25 October 2012 at the request of the Office of the Director of Public Prosecutions. Dr Nielssen diagnosed the accused with chronic treatment-resistant schizophrenia, which was made on the basis of the history of constant hallucinations of voices, the corroborative information in the documents provided, including the ERISP, the accused's journal, and other psychiatric reports, and aspects of the accused's presentation, in particular, his disorganised thinking and bizarre explanation for his symptoms. Dr Nielssen opined (at ex E TB 22 p 7): "Based on the information that was available to me and the findings of the recent interview, it is also my opinion that [the accused] has the defence of mental illness open to him for this charge. He has a well documented chronic schizophrenic illness, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. Based on the account he gave in the interviews by the police and the medical assessors, and his written material, it is clear that he had a defect of reason in the form of the bizarre delusional belief that the voices that sounded like his father were also from God and the government, and which in an illogical way urged him to kill his uncle and aunt. He was probably aware of the physical nature and quality of his act in concealing the hammer and fatally assaulting his uncle. However, I believe that he was deprived of the ability to recognise that his actions were morally wrong, because of the interpretation of the situation arising from his delusional beliefs and the gross impairment in his capacity for logical thinking arising from his chronic mental illness." 30During the ERISP interview, the accused made many references to hearing voices. During his oral evidence, Dr Nielssen said (T 12/11/13 p 13 L 45-50, p14 L 1-17): "A. ...He described hallucinated voices and a very illogical interpretation of that experience in that he interpreted it to be the voice of his father and also the voice of God and that somehow that also included the authority of the government. It was quite a disorganized account on his part as to the origin of the voices he could hear. Q. And is it your view that the accused believed these voices had some authority over him? A. Yes. Q. And that he acted in accordance with the directions given by the voices? A. That's correct. Q. In this particular case there is evidence that well, you have seen or read the police interview. When he was interviewed by the police he indicated to them that he knew he would be at the police station. He knew he would be in police custody. And indeed, he told the police that he put car keys under the door because he knew that later he would be at the police station. Does that indicate that he had some appreciation of what he had planned was unlawful? A. Yes, I think he recognised in the sense that it was legally wrong. But it is my opinion that based on his delusional world view he did not see his actions as being morally wrong because he was being directed by, as a higher authority, the voice of God." 31Dr Furst interviewed the accused at the request of the Legal Aid Commission on 29 March 2012. He noted the accused's lengthy history of mental illness, with ten previous admissions to Cumberland Hospital. He was admitted on two occasions in 2010, as he was fearful that he was going to die because "voices" said, "Soon you will die" (ex 1 p 2). The accused recalled that he had been diagnosed with schizophrenia and was treated with Risperidone Consta injections at a dose of 25mg monthly. 32Dr Furst reported that the accused has been under the care of the Auburn Community Mental Health Team over several years, where his treating psychiatrist was Dr Cottrell-Dormer. There were persistent symptoms of psychosis, despite steady increases in the dose of his Risperidone Consta injections to 50mg every fortnight. In February 2012, his medication was changed to Paliperidone (Invega) injections at a dose of 150mg monthly. A review on 7 March 2012 indicated that the accused was "suffering from 'painful dreams' and was hearing voices that told him to respect his mother and father, 'who made me'" (ex 1 p 6). Dr Furst noted that the accused was thought to be suffering from ongoing florid symptoms of psychosis but was not an acute risk. 33Dr Furst diagnosed the accused with chronic treatment-resistant schizophrenia. The diagnosis was made on the accused's presentation, as he 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. 34On the issue of the defence of mental illness, Dr Furst writes (at ex 1 p 8): "[the accused] presents as a 40-year-old male who has a lengthy history of severe and treatment resistant paranoid schizophrenia and treatment through Cumberland Hospital and the Auburn Community Mental Health Service over the last 16 years. He was suffering from a relapse of his psychotic illness at the time in question before the Court, as there were detailed entries indicating a decline in his level of function and more prominent delusions and hallucinations. He appears to have developed a number of delusions that involved various family member[s], including his uncle and aunty, who he took to be evil. He also heard voices he believed were instructions from God about what he must do at the time of the killing. There was evidence of mood disturbance, thought disorder, and a lack of insight into his condition. He remained adamant he had done the right thing when I interviewed him on 29/03/12. In my opinion, [the accused] was laboring under a defect of reason in the form of paranoid and religiose delusions that involved his uncle and command auditory hallucinations. He suffers from severe treatment resistant schizophrenia, which has been recognised at law as a disease of the mind. He was aware of his actions but was unable to reason about the wrongfulness of his actions with a moderate degree of sense or composure. He appears to have the mental illness defence available to him." 35In a statement dated 3 July 2012, Dr Cottrell-Dormer, the accused's treating psychiatrist, states (at ex E TB 21 p 5): "With regard to [the accused's] likely state of mind at the time of the offence, my opinion is that it is reasonable to suppose that at the time of his alleged attack [the accused] was motivated by his delusions and hallucinations. These active symptoms of mental illness have remained as part of his daily life for many years, and have not been controlled by the medication or management undertaken with [the accused]; these active signs of [the accused's] mental illness were clearly and continuously evident throughout my experience of [the accused] as my patient from late 2006 until and including when reviewed two and seven weeks prior to the alleged homicide offence." And further (at ex E TB 21 p 5): "If, as in my opinion it is most likely, this sort of abnormal system of thinking were present in [the accused] leading up to the alleged offence, then it would be consistent with my opinion that [the accused] was acting under the influence of a severe mental illness - active delusions and hallucinations - resulting in carrying out that alleged offence." 36Dr Cottrell-Dormer had earlier in his statement provided a history of the consultations that the accused had with him. The last time Dr Cottrell-Dormer saw the accused he continued to exhibit active signs of mental illness. Determination 37Ms Manuell does not submit that the accused did not know the nature and quality of his acts. Ms Manuell contends that although the accused knew the nature and quality of his acts, he did not know what he was doing was wrong. In his closing address, Mr Crown conceded that the accused had established on the balance of probabilities the defence of mental illness. 38All of the psychiatrists agree that at the time he killed the deceased, the accused was labouring under chronic treatment - resistant schizophrenia which is a disease of the mind. I accept the opinions of the psychiatrists that he did not know what he was doing was wrong. He had developed delusions that involved his uncle and aunty, who he took to be evil. He heard voices he believed were instructions from God about what he must do at the time of the killing. As Dr Nielssen said, he believed these voices had some authority over him and he acted in accordance with the directions given by the voices. I accept that he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure. Having regard to the ordinary standards of reasonable people in our community, I am satisfied on the balance of probabilities that at the time he killed his uncle, the accused as a result of a defect of reason from a disease of the mind, did not know that what he was doing was wrong. The accused has established on the balance of probabilities the defence of mental illness. Explanation 39I consider it is important to explain to the members of the deceased's family and the family of the accused who are present in Court the legal and practical consequences of my findings. 40A special verdict of not guilty on the ground of mental illness does not mean that the accused did not kill the deceased. I have found beyond reasonable doubt that he did so. The verdict means that, because of the severity of the mental illness from which the accused was suffering at the time he struck the deceased with the hammer, he is not to be held criminally responsible for his acts. Accordingly, I will not impose a sentence upon the accused. This verdict does not mean that the accused will be released. 41The effect of the special verdict is that the accused will remain in detention and be referred to the Mental Health Review Tribunal. The accused will not be released unless the Tribunal is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release. 42For the assistance of the Tribunal in its task, I bring to the Tribunal's attention the evidence before me that the accused went to his uncle's home with the intention of killing both his uncle and aunt: see in particular ERISP Q & A 170 ex E TB 8. The threats of violence in the letter (ex E TB 10) were directed not only at the deceased but also at his aunt. 43Finally, may I acknowledge the grief and distress of Mrs Grace Krbavac and the deceased's family and express on the community's behalf its sympathy and compassion for them. Verdict 44Pursuant to s 38 of the Act, I return a special verdict of not guilty on the ground of mental illness. Orders 45I make the following orders: 1. Pursuant to s 39 of the Act, the accused is to be detained in the Forensic Hospital at Long Bay Correctional Centre or at such other place as the Mental Health Review Tribunal may determine until released by due process of law. 2. The Registrar is to notify the Minister for Health as soon as reasonably practicable of the terms of this judgment and the orders made by this Court. 3. The Registrar is to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court. 4. I direct the Court Registry to provide copies of the following documentation to the Mental Health Review Tribunal: (a) this judgment; (b) the transcript of the proceedings; (c) the Crown tender bundle (ex E). (d) the reports of Dr Furst (ex 1 and 2). ********** 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: 13 November 2013