Supreme Court New South Wales Medium Neutral Citation: R v Crnobrnja [2016] NSWSC 1034 Hearing dates: 22 July 2016 Date of orders: 22 July 2016 Decision date: 22 July 2016 Jurisdiction: Common Law Before: Mathews AJ Decision: The accused Zoran Crnobrnja is fit to be tried for the offence of murder Catchwords: Judge alone trial - Mental Health Fitness Hearing – Accused's fitness to stand trial Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Category: Principal judgment Parties: Regina Zoran Crnobrnja Representation: Counsel: Mr T Thorpe (Crown) Mr B Hughes SC (Accused) Solicitors: Solicitor for Director of Public Prosecutions Legal Aid (NSW) File Number(s): 2014/00338957 Publication restriction: No Judgment 1. MATHEWS AJ: On 22 July 2015 a brief hearing took place as to the accused's fitness to stand trial for the murder of Vesna Crnobrnja on 17 November 2014. At the close of the hearing I made the following orders: 1. That the accused Zoran Crnobrnja is fit to be tried for the offence of murdering Vesna Crnobrnja; 2. That the matter be stood over to the next arraignments list on 5 August 2016. 1. I said that I would publish my reasons later. 2. These, then, are my reasons for making those orders. Circumstances of the killing 1. The accused was 50 years old at the time of this offence, having been born on 17 December 1963. He and the deceased had been married for 25 years. They had three adult children, and all of them were living in a house at Flame Tree Street, Casula. On 17 November, after the children had left for their work or their studies, the accused and the deceased were gardening in the front yard of their home when a neighbour heard a heated argument developing between them. This became increasingly intense, and culminated in a scream from the deceased. At that point the neighbour walked over to the fence, and saw the deceased lying motionless on the ground with the accused standing nearby. The accused went into the house and came out shortly afterwards, got into his car and drove off briefly, before returning and parking his car on the nature strip outside the house. In the meantime, he telephoned his son and said: "Alex, I've just killed your mum. She's dead." 2. The accused's son telephoned emergency services, and the police and ambulance arrived shortly afterwards. The deceased was pronounced dead at the scene, and the accused was arrested. He told police that he and the deceased had been arguing that morning about his mental health, and that she had said to him: "we will lock you up forever. We can't do anymore." He said that they then became involved in a physical altercation. At one stage in their fight, he said that he jumped on her, but he could not remember much after that point. The accused was taken to Liverpool Police Station where he was charged with murder. He has been in custody ever since. 3. A post mortem examination of the deceased the following day showed that she had died from asphyxiation. Her injuries indicated manual strangulation. Injuries were also found to her limbs and hands which were consistent with self-defence injuries. The accused also was found to have numerous cuts and scratches on his face, neck, arms and hands, which were consistent with defensive fingernail scratches. 4. The accused had displayed, and continued to display, symptoms of mental illness. Accordingly an issue arose as to his fitness to stand trial for the offence of murder, culminating in the hearing before myself. It is therefore appropriate, before discussing the psychiatric evidence, to say something about the issues to be determined when an issue arises as to a person's fitness to stand trial. The Issues to be Determined 1. It is now firmly established that if an issue arises as to an accused person's fitness to stand trial, it is to be adjudicated upon the basis of the person's capacity to meet the criteria set out in R v Presser [1958] VR 45 ("the Presser criteria"). The following is a brief encapsulation of the seven criteria specified in that case. 2. In order to be fit to stand trial an accused person needs to be able to: Understand the nature of the charge; Plead to the charge and exercise his right of challenge; Understand generally the nature of the proceedings; Follow the course of the proceedings and understand the effect of the evidence given against him; Make his defence or answer to the charge; Instruct his counsel as to his version of events; Decide what defence he will rely upon. 1. Before discussing whether the accused is capable of meeting these criteria it is appropriate to say something very briefly about his background. Background of the Accused 1. As already mentioned, the accused was 50 years old at the time of this offence. He was born in Yugoslavia, now Croatia, where he did his schooling. He then did compulsory military service and later worked as a salesman in a carpet shop. He married Vesna, the deceased, in 1990 when their first daughter was born. At that stage they had already been cohabiting for about 6 to 8 years. They had three children together. In 1996 he and his family, including his parents, came to Australia as refugees. The accused then worked as a labourer with a formwork company. He appeared to have a stable lifestyle until late 2013, when he first showed signs of serious mental problems. 2. At this stage I turn to discuss the psychiatric reports which were tendered at the hearing, which describe the accused's psychiatric history and also deal with the issue of his fitness to stand trial. The Psychiatric Reports 1. The accused has been assessed for the purpose of these proceedings by two highly experienced forensic psychiatrists: Professor David Greenberg at the request of the Crown and Dr Olav Nielssen at the request of the defence. Each of them has written two reports which were tendered by the Crown at the hearing. 2. Dr Nielssen's first report was dated 20 March 2016. The doctor had interviewed the accused on two occasions, on 13 October 2015 and 11 November 2015. He had also been provided with extensive documentary material relating to the circumstances of the offence and the background of the accused, particularly relating to his mental health issues. After a lengthy analysis of these matters Dr Nielssen expressed the view that the accused was suffering from a psychotic illness, either a primary psychosis of late onset, or psychosis secondary to severe depression. He considered that the accused had the defence of mental illness available to him. As to the accused's fitness to stand trial, Dr Nielssen said that with the assistance of an interpreter the accused appeared to meet the Presser criteria, and was therefore fit at that time. 3. The next report in point of time was Professor Greenberg's first report, dated 30 May 2016. This followed two interviews with the accused on 21 and 29 May 2016, the second time with the assistance of a Serbian interpreter. He also had been provided with a great deal of documentary material relating to the offender and the offender's background. The accused had apparently displayed no particular signs of mental illness until there was a sudden deterioration in his mental state in December 2013. Professor Greenberg had obtained the medical records from Liverpool Hospital, which showed that the accused's first admission to a mental unit was on 6 February 2014, when he was apparently suffering from thought disorder, paranoid delusions and auditory hallucinations. He was treated with antipsychotic medication, and was released from hospital on 23 February. He was again hospitalised between 12 May and 27 June 2014, with a principal diagnosis of severe depression with psychotic symptoms. He was found to be delusional and a potential risk to others. His third admission was between 13 and 27 September 2014, when he was admitted with a similar diagnosis. 4. Professor Greenberg noted that the accused's presentation is atypical for most males with a schizophrenic disorder in that his first psychotic episode occurred when he was 50 years old. In the normal course of events a person develops psychotic symptoms in their early 20's. The professor recommended that the accused be checked to determine whether there was any underlying organic pathology which could be causing this condition. In the meantime, his provisional diagnosis was that the accused was suffering from a chronic paranoid schizophrenic illness. In the professor's opinion the accused did not meet all the Presser criteria. He therefore considered him unfit to stand trial. The professor had also been asked to advise whether the accused had the defence of mental illness available to him. He concluded that, on balance, he probably had that defence. However he said that this was a provisional opinion only, as he needed further information before being able to make a final assessment. 5. Dr Nielssen's second report, dated 20 July 2016, followed an interview with the accused the previous day. The doctor thought that the accused's mental state had, if anything, improved since his previous assessment. He therefore considered that the accused met the Presser criteria and was fit to be tried. 6. In response to Dr Nielssen's second report, Professor Greenberg wrote a supplementary report dated 21 July 2016. He had not conducted any further assessment of the accused, but he said that on the basis of Dr Nielssen's report of the accused's recent improvement, he was willing to accept that the accused is now fit to stand trial. 7. The other document tendered at the hearing was an affidavit of the solicitor Matthew Lorkin dated 21 July 2016. Mr Lorkin has acted for the accused since 17 July 2017. On 19 July 2016 he visited the accused in the Silverwater Correction Centre. They had a discussion which indicated that the accused had a clear understanding of the court process. He intended to plead not guilty by reason of mental illness. 8. As both Counsel agree, a trial in which the accused pleads not guilty by reason of mental illness involves much less strain upon an accused person than a defended jury trial. The trial will be conducted by a judge sitting alone, and will occupy a very short time – at most two days. This is a significant factor in relation to a mentally vulnerable person. 9. All the evidence therefore indicates that the accused is now fit to stand trial. It was for this reason that I made the order to this effect. ********* 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: 27 July 2016