Supreme Court New South Wales Medium Neutral Citation: R v Ivanoff [2017] NSWSC 1707 Hearing dates: 7 December 2017 Date of orders: 07 December 2017 Decision date: 07 December 2017 Jurisdiction: Common Law Before: Johnson J - Crime Decision: (a) The Accused is referred to the Mental Health Review Tribunal pursuant to s.14 Mental Health (Forensic Provisions) Act 1990. (b) Pursuant to s.14(b)(iii) Mental Health (Forensic Provisions) Act 1990, the Accused is remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal. (c) Johnson J directs that the Registrar provide to the Mental Health Review Tribunal a copy of the exhibits tendered in these proceedings together with a copy of the Court's reasons - with those documents intended to assist the Mental Health Review Tribunal in the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990. Catchwords: CRIMINAL LAW - Accused charged with murder - inquiry into fitness to be tried - finding that Accused until to be tried - referral to Mental Health Review Tribunal Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70 Feili v R [2015] NSWCCA 43. Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 at 245-246 R v Presser [1958] VR 45. R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 Texts Cited: --- Category: Principal judgment Parties: Regina (Crown) Ben Ivanoff (Accused) Representation: Counsel: Ms MM Cunneen SC (Crown) Ms JS Manuell SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2017/6480 Publication restriction: --- Judgment 1. JOHNSON J: This is an inquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 as to whether the Accused, Ben Ivanoff, is unfit to be tried with respect to a charge of murder. 2. The Accused is charged that on 8 January 2017 at Umina Beach in the State of New South Wales he did murder Leonne Ivanoff, his wife. 3. The Accused appeared before me in the Arraignments List on 3 November 2017 with respect to that charge. He was not arraigned on that occasion. The Court was informed that there was an issue as to his fitness to be tried and an inquiry was listed to proceed today to determine that question. Applicable Legal Principles 1. The principles to be applied on an inquiry such as this are not in doubt. 2. Section 12(3) Mental Health (Forensic Provisions) Act 1990 provides that the onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The proceedings are to be by way of inquiry which is not to be conducted in an adversary manner: s.12(2). 3. The sole question to be determined is whether I am satisfied on the balance of probabilities that the Accused is unfit to be tried for the offence alleged against him: s.6. 4. This issue falls to be determined by application of what is called the Presser test. This test emerges from the decision of Smith J in R v Presser [1958] VR 45 at 48. This is the test concerning fitness to be tried to be applied in an inquiry of this type: R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at 294-295 [279]-[286]; Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70 at 26-29 [130]-[144]. 5. The Presser test has been described in decisions of the High Court of Australia including Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 at 245-246; and Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 at 119 [9]. 6. The principle underlying an inquiry into fitness is the right of an accused person to a fair trial: Feili v R [2015] NSWCCA 43 at [49]. 7. In R v Presser, as expanded upon in Kesavarajah v The Queen, a number of minimum standards were identified for an accused person to meet before that person can be tried without unfairness or injustice. These minimum standards require the ability: 1. to understand the nature of the charge; 2. to plead to the charge; 3. to exercise the right to challenge potential jurors; 4. to understand the nature of the proceedings - namely, that the trial is an inquiry as to whether the accused person committed the offence charged; 5. to follow the course of the proceedings; 6. to understand the substantial effect of any evidence that may be given in support of the prosecution; and 7. to make a defence or answer to the charge. 1. In Kesavarajah v The Queen it was said (at 246) that the Court should take into account as well the potential length of the trial and the likely ability of the accused person to remain fit to be tried for the duration of the trial itself. 2. It is a requirement in s.11(2) Mental Health (Forensic Provisions) Act 1990 that where an accused person is found unfit to be tried the Court must, as part of its determination, record the relevant principles of law and the findings of fact on which the Court has relied. 3. It is the principles which I have just described which will be applied for the purpose of this inquiry. Evidence Adduced at the Inquiry 1. The evidence placed before the Court on this inquiry is documentary in nature. That evidence is as follows: 1. two reports of Dr Sharon Reutens, consultant psychiatrist, both dated 27 June 2017 (and curriculum vitae) (Exhibit A); 2. a report of Dr Anthony Samuels, forensic psychiatrist, dated 28 August 2017 (Exhibit B); 3. the Crown Case Statement prepared by the Crown (Exhibit C); 4. helpful written submissions prepared by Senior Counsel for the Accused dated 7 December 2017 (Exhibit D). The Charge of Murder 1. For the purpose of this inquiry, it is not necessary to outline in any detail the circumstances of the alleged offence. It is sufficient to note that the Accused and his wife had been married for some 55 years. The Accused was 77 years old at the time of the events of 8 January 2017. The Accused's wife had a history of mental health difficulties. The Accused himself had been diagnosed with dementia. 2. The Crown Case Statement, and the reports of Dr Reutens and Dr Samuels, outline the nature of the circumstances alleged to have occurred on 8 January 2017. The death of Mrs Ivanoff was inflicted by a knife wound or wounds. It is clear from the circumstances alleged that there were significant mental health issues which affected her at the time and significant health issues which affected the Accused as well. 3. The nature of this inquiry is such that it is neither necessary nor appropriate to embark upon a closer analysis of what occurred. 4. The present task of the Court is confined to an assessment of the fitness of the Accused to stand trial on the charge of murder, bearing in mind the principles which I have already explained. Assessment of Medical Evidence 1. The Court has received helpful reports prepared by two very experienced psychiatrists. Dr Reutens is not only an experienced psychiatrist, but has a speciality in the areas of neuropsychiatry and as a psychogeriatrician. Dr Reutens has played an active part, for a number of years, as a Senior Visiting Medical Officer in Old Age Psychiatry with Justice Health and has had an involvement in the establishment of facilities within correctional centres in New South Wales for the care and management of elderly prisoners. 2. The detailed reports of Dr Reutens express her conclusions following a cognitive examination of the Accused. Dr Reutens has indicated that the Accused has moderately severe dementia. On her examination of him on 23 May 2017 he was not oriented to time. There were impairments in visuospatial abilities. 3. In assessing the fitness of the Accused to be tried by reference to the Presser test, Dr Reutens formed the clear opinion that the Accused did not demonstrate a consistent understanding of the charge he faced. It was in this area in particular, and the capacity of the Accused to instruct his lawyers to meet the charge, that Dr Reutens was of the view that he was not fit to be tried. 4. There are other areas of deficiency and vulnerability of the Accused referred to in the report of Dr Reutens. She concluded that the Accused does not have the cognitive capacity to stand trial. 5. There is a separate report of Dr Reutens which goes to the availability of the defence of mental illness. That is not an issue for this inquiry, but it is to be noted that Dr Reutens expresses the opinion that that defence of mental illness is open in this case. 6. Dr Samuels examined the Accused on 28 August 2017. Dr Samuels had the benefit of the reports of Dr Reutens at that time. He conducted a very thorough examination including a document examination by reference to a range of medical records concerning the Accused and the Accused's wife. He also examined Justice Health records and reviews concerning the Accused since he entered custody in January 2017. 7. The report of Dr Samuels is emphatic in his finding of unfitness to be tried. With respect to each of the seven factors which I referred to earlier (at [11]) emerging from R v Presser, Dr Samuels indicated that the Accused did not meet any of those factors. Put shortly, Dr Samuels says that the Accused does not have even a basic understanding of the charge against him. He does not have the ability to plead to the charge. He does not have the ability to exercise his right to challenge. Although the Accused seems to have some understanding that there is going to be a court case, it is his belief that he is going to be hanged (that, of course, is an entirely erroneous and misplaced belief on its own). 8. Dr Samuels continued that the Accused would have no capacity to follow the court proceedings or what was happening in court in a general sense. He would not be able to understand the substantial effect of evidence that may be given against him and he does not have the ability to make a defence or answer the charge. 9. Dr Samuels concluded that the Accused is clearly not fit to stand trial. 10. The nature of the problems surrounding the Accused (in particular dementia) are such that these issues are expected to be continuing ones. 11. As I have said, helpful written submissions have been furnished on behalf of the Accused. They summarise accurately the evidence which points to one available conclusion only on the inquiry. The Crown agrees with the written submissions advanced on behalf of the Accused and endorses the orders which are proposed in those submissions. Conclusion and Orders 1. Having considered the evidence, I have recorded my findings of fact based upon the reports of Drs Reutens and Samuels and express the conclusion that I am well satisfied on the balance of probabilities that the Accused is not fit to be tried on the charge of murder. 2. It is appropriate to make the orders sought by the parties. I make the following orders: 1. The Accused is referred to the Mental Health Review Tribunal pursuant to s.14 Mental Health (Forensic Provisions) Act 1990. 2. Pursuant to s.14(b)(iii) Mental Health (Forensic Provisions) Act 1990, the Accused is remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal. 3. I direct that the Registrar provide to the Mental Health Review Tribunal a copy of the exhibits tendered in these proceedings together with a copy of the Court's reasons (which I am presently delivering) with those documents intended to assist the Mental Health Review Tribunal in the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990. ********** 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: 05 November 2018