R v Kapesz [2020] NSWDC 92

District Court New South Wales

Medium Neutral Citation: R v Kapesz [2020] NSWDC 92 Hearing dates: 30 - 31 March 2020 Decision date: 08 April 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Special Hearing. For orders see [59] Catchwords: Multiple counts of wound with intent to cause grievous bodily harm; one count reckless wounding with intent to cause actual bodily harm; defence of not guilty by reason of mental illness; special verdict Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900 Cases Cited: Hawkins v R (1994) 179 CLR 500 R v Kesavarajah (1994) 181 ALR at 246 R v Minani (2005) 63 NSW LR 490 R v M'Naghten [1943] 8 ER 718 R v Presser [1958] VR 45 R v Zdrakovic [2019] NSWSC 736 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Troy Kapesz (Offender) Representation: Counsel: Mr J. Mehta (ODPP) Ms P David (Offender)

Solicitors: Ms E Mason (Legal Aid NSW) File Number(s): 2018/001779682018/00177969 Publication restriction: Nil

JUDGMENT 1. On an amended Indictment dated 24 March 2020 the accused was charged with the following offences:- Count 1 - On 5 June 2018, at Brookvale in the State of New South Wales, wounded Duane Amohanga with intent to cause grievous bodily harm to Duane Amohanga. This was an offence pursuant to s 33(1)(a) of the Crimes Act 1900. Count 2 - On 6 June 2018, at Sydney in the State of New South Wales, wounded Jamie Morris and was reckless as to causing actual bodily harm to Jamie Morris. This was an offence pursuant to s 35(4) of the Crimes Act 1900. In the alternative to Count 2: Count 3 - On 6 June 2018 at Sydney in the State of New South Wales, assaulted Jamie Morris thereby occasioning actual bodily harm to him. This was an offence pursuant to s 59(1) of the Crimes Act 1900. Count 4 - On 6 June 2018 in Sydney in the State of New South Wales, wounded Paul Ravisa with intent to cause grievous bodily harm to Paul Ravisa. This was an offence pursuant to s 33(1)(a) of the Crimes Act 1900. 1. The accused was arrested on 6 June 2018. He has been in custody since that time and was committed to trial on 27 September 2018. 2. On 12 December 2018, His Honour Judge Pickering SC found the accused unfit for trial and referred the matter to the Mental Health Review Tribunal (MHRT). On 18 October 2019 the MHRT determined that the accused was then unfit and would not become fit within 12 months of the court's finding of unfitness. The matter was therefore listed for special hearing which took place on 30 and 31 March 2020. 3. The issues to be determined were whether the accused had a defence of mental illness available, and whether he is not guilty by reason of mental illness.