Legal Research
Cases
Kosian v The Queen

Kosian v The Queen

Case [2013] VSCA 357 6 December 2013

Criminal Liability

Mental Impairment Defence

Expert Evidence

Judicial Review

Double Murder

Paranoid Schizophrenia

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0226
ADAM KOSIAN	Applicant
v
THE QUEEN	Respondent

---

JUDGES	REDLICH, COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 September 2013
DATE OF JUDGMENT	6 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 357
JUDGMENT APPEALED FROM	[2012] VSC 426 (Curtain J)

---

CRIMINAL LAW – Conviction – Double murder – Offender suffered from paranoid schizophrenia and delusions – Defence of mental impairment rejected by jury – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Meaning of ‘wrong’ in s 20(1)(b) – Whether offender’s perception of legal and moral wrongness of his actions relevant to satisfaction of the statutory test – Stapleton v The Queen (1952) 86 CLR 358 and R v White (2003) 7 VR 422 considered – Appeal allowed – Conviction quashed – Applicant found not guilty by reason of mental impairment.

CRIMINAL LAW – Evidence – Expert psychiatric evidence – Two psychiatrists agreed as to the applicant’s mental state at the time of offending – Crown submission to jury that expert evidence would not assist them – Judge erred in failing to direct jury that expert evidence should not be disregarded without good reason – R v NCT (2009) 26 VR 247 and Taylor v The Queen (1978) 45 FLR 343 approved – Danger arose that jury would replace expert testimony with lay reasoning – Direction desirable alerting jury to dangers of applying standards of common sense and rationality used by sane rather than mentally ill person – R v Weise [1969] VR 953 followed.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr G A Georgiou SC with Mr P J Smallwood	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

This was an application for leave to appeal against conviction and sentence on two charges of murder. Following a 16 day trial in the Supreme Court at Melbourne, the applicant was found guilty on 5 June 2012 of the murders of his friends, Boris Kostov and Goran Vasic. The jury rejected the defence of mental impairment under s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). The applicant was sentenced on 14 September 2012 to 17 years’ imprisonment on charge 1 and 17 years’ imprisonment on charge 2, with eight years’ cumulation, making a total effective sentence of 25 years’ imprisonment. A non-parole period of 20 years was fixed.

The applicant sought leave to appeal against his conviction on the following grounds:

Conviction
1. The verdicts of the jury were unreasonable in that they were against the weight of the evidence. In particular, upon the whole of the evidence adduced by the prosecution and by the applicant at his trial, it was not open to the jury to reject his defence of mental impairment.
2.The trial judge erred in failing to direct the jury that they should not reject the expert psychiatric evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kosian v The Queen

Details

AGLC: Kosian v The Queen [2013] VSCA 357
Case: [2013] VSCA 357
Decision Date: 6 December 2013

CaseChat Overview and Summary

Kosian v The Queen involved a defendant who was convicted of double murder but claimed that he should have been found not guilty by reason of mental impairment. The High Court of Australia heard the appeal against the conviction, considering the legal and medical aspects of the case. The central legal issues were whether the defendant’s perception of the legal and moral wrongness of his actions was relevant to satisfying the statutory test for mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and whether the trial judge erred in not directing the jury properly on the relevance of expert psychiatric evidence.

The court determined that the statutory test for mental impairment should focus on whether the defendant was incapable of understanding the nature and quality of the act or that it was wrong, rather than their perception of the legal and moral wrongness of their actions. The court held that the trial judge's failure to properly direct the jury on the importance of expert psychiatric evidence was an error. The expert evidence was crucial in understanding the defendant’s mental state at the time of the offence, and the jury should not have disregarded it without good reason. The court found that the judge's omission increased the risk that the jury would replace expert testimony with their own reasoning, potentially leading to an incorrect verdict.

Consequently, the court quashed the conviction and found the applicant not guilty by reason of mental impairment. The decision highlights the importance of properly considering expert psychiatric evidence in cases where the defence of mental impairment is raised. The court also underscored the necessity for judges to provide clear directions to juries regarding the relevance and weight of such evidence.

Orders