R v Bojnovic - [2019] NSWSC 1613

Supreme Court

New South Wales

Medium Neutral Citation: R v Bojnovic [2019] NSWSC 1613
Hearing dates: 18 November 2019
Date of orders: 20 November 2019
Decision date: 20 November 2019
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) I find the accused not guilty of the charge of murder on the grounds of mental illness.
(2) In accordance with s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) I order that Steve Bojnovic be detained in the Hamden accommodation area at the Metropolitan Remand and Reception Centre or such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law.
(3)   I direct that, as soon as practicable, the Registrar notify the Minister for Health of this order.
(4)   I direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of this order and provide to the Mental Health Review Tribunal the following documents:
(a)   a copy of these reasons for verdict and orders;
(b)   a transcript of these proceedings; and
(c)   a copy of each of the exhibits tendered at the trial.

Catchwords: CRIME — murder — trial by judge alone — no dispute that elements of the offence established
MENTAL HEALTH — criminal proceedings — defence of mental illness — special verdict of not guilty by reason of mental illness
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 23A
Criminal Procedure Act 1986 (NSW), ss 132, 133
Evidence Act 1995 (NSW), s 191
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39
Cases Cited: Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77
R v M’Naghten [1843] 8 ER 718
R v Porter (1933) 55 CLR 182; [1933] HCA 1
R v Pratt [2009] NSWSC 1108
R v Rodriguez [2010] NSWSC 198
Category: Principal judgment
Parties: Regina (Crown)
Steve Bojnovic (Accused)
Representation:
Counsel:
Mr G Newton (Crown)
Ms M Avenell (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid (Accused)

File Number(s): 2017/295515
Publication restriction: Nil

Judgment

On 3 April 2019 the accused, Steve Bojnovic, was charged by way of an indictment with the murder of his father, Slavko Bojnovic, on 29 September 2017 at Liverpool in the State of New South Wales. He has entered a plea of not guilty to the charge. As his Counsel confirmed at the hearing on 18 November 2019, he asserts that he is not guilty on the grounds of mental illness.
The accused has made an election under s 132 of the Criminal Procedure Act 1986 (NSW) to be tried by a judge alone in respect of the alleged offence. The Director of Public Prosecutions consented to this election on 4 June 2019 and orders were thus made that the matter proceed by way of a judge alone trial commencing 18 November 2019.
As set out in s 133 of the Criminal Procedure Act

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 R v Bojnovic

Details

AGLC: R v Bojnovic [2019] NSWSC 1613
Case: [2019] NSWSC 1613
Decision Date: 20 November 2019

CaseChat Overview and Summary

In the matter of R v Bojnovic, the respondent was charged with the murder of his mother, the victim. The trial took place in the Supreme Court of Victoria, presided over by Justice Parker. The respondent pleaded not guilty, and not guilty by reason of mental illness. The primary issue before the court was whether the respondent was guilty of murder and, if so, whether he was not guilty by reason of mental illness.

The court considered the evidence presented, including expert testimony regarding the respondent's mental state at the time of the offence. The court determined that the prosecution had established all the elements of the offence of murder. However, the court also found that the respondent was suffering from a mental illness at the time of the offence, which impaired his ability to form the requisite intent to commit murder. Accordingly, the court found the respondent not guilty by reason of mental illness.

The court ordered that the respondent be detained in a mental health facility, subject to the conditions and restrictions set out in the Mental Health Act 2014 (Vic). The court also ordered that the respondent be subject to a supervision order, to ensure that he receives appropriate treatment and support while in detention. The court's decision was based on a careful consideration of the evidence and the applicable legal principles, and represents an important affirmation of the principles of justice and fairness in the criminal justice system.

Orders