R v Crnobrnja

[2016] NSWSC 1573

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Crnobrnja [2016] NSWSC 1573
Hearing dates:	17 October 2016
Date of orders:	17 October 2016
Decision date:	17 October 2016
Jurisdiction:	Common Law
Before:	Mathews AJ
Decision:	Enter a special verdict of not guilty by reason of mental illness. I make the following orders: 1. That Mr Crnobrnja be detained by the Commissioner of Corrective Services until released by due process of law. 2. That the Registrar of the Court notify the Minister of Health of this judgment and order. 3. That the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and provide the Tribunal with the following: (a) a transcript of these proceedings; (b) a copy of the exhibits tendered at the hearing; (c) a copy of my reasons for the verdict and order.
Catchwords:	Judge alone trial – not guilty by reason of mental illness – special verdict
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Hawkins v the Queen (1994) 179 CLR 500. R v McNaghten (1843) 8 ER 718 R v Newbury [2012] NSWSC 1361 The King v Porter (1933) 55 CLR 182
Category:	Principal judgment
Parties:	Regina Zoran Crnobrnja
Representation:	Counsel: Mr P Barrett (Crown) Mr J Stratton SC (Accused)   Solicitors: Solicitor for Director of Public Prosecutions Matthew Lorkin Solicitor
File Number(s):	2014/00338957
Publication restriction:	No

Judgment

1. On 17 October 2016, Zoran Crnobrnja was charged by way of indictment with a single charge, namely that on 17 November 2014 at Casula he murdered Vesna Crnobrnja. Mr Crnobrnja pleaded “not guilty on the basis of mental health”, which was taken to be a plea of not guilty on the ground of mental illness.

2. An application had previously been made by Mr Crnobrnja and consented to by the Crown, that the trial be conducted by judge alone. Accordingly, the trial proceeded before myself without a jury.

3. The trial itself was extremely short. A number of documents were tendered by counsel, all of them by consent. Both counsel were in agreement that the appropriate verdict in all the circumstances was the special verdict of not guilty by reason of mental illness.

4. All relevant documents, including psychiatric reports, had previously been provided to me by counsel. Having read those documents, I was firmly of the opinion that this was the only appropriate verdict in the circumstances. Accordingly, I formally entered a verdict that Mr Crnobrnja was not guilty by reason of mental illness. I made a number of ancillary orders, all of them by consent. I said that I would deliver the reasons for my verdict at a date to be fixed.

5. These, then, are my reasons for finding Mr Crnobrnja not guilty by reason of mental illness.

Circumstances of the Offence

6. Mr Crnobrnja 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 the morning of 17 November, after the children had left for their work or their studies, Mr Crnobrnja and his wife 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. Mr Crnobrnja 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.”

7. Alex Crnobrnja immediately telephoned emergency services, and the police and ambulance arrived shortly afterwards. The deceased was pronounced dead at the scene, and Mr Crnobrnja 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 any more.” 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. Mr Crnobrnja was taken to Liverpool Police Station where he was charged with murder. He has been in custody ever since.

8. A post-mortem examination showed that the cause of death was asphyxia, consistent with manual strangulation. There were also injuries on the deceased’s limbs and hands which could have been defensive injuries.

9. At this stage I turn to briefly say something about Mr Crnobrnja’s background.

Background of the Accused

10. As already mentioned, Mr Crnobrnja 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 and their first daughter was born in the same year. At that stage they had already been cohabiting for about 6 to 8 years. They had three children altogether. In 1996 he and his family, including his parents, came to Australia as refugees. Mr Crnobrnja then worked as a labourer with a formwork company. He did well at work and rose to the position of foreman. He has no criminal record and he appeared to have a stable lifestyle until late 2013, when he first showed signs of serious mental problems. I shall describe those shortly.

11. In the meantime, it is appropriate to discuss the issues which need to be determined in the present case.

Issues to be Determined

12. Mr Crnobrnja having been charged with murder, it goes without saying that the Crown must prove beyond reasonable doubt the essential ingredients of that offence, as relevant to the circumstances of the particular case. In the present case, the defence of mental illness having been raised, the matters to be proved by the Crown, at least in the first instance, are significantly reduced.

13. The Crown must prove in all cases that it was a voluntary or intentional act of the accused which caused the death of the deceased. A “voluntary or intentional act” is to be contrasted with an involuntary or accidental one. In determining this matter, the Court is to put to one side the evidence as to the underlying mental condition of the accused. If this matter is proved beyond reasonable doubt the Crown must, in the normal course of events, also prove that the accused had the requisite intention for murder at the relevant time. However when the defence of mental illness has been raised, different principles apply, as confirmed by the High Court in Hawkins v the Queen (1994) 179 CLR 500. In that event the next matter for consideration is whether the elements of that defence have been established by the accused on the balance of probabilities. If so, there is no need to consider the accused’s intention at the time (see also R v Newbury [2012] NSWSC 1361). The accused is to be found not guilty on the ground of mental illness. It is only if the defence is not made out that the Court is to return to consider whether the Crown has proved that the accused had the requisite intention for murder.

14. In the present case, there can be no doubt that it was Mr Crnobrnja who inflicted the fatal injuries on the deceased. Nor can there be any doubt that his actions in this regard were voluntary and intentional ones in the relevant sense. Indeed, no one has sought to suggest to the contrary. Accordingly, the next significant matter for consideration relates to his mental state at the time of the killing, and particularly whether the defence of mental illness has been made out so as to lead to a special verdict of not guilty by reason of mental illness in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”).

The Defence of Mental Illness

15. There is no statutory definition of the defence of mental illness. It has long been established that, once the defence has been raised, it is to be resolved in accordance with the rules set out in R v McNaghten (1843) 8 ER 718 (“the McNaghten Rules”). Under these rules the accused must prove, on the balance of probabilities, that at the time he inflicted the fatal injuries he was labouring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his act; or, if he did know it, that he did not know that what he was doing was wrong.

16. As to this last requirement, that the accused not know that what he was doing was wrong, it is now firmly established that this does not relate to his understanding of the illegality of his actions, but rather to his appreciation, in a deep or moral sense, of the wrongfulness of his conduct. As Dixon J (as he then was) said in The King v Porter (1933) 55 CLR 182:

“If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

17. At this point, I turn to discuss the psychiatric evidence given in the trial.

Psychiatric Reports

18. Since early 2014 the accused has been assessed by a number of different psychiatrists, as illustrated by the fact that no fewer than 13 psychiatric assessments or reports were tendered into evidence. The first in point of time was the report of Dr Blagoje Kuljic dated 21 March 2014. At that time Mr Crnobrnja had recently been discharged from a psychiatric unit at Liverpool Hospital where he had been treated for persecutory delusions and agitation. He appeared to be in full remission, but the doctor warned in his report that he could be prone to a relapse of his psychosis or to developing post-psychotic depression. Only a short time later, on 8 April 2014, he was assessed by Dr Graham Vickery, who diagnosed him as suffering from a delusional disorder of the persecutory type, or schizophrenia of paranoid type. He was re-admitted to Liverpool Hospital on 12 May 2014, having been taken there by police after becoming aggressive and delusional. He remained there until 27 June 2014. He was hospitalised for a third time between 13 and 25 September, and was diagnosed as having a severe depressive episode with psychotic symptoms.

19. I do not propose to go through the numerous other reports which precede this offence, as the issue to be considered here relates to Mr Crnobrnja’s mental state on 17 November 2014, when he strangled his wife. As to that matter, he has since been assessed by two highly experienced forensic psychiatrists, Dr David Greenberg on behalf of the Crown and Dr Olav Nielsen on behalf of the defence.

20. Dr Greenberg’s first report, dated 30 May 2016, followed a psychiatric assessment of Mr Crnobrnja on two separate occasions, and his review of a large amount of documentation relating to this matter. He diagnosed Mr Crnobrnja as suffering from a chronic schizophrenic disorder with marked negative symptoms. He noted that his presentation was atypical, in that individuals with schizophrenia usually present with psychotic symptoms in their early twenties. Dr Greenberg considered that Mr Crnobrnja was suffering from a mental illness, namely paranoid schizophrenia, at the time of the killing, and had the defence of mental illness available to him.

21. Dr Greenberg’s next report, dated 21 July 2016, related to Mr Crnobrnja’s fitness to stand trial, and it is unnecessary to refer to it here. His last report dated 22 August 2016, followed a further psychiatric assessment of the accused on 22 August 2016. The doctor expressed the view that, at the time of the killing, Mr Crnobrnja probably knew the nature and quality of his acts; and he probably knew that the acts were legally wrong. However, as a result of his chronic schizophrenia, he did not know that his actions were morally wrong. Accordingly, he has the defence of mental illness available to him.

22. Dr Nielsen’s first report is dated 20 March 2016. It followed two interviews with Mr Crnobrnja. The doctor had also read relevant documentation about the case. He expressed the opinion that Mr Crnobrnja has the defence of mental illness available to him. He had a disease of the brain in the form of a primary psychotic illness or a severe depression with psychotic features. This mental illness caused a defect of reason in the form of delusional beliefs that his family was plotting against him. Dr Nielsen considered that he was probably aware of the physical nature and quality of his actions in strangling his wife. However, his mental illness deprived him of the ability to recognise that his actions were wrong, as well as the ability to exercise self- control.

23. Dr Nielsen’s second report, dated 20 July 2016, addressed only the question of Mr Crnobrnja’s fitness to stand trial, and I do not propose to discuss it here.

24. Neither doctor gave evidence at the very brief trial, as both counsel were in agreement that, on the basis of the whole of the evidence, the only appropriate verdict was that Mr Crnobrnja is not guilty on the ground of mental illness.

Conclusion

25. The whole of the evidence in this case pointed in one direction only, namely that when Mr Crnobrnja strangled and fatally injured his wife, he was suffering from a mental illness as defined in the McNaghten Rules. It is for this reason that I entered a verdict of not guilty by reason of mental illness, and made the consequential orders which usually follow such a verdict.

Amendments

15 November 2016 - Matthew Lorkin Solicitor in substitution of Legal Aid NSW

Decision last updated: 15 November 2016