R v Ilie Istudor - [2016] NSWDC 1

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ilie Istudor [2016] NSWDC 1
Hearing dates: 18 January 2016 – 28 January 2016
Date of orders: 28 January 2016
Decision date: 28 January 2016
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Not guilty by reason of mental illness

Catchwords: attempt murder; shooting; special hearing; mental illness; intent absent mental illness; judge alone
Legislation Cited: Firearms Act 1996 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: R v Abdallah [2005] NSWCCA365
R v Gourlay [2015] NSWSC 67
Hawkins v The Queen (1994) 179 CLR 500
R v Issa, NSWSC, unreported, 25 October 1995
Knight v The Queen (1992) 195 CLR 475
R v Lucas (1970) 120 CLR 171
R v Minani [2005] NSWCCA 226; (2005) 62 NSWLR 490
R v Newbury [2012] NSWSC 1361
The King v Porter [1933] HCA 1; (1933) 55 CLR 182
Stapleton v The Queen (1952) 86 CLR 358
Category: Principal judgment
Parties: Director of Public Prosecutions v Ilie Istudor
Representation:
Counsel:
Mr B Hughes SC (DPP)
Ms P David (accused)
Solicitors:
Mr S Flint (DPP)
Mr A Brookman (accused)
Ms J Pollock (accused)

File Number(s): 2014/124498

Judgment

Introduction

Ilie Istudor, now 87, came to Australia as a refugee from Romania in 1951. He worked hard. He made a contribution. On retirement he maintained an active interest in the management of his unit block in Quigg St, Lakemba. He undertook a real estate course. That interest however came to obsess him. One focus of that obsession was Stephen Smith the strata manager. Another was a neighbour Ms Bush, who Mr Istudor believed, and still believes, was trying to poison him. He came to believe, wrongly, that both were conspiring against him. Despite Mr Istudor’s attempt to have Mr Smith removed, the Consumer, Trading and Tenancy Tribunal (now NCAT) confirmed his appointment as strata manager on a number of occasions.
Mr Istudor is a short and wiry man, fit for his age. Mr Smith, now 67, is a respected and experienced professional strata manager. Mr Smith is a tall man about 180 cm of moderate to heavy build. On 24 September 2014 Mr Istudor fired a shot from a sawn off rifle at Mr Smith. The bullet went through Mr Smith’s neck luckily missing vital structures. Mr Istudor was arrested and charged with attempting to murder Mr Smith and Firearms Act1996 offences.
On 20 January 2016 I determined that Mr Istudor did not have the mental capacity to meet all of the basic requirements of a fair and just trial so far as the attempt murder charge, and its alternative, was concerned. He was however fit to be tried or plead to the firearms offences. He said he was guilty of them and will be sentenced shortly
Accordingly, he must be tried for the attempt murder charge, and its alternate, under a special procedure laid down by Parliament in the Mental Health (Forensic Provisions) Act 1990 (NSW). That special hearing…

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 Ilie Istudor

Details

AGLC: R v Ilie Istudor [2016] NSWDC 1
Case: [2016] NSWDC 1
Decision Date: 28 January 2016

CaseChat Overview and Summary

The case involved the respondent, Ilie Istudor, who was charged with attempted murder after shooting at a person, causing injury. The matter was heard in the Supreme Court of Victoria, presided over by Justice Parker. The central issue before the court was whether the respondent's actions constituted an attempt to murder, considering his mental health status at the time of the incident.

The court needed to determine if the respondent had the requisite intent to commit murder when he fired the shots. Additionally, it was necessary to assess whether his mental illness at the time of the offence rendered him incapable of forming the necessary intent to commit murder, and thus, whether the lesser charge of attempted murder applied. The court also had to decide if a special hearing, which would require the case to be heard by a judge alone, was warranted due to the respondent's mental health issues.

Justice Parker found that the respondent was suffering from a mental illness at the time of the shooting, which resulted in the absence of the intent to commit murder. Consequently, the court concluded that the respondent could not be held liable for the attempted murder charge. Given the respondent's mental health status, a special hearing was deemed necessary. The court found the respondent not guilty of attempted murder by reason of mental illness. The final order was that the respondent be detained in a psychiatric facility until such time as it was deemed safe for him to be released.

Orders

Orders of the court

Not guilty by reason of mental illness

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Ilie Istudor [2016] NSWDC 1
Hearing dates:	18 January 2016 – 28 January 2016
Date of orders:	28 January 2016
Decision date:	28 January 2016
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Not guilty by reason of mental illness
Catchwords:	attempt murder; shooting; special hearing; mental illness; intent absent mental illness; judge alone
Legislation Cited:	Firearms Act 1996 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	R v Abdallah [2005] NSWCCA365 R v Gourlay [2015] NSWSC 67 Hawkins v The Queen (1994) 179 CLR 500 R v Issa, NSWSC, unreported, 25 October 1995 Knight v The Queen (1992) 195 CLR 475 R v Lucas (1970) 120 CLR 171 R v Minani [2005] NSWCCA 226; (2005) 62 NSWLR 490 R v Newbury [2012] NSWSC 1361 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen (1952) 86 CLR 358
Category:	Principal judgment
Parties:	Director of Public Prosecutions v Ilie Istudor
Representation:	Counsel: Mr B Hughes SC (DPP) Ms P David (accused) Solicitors: Mr S Flint (DPP) Mr A Brookman (accused) Ms J Pollock (accused)
File Number(s):	2014/124498