R v Ivanoff - [2018] NSWSC 1225

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ivanoff [2018] NSWSC 1225
Hearing dates: 6 August 2018
Date of orders: 07 August 2018
Decision date: 07 August 2018
Jurisdiction: Common Law
Before: Wilson J
Decision:
1   I find Ben Ivanoff not guilty of the murder of Leonne Ivanoff on the grounds of mental illness.
2 Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Mr Ivanoff is to be released from custody forthwith, on the following conditions:
(a)   He is to reside at Opal Annandale, or such other place as approved from time to time by the Mental Health Review Tribunal.
(b)   He is not to leave Opal Annandale, or such other place at which he may from time to time reside, without the consent of the Mental Health Review Tribunal.
(c)   Within 14 days of taking up residence at Opal Annandale he is to meet with a staff member of the Camperdown Older Persons Mental Health Team and, thereafter, accept any treatment recommended to him by health professionals connected with that service, or other comparable service as approved by the Mental Health Review Tribunal.
3   I direct the Registrar to forward a copy of this judgment to the Mental Health Review Tribunal forthwith.

Catchwords: CRIME – accused charged with wife’s murder – previously found unfit to be tried – special hearing – no issue that accused has defence of mental illness available to him – elderly and frail accused – question of risk posed if released – release to the community appropriate
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: R v Ivanoff [2017] NSWSC 1707
R v M’Naghten (1843) 8 ER 718
The Queen v Falconer (1990) 171 CLR 30
Category: Principal judgment
Parties: The Queen
Ben Ivanoff
Representation:
Counsel:
Mr D. Patch as Crown Prosecutor
Ms J. Manuell SC for the accused
Solicitors:
Solicitor for Public Prosecution
Legal Aid Commission of NSW

File Number(s): 2017/6480
Publication restriction: None

Judgment

The Background to the Special Hearing

On 8 January 2017, Ben Ivanoff was charged with his wife’s murder, that day, at the couple’s Umina home.
Mr Ivanoff was subsequently, on 7 December 2017, found unfit to be tried for the offence by Johnson J: R v Ivanoff [2017] NSWSC 1707. He was referred to the Mental Health Review Tribunal (“MHRT”) to determine whether he would become fit within the period of twelve months.
On 17 January 2018, the Tribunal found, pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”), that Mr Ivanoff was unfit to be tried, and would probably remain so within the period ending on 6 December 2018, that being the expiration of twelve months following the finding of unfitness by this Court (Ex. 7). A determination was made that the accused should be detained at the Aged Care Unit of the Long Bay Gaol, pending any grant of bail that might be made to…

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 Ivanoff

Details

AGLC: R v Ivanoff [2018] NSWSC 1225
Case: [2018] NSWSC 1225
Decision Date: 07 August 2018

CaseChat Overview and Summary

The case before the court involved the respondent, Ivanoff, who had been charged with the murder of his wife. Previously, Ivanoff had been found unfit to be tried due to a mental illness. A special hearing was held to determine whether Ivanoff should be released to the community. The central legal issues for the court to decide were whether Ivanoff still suffered from a mental illness that rendered him unfit to be tried and, if so, whether it was appropriate to release him into the community. The court needed to weigh the risk Ivanoff posed to the community against his right to be released if he no longer posed a significant risk due to his illness.

The court found that there was no issue that Ivanoff had a defence of mental illness available to him. However, the court was also required to consider whether releasing Ivanoff to the community posed an unacceptable risk. The court examined evidence regarding Ivanoff's current mental state, his age, frailty, and the conditions of his release. The court concluded that, given Ivanoff's age, frailty, and the safeguards in place, releasing him to the community was appropriate. The court determined that the risk posed by Ivanoff was manageable and that his release was in the best interest of both Ivanoff and the community.

The court's decision was based on a careful assessment of the evidence and the principles of justice and public safety. The court acknowledged the severity of the charges against Ivanoff but also recognised the need to balance his rights with the safety of the community. The court found that the conditions of Ivanoff's release, including supervision and support, adequately managed the risk he posed. Therefore, the court ordered Ivanoff's release to the community under specific conditions to ensure public safety and to provide him with the necessary support.

Orders