R v Ivanoff - [2017] NSWSC 1707

Supreme Court

New South Wales

Medium Neutral Citation: R v Ivanoff [2017] NSWSC 1707
Hearing dates: 7 December 2017
Date of orders: 07 December 2017
Decision date: 07 December 2017
Jurisdiction: Common Law
Before: Johnson J - Crime
Decision:
(a) The Accused is referred to the Mental Health Review Tribunal pursuant to s.14 Mental Health (Forensic Provisions) Act 1990.
(b) Pursuant to s.14(b)(iii) Mental Health (Forensic Provisions) Act 1990, the Accused is remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal.
(c) Johnson J directs that the Registrar provide to the Mental Health Review Tribunal a copy of the exhibits tendered in these proceedings together with a copy of the Court's reasons - with those documents intended to assist the Mental Health Review Tribunal in the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990.

Catchwords: CRIMINAL LAW - Accused charged with murder - inquiry into fitness to be tried - finding that Accused until to be tried - referral to Mental Health Review Tribunal
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Cases Cited: Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70
Feili v R [2015] NSWCCA 43.
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 at 245-246
R v Presser [1958] VR 45.
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51
Texts Cited: ---
Category: Principal judgment
Parties: Regina (Crown)
Ben Ivanoff (Accused)
Representation:
Counsel:
Ms MM Cunneen SC (Crown)
Ms JS Manuell SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/6480
Publication restriction: ---

Judgment

JOHNSON J: This is an inquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 as to whether the Accused, Ben Ivanoff, is unfit to be tried with respect to a charge of murder.
The Accused is charged that on 8 January 2017 at Umina Beach in the State of New South Wales he did murder Leonne Ivanoff, his wife.
The Accused appeared before me in the Arraignments List on 3 November 2017 with respect to that charge. He was not arraigned on that occasion. The Court was informed that there was an issue as to his fitness to be tried and an inquiry was listed to proceed today to determine that question.

Applicable Legal Principles

The principles to be applied on an inquiry such as this are not in doubt.
Section 12(3) Mental Health (Forensic Provisions) Act 1990 provides that the onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence. The proceedings are to be by way of inquiry which is not to be conducted in an adversary manner: s.12(2).
The sole question to be determined is whether I am…

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 [2017] NSWSC 1707
Case: [2017] NSWSC 1707
Decision Date: 07 December 2017

CaseChat Overview and Summary

The case before the court involved the accused, Ivanoff, who was charged with the crime of murder. The dispute centred around the accused's fitness to stand trial, with the prosecution arguing that Ivanoff was fit to be tried while the defence contested this assertion. The matter was heard in the Supreme Court of Victoria. The court had to determine whether Ivanoff was fit to be tried for the alleged offence of murder. This required the court to consider medical evidence and the overall capacity of the accused to understand the proceedings and participate in his defence.

The legal issues before the court included whether the accused was fit to be tried and, if not, what the appropriate course of action would be. The court had to weigh the medical evidence provided and determine if it was sufficient to conclude that Ivanoff was unfit to stand trial. If the court found the accused unfit, it was required to refer the matter to the Mental Health Review Tribunal in accordance with the statutory provisions governing such cases. The court had to ensure that the accused's rights were protected while also considering the need for the administration of justice.

In reaching its decision, the court considered the medical evidence presented, which indicated that Ivanoff suffered from a significant mental disorder that impaired his ability to understand the proceedings or participate in his defence. The court found that, based on this evidence, Ivanoff was unfit to be tried. Consequently, the court referred the matter to the Mental Health Review Tribunal, as mandated by the relevant legislation. The court's decision was grounded in the need to protect the rights of the accused and ensure a fair trial, while also addressing the public interest in the administration of justice.

Orders