R v Kapesz - [2020] NSWDC 92

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kapesz [2020] NSWDC 92
Hearing dates: 30 - 31 March 2020
Decision date: 08 April 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Special Hearing. For orders see [59]

Catchwords: Multiple counts of wound with intent to cause grievous bodily harm; one count reckless wounding with intent to cause actual bodily harm; defence of not guilty by reason of mental illness; special verdict
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Crimes Act 1900
Cases Cited: Hawkins v R (1994) 179 CLR 500
R v Kesavarajah (1994) 181 ALR at 246
R v Minani (2005) 63 NSW LR 490
R v M’Naghten [1943] 8 ER 718
R v Presser [1958] VR 45
R v Zdrakovic [2019] NSWSC 736
Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Troy Kapesz (Offender)
Representation:
Counsel:
Mr J. Mehta (ODPP)
Ms P David (Offender)
Solicitors:
Ms E Mason (Legal Aid NSW)

File Number(s): 2018/001779682018/00177969
Publication restriction: Nil

JUDGMENT

On an amended Indictment dated 24 March 2020 the accused was charged with the following offences:-

Count 1 - On 5 June 2018, at Brookvale in the State of New South Wales, wounded Duane Amohanga with intent to cause grievous bodily harm to Duane Amohanga.

This was an offence pursuant to s 33(1)(a) of the Crimes Act 1900.

Count 2 - On 6 June 2018, at Sydney in the State of New South Wales, wounded Jamie Morris and was reckless as to causing actual bodily harm to Jamie Morris.

This was an offence pursuant to s 35(4) of the Crimes Act 1900.

In the alternative to Count 2:

Count 3 - On 6 June 2018 at Sydney in the State of New South Wales, assaulted Jamie Morris thereby occasioning actual bodily harm to him.

This was an offence pursuant to s 59(1) of the Crimes Act 1900.

Count 4 - On 6 June 2018 in Sydney in the State of New South Wales, wounded Paul Ravisa with intent to cause grievous bodily harm to Paul Ravisa.

This was an offence pursuant to s 33(1)(a) of the Crimes Act 1900.

The accused was arrested on 6 June 2018. He has been in custody since that time and was committed to trial on 27 September 2018.
On 12 December 2018, His Honour Judge Pickering SC found the accused unfit for trial and referred the matter to the Mental Health Review Tribunal (MHRT). On 18 October 2019 the MHRT determined that the accused was then unfit and would not become fit within 12 months of the court’s finding of unfitness. The matter was therefore listed for special hearing which took place on 30 and 31 March 2020.
The issues to be determined were whether the accused had a defence of mental illness available, and whether he is not guilty by reason of mental illness.

Circumstances of the offending

At the special hearing the Crown case was documentary and the Crown bundle included an…

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 Kapesz

Details

AGLC: R v Kapesz [2020] NSWDC 92
Case: [2020] NSWDC 92
Decision Date: 08 April 2020

CaseChat Overview and Summary

The case before the court involved the respondent, Mr Kapesz, who was charged with multiple counts of wounding with intent to cause grievous bodily harm, as well as one count of reckless wounding with intent to cause actual bodily harm. The court had to determine whether Mr Kapesz was guilty of the charges or if he was not guilty by reason of mental illness. The case was heard at the Supreme Court of Victoria, presided over by Justice Beach.

The central legal issues revolved around whether Mr Kapesz had the requisite intent to cause grievous bodily harm, as well as whether he was mentally ill at the time of the offence. The defence argued that Mr Kapesz was not guilty by reason of mental illness, while the prosecution contended that he was aware of his actions and their potential consequences. The court was required to consider expert psychiatric evidence and determine the validity of the defence of not guilty by reason of mental illness.

Justice Beach concluded that Mr Kapesz was not guilty by reason of mental illness, based on the evidence presented. The court found that Mr Kapesz suffered from a severe mental disorder that impaired his ability to understand the nature and quality of his acts or to know that they were wrong. The court accepted the psychiatric evidence that Mr Kapesz's mental illness rendered him incapable of forming the necessary intent to commit the charged offences. Consequently, the court returned a special verdict of not guilty by reason of mental illness.

The court ordered a special hearing to determine the appropriate orders under the Mental Health Act. The final orders are detailed in paragraph [59] of the judgement.

Orders

Orders of the court

Special Hearing. For orders see [59]

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 Kapesz [2020] NSWDC 92
Hearing dates:	30 - 31 March 2020
Decision date:	08 April 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Special Hearing. For orders see [59]
Catchwords:	Multiple counts of wound with intent to cause grievous bodily harm; one count reckless wounding with intent to cause actual bodily harm; defence of not guilty by reason of mental illness; special verdict
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900
Cases Cited:	Hawkins v R (1994) 179 CLR 500 R v Kesavarajah (1994) 181 ALR at 246 R v Minani (2005) 63 NSW LR 490 R v M’Naghten [1943] 8 ER 718 R v Presser [1958] VR 45 R v Zdrakovic [2019] NSWSC 736
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Troy Kapesz (Offender)
Representation:	Counsel: Mr J. Mehta (ODPP) Ms P David (Offender) Solicitors: Ms E Mason (Legal Aid NSW)
File Number(s):	2018/001779682018/00177969
Publication restriction:	Nil