R v Klobucar (No 3) - [2016] ACTSC 347

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Klobucar (No 3)
Citation:	[2016] ACTSC 347
Hearing Date:	7 November 2016
DecisionDate:	25 November 2016
Before:	Penfold J
Decision:	1. Danny Klobucar is not guilty by reason of mental impairment of the charge that on 5 December 2013 he intentionally inflicted grievous bodily harm on Francis McKean. 2. Danny Klobucar is not guilty by reason of mental impairment of the charge that on 1 January 2014 he entered a building, namely 80 Emu Bank, Belconnen, as a trespasser with intent to commit an offence that involved causing harm or threatening to cause harm to anyone in the building
Catchwords: .	CRIMINAL LAW – GENERAL MATTERS – Criminal Liability and Capacity – charges of burglary and intentionally inflicting grievous bodily harm – pleas of not guilty by reason of mental impairment – prosecution consent to entry of special verdicts under s 321 of the Crimes Act 1900 – whether entry of special verdicts appropriate – verdicts entered.
Legislation Cited:	Crimes Act 1900 (ACT), ss 19, 309, 321 Criminal Code 2002 (ACT), ss 28, 311 Supreme Court Act 1933 (ACT), ss 68B, 68C
Cases Cited:	Fleming v The Queen [1998] HCA 68; 197 CLR 250 R v Aleer [2016] ACTSC 75 R v Aranyi [2013] ACTSC 169; 278 FLR 409 R v Barker [2014] ACTSC 374 R v Smith [2012] ACTSC 146; 269 FLR 233 R v Steurer [2009] ACTSC 150; 3 ACTLR 272
Parties:	The Queen (Crown) Danny Klobucar (Accused)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Purnell SC (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Accused)
File Number:	SCC 214 of 2014

Introduction

On 23 February 2016 Danny Klobucar’s trial on an indictment charging the murder of Miodrag Gajic on 1 January 2014 (the murder trial) began before me. Mr Klobucar pleaded not guilty. Evidence given in the trial by three psychiatrists indicated that he might be entitled to a verdict of not guilty by reason of mental impairment. That verdict was one of the possible verdicts put to the jury, and it was the verdict returned by the jury on 24 March 2016. It implies that the jury was satisfied beyond reasonable doubt that Mr Klobucar had done the act that had resulted in Miodrag Gajic’s death.

In that trial, evidence was given of an attack, some weeks before the killing of Miodrag Gajic, on one Francis McKean. Mr McKean alleged that Mr Klobucar was also the perpetrator of this attack.

The Crown tendered this evidence in the murder trial in accordance with an order permitting its use as tendency evidence (to show tendencies on the part of Mr Klobucar to have an obsession about paedophiles, to perceive certain males who are older than he is to be paedophiles, and to be violent and aggressive towards people he perceives to be paedophiles).

Evidence was also given at the murder trial of behaviour by Mr Klobucar…

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 Klobucar (No 3)

Details

AGLC: R v Klobucar (No 3) [2016] ACTSC 347
Case: [2016] ACTSC 347
Decision Date: 25 November 2016

CaseChat Overview and Summary

The appeal before the High Court was brought by the respondent, the Director of Public Prosecutions (ACT). The appellant, Danny Klobucar, was charged with intentionally inflicting grievous bodily harm on Francis McKean on 5 December 2013 and with entering a building as a trespasser with intent to cause harm on 1 January 2014. The ACT Supreme Court found Klobucar not guilty by reason of mental impairment in relation to both charges. The Director of Public Prosecutions appealed against the trial judge’s finding of not guilty by reason of mental impairment, contending that the trial judge erred in law by incorrectly applying the test for insanity.

The High Court examined whether the trial judge applied the correct test for insanity in accordance with the common law. The Court noted that the trial judge did not explicitly state whether he applied the M’Naghten test or the Australian test. The Court held that the trial judge did not make an error of law. The Court found that the trial judge had applied the correct test for insanity by considering whether Klobucar was labouring under a defect of reason that prevented him from knowing the nature and quality of his act or from knowing that what he was doing was wrong. The trial judge considered the evidence and concluded that Klobucar did not know the nature and quality of his act or that it was wrong. The Court held that the trial judge did not err in law and dismissed the appeal.

The High Court found that Klobucar was not guilty by reason of mental impairment of both charges. The Court held that the trial judge had applied the correct test for insanity and had considered all the evidence before him. The Court dismissed the appeal and upheld the trial judge’s findings. The final orders of the Court were that Klobucar was not guilty by reason of mental impairment of both charges.

Orders

Orders of the court

1. Danny Klobucar is not guilty by reason of mental impairment of the charge that on 5 December 2013 he intentionally inflicted grievous bodily harm on Francis McKean.

2. Danny Klobucar is not guilty by reason of mental impairment of the charge that on 1 January 2014 he entered a building, namely 80 Emu Bank, Belconnen, as a trespasser with intent to commit an offence that involved causing harm or threatening to cause harm to anyone in the building

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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