R v Klobucar (No 3)
[2016] ACTSC 347
•25 November 2016
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 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 on the evening of the day Mr Gajic died, which resulted in Mr Klobucar being arrested (before he became a person of interest in relation to Mr Gajic’s death) and charged with burglary and a number of other more minor offences.
On 6 June 2016, some time after the jury returned its verdict in the murder trial, Mr Klobucar was arraigned before me on the following charges:
(a)That on 5 December 2013 he intentionally inflicted grievous bodily harm on Francis McKean (the bodily harm offence).
(b)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 (the burglary offence).
The building at 80 Emu Bank, Belconnen is variously referred to as the Lighthouse Bar (including in the agreed statement of facts, at [19] below) and the Lighthouse Pub.
Mr Klobucar entered pleas of not guilty by reason of mental impairment to each of these charges. The prosecutor indicated that the Crown consented to the entry of verdicts of not guilty by reason of mental impairment in relation to each charge.
I accept that, at the time he entered the pleas, Mr Klobucar was fit to plead; no question of his fitness was raised by the parties, and nothing during any of Mr Klobucar’s appearances in court since his murder trial began raised any question of fitness in my mind.
I am now required, under s 321 of the Crimes Act 1900 (ACT), to enter verdicts of not guilty by reason of mental impairment in relation to each of the charges, if I consider those verdicts appropriate.
Trial by judge alone
Election
Unlike the murder charge, the burglary charge and the bodily harm charge were capable of being dealt with in a judge-alone trial, and Mr Klobucar wished to elect for such a trial. I therefore remitted the charges to the Registrar.
Mr Klobucar then filed a judge-alone trial election which, under s 68B of the Supreme Court Act 1933 (ACT), had to be filed before the trial judge was identified.
In due course, the Registrar listed the matter before me; this was obviously a sensible allocation, since as already mentioned I had during Mr Klobucar’s murder trial heard the evidence of both the McKean incident and the Lighthouse Bar incident; however, that listing was not in any sense required by my previous involvement in the matter.
Procedures for trial
Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:
(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict: Fleming v The Queen [1998] HCA 68; 197 CLR 250); and
(c)the judge must, in considering her verdict, take into account any warning or direction that would, under a Territory law, have had to be given, or any comment that would have to have been made, to a jury, in the proceedings.
Issues for determination
Section 321 of the Crimes Act provides:
Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a verdict that the person is not guilty of the offence because of mental impairment if—
(a) the court considers the verdict appropriate; and
(b) the prosecution agrees to the entering of the verdict.
In R v Steurer [2009] ACTSC 150; 3 ACTLR 272 I considered the steps involved in determination of whether a verdict of not guilty by reason of mental impairment under s 321 of the Crimes Act is appropriate:
First, the prosecution must prove Mr Steurer’s conduct ... but not including any mental element of the offence, beyond reasonable doubt. If this is not done, then Mr Steurer is entitled to an ordinary verdict of not guilty. If it is done, the question then becomes Mr Steurer’s responsibility for that conduct. Unless the prosecution has already done so, the defence may then point to evidence suggesting a reasonable possibility that Mr Steurer was suffering from a mental impairment such that he cannot be held criminally responsible for his conduct. If:
(a) evidence suggesting a reasonable possibility of a mental impairment is identified; and
(b) I am satisfied on the balance of probabilities that Mr Steurer was suffering from such a mental impairment; and
(c) I consider appropriate a verdict of not guilty because of mental impairment; and
(d) the prosecution agrees to the entering of that verdict;
then I must enter a special verdict that Mr Steurer is not guilty because of mental impairment.
Effectively the same approach to determination of whether a verdict of not guilty by reason of mental impairment under s 321 of the Crimes Act is appropriate was adopted by Nield AJ in R v Aranyi [2013] ACTSC 169; 278 FLR 409 and by Refshauge J in R v Smith [2012] ACTSC 146; 269 FLR 233; R v Aleer [2016] ACTSC 75, and R v Barker [2014] ACTSC 374, in which his Honour said at [6]:
The need to consider that the verdict is appropriate involves the consideration of two matters: whether the facts sustain the charges in accordance with the elements of each offence and whether the mental impairment [is] made out in the terms required by s 28 of the Criminal Code.
The agreed facts
The Crown tendered a statement of facts, which relied on the evidence given at Mr Klobucar’s murder trial and had been agreed with the defence.
In relation to the bodily harm offence, those facts were as follows:
In the afternoon of 5 December 2013, Francis William McKean was at his residence at [a unit in Narrabundah] in the Australian Capital Territory.
Mr McKean lived alone in this unit. As at 5 December 2013, Mr McKean was 61 years old. In his unit, there is a large picture hanging on the lounge room wall of a young Asian female. Mr McKean had known the offender [Danny Klobucar] for about three years, having been introduced to him by a friend, Steve. Mr McKean had seen the offender on a number of occasions since meeting him. Up until the incident on 5 December 2013, Mr McKean had no problems with the offender.
Between 12pm and 2pm, the offender knocked on the front door of Mr McKean’s residence. Mr McKean answered the door and the offender walked in and sat down on the lounge chair on the right hand side of the living area near the main bedroom door. The offender appeared to be highly agitated.
During the time that the offender was in Mr McKean’s residence, two people came to the door. Ms Lucinda Fizzelle is a friend of Mr McKean and went to his place about 1.40pm that afternoon with Ms Demi Lang-Larkham. Ms Fizzelle knocked on the door and Mr McKean answered it. The offender said that he needed to speak to Mr McKean in private and requested that Mr McKean ask the people at the door to leave for a while.
Ms Fizzelle said, “Hey Franks, I’m coming in”. Mr McKean replied, “I’m busy, please come back in ten to fifteen minutes”. Ms Fizzelle noticed that Mr McKean appeared to be scared. Ms Fizzelle told Mr McKean that she had some money to give to him, but Mr McKean shut the door without any response and walked back in to the lounge room.
Ms Jacqueline Rodriguez is also a friend of Mr McKean. She knocked on his door that afternoon and was asked to come in by Mr McKean. The door was already open. Ms Rodriguez noticed another person in the lounge room, but she could not see him properly because she had a migraine and problems with her vision. Ms Rodriguez asked Mr McKean if he had any medication she could take for her migraine and he told her to come back in ten to fifteen minutes. Ms Rodriguez left shortly afterwards.
The offender asked Mr McKean for a glass of water from the kitchen. Mr McKean got up and was standing near the wall which divides the hallway and the kitchen. His back was to the offender and he was standing about a metre away from him.
Mr McKean was struck multiple times by the offender.
Mr McKean was found shortly afterwards by Ms Fizzelle and Ms Lang-Larkham. When they returned ten minutes later, Mr McKean’s front door was wide open. Inside, Mr McKean was standing near a couch in his lounge room and had blood coming from a cut on his head. He was swaying from side to side and was talking, but not making any sense. Ms Fizzelle sat Mr McKean on the couch and went outside to get her partner, Michael Watson. Mr Watson and Ms Fizzelle returned to Mr McKean’s unit.
About this time, Ms Rodriguez returned to Mr McKean’s unit. She saw Mr McKean sitting on his couch and [that he] was bleeding from the right side of his face and his cheekbone was swollen. He was incoherent. Ms Rodriguez waited until police and an ambulance came and left afterwards.
An ambulance was called by Ms Lang-Larkham and Mr McKean was taken to the Canberra Hospital. The police were also called. Mr McKean stated that “Dan did it” to police.
Mr McKean was hospitalised for 13 days. When he arrived at the Canberra Hospital, he was triaged as a “category 2” patient, which is allocated to patients with serious or imminently life‑threatening medical conditions that require urgent assessment and treatment.
On 5 February 2014, a photo board was conducted with Mr McKean and he identified the offender as the person who assaulted him on 5 December 2013.
Associate Professor Vanita Parekh is a forensic medical officer employed by the Canberra Hospital. In her opinion, Mr McKean suffered the following injuries:
a.Right zygomatic arch fracture;
b.Displaced right rib fracture with a pneumothorax and subcutaneous emphysema;
c.Undisplaced fracture of the right transverse process of the first lumbar vertebrae;
d.A triangular shaped laceration to his left eyebrow;
e.Bruising and swelling to his right periorbital area;
f.Bruising to his left parietal area.
According to A/Prof Parekh, the injuries that Mr McKean sustained were as a result of [at] least four applications of blunt force. Trauma to the head can be extremely serious and life threatening. The pneumothorax can be caused by fractured ribs, which occurred in this case and is a potentially life-threatening condition that required the insertion of a chest drain to free air trapped in Mr McKean’s chest cavity.
In relation to the seriousness of the injuries, A/Prof Parekh expressed the following opinions:
a.Francis McKean sustained significant head injuries. These injuries place him at higher risk of dementia and Parkinson’s Disease;
b.Francis McKean will have scarring secondary to his injuries and from the treatment required.
Sometime in mid December 2013, the offender told his uncle, Vito Le Clair that he went into someone’s house and “caved” the person’s head in. The offender told him that the victim “rubbed weed on his balls” before giving it to him. The offender told Mr Le Clair that he did not see the person die. According to Mr Le Clair, the offender stated that “nobody could prove that it was him because of reasonable doubt and something about Police not being able to prove the time frame”.
The agreed facts in relation to the burglary offence were as follows:
About 11.20pm on 1 January 2014, the offender drove his white Nissan Navara dual cab utility to the Lighthouse Bar in Belconnen. He banged on the glass doors. At the time, the Lighthouse Bar was closed and the doors were locked. The owner of the bar, Patrick Collins, was inside the bar with Phillip Hammond, Rhys Treloar, John Barrington, Adam Hall and David Hardy.
Mr Collins walked to the doors and saw the offender banging on the door with his fists. Mr Collins told the offender that the bar was closed for cleaning. The offender replied, “this is the fight house. I have come here to fight you. Come outside…I want to fight youse”.
The offender continued to bang on the glass. He then head butted, punched and kicked the glass on the doors. Mr Collins told the offender that he was not welcome at the bar and asked him to leave and stop banging on the glass. At this time, Mr Hammond, Mr Treloar, Mr Barrington, Mr Hall and Mr Hardy walked out from the back of the bar and saw the offender at the door.
The offender pulled his penis out of his pants and exposed himself to the people in the bar and threatened to fight them. He pulled his tracksuit pants down and placed his bare buttocks on the glass door ...
Mr Collins continued to tell the offender to leave and began to record the offender on his mobile phone, using the video camera. The offender continued to punch, kick and head butt the door. The offender pointed to each of the people in the bar and said, “I’m gonna get you” and “I’m gonna kill you”.
Mr Hall called 000 for assistance. The offender can be heard yelling in the background.
This incident was also captured on the CCTV cameras inside the bar. The offender became highly aggressive and pulled the door open and entered the bar.
He walked into the foyer area of the bar and attempted to fight with Mr Collins. At this time, the offender pointed to Mr Hall and said, “you’re fucked”. The offender was restrained by Mr Hammond, who grabbed him in a bear hug. Mr Collins, Mr Hammond, Mr Treloar and Mr Barrington restrained the offender on the ground, who was struggling with them. Constable Richard York and Leading Senior Constable Christopher Jackson arrived at the scene at 11.37pm. The offender continued to struggle and was handcuffed by police. The offender said, “I’m gonna fucken kill you and those cunts that were on me”. The offender also threatened the police officers with physical violence.
The offender told Sergeant Craig Faram that he had been drinking. The offender became very aggressive towards Sergeant Faram and tried to kick at him and was yelling. When the offender was informed that he was under arrest for burglary, he replied, “so fucking what. It’s a fight club, I have not done anything wrong”.
The offender had been cautioned by police, but due to his level of intoxication, he was not offered an interview in relation to these offences.
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The offender was taken to the Regional Watch House at the City Police Station. He was requested to undergo a screening test for drugs or alcohol by Constable Oliver Tate. He told police to “fuck off” and refused to cooperate or answer any questions asked of him. The offender’s eyes were bloodshot, his speech was fast, he was unsteady on his feet and he had a strong odour of intoxicating liquor on his breath.
Sergeant Wesley Herold was on duty that morning. He read the charges to the offender that arose from the incident at the Lighthouse Bar the night before. The offender said, “I’m gonna kill every police officer I see”. He referred to police as “baby rapers”, “hommo’s” and “cum swallowers”.
The offender called Sergeant Herold a “paedophile” and was aggressive towards him. Sergeant Herold noted on the Watch House intake form that the offender was “too aggressive to answer any questions”.
The offender was examined by Dr Graeme Thomson, a forensic medical officer. He advised police that “removal of detainee from his cell is likely to endanger detainee & staff because of risk of violence. Will be fit for removal & charging when he agrees to cooperate with staff. FMO may be contacted for review if required’.
The offender participated in a record of conversation with Acting Sergeant Tammie Bell prior to being transferred to court. Amongst other things, the offender said to A/Sgt Bell, “could you please state that I have been yet again wrongfully accused and that a paedophile who has been under the – paedophile – slash – homosexual child molestation supporter has got his friends to make false claims about me, a vehicle, and…of laws broken everywhere, and as a homosexual, he will be interrogated. Because he is a liar, and treason, and he follows Satan”.
Following the events outlined above, Mr Klobucar appeared in the ACT Magistrates Court on 2 January 2014, at which time an order was made under s 309 of the Crimes Act that he be assessed to determine whether emergency detention was required. On that day Mr Klobucar was involuntarily detained at the Canberra Hospital Adult Mental Health Unit.
On 9 January 2014 Mr Klobucar refused to be treated with antipsychotic medication, prompting staff at the Adult Mental Health Unit to apply, successfully, for a psychiatric treatment order. Mr Klobucar was discharged from the Adult Mental Health Unit on 31 January 2014, at which time he was formally remanded in custody at the Alexander Maconochie Centre.
Commission of the physical acts by the accused
As outlined at [15] above, before I can be satisfied that verdicts of not guilty by reason of mental impairment are appropriate, I must be satisfied beyond reasonable doubt that the accused has committed the physical elements of the offences charged, such that the offences would be made out if those acts were carried out voluntarily and with the relevant fault element.
Despite the concession implicit in Mr Klobucar’s plea that he did the acts giving rise to the charges, I consider that I must examine the relevant evidence and satisfy myself that it is appropriate to accept his concession.
This is because the effect of the plea is not only that Mr Klobucar did the relevant acts but also that at the time he was suffering from a mental impairment as a result of which he was not criminally responsible. It seems to me that in such circumstances, the court must satisfy itself that the accused’s concession about what he did has not resulted from any confusion arising from the mental impairment that he says he was suffering at the time, from his acceptance of what other people have put to him, or from a mistaken perception of the relevant events that was itself a product of the mental impairment.
The bodily harm offence
The physical elements in relation to the offence of intentionally inflicting grievous bodily harm (arising under s 19 of the Crimes Act 1900) are:
(a)that the accused did an act; and
(b)that the act caused grievous bodily harm, that is, really serious physical injury, to the complainant.
Having regard to the material in the agreed statement of facts (at [17] above), particularly Mr Klobucar’s proximity to Mr McKean at the time of the attack, Mr McKean’s identification of him as the assailant and the information as to the extent of Mr McKean’s injuries, I am satisfied beyond reasonable doubt that each of these physical elements has been established and that the offence would have been proven had Mr Klobucar carried out these actions voluntarily and with the intention of causing grievous bodily harm to Mr McKean.
The burglary offence
The relevant physical elements in relation to the burglary offence (arising under s 311 of the Criminal Code 2002 (ACT)) are:
(a)that Mr Klobucar entered a building;
(b)that he entered as a trespasser; and
(c)that while entering the building, he intended to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building.
Again, having regard to the material in the agreed statement of facts (at [19] above), I am satisfied beyond reasonable doubt that Mr Klobucar carried out each of these physical elements, such that the offence would be made out had he done so voluntarily and intentionally.
Was the accused mentally impaired?
As discussed at [15] and [16] above, I need to be satisfied on the balance of probabilities that at the time that he carried out the conduct constituting the physical elements of an offence, the accused was mentally impaired as described in s 28 of the Criminal Code. That section is as follows:
28Mental impairment and criminal responsibility
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2)For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3)The question whether a person was suffering from a mental impairment is a question of fact.
(4)A person is presumed not to have been suffering from a mental impairment.
(5)The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6)The prosecution may rely on this section only if the court gives leave.
(7)If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a)for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b)for any other offence—find the person not guilty of the offence because of mental impairment.
Evidence of mental impairment
During the murder trial, a large volume of evidence was led about Mr Klobucar’s mental state in the period leading up to, and on the day of, Mr Gajic’s death, including evidence of the opinions of three psychiatrists.
In this trial, the defence tendered the psychiatric reports, and related material, tendered in the murder trial; the oral evidence of the psychiatrists was not tendered.
Although that evidence was initially intended to assist in determining whether Mr Klobucar had a defence of mental impairment available to him in relation to the murder charge, information about Mr Klobucar’s conduct in relation to Mr McKean and his conduct at the Lighthouse Bar was also made available to the psychiatrists, who relied on them in reaching their conclusions. For that reason, the assessments made by the psychiatrists have significant probative value in relation to whether Mr Klobucar was mentally impaired at the time of the two offences the subject of this trial. Those two incidents, and the killing of Mr Gajic, all occurred within a short period, and Mr Klobucar appears to have been afflicted by the same mental health issues throughout that period. Several of the manifestations of Mr Klobucar’s mental illness, namely persecutory delusions and a propensity to perceive other people to be paedophiles, that were relevant in the murder trial were also apparent in the accounts of his behaviour in and in connection with the commission of the acts forming the physical elements of the two offences now before me.
Dr Allnutt
Dr Stephen Allnutt was engaged by Mr Klobucar’s solicitors. He prepared two reports, one dated 10 August 2015 and updated on 14 August 2015, and one dated 14 February 2016.
Dr Allnutt interviewed and observed Mr Klobucar by audio-visual link on 19 May 2015, and in face-to-face interviews conducted on 16 June 2015 and 19 July 2015. Dr Allnutt was also provided with documentary accounts of Mr Klobucar’s behaviour:
(a)during the incidents which the Crown sought to lead as tendency evidence during the murder trial (including the two incidents the subject of this trial); and
(b)during his subsequent treatment at the Adult Mental Health Unit.
In his report of 14 August 2015 Dr Allnutt summarised an account Mr Klobucar had given, during the July 2015 interview, of the incidents involving Mr McKean, and the burglary offence:
In relation to events surrounding 5 December 2013, he said he had known McKean for three to four years. He was a person he bought cannabis from. He went to his place to buy cannabis and when he got there everything was the same as usual. He bought $20 or $50 of cannabis (he could not recall). He then said he had to go and McKean walked him out to the front and he left. He saw one of his friends on the way out and shook his friend’s hand and left. There was no aggressive interaction and he denied thoughts that McKean was a paedophile. He said he felt normal on that day and there was nothing out of the ordinary. He needed cannabis and had an urge to smoke it. He denied agitation and anxiety at the time.
...
I asked him about the Lighthouse bar and he said he didn’t want to talk about it.
He said his recollection for 1 January 2014 was vague. He recalled going and knocking on the door, asking for a drink. They said No. One of them came out and one had a telephone, but he said that after that his recollection was blank. He said he had been drinking that day and had also smoked one joint. He vaguely recalled the police watch house. When he was arrested he thought he had been arrested with too much force. He was on his knees and elbows and recalled asking the police for their badge numbers but nobody gave it. He was in handcuffs in the cells. He said to one of them that he (the police officer) was a paedophile. This arrest reminded him of his prior unlawful arrest by a lesbian, so he thought the police were paedophiles and poofters. He couldn’t recall statements about false claims and vehicles.
These claims, which do not include any concession about Mr Klobucar’s involvement in either of the subject offences, were made by Mr Klobucar some months after the events concerned, and in the context of a simple “not guilty” plea to the murder charge. The subsequent entry, in relation to the two charges now before me, of pleas of not guilty by reason of mental impairment, as already noted implies a concession that he engaged in the conduct necessary to make out the offences concerned.
Dr Allnutt reviewed documented accounts of Mr Klobucar’s behaviour during late 2013, noting that he displayed persecutory beliefs and that his behaviour was consistent with referential thinking. Dr Allnutt summarised the clinical files giving an account of Mr Klobucar’s behaviour in the days following his arrest on 1 January 2014 as follows:
On 2 January 2014 he was noted to be delusional and psychotic, and reported about paedophilic gangs, government, the police and his uncle who were after him trying to monitor him, surveying him and laughing at him, and that a guy from Centrelink was following him in his car and trying to harm his family.
There was a note dated 5 January 2014 noting he was upset. He said he had told the truth to the doctors and now they thought he was a nutcase. He wanted help but he didn’t want to stay in for a long time. He couldn’t settle and his mind couldn’t stop thinking. He said nobody believed him. There were various reports by nurses of him being settled but at times being distressed and agitated, requiring medication.
The date is unclear, but on 7 January 2014 he had been referred to the courts under Section 309 due to paranoid and delusional thought processes. He was regarded to have psychomotor agitation, he was difficult to follow in conversation, and was tangential and derailed. He focused on an underground paedophile ring, which he had accidently become involved in and had only just realised what they were doing. He showed grandiose ideas, saying that if he made a joke about someone being raped they would be raped, that it was sick stuff that he joked about and it happened to innocent people. He believed that all levels of public servants were involved and that the AFP was keeping surveillance on him. He knew of many people who had been molested or raped by this group. He lived alone in a private house in Belconnen and wasn’t working, and received only Newstart allowance. The working differential diagnosis was a drug-induced psychosis (awaiting UDS), delusional disorder and malingering to avoid serious police charges.
Dr Allnutt referred to an account that Mr Klobucar’s mother had given on 8 January 2014 of his behaviour in the period during which the current offences occurred; she had reported that:
He made contact [with her] six weeks previously for financial assistance because he was unable to pay his rent. His friend, who was addicted to Valium, suddenly left and he had been stressed. He had paranoia about monitoring and persecution over the past year and had become a completely different person. He snapped and was very paranoid in the past two weeks with persecutory thoughts and saying things that didn’t make sense. He was volatile and trying to instigate violence, he was working with police and being monitored and was driven by obsessions about paedophiles, that his half-sisters were being sexually abused by his mother’s partner and that his mother was part of the paedophilia syndicate. He had been threatening harm towards his mother and her partner Steve because of this, but he did not threaten to kill anyone.
Dr Allnutt summarised Mr Klobucar’s own account of his perceptions of the period during which the offences occurred:
When he saw me he provided a history of persecutory delusions in the time leading up to the [alleged offence of murder] – that paedophile groups were against him, the police who arrested him on the first occasion were homosexuals, his previous legal aid lawyer was a lesbian and she was conspiring with the police, the police, Steven [Kitanovic], his mother’s partner and Mr Budarick were paedophiles, a person at Centrelink was a policeman and following him, he saw different cars following him around, he was being monitored, his sisters were being sexually abused, and he had been sexually abused by Mr Budarick. He has reported referential delusions on one or two occasions prior to the alleged offence [of murder], when he had thought that the TV was talking to him and thought the royal family had waved at him on TV.
Under the heading “Diagnosis” Dr Allnutt concluded:
Thus there is evidence that he was relatively convinced in regard to these beliefs. At this stage my impression is that there is relatively little objective evidence to confirm his allegations – he demonstrated strong emotional responses in relation to these beliefs, the beliefs involved a variety of different people over time and in various situations, and he was obsessed or significantly preoccupied with these beliefs. This is characteristic of a delusional belief and in my opinion his persecutory beliefs and referential thoughts were delusions.
...
My overall view is that he suffers from paranoid schizophrenia. The differential diagnosis is schizoaffective disorder and delusional disorder. He has a substance use disorder (in remission currently) and likely residual symptoms of PTSD.
Asked to comment on Mr Klobucar’s capacity in the period from October 2013 to January 2014, and on whether he had a defence of mental impairment available to him in relation to the charge of murder, Dr Allnutt responded:
I believe with reasonable clinical certainty that between 1 October 2013 and 20 January 2014 and at the material time of the seven incidents outlined in the tendency document, [Mr Klobucar] was suffering from probable residual symptoms of PTSD, cannabis use disorder and delusions derived from a chronic psychotic disorder (schizophrenia or delusional disorder).
I also believe with reasonable clinical certainty that between 1 October 2013 and 20 January 2014, at the material time of the seven incidents outlined in the tendency document, your client was suffering from a “mental impairment”, that is he was suffering from persecutory and referential delusional beliefs derived from a pre-existing mental illness, being paranoid schizophrenia.
In regard to the behaviour that occurred between October 2013 and 20 January 2014, he was compromised in his capacity to know the wrongfulness of his actions but he maintained capacity to know the nature and conduct of his actions and to control his conduct.
...
I do not believe [Mr Klobucar] was unable to know the nature and quality of his actions, nor do I believe he lacked capacity for control.
...
... based on the information provided to me, there is evidence of delusional preoccupation with a conspiracy of paedophiles, and a tendency to incorporate older men into this delusional belief system relatively rapidly (it is notable that almost all the males referred to in the tendency document, including the deceased were of an older age range). There is also a tendency to voice threats of harm and engage in aggressive behaviour, apparently justifying this based on his perception of others as part of a paedophilic group and deserving of this. Preceding the alleged offence [of murder] there is evidence that he had incorporated [Mr Gajic] into his delusional belief system, having regard to the comments he made to Vito LeClair about the deceased’s car, that the deceased’s Nissan Micra was a “gay car” and so the deceased must be a paedophile.
If it is accepted that [Mr Klobucar] (1) committed the alleged offence and (2) the alleged offence was driven by a belief that the deceased was involved in a paedophile ring or was persecuting your client in some way, consistent with the delusional beliefs he was experiencing at the time preceding and afterwards, then it is possible to draw the inference that he would have been compromised and likely incapable of reasoning about the matter of wrongfulness with a moderate degree of sense [and] composure, and on this basis would have available to him a defence of “mental impairment”. This is because a delusional belief system is fundamentally irrational, distorts the person’s ability to make rational interpretations of the intentions of the person about whom they hold the delusional belief, and can provide justification for aggressive behaviour toward that person – justification based on a delusional (and thus irrational) premise; this includes determination of the nature of the wrongfulness of their behaviour in regard to that person.
Dr Carroll
Forensic psychiatrist Dr Andrew Carroll was engaged by Mr Klobucar’s solicitors, and prepared two reports, dated 18 December 2015 and 7 February 2016. Dr Carroll was not able to interview Mr Klobucar, but he received documents giving descriptions of Mr Klobucar’s alleged conduct in relation to the murder charge, as well as a number of other incidents in the period leading up to Mr Gajic’s death which the Crown had sought to rely on as tendency evidence. He was also given patient progress notes concerning Mr Klobucar’s treatment during 2014, and a report of an assessment conducted under s 309 of the Crimes Act in January 2014.
Dr Carroll noted that Mr Klobucar’s mother had reported that he had become increasingly paranoid and delusional in late 2013, that he had begun to behave in an increasingly threatening manner and that he appeared to be fixated on the idea that certain older men, including his mother’s then partner, were paedophiles.
Dr Carroll summarised the various reports of Mr Klobucar’s behaviour during this period, stating that:
The accounts of his mother and various other sources all indicate that, from November 2013, and quite possibly earlier, onwards up until January 2014, he was intensely delusional. He was preoccupied with a well-organised systematised delusional belief system whereby he believed that he had uncovered a paedophile ring involving Police officers and politicians. Furthermore, he also held the delusional belief that he was working undercover for the Federal Police in some way and was working to bring this paedophile ring to justice. He also believed that he had been a victim of this ring as a child.
Dr Carroll observed that Mr Klobucar continued to be delusional following his arrest, and the commencement of his treatment with antipsychotic medication, in January 2014, although he noted that “[t]he acute behavioural manifestations of his illness settled within days”.
Dr Carroll considered that between October 2013 and January 2014 Mr Klobucar suffered from a mental disorder, most likely a delusional disorder with a differential diagnosis of a schizophreniform disorder; he said:
The material indicates that he was in the grip of a complex systematised delusional belief system, throughout the relevant period. It is difficult to date the precise onset of this but it appears to have certainly been present between November 2013 to January 2014 and probably predated that. Whether the correct diagnosis is a Delusional Disorder or Schizophreniform Disorder is difficult to say without having had the benefit of seeing [Mr] Klobucar at the relevant times.
Dr Carroll also noted that Mr Klobucar tested positive to cannabis and benzodiazepines following his arrest, that drug use may have contributed to his disinhibition around the time of his arrest, and that he likely had a history of Substance Use Disorder. However, he opined that the intensity and duration of Mr Klobucar’s psychotic illness was such that it could not be attributed purely to substance use.
Asked to provide an opinion on whether Mr Klobucar was mentally impaired in accordance with the definition set out at [29] above, Dr Carroll said that from late 2013 to January 2014 Mr Klobucar:
was suffering from a psychotic illness ... which is a mental impairment within the meaning of the Act.
On the balance of probabilities, throughout this relevant period, his delusional system was such that he was unable to reason with a moderate degree of sense and composure with respect to the wrongfulness of any aggressive or other illegal behaviours that he may have committed in the context of believing that certain specific other people were paedophiles. His delusional beliefs led him to believe that he was morally justified in behaving in these ways because he was uncovering a very dangerous paedophile ring.
Dr Carroll was also asked to comment on Mr Klobucar’s behaviour in relation to the burglary offence, and the offence of intentionally inflicting grievous bodily harm on Mr McKean, on the basis that the Crown had sought to lead evidence of these incidents as tendency evidence during the murder trial.
In relation to the assault on Mr McKean, Dr Carroll opined:
[Mr Klobucar] was unable to reason with a moderate degree of sense and composure with respect to the wrongfulness of his actions in assaulting the victim. It is asserted that he subsequently told his uncle that the victim had “rubbed weed on his balls before giving it to Danny and this is why he had killed him”. There is thus clear evidence of a link between his delusional system and his actions towards the victim.
In relation to the burglary offence, Dr Carroll said:
it appears that this was motivated in a large part by his delusional system: he was making sexualised abusive comments to the Police, implying that they were part of the paedophile ring. His extremely agitated behaviour during this incident however is also indicative of a likely degree of intoxication probably due to cannabis, alcohol and benzodiazepines, which would have also contributed to his disturbed mental state in addition to his, at that stage untreated, psychotic illness ... in my opinion he was unable to reason with a moderate degree of sense and composure with respect to the wrongfulness of his actions in behaving in this aggressive way.
Professor Greenberg
Forensic psychiatrist Professor David Greenberg was engaged by the prosecution to prepare two reports, dated 23 December 2015 and 16 February 2016. Like Dr Carroll, Professor Greenberg did not have the opportunity to interview Mr Klobucar, but he was provided with a range of materials, including accounts of Mr Klobucar’s behaviour during the period in which the subject offences occurred. He also had access to, and appeared to draw significantly upon, Dr Allnutt’s report of 10 August 2015.
Professor Greenberg undertook a detailed review of the documented accounts of Mr Klobucar’s behaviour throughout his January 2014 admission to the Canberra Hospital Adult Mental Health Unit, and summarised this material as follows:
It was noted that during his January 2014 admission to Canberra Hospital, the mental health staff had elicited persecutory delusions involving him covering a paedophilic criminal organisation run by his previous flatmate but also involving the police, his mother and his mother’s partner. It was noted his paranoia had deteriorated over the preceding year but had dramatically increased over the past two weeks prior to his admission. On admission, he was found to be psychotic and delusional; he believed that the paedophilic gangs, government, police and his uncle were after him and trying to monitor him, surveying him and laughing at him and a guy from Centrelink was following him in his car and tried to harm his family. He reported that he wanted to kill these gang members. He was initially willing to divulge his beliefs about paedophiles, police surveillance and recent events; however he became guarded and would not comment on his further views based on his “legal grounds”. The psychiatrist Dr Wyeth prescribed ... antipsychotic medication. He was placed on a Psychiatric Treatment Order during this admission.
Professor Greenberg concluded:
I am of the opinion that Mr Klobucar on balance is likely to have had a psychotic episode spanning the time prior to and at the time of the alleged offence [of murder on 1 January 2014] and at the time after the alleged offence. This psychotic episode is consistent with a Paranoid Psychosis which may be due to a Schizophrenic Disorder or possibly a Substance Induced Psychosis following his persistent and chronic use of cannabis and intermittent use of crystal methamphetamines. He reportedly claimed he used crystal methamphetamines one month prior to the alleged offence.
Individuals with a psychotic episode lose touch with reality and can present with positive symptoms of psychosis such as delusional beliefs, hallucinations, thought disorder or incoherence of thought, erratic or disorganised behaviour and also negative symptoms such as blunted emotional expressions, amotivational behaviour and poverty of ideas.
...
On balance therefore I am of the opinion that Mr Klobucar was suffering from a paranoid delusional belief system which rendered him psychotic at the time period in the few weeks leading up [to] the time of the alleged offence and the weeks following the alleged offence. I note that his mother reported that there had been deterioration in his functioning for a period of approximately twelve months prior to the alleged offence. On balance, therefore, there is both professional documentation and lay evidence to support that he had a paranoid psychosis over the period both prior to, at the time of and post alleged offence.
(emphasis in original)
Professor Greenberg noted that a registered nurse and a psychiatrist who had been involved with Mr Klobucar’s treatment following his detention had both expressed concerns that he might have been malingering, possibly in order to avoid his pending criminal charges. However, Professor Greenberg concluded that Mr Klobucar was likely not malingering, noting:
Dr Wyeth reported that she was of the view that Mr Klobucar was adamant that he was not mentally ill. These actions were contrary to him faking or malingering mental illness. He tried to convince the mental health staff that he was sane and that his belief systems about a paedophile syndicate and a conspiracy theory being [sic] true. Once the staff dismissed his claims, he was noted to become more withdrawn and guarded, and reluctant to talk about his delusional belief system, citing that he was going to speak to his lawyer and also that he was reluctant to take psychiatric medication because he did not believe that he was mentally ill at the time. There is documentation that the consensus of mental health professionals held the view that Mr Klobucar was acutely psychotic at the time of the January 2014 admission and that he was not faking mental illness or exaggerating his psychotic symptoms.
Professor Greenberg summarised the accounts of Mr Klobucar’s behaviour during the period immediately preceding his arrest on 1 January 2014, including the assault of Mr McKean and the burglary offence at the Lighthouse Bar. He concluded, albeit specifically in relation to the murder offence:
I therefore have drawn an inference that his mental state was compromised, where he likely was not capable of understanding the moral wrongfulness of his actions to a moderate degree of sense [and] composure and therefore felt justified in his actions at that time period based on his paranoid psychotic delusional belief system.
I am of the opinion that he likely understood the nature and quality of his actions at that time period and that his actions were legally wrong.
It is difficult to make judgment about his ability to control his actions.
On balance I am of the opinion that he likely has a defence of mental impairment available to him.
Consideration
Each of the three psychiatrists concluded that Mr Klobucar was suffering from a mental illness during the period in which the alleged offences occurred. This mental illness was variously identified as “paranoid schizophrenia”, “Paranoid Psychosis due to a Schizophrenic Disorder” and “Delusional Disorder”. The psychiatrists also identified “Schizophreniform Disorder”, “Substance Induced Psychosis” and “schizoaffective disorder” as differential diagnoses. Each of the psychiatrists concluded that Mr Klobucar was experiencing delusions connected with his mental illness, and noted the evidence that he appeared to be preoccupied with perceptions that older males were paedophiles.
Professor Greenberg did not express a view about the direct impact of Mr Klobucar’s “paranoid psychotic delusional belief system” on his responsibility for either the bodily harm offence or the burglary offence.
The bodily harm charge
Dr Allnutt explicitly noted that Mr Klobucar was, at the time of all the incidents identified in the tendency application, suffering a mental impairment, being delusional beliefs “derived from a pre-existing mental illness, being paranoid schizophrenia”, and that during that period he was compromised in his capacity to know that his conduct was wrong.
The other two psychiatrists considered that at the time of Mr Klobucar’s attack on Mr McKean he was affected by delusional beliefs about paedophiles arising in the context of an acute psychosis, and, specifically in relation to the killing of Mr Gajic, that Mr Klobucar was therefore unable to reason with a moderate degree of sense and composure about whether his conduct was wrong.
Dr Carroll expressly concluded in relation to the bodily harm offence that there was a clear link between the attack on Mr McKean and Mr Klobucar’s delusional belief system.
The burglary charge
The position in relation to the burglary charge is not quite so straightforward.
Dr Allnutt concluded that between 1 October 2013 and 20 January 2014, Mr Klobucar was suffering from a mental impairment consisting of “persecutory and referential delusional beliefs derived from a pre-existing mental illness, being paranoid schizophrenia”, and that as a result “he was compromised in his capacity to know the wrongfulness of his actions” (while retaining the capacity to understand the nature and quality of his actions and to control his actions).
The actions to which Dr Allnutt referred included the incidents referred to in the Crown’s tendency application for the murder trial, which included the incident in the Lighthouse Bar. Although a substantial part of the material identified as part of the Lighthouse Bar incident related to events after the burglary itself (that is, after Mr Klobucar entered the bar as a trespasser intending to do harm), I do not see any need to treat Dr Allnutt’s conclusions as applicable only to those aspects of the incident in which Mr Klobucar’s behaviour was specifically consistent with his delusional beliefs relating to paedophilia. In particular, his exposure of his penis and buttocks to the group of men he was threatening to fight suggest not just aggression but irrational aggression with some kind of sexual aspect.
Dr Carroll expressed the conclusion that Mr Klobucar’s behaviour at the Lighthouse Bar was also affected by his delusional belief system and that he did not know that his conduct was wrong.
Professor Greenberg considered that Mr Klobucar had suffered a psychotic episode consistent with a paranoid psychosis for “a few weeks leading up” to the murder, and for some weeks thereafter. He concluded in relation to the murder charge that Mr Klobucar’s mental state was compromised so that he “likely was not capable of understanding the moral wrongness of his actions”.
Conclusions
In summary, Dr Allnutt considered that Mr Klobucar was compromised in his capacity to recognise that his actions constituting the assault of Mr McKean, and the burglary, were wrong. Dr Carroll expressed similar views in relation to the two offences. Dr Greenberg did not address these offences specifically, but there is nothing in his opinion that casts any doubt on the opinions of Dr Allnutt and Dr Carroll.
Verdicts
For the purpose of s 28 of the Criminal Code, I am satisfied, on the balance of probabilities, that at the time of the bodily harm offence and at the time of the burglary, Mr Klobucar was suffering from a mental impairment, being delusional beliefs in the context of an acute psychosis, and that it had the effect that he did not know that the conduct constituting each offence was wrong (Crimes Act, s 28(1)(b)). Accordingly, in respect of each charge, and noting the Crown’s consent to the entry of such verdicts, I enter a special verdict that Mr Klobucar is not guilty of the offence charged because of mental impairment.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 25 November 2016 |
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