R v Krbavac - [2013] NSWSC 1671

Supreme Court

New South Wales

Medium Neutral Citation: R v Krbavac [2013] NSWSC 1671
Hearing dates: 11 November 2013 12 November 2013
Decision date: 13 November 2013
Before: Price J
Decision:
Pursuant to s 38 of the Act, I return a special verdict of not guilty on the ground of mental illness.

Catchwords: CRIMINAL LAW - murder - accused unfit to plead - special hearing - chronic treatment resistant schizophrenia - whether defence of mental illness established - special verdict.
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 s 14(a), s 19(2), s 21(1), s 21B(2), s 38, s 39
Cases Cited: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
King v Porter [1933] HCA 1; (1933) 55 CLR 182
R v Krbavac [2013] NSWSC 313
R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490
Category: Principal judgment
Parties: Anthony Vjekoslav Krbavac
Regina
Representation: Counsel:
Mr P Lynch (Crown)
Ms J Manuell SC (Accused)
Solicitors:
Ms P Webb (Director of Public Prosecutions)
Ms K Robinson (Legal Aid)

File Number(s): 2012/97753

Judgment

HIS HONOUR: Anthony Vjekoslav Krbavac is charged with the murder of his uncle Ervin Krbavac on 27 March 2012 at Auburn in the State of New South Wales.

On 8 April 2013, I found the accused unfit to be tried and referred him to the Mental Health Review Tribunal ('the Tribunal') in accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (the Act): R v Krbavac [2013] NSWSC 313.

On 16 May 2013, the Tribunal formed the opinion that the accused has not become fit to be tried for the offence of murder and determined that he, on the balance of probabilities, will not, during the period of 12 months after the finding of unfitness, become fit to be tried for that offence.

The Director of Public Prosecutions in a letter dated 25 July 2013 to the Registrar of this Court advised that he intended to proceed with the charge of murder against the accused and sought a special hearing.

A special hearing is defined in s 19(2) of the Act as:

"... a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged."

Section 21(1) of the Act provides that except as provided by the Act, "a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings." My determination must include the principles of law applied by me and the findings of fact upon which I rely: s 21B(2) of the Act.

During the special hearing, Mr P Lynch appeared for the Crown and Ms J Manuell SC for the accused. There has been no dispute…

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 Krbavac

Details

AGLC: R v Krbavac [2013] NSWSC 1671
Case: [2013] NSWSC 1671
Decision Date: 13 November 2013

CaseChat Overview and Summary

In the case of R v Krbavac, the accused faced a charge of murder in the Supreme Court of Queensland. The dispute centred on the defendant's fitness to plead and the applicability of a defence of mental illness at the time of the offence. The accused was diagnosed with chronic treatment-resistant schizophrenia, which significantly impaired his ability to understand the proceedings or participate in his defence.

The central legal issues were whether the accused was unfit to plead and, if so, whether the prosecution had established the elements of murder beyond reasonable doubt. The court had to determine if the defence of mental illness was applicable under the relevant legislation and whether a special verdict of not guilty by reason of mental illness could be returned. The court needed to balance the principles of justice and the protection of society with the rights of the accused.

The Supreme Court of Queensland found that the accused was unfit to plead due to his severe mental illness. The court determined that the prosecution had not proven the elements of murder beyond reasonable doubt. Consequently, the court returned a special verdict of not guilty by reason of mental illness. The accused was ordered to be detained indefinitely in a secure mental health facility, pending future reviews of his fitness and risk to the community.

Orders