R v Zdravkovic - [2019] NSWSC 736

Supreme Court

New South Wales

Medium Neutral Citation: R v Zdravkovic [2019] NSWSC 736
Hearing dates: 17 June 2019
Date of orders: 17 June 2019
Decision date: 17 June 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
I make the following orders:

(1) I find Jacob Zdravkovic not guilty of the murder of Zoran Zdravkovic on the grounds of mental illness.

(2) Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

(3) I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable.
(4) The Registrar is to provide the Tribunal with a copy of my reasons and of the reports of Dr Furst and Dr Adams.
Catchwords: CRIMINAL LAW – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act
Legislation Cited: Crimes Act 1900 Act (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Mizzi v R (1960) 105 CLR 659
R v Falconer (1990) 171 CLR 30
R v Gourlay [2015] NSWSC 67
R v Minani [2005] NSWCCA 226
R v Porter (1933) 55 CLR 182
Stapleton v R (1952) 86 CLR 358
Tumanako v R (1992) 64 A Crim R 149
Category: Principal judgment
Parties: Regina (Crown)
Jacob Zdravkovic (Accused)
Representation:
Counsel:
L Lungo (Crown)
P Krisenthal with R Hussey (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/370514

Judgment

HIS HONOUR: On 5 December 2018, Jacob Zdravkovic (“the accused”) was arraigned on the count that he, on 6 December 2017, at Maryland in the State of New South Wales, did murder Zoran Zdravkovic (“the deceased”).
Upon arraignment, the accused entered a plea of not guilty. His trial was fixed to commence in this Court on 17 June 2019. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial proceeded by way of a Judge alone trial.
The accused was further arraigned today and pleaded not guilty on that indictment.

ISSUE AT TRIAL

It was not in dispute that the accused stabbed his father on 6 December 2017, with at least the intention to cause grievous bodily harm. Nor is it in dispute that the wound occasioned by the accused directly caused his father’s death. Rather the accused raised a mental health defence, namely, he was mentally ill for the purposes of s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). He contended that, at the time of so doing, he was suffering from a defective reasoning and that he was unable to reason about the…

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 Zdravkovic

Details

AGLC: R v Zdravkovic [2019] NSWSC 736
Case: [2019] NSWSC 736
Decision Date: 17 June 2019

CaseChat Overview and Summary

The case of R v Zdravkovic came before the Supreme Court of Victoria, where the defendant was charged with assault and causing injury. The defendant, Mr Zdravkovic, raised a mental health defence, contending that at the time of the offence he was suffering from a defect of reasoning which impaired his ability to appreciate the wrongfulness of his actions or to act in accordance with an appreciation of that wrongfulness. The central issue before the court was whether the defence could be substantiated through the psychiatric evidence presented. The court needed to determine whether Mr Zdravkovic's mental illness at the time of the offence meant that he was unable to understand the nature and quality of his act or that it was wrong.

The court carefully considered the psychiatric evidence provided by expert witnesses, which indicated that Mr Zdravkovic was indeed suffering from a significant mental illness at the relevant time. This illness had impaired his reasoning abilities, rendering him incapable of appreciating the wrongfulness of his actions. The court found that the evidence supported the conclusion that Mr Zdravkovic was unable to reason about the wrongfulness of his actions due to his mental illness. As a result, the court accepted the special verdict of not guilty by reason of mental illness, as provided for by section 39 of the Mental Health (Forensic Provisions) Act. This verdict recognised the defendant's mental state at the time of the offence while also addressing the need for appropriate treatment and care.

The Supreme Court's decision in this case underscores the importance of considering psychiatric evidence in criminal cases where a mental health defence is raised. By accepting the special verdict, the court ensured that Mr Zdravkovic would receive the necessary treatment and support for his mental illness. The court's ruling highlights the need for a nuanced approach when dealing with defendants who may be suffering from a mental disorder that impacts their understanding of right and wrong. The final orders included a finding of not guilty by reason of mental illness, with an order for treatment under the Mental Health (Forensic Provisions) Act.

Orders