R v Zilic - [2010] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
In the Matter of R V ZILIC
Criminal Trial by Judge Alone
[2010] SASC 70
Judgment of The Honourable Justice Nyland
26 March 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - IRRESISTIBLE IMPULSE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - KNOWLEDGE AND UNDERSTANDING
Defendant charged with the murder of his son - defence of mental competence pursuant to s 269C Criminal Law Consolidation Act 1935 - trial by Judge alone - no dispute that defendant suffers from mental illness, namely paranoid schizophrenia - defendant examined by three psychiatrists - issue raised as to lack of control - finding that evidence as to lack of control was insufficient to support a defence pursuant to s 269C(c) Criminal Law Consolidation Act 1935 - consensus between medical practitioners that defendant did not know that the conduct was wrong - whether medical opinions consistent with proven facts - evidence of purposeful conduct by the defendant following the killing, which included fleeing the scene and lying to police - prosecution submission that inferences to be drawn from proven facts inconsistent with a lack of knowledge of wrongfulness of behaviour - finding on the balance of probabilities that at the time that the defendant killed his son he did not know that his conduct was wrong - defence made out pursuant to s 269C(b) Criminal Law Consolidation Act 1935.
Defendant found not guilty of offence of murder by reason of mental incompetence - objective elements of offence of murder established - defendant declared liable to supervision pursuant to s 269O Criminal Law Consolidation Act 1935 - defendant committed to detention with a limiting term of life.
Criminal Law Consolidation Act 1935 ss 269A, 269B, 269C, 269D, 269E, 269F, 269G, 269WA; Criminal Investigation Act 2006 (WA) s 28, referred to.
Samuels v Flavel [1970] SASR 256, applied.
R v Porter (1933) 55 CLR 182, considered.

[2010] SASC 70
ZILIC

NYLAND J: Aliya Zilic (the defendant) has been charged with the murder of his son, Imran Zilic, at Coober Pedy or another place between 20 April 2008 and 24 April 2008. Upon his arraignment, the defendant pleaded not guilty to the charge. As a result of opinions expressed in reports provided by Dr Raeside and Dr O’Brien, both of whom are psychiatrists, the defendant raised a defence of mental competence.
On 10 July 2009 I made an order pursuant to s 269WA Criminal Law Consolidation Act 1935 (CLCA) that the defendant undergo a further psychiatric examination. The defendant was then examined by Dr Brereton, a consultant forensic psychiatrist at James Nash House.
Each of the psychiatrists provided reports to the court, following which I made an order pursuant to s 269E CLCA that the question of the defendant’s mental competence…

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 Zilic

Details

AGLC: R v Zilic [2010] SASC 70
Case: [2010] SASC 70
Decision Date: 26 March 2010

CaseChat Overview and Summary

The case of R v Zilic involved a defendant charged with the murder of his son. The defendant, who suffered from paranoid schizophrenia, raised a defence of mental incompetence under section 269C of the Criminal Law Consolidation Act 1935. The court was tasked with determining whether the defendant had the requisite mental capacity to be held criminally responsible for the murder. The key issues revolved around whether the defendant knew the nature and quality of his act, and whether he understood that his conduct was wrong.

The court considered the medical evidence provided by three psychiatrists, who unanimously agreed that the defendant did not know the nature and quality of his act and did not know that his conduct was wrong. Despite the prosecution's argument that the defendant's purposeful conduct following the killing—such as fleeing the scene and lying to police—was inconsistent with a lack of knowledge of the wrongfulness of his actions, the court found that the medical evidence was consistent with the proven facts. The court held that on the balance of probabilities, the defendant did not know that his conduct was wrong at the time he killed his son. Consequently, the defence of mental incompetence was made out under section 269C(b) of the Criminal Law Consolidation Act 1935.

As a result, the defendant was found not guilty of the offence of murder by reason of mental incompetence. However, since the objective elements of the offence of murder were established, the defendant was declared liable to supervision under section 269O of the Act. The defendant was subsequently committed to detention with a limiting term of life.

Orders

Orders of the court

Defendant found not guilty of offence of murder by reason of mental incompetence - objective elements of offence of murder established - defendant declared liable to supervision pursuant to s 269O Criminal Law Consolidation Act 1935 - defendant committed to detention with a limiting term of life.

Background

Background to the litigation

In order to resolve the issues which arise for determination in this matter, it is necessary to have regard to some of the personal background of the defendant, his behaviour in the period leading up to Imran’s death, and some of the defendant’s activities thereafter.Personal background of the defendant The defendant was born in Wodonga, Victoria on 21 October 1975. His father is a Bosnian Muslim and his mother is a Croatian Catholic. He has an older brother who is now aged about 35, who was diagnosed with schizophrenia about 15 years ago. When the defendant was about nine and a half, the family returned to Bosnia. When the defendant was aged about 15 years, war broke out and the defendant spent about 18 months with his family in Croatia as refugees. The defendant subsequently returned to Australia in October 1993. His parents returned about 12 months later. The defendant later gained employment as an electrical engineer after completing a TAFE course. The defendant told the various medical practitioners that he first experienced mental health problems when he began his first job in his early twenties. He also told them about an incident which occurred in 2001 when he was about 25. Something told him to go to the international airport to go on holiday. He then jumped the fence at the Perth airport domestic terminal. He was carrying a copy of the Koran with him. He managed to get onto a plane, but it was empty. The defendant then crossed over to the international terminal where he was detained by security. Thereafter the defendant was admitted to Graylands Hospital in Perth for three or four weeks. Each of the psychiatrists placed some significance upon this episode, together with his brother’s long-standing mental illness, in diagnosing the defendant as suffering from paranoid schizophrenia. After the defendant was discharged from Graylands Hospital, he went to live with his parents. They were disturbed by his continuing odd behaviour which involved banging doors, wandering around and shouting out for no apparent reason. They returned him to hospital where he spent two weeks in an open ward. The defendant was started on Olanzapine, an anti-psychotic medication. He remained on that for a number of years. The defendant met Mirsada Halilovic through a mutual friend at the end of 2000 in a Bosnian community centre. They commenced living together on 25 May 2002 and were married on 2 June 2002. Imran was born on 19 June 2004. Ms Halilovic was aware that the defendant had some history of mental illness, but the period preceding Imran’s birth appears to have been relatively stable and happy. After Imran’s birth, however, the defendant described himself as suffering from increasing paranoia and confused thoughts and had difficulty with work. He became paranoid concerning his wife and increasingly resorted to drugs. The defendant had recreationally used marijuana as a teenager and later resorted to amphetamines. After his marriage, his drug use escalated. The defendant told Dr Brereton[1] that he believed his problems worsened about three years earlier when his episodes of poor mental health became more frequent and more intense. He described an occasion when he lay on his bed and his soul seemed to come out of him as if he were dead. The spirit then re-entered him and the pain in his neck went. As a result of this experience, the defendant became convinced he was Jesus. He developed a number of persecutory ideas. He believed that his whole life had been set up and planned from birth. He said, “My life was like a game for someone to control.” He felt this had been done to him because he was Jesus. He became convinced that he was the victim of “ritual demonic abuse”. He believed his mother and wife were witches and that his father was party to the conspiracy and was having sex with his wife. He told Dr Brereton, “I used to think someone was programming me as part of ritual, demonic abuse and putting thoughts into my head”. He described how he could not control his thoughts and that messages were put into his head.[2] [1] Report of Dr Brereton dated 5 August 2009 at [7.5].[2] Report of Dr Brereton dated 10 August 2009 at [7.5].The defendant’s separation from his wife

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

After Imran’s birth, however, the defendant described himself as suffering from increasing paranoia and confused thoughts and had difficulty with work. He became paranoid concerning his wife and increasingly resorted to drugs. The defendant had recreationally used marijuana as a teenager and later resorted to amphetamines. After his marriage, his drug use escalated. The defendant told Dr Brereton[1] that he believed his problems worsened about three years earlier when his episodes of poor mental health became more frequent and more intense. He described an occasion when he lay on his bed and his soul seemed to come out of him as if he were dead. The spirit then re-entered him and the pain in his neck went. As a result of this experience, the defendant became convinced he was Jesus. He developed a number of persecutory ideas. He believed that his whole life had been set up and planned from birth. He said, “My life was like a game for someone to control.” He felt this had been done to him because he was Jesus. He became convinced that he was the victim of “ritual demonic abuse”. He believed his mother and wife were witches and that his father was party to the conspiracy and was having sex with his wife. He told Dr Brereton, “I used to think someone was programming me as part of ritual, demonic abuse and putting thoughts into my head”. He described how he could not control his thoughts and that messages were put into his head.[2] [1] Report of Dr Brereton dated 5 August 2009 at [7.5].[2] Report of Dr Brereton dated 10 August 2009 at [7.5].The defendant’s separation from his wife The defendant and his wife separated in about March 2007. The defendant was then aged about 31. The defendant had shouted at his wife, telling her he was Jesus and accusing her of conspiring against him and having affairs. Ms Halilovic took Imran to live with her parents and the defendant went to live with his mother. The defendant lost his employment and the matrimonial home had to be sold. The defendant lived with his brother for a period. He became convinced his whole life was a set-up, that he had been abused throughout his childhood, and his wife, mother-in-law and mother had begun to ritually abuse Imran. After the separation, the defendant kept in contact with his wife and apparently still held hopes of them getting back together. He saw Imran on occasions and initially would take him for overnight stays at his mother’s house. The defendant then had problems with his mother, who he believed was a witch and was filthy, after which he started taking Imran to his brother’s house for overnight visits. Ms Halilovic was concerned about visits to the brother’s house and there were some arguments about that. On 1 February 2008, Ms Halilovic moved into a house at Koondoola in Western Australia. Sometime in February the defendant came to Koondoola and collected Imran for the day. There was an argument before the defendant left with Imran, but the defendant returned a few hours later and then did not come to see Imran for some time thereafter.The defendant leaves Perth and ends up in Coober Pedy