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 be separated from the remainder of the trial. Pursuant to s 269F CLCA I decided to proceed first with the trial of the defendant’s mental competence to commit the offence. The defendant subsequently elected to dispense with the provisions of s 269B(1) CLCA to enable the investigation as to his mental competence to be conducted at a trial by Judge alone.
Section 269C CLCA provides that a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from mental impairment and, in consequence of the mental impairment –
(a)     does not know the nature and quality of the conduct; or
(b)    does not know that the conduct is wrong; or
(c)     is unable to control the conduct.
Mental impairment is defined in s 269A(1) to include a mental illness. In this case, there was a consensus of opinion between the medical practitioners that the defendant was fit to stand trial and that was confirmed by counsel representing the defendant. In addition, there was no dispute between the medical practitioners that at the time of the commission of this offence, the defendant suffered from a mental illness, namely paranoid schizophrenia, and that opinion was not challenged by the prosecution.
The issue which arises for determination is whether, in consequence of that mental impairment, the defendant is able to avail himself of a defence under s 269C. Each of the medical practitioners considered that the defendant had a defence of mental competence available to him, but the grounds upon which each based his opinion were challenged by the prosecution.
The onus is upon the defendant, pursuant to s 269GB(3) CLCA to displace the presumption of competency presumed pursuant to s 269D CLCA on the balance of probabilities. Ms Waldron, for the defendant, called Dr Brereton, Dr Raeside and Dr O’Brien to give evidence on behalf of the defendant. In addition, as part of the defendant’s case, she tendered the following exhibits:
D1    Report of Dr Brereton dated 10 August 2009;
D2    Copy of medical notes of Dr Beck;
D3    Report of Dr Raeside dated 30 March 2009;
D4    Letter of Tiffany Miller dated 24 April 2008;
D5    Report of Dr O’Brien dated 18 June 2009.
Mr Pearce QC appeared as counsel for the prosecution. He did not call any oral evidence but, with the consent of the defendant, tendered copies of statements of witness and other exhibits relating to the events surrounding the death of Imran Zilic, which were together admitted as P6. A list of the documents contained in P6 is annexed hereto and marked “A”. The chronology which appears hereafter is based upon the statements contained in P6 and unless otherwise indicated represents my findings as to the facts.
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
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
It appears that at about this time the defendant decided he had to leave Perth because he believed cars were following him as he left the house. He had a car as well as some money from the sale of the house. It is not clear what the defendant then did but he told Dr Brereton that he spent about three months travelling and eventually ended up in Coober Pedy. The evidence suggests that the defendant arrived in Coober Pedy in either late March or early April 2008, where he rented a unit at Van Brugge Street, Coober Pedy. His neighbour at those premises was Tiffany Miller.
Exhibit D4 is a copy of a letter of complaint written by Ms Miller to the letting agent on 24 April 2008 about disturbing and unpredictable behaviour by the defendant, which caused her to fear for her safety. She said that in the early hours of 10 April 2008 she heard screaming and swearing. On the evening of 11 April 2008 she heard loud noises and what sounded like growling and the defendant conversing with himself. On the morning of 14 April 2008 the defendant was slamming doors. As she left to go to work, the defendant came to the door of his unit and was screaming and yelling incoherently. In the early hours of 15 April 2008, the defendant was banging doors, playing loud music, singing, screaming, chanting and swearing. He was repeating words and phrases such as “stop fucking Jesus”, and “tell them to get the fuck away from me”. He was also bashing adjoining walls.
Tuesday, 15 April 2008
At about 10.10 pm on 15 April, the defendant was banging the walls and screaming. He slammed the fly screen door about eight times and began swearing at the top of his voice, saying repeatedly, “Put the fucking light on. What the fuck have they done to the light?” At this point, Ms Miller felt she had had enough and contacted the police. The police arrived at the scene shortly thereafter. When they arrived, they observed the defendant apparently listening to a phone message. He was kneeling over a cardboard box and appeared to be writing a mobile phone number on it. They spoke to him and he produced relevant identification. They asked the defendant his reasons for being in Coober Pedy and he told them he was there looking for work and had travelled from Western Australia.
The police were concerned about the defendant’s demeanour and thought he was either intoxicated or mentally unstable. Eventually they decided to take him to the Coober Pedy Hospital for assessment. The defendant agreed to go with them to the hospital. Dr Richards was the local medical officer for the hospital, but he did not see the defendant that night. The defendant was asking for a prescription for Temazepam, which is a sedative usually prescribed as a sleeping tablet. Dr Richards told the nursing staff that if the defendant required a prescription, he would have to return the following morning. The defendant appeared to be co-operative and not at risk of self-harm. He was therefore permitted to leave the hospital, but arrangements were made for him to return to the clinic the following morning.
After the defendant’s return from the hospital, Ms Miller was again disturbed by him playing loud music, singing and screaming out loud. He did, however, respond to a request from Ms Miller’s boyfriend to keep the noise down.
Wednesday, 16 April 2008
On Wednesday, 16 April 2008 the defendant returned to the Coober Pedy hospital and this time saw Dr Richards. He again requested Temazepam. He gave a history of using benzodiazepines over recent months, particularly Valium. He described himself as being troubled by his thoughts but when asked about them he became reticent and defensive and would not give more information. He said he had been in Coober Pedy for 15 days and he described himself as travelling around Australia, looking for work as an electrical contractor for the last couple of months. He gave Dr Richards a family history of having a son from a marriage that had broken up, but with whom he kept in touch. Dr Richards eventually diagnosed an anxiety condition and issued the defendant with a prescription for Temazepam that would last for two weeks.
The defendant later told Dr Brereton that while he was in Coober Pedy he was experiencing vivid dreams, which included a dream that someone was abusing Imran. It was as a result of his belief that Imran was being abused that he decided to return to Perth to collect Imran and then take him back to Coober Pedy and put him in school.
Saturday, 19 April 2008
On Saturday, 19 April 2008 the defendant was apprehended by police travelling at a speed of about 149 km/hr in a 110 km/hr zone. He was driving in a westerly direction along the Great Eastern Highway in Western Australia. The defendant told police that he was in a hurry to get to Perth to pick up his son as he was not happy with the way the boy’s mother was treating him. After checking his details, the police searched the defendant’s car and located a black-handled kitchen knife concealed in the log book located in the glove box. The defendant told the police that it was for opening canned food. The police did not locate any food in the vehicle and decided to seize the knife. The police were concerned about possible harm to the child and obtained contact details for the defendant’s brother’s house, which was the address in Perth provided by the defendant. Contact was subsequently made with the Perth police with a request to attend at the child’s address and to inform the mother that the defendant was on his way to take the child and was approximately three to four hours drive east of Perth.
Sunday, 20 April 2008
At about 6.00 am on 20 April 2008 the defendant arrived at his wife’s house at Koondoola. He did not stay very long. Ms Halilovic told the defendant that she had been told by police that the defendant was coming to see Imran. The defendant said that he missed Imran so much that he had driven a very long time to see him. Ms Halilovic asked the defendant when he would be returning Imran and he said in a couple of days. He said he was taking him to his brother’s house. The defendant was in a great hurry and then left with Imran. This was the last time Ms Halilovic saw Imran. In the afternoon, Ms Halilovic started ringing the defendant’s mobile phone but was unable to make contact with him. She subsequently went to the defendant’s brother’s house, but the defendant was not there. His brother said he did not know where he was.
Monday, 21 April 2008
Ms Halilovic continued trying to contact the defendant and eventually spoke to him on his mobile phone at about 7.30 pm on 21 April 2008. She was then able to speak to Imran briefly. She said Imran was crying and wanted to come home. The defendant told Ms Halilovic that he could not talk immediately but would call her later. He did not ring back. It is apparent that at the time of this conversation the defendant was well on his way back to Coober Pedy, as he had been sighted that morning at Penong, near Ceduna, and at about 11.30 am he passed through a fruit fly inspection station at Ceduna.
At approximately 1.00 pm the defendant arrived at the premises of the Poochera Hotel & Caravan Park with Imran. Poochera is approximately 280 kilometres north of Port Lincoln. Heidi Lynch was a bar staff member at the hotel. She attempted to engage the defendant in some general chit-chat and formed the opinion that he had some “issues”, by which she meant he was “very weird, like he may have been on something”. The defendant indicated he did not want to talk. He said he was very tired and asked for a room. He appeared to be very vague. The defendant subsequently became lost when looking for his room and wandered into the hotel’s beer garden, which was under construction. Ms Lynch led the defendant to his room and after a few moments she heard the child “go off” in his native tongue. She thought the child sounded terribly upset and she heard the defendant attempt to calm him. After a few minutes, everything became quiet. About 10 minutes later, she discovered that the defendant had left the premises in his car, leaving his key in the door of the room and the light on.
Tuesday, 22 April 2008

It is not clear when the defendant arrived back in Coober Pedy, but the probability is that it was either late in the evening of 21 April or the early hours of 22 April 2008. He was, however, in Coober Pedy during the day on 22 April 2008 as on that date he returned to the Coober Pedy clinic where he again saw Dr Richards. He was still requesting Temazepam or Diazepam. Dr Richards eventually agreed to prescribe Olanzapine 10mg on a weekly dispensing contract for the defendant’s anxiety and agitation. The defendant denied using any street drugs, but told Dr Richards that he had not slept in three days. Dr Richards said the defendant was agitated, emotionally closed and he appeared slightly paranoid. He was pacing during the consultation and left the room and returned during the consultation. He was offered further consultations if and when he felt calmer. Dr Richards did not see the defendant thereafter. Between 11.30 am and noon, the defendant dropped off a prescription for processing at the Coober Pedy Pharmacy. At that time he appeared to be alone.
Apart from the visit to Dr Richards and the pharmacy there is no information independent of the defendant as to what the defendant did from the time he arrived back in Coober Pedy until he left there on 23 April 2008. It is, however, clear that it was during this period that the defendant killed his son. The probability is that the killing of Imran Zilic occurred either on the morning of 22 April 2008 or the morning of 23 April 2008.
Wednesday, 23 April 2008
The defendant left Coober Pedy on 23 April 2008. The time at which he left is not clear but the evidence establishes that at about 9.00 pm he arrived in Alice Springs and checked into a room for one night at the Mount Nancy Motel.
Friday, 25 April 2008
The defendant did not remain in Alice Springs. At some time on 25 April 2008 the defendant arrived at the Gunamu Caravan Park, which is approximately 600 kilometres south of Darwin. At about 2.30 pm he spoke to Ms Smith, who was working at Reception. She said his behaviour was very evasive and she said he “just didn’t feel right”. She nevertheless booked him into a room. The defendant did not remain and after his departure the cleaner indicated that his bed had not been slept in.
At about 3.00 pm on the same day, the defendant was stopped by Ms Pollock, the Senior Quarantine Inspection Officer at the Kununurra Quarantine checkpoint. She described his attitude as “very matter of fact”. He was not talkative and was not concerned about her telling him that she was about to search his vehicle. She recalled he was of middle eastern appearance, mid-thirties with short dark hair and was unshaven. She noted that the vehicle was particularly clean inside and out.
Late in the afternoon of 25 April 2008 the defendant arrived at the Kimberly Grande Resort in Kununurra and asked for a room. Ms Woollatt, the office manager, described him as seeming extremely exhausted. She said that when asked if he would be dining at the resort, he responded that he just wanted to sleep. She became suspicious when he declined to give any details of his address other than just “Perth” and she made a notation in the Reception diary. She had nothing further to do with the defendant and believed that he checked out on 26 April 2008.
Saturday, 26 April 2008
At about 9.00 am on 26 April 2008 the defendant arrived at the Hidden Valley Tourist Park in Kununurra. He asked if there was a unit available. He did not provide any residential details when he registered. Ms Hill, the manager of the tourist park, asked him if there would be any children staying with him and he replied that it was just himself. Ms Hill said she never saw the defendant with anyone else during his stay. She described the defendant as having a “closely shaved dark beard … his hair was short, almost cropped”.
Ms Hewitt owns and runs the tourist park in partnership with her husband, Richard. At about 7.00 pm they were in their private residence, which is just in front of the cabin-style accommodation. Ms Hewitt said she heard a loud racket coming from cabin 5, which was the one closest to their house. There was banging and crashing at the side of the cabin and a man yelling out “Let me in”. Mr Hewitt went to speak to the defendant. He said the defendant was demanding to be let in, saying that he had been locked out even though he had paid his money for the accommodation. As a result of the defendant’s behaviour, the Hewitts told him that he was no longer welcome at the park and that his money would be returned. When Ms Hewitt tried to return his money to him, the defendant ignored her and walked over to her husband and again started arguing with him. Ms Hewitt eventually managed to return the defendant’s money to him and then told him to leave the premises as he was no longer welcome. The defendant then took the money and drove away.
Sunday, 27 April 2008
At about 8.00 pm on Sunday, 27 April 2008, the defendant arrived at the Ivanhoe Village Caravan Resort in Kununurra and requested long term accommodation. He was told by the manager that there was nothing of that nature available. The defendant then decided to take a cabin for the night, which he paid for with a credit card.
Monday, 28 April 2008
By this stage, the police were conducting intensive enquiries to locate Imran. At about 1.00 pm on 28 April 2008, police officers attended at the Ivanhoe Caravan Park to pursue inquiries relating to Imran’s disappearance. They were in possession of a Western Australian Family Court Recovery Order, which had been issued in favour of Ms Halilovic. When the police arrived at the caravan park, they went to the unit which had been let to the defendant, but it was unoccupied. They eventually located the defendant on a grassed area beside the swimming pool, cleaning his car. Detective First Class Constable Magee introduced himself to the defendant and told him that he was attempting to locate Imran. The defendant told Detective Magee that Imran was with his mother. He said he had collected his son from his wife’s house and had dropped him back two days later. He said that had happened approximately 10 days earlier, but he was not certain. According to the police, the defendant did not appear to be overly concerned that Imran appeared to be missing. He told the police that they should talk to Ms Halilovic. When they said they had done that and Imran was not there, the defendant responded, “I don’t trust her, she’s a whore” and made other comments about his wife to the effect that she was possessed by demonic spirits and was working for the devil.
The police officers departed the caravan park at about 1.30 pm, but returned at about 4.05 pm. They found the defendant sitting outside his unit drinking beer. They told him that they wanted to obtain a written statement regarding Imran, but the defendant said he was too intoxicated and that he had already helped as much as he could. Detective Magee advised the defendant of his rights under s 28 Criminal Investigation Act 2006 (WA), that he was not under arrest and that he did not have to accompany the police to any location or to provide a statement unless he wished to do so. The defendant then said that he did not wish to make a statement and the police officers left the caravan park.
Tuesday, 29 April 2008
At about 10.19 am on 29 April 2008 Detective Senior Constable Barber went back to the Ivanhoe Caravan Park with Constable Magee. Detective Barber asked the defendant if he could provide him with any information in relation to Imran’s whereabouts but the defendant again maintained that he had returned him to his mother about 10 days earlier. The conversation then continued:[3]
[3]    Statement of Detective Senior Constable Grant Barber, dated 4 June 2008 at p 2.
4   Ibid.
He said:    I don’t trust her, I don’t think the child is missing.
I said:               Who has the child now?
He said:    I don’t know.
I said:At the moment the child is missing and we want to know if he is safe. Can you assist?
He said:    I am trying. I think I have answered all applicable questions.
I said:               Will you give a statement?
He said:Is it needed? Have you investigated the fact the mother is working with Lucifer, working with demonic forces? The statement will not change anything.
Detective Barber asked the defendant where Imran was and the defendant replied, “He is in God’s hands.”[4]
The defendant agreed to go to the Kununurra police station but went there in his own car. His rights were again explained to him at the police station. In due course the defendant exercised those rights and left the police station.
Between 11.15 am and noon that day, the defendant attended at the Reception of the Kona Waters Holiday Park, Kununurra requesting accommodation. He was not sure how long he would be staying there, but said maybe one night, maybe four. Ms Brown, the manager, asked whether the accommodation was for one or two people and the defendant said he wasn’t sure. She said he was a little hesitant in his response. Ms Brown asked if he was working around the town. After thinking for a while, the defendant said he was working for Argyle. Ms Brown thought the defendant was acting a little strange, but didn’t take much notice as she thought he was maybe going to have a prostitute visit him during the night.
Wednesday, 30 April 2008
At about 8.00 am on 30 April 2008 the defendant attended at Reception to extend his stay, but requested a change to a cheaper room. Afterwards the defendant attended at the East Kimberly Real Estate office in Kununurra and made an enquiry about rental properties. He displayed his personal identification to the employee, Ms Jones. He said he was looking for a rental property “under $400 per week” and when offered a particular property, indicated he was interested in it. Ms Jones said that when the defendant attended at the address of the property to inspect it, he was by himself. She noticed that the defendant seemed very hasty about moving in and when she indicated that it would take some time to check his references, the defendant responded that he wanted the property “now” because he was only going to be working in Kununurra on a contract for six months. Ms Jones noted that he kept making excuses when asked for references.
At about lunch time, the defendant attended at the Kununurra District Hospital and asked to see a GP as an emergency patient. The nurse on duty noted that he was depressed and needy. She established that he was on Temazepam and he needed to see a GP quickly, as he had not taken medication for about six days. He was then seen by Dr Hemsley, who apparently prescribed medication for him.
At about 3.00 pm the defendant returned to the Reception area of the Kona Waters Holiday Park and asked whether they sold shavers, indicating that he wished to shave his beard. They could not assist.
Thursday, 1 May 2008
At about 8.45 am on Thursday, 1 May 2008 the defendant checked out of the Kona Waters Holiday Resort. Ms Brown noted that he was then clean shaven and she said he looked a bit different without his beard. At about 9.30 am, the defendant returned to the East Kimberly real estate office in Kununurra, where Ms Jones noted that he was clean shaven and had had a haircut. At some stage, he attended to enquire about employment opportunities at Grunt Labour & Recruitment, an employment agency in Kununurra. The area manager of that office, Ms Holmes, commented that the defendant’s hands were noticeably shaking, his behaviour was odd and he struggled for about 30 to 40 seconds to remove the cap from his USB storage device.
The police had been conducting surveillance on the defendant and at about 9.25 am, Detectives Barber and Magee stopped him in his vehicle about six kilometres east of Kununurra. They asked if he could further assist them with locating Imran, but the defendant indicated that he had told them all he knew the previous day. Nevertheless, he returned to the Kununurra police station with them where he agreed to provide another statement even though he said he could not add anything further to his original statement.
The police interviews
Thursday, 1 May 2008
Detectives Barber and Magee then conducted a video recorded interview with the defendant at the Kununurra police station. The interview commenced at 10.01 am and concluded at 11.27 am. In the course of the interview, Detective Magee showed the defendant two news articles printed from the Bigpond and ABC News websites, with a picture of Imran. Following that the defendant’s demeanour changed and he began to cry. He apparently read the article and then composed himself, stating, “That’s disgusting”. He told the police that he had separated from his wife about 18 months earlier, “Because she’s a whore and she’s possessed by demons. Cutting a long story short, I believe she’s working for the devil.” The defendant repeated that he had returned Imran to his wife. He said that after that he went to Norseman. The police subsequently showed the defendant two photographs, purporting to be of the defendant and Imran, taken at a roadhouse at Norseman on 20 April 2008 and asked the defendant to comment. The conversation then continued: [5]
Q.Well, I can, I’ve got eyes and I can see it, and that’s a picture of you holding a, an infant child or a toddler, male toddler. With that in mind, is there anything you’d like to say about that.
A.No.
Q.We’re trying to locate your son, okay, and it’s clear to me that that there is a picture of you holding w… what we believe would be Imran and it was taken in Norseman.
A.I don’t know, te.. technology today can do anything, so, so to be honest with you that’s just a photograph that can be manipulated in one hundred million ways so.
[5] Transcript of interview of Aliya Zilic by Detective Senior Constable Grant Barber and Detective Senior Constable Connor Magee (1 May 2008) at p 16.
The defendant repeated that Imran was with his mother, but later said: [6]
… he’s in God’s hands and that’s because … I believe in God and it’s always how, how I … view this you know security.
[6] Ibid at p 20.
Later in the interview the defendant told police that he was very concerned about his son being in unsafe hands, that he believed his wife was working for Lucifer, and that he believed that God was looking after his son. He said he believed his son was definitely in unsafe hands but he couldn’t do much about it.
Some time later, Detective Sergeant Doyle, together with Detective Magee continued the interview with the defendant, in the course of which the defendant became agitated and started saying, “No I die …” and repeated the word “die” about 17 times.[7] He later said “die” was a Bosnian word for “give me more”, but when pressed about why he said that, he said he had “just felt like it”.
[7] Transcript of interview of Aliya Zilic by Detective Sergeant Tom Doyle and Detective Senior Constable Connor Magee (1 May 2008) at p 5.
The police became concerned about the defendant’s mental state and contacted Kununurra Mental Health. At about 12.29 pm, two members from that organisation attended at the police station and spoke to the defendant. They then advised Detective Barber that the defendant required treatment and in due course the defendant was taken from the police station to the Kununurra Hospital. The defendant was subsequently transferred to the Royal Perth Hospital and thereafter the Graylands Hospital near Perth.
Tuesday, 6 May 2008
On 6 May 2008 the police received advice that the defendant was well enough to be interviewed, following which, Detective Senior Sergeant Foley of the West Australian Police Major Crime Squad, Detective Senior Constable Glenn Savage-Morton and Detective Senior Constable Kevin Glynn attended at Graylands Hospital and had a conversation with the defendant. Shortly after the interview commenced the defendant asked for some medication and the video camera was turned off. He began to cry and then said that he had killed his son, that Imran was in Coober Pedy and that he could take the police there. The defendant did not want the video camera reactivated but repeated that he was prepared to take the police to the location of the body. He eventually drew three maps to assist the police with the location. The defendant said to the police: [8]
I found the place where I wanted to stop, put my resume in there at a mining company. I was waiting but I was wondering what happening with Imran. I decided to pick him up and bring him back. Put him in school. I drive non stop from Coober Pedy to my brother’s place, arrive at 11 o’clock at night. I want to see my son again. I have a rest for 6 – 7 hours and pick up my son at 5 o’clock. I drove all the way back again. I was awake for 5 – 6 days. Imran was sleeping in car. I stopped at Ceduna. I went to normal GP at Ceduna; it was busy. I wanted to stop and sleep. I waited at emergency department for a doctor to get something to sleep. The doctor didn’t show up, no-one wanted to speak with me. I drove on. I did stop for fuel somewhere. I went to my house where I normally stay. I had a shower and then some sleep. Then I could not recognise my son again. Because he was in that box too long (pointing at box in Western Australia). I killed him, does it matter how?
[8] Statement of Detective Senior Sergeant Stephen Foley, dated 16 October 2008 at p 5.
He told the police that he had killed his son with a knife, but later said he did not know where the knife was. He said that he had driven Imran in his car to the mine (where the body was later found). It was early morning but still dark. He said that his son was in a disgusting state. He referred to his wife being involved in demonic ritual abuse and made statements to the police to the effect that Imran had been abused by paedophiles, that he had been abused “in a big way, verbal, physical and sexual”.
Wednesday, 7 May 2008
On 7 May 2008 Detective Foley returned to Graylands Hospital and had a further interview with the defendant, which was recorded on video. This interview commenced at 7.00 pm and concluded at 8.40 pm. The defendant made further admissions relating to killing Imran and corroborated the admissions he made off camera during his interview the previous day. In the course of the interview, he referred to being in a box and demonic ritual abuse. He believed his wife worked for the devil.
The police endeavoured to obtain details from the defendant as to his movements on the trip back to Coober Pedy, but the defendant was not sure of the date when he arrived there, nor could he tell the police the date on which he killed Imran nor whether it was the same day as he left Coober Pedy. He said, however, that when they got to Coober Pedy, he had a shower and gave Imran a shower and they then lay down to have a rest. The defendant said that when he woke up, he looked at Imran and it was not him, it was somebody else. He said he looked disgusting. The conversation continued:[9]
[9] Transcript of interview of Aliya Zilic by Detective Senior Sergeant Stephen Foley and Detective Brevet Sergeant Mark McEachern (7 May 2008) at p 24.
Q.In what way.
A.Just he certainly looked like he was abused. I could see that.
Q.What could you see there.
A.I saw a lot of – you don’t know that word, shetan, shetan means the devil.
Q.Oh.
A.Look, you’ve got shetan and you’ve got shetin, the, the devil’s helpers.
Q.Right.
A.I shouldn’t get back on that, but a stupid thing, shetan, shetin.
Q.And you reckon, sorry, I’ll just take you back to that. You’ve written Lucifer –
A.Yeah.
Q.And the devil.
A.It’s the same thing.
Q.Right, okay. So he looked like, you’re saying he looked like one of the devil’s helpers.
A.Yes.
Q.Right, okay. Now, and do you still think that now, is that what you think now.
A.I think he’s at peace now with God, yeah.
Q.Because he’s –
A.Because he’s dead.
Q.Right.
A.Yeah, I think he’s in God’s hands now.
Q.Okay.
A.He’s peaceful.
Q.All right. So let’s just go back to when you were looking at him. Okay, what happened.
A.He was just doing this most weird stuff on the bed, the child, a three year old child doesn’t do.
Q.Like what.
A.Oh, flipping his legs up I the air, making some marks. I don’t even like to show (inaudible) hands. I don’t do that. He was making some marks with his hands and he was flipping his legs up and down on the bed. Something similar happened in Norseman as well, the same thing.

The defendant said he then wanted to set Imran free because he was being abused. It was put to him that he had earlier told the police that he had returned Imran to his mother. The defendant acknowledged that was not the truth, but said that he had said that because he knew he was dealing with the devil. He told the police that after he killed Imran and put him in the mine shaft, he returned home and had a shower and lay on the bed. He thought Imran was dead when he put him in the mine shaft. He agreed to accompany police to Coober Pedy to show them where Imran was and said: [10]
I think that I’ve cleansed myself enough in God’s name. I can go to sleep at night peacefully.
[10] Ibid at p 43.
Thursday, 8 May 2008
On Thursday, 8 May 2008, Detective Savage-Morton conducted a further interview with the defendant at the Graylands Hospital. That interview commenced at 4.01 pm and initially related to a forensic examination. In a further interview commencing at 4.58 pm, the police endeavoured to clarify some of the matters raised by the defendant the preceding day. The defendant said: [11]
Well basically it wasn’t premeditated when I was, when I killed my son, it um, I didn’t think about it, it’s pretty, there’s nothing complicated about it, I just had to do it because when I left Coober Pedy, I felt great, I was the cleanest man on earth, I felt, that’s the analogy, um, when I got back after leaving Perth, … back to Coober Pedy, I saw what happened to my son, that he was abused, even by paedophiles. He could not recognise me any more. Both of us had a shower. I drove about 40 kilometres out of town. I carried him to the spots. I cut his throat, going back a step, I was carrying him to the spot, he’s a good, he’s a grown boy now, he was heavy at the time, but I still did carry him a fair distance. I placed him on the spot where I was going to kill him. I didn’t want to think about it much at all, I just wanted to relieve his suffering. I didn’t want him to suffer. I slapped him once across the head to put him unconscious to make him cry or for him to feel, not to feel the knife. I placed him on the ground, I cut his throat and I put him down the shaft and that’s all I want to say.
[11] Transcript of interview of Aliya Zilic by Detective Senior Constable Savage-Morton and Detective Brevet Sergeant Mark McEachern (8 May 2008) at p 4.
The defendant said that he had said a prayer when he dropped Imran in the shaft. He described the place where he deposited his son as a “peaceful place”. He said he took the knife back home and he thought he put it in the kitchen drawer after he washed it, as it had blood on it.
Friday, 9 May 2008
On Friday, 9 May 2008, police officers located Imran’s body in a mine shaft about 47 kilometres south of Coober Pedy, in the general area indicated by the defendant on the map. The cause of death was later determined to be consistent with an incised wound to the neck. [12]
[12] Statement of Dr Cheryl Charlwood, dated 25 September 2008.
Saturday, 10 May 2008
Crime Scene Investigators had searched the house at Van Brugge Street, Coober Pedy on 1 May 2008 but at that time did not locate the knife. On 10 May 2008, however, police returned to the premises, at which time they located a small black-handled steak knife in the cutlery drawer. A presumptive test obtained a faint positive for blood on it. A DNA test of a swab of the blood stain on part of the knife’s spine and handle subsequently disclosed a likelihood ratio of a match to Imran of one billion to one. [13]
[13] Statement of Andrew Donnelly dated 13 June 2008.
Defendant transferred to James Nash House
On 14 May 2008 the defendant was extradited to South Australia and transferred to James Nash House. Dr Raeside saw him there on 16 May 2008 at the request of the defence. At that time the defendant was in Aldgate Ward, which is an acute ward at James Nash. Dr Raeside described the defendant’s presentation at that time as: [14]
… emotionally labile, that is, he was quite tearful, particularly when talking about the death of his son and the circumstances of that. He told me about his involvement. He acknowledged that he had killed his son and was quite emotionally affected by discussing the circumstances that led up to that. The other aspect in his conversation was that there were, what I considered to be, a number of bizarre delusional beliefs in respect to both his own background, but also more particularly in recent times, the circumstances about his son and also his wife, and that was the predominant feature there. I didn’t detect any marked – I didn’t detect any evidence that he was experiencing hallucinations during my interview and his thoughts were a little disorganised which is consistent with the delusional beliefs, but also consistent with his emotional state at that time.
[14] Transcript at pp 94-95.
Dr Raeside considered that at that time the defendant was psychotic.
Dr Brereton
Dr Brereton first saw the defendant in about September 2008, when Dr Brereton commenced employment at James Nash House. Since then Dr Brereton has continued to be the consultant psychiatrist responsible for the defendant’s care. He therefore sees the defendant reasonably frequently. Dr Brereton saw the defendant on 5 August 2009 specifically for the preparation of the court ordered report. In his report dated 10 August 2009 (Exhibit D1), Dr Brereton expressed the opinion:[15]
I am satisfied that Mr Zilic’s actions in taking his son to Coober Pedy and subsequently killing him were motivated by psychotic symptoms. His delusions led him to believe his son was being abused in Perth and needed to be taken from there to a place of safety. When he was with his son, these beliefs that his son had been abused became more entrenched. Mr Zilic was also experiencing auditory hallucinations as a result of his psychosis and these began to command him to harm his son. At times, Mr Zilic felt that he was under the control of an outside agency, which is also a recognised symptom of psychosis.
With regard to Mr Zilic’s mental competence to commit the offence, I believe Mr Zilic was suffering from a mental impairment at the time of the offence; namely schizophrenia and acute psychotic symptoms. In my opinion, at the time of the offending Mr Zilic did not know the nature and quality of his conduct. However, as a result of his florid delusions and hallucinations, I am firmly of the opinion that he was not able to reason about the wrongfulness of his conduct at the time, with a moderate degree of sense and composure.
By his own account, Mr Zilic left Coober Pedy with the intent of harming his son on two occasions. On the first occasion he was able to turn back as his auditory hallucinations subsided for around two hours. Unfortunately when they returned, he left Coober Pedy for a second time and did indeed kill his son. He talks of intense distress, pain and of not “recognising” himself at the time of the offence. Mr Zilic provides a convincing history indicating that he felt compelled to commit the offence despite not wanting to. Mr Zilic’s ability to control his conduct was at least severely impaired, and on balance, in my opinion, Mr Zilic was unable to control his conduct at the time of the offence.
[15] Report of Dr Brereton dated 10 August 2009 at [13.2]–[13.4].
Dr Brereton did not, therefore, believe that the defendant was mentally competent to commit the offence.
Exhibit D2 is a copy of the medical notes of Dr Beck, a general practitioner in Western Australia who appears to have been asked by Dr Pervan, the defendant’s previous treating doctor, to take over the conduct of the defendant’s medical needs.
The notes of Dr Beck refer to Olanzapine 5mg/nocte which Dr Brereton described as a relatively low dose. The defendant told Dr Brereton that he was changed to anti-depressants and that he believed his diagnosis of schizophrenia had been changed and he was puzzled by that. Dr Brereton said that the defendant gave a very clear account to him of experiencing a number of persecutory delusions at that time, which included being followed by people in cars. He said he decided that as a result he had to get out of Perth. This indicated to Dr Brereton that the defendant was psychotic. Dr Brereton said that the defendant had improved since he had been at James Nash and no longer held delusional beliefs. He said that at the early stage of his in-patient stay at James Nash House, not only was the defendant describing ongoing psychotic symptoms, but Dr Brereton said that he could objectively see that the defendant was responding to auditory hallucinations. He said that the Olanzapine did not appear to be treating the defendant fully and he changed him to Risperidone, an alternative anti-psychotic medication. That had a very good effect on the defendant’s mental state in terms of his psychosis.
Dr Raeside
Dr Raeside provided a report dated 30 March 2009 (Exhibit D3) in which he referred to the interview he had with the defendant on 16 May 2008, shortly after his extradition to South Australia, and his interview on 25 March 2009. He diagnosed the defendant as suffering from paranoid schizophrenia, which he thought had first presented when the defendant was in his mid-twenties. Dr Raeside thought the defendant was suffering from an acute relapse of that condition at the time that he killed his son. He said:[16]
Whilst he would appear to have known the nature and quality of his actions in killing his son by using a knife to cut his throat and then putting his body in a mineshaft, it is my opinion that Mr Zilic’s ability to reason with a moderate degree of sense and composure about the wrongfulness of his actions would have been severely impaired …
There does not appear to be any non-psychotic motive for Mr Zilic’s alleged behaviour. There do not appear to have been any access issues, although Mr Zilic appears to have developed the belief that his son should be with him for a “cleaner life” than with the child’s mother whom he appears to have developed a range of bizarre delusional beliefs about.
[16] Report of Dr Raeside dated 30 March 2009 at p 26.
Dr Raeside therefore supported a mental incompetence defence. He said, however, that the defendant had improved with treatment as an in-patient and was now reasonably well and stable and was fit to plead and stand trial. He considered, however, that the defendant needed close ongoing psychiatric supervision and treatment with anti-psychotic medication.
Dr O’Brien
Dr O’Brien interviewed the defendant at James Nash House on 1 May 2009, 5 May 2009 and 8 May 2009 and then provided a report dated 18 June 2009 (Exhibit D5). At the first interview, the defendant told Dr O’Brien that he had killed his son because he was hearing voices saying “to get rid of him”. He said that he had been hearing those voices for about six months. He went on to say that he thought his wife was abusing his son and referred to ritual demonic abuse. He also thought that his parents had earlier practised similar demonic abuse on his son. Dr O’Brien put to him the possibility that he might have killed his son to hurt his wife. Dr O’Brien said that proposition upset the defendant, who responded “That’s not true”. The defendant went on to say that when he picked up his son, he did not know that he was going to do this. He told Dr O’Brien “My son is the biggest loss of my life”. He said he loved his son and he grieved every day. He told Dr O’Brien that he had been taking the anti-psychotic Olanzapine for seven years and thought he was getting better, but after his regular GP retired, he was sent to a different general practitioner, who allegedly told him that he only needed to take his medication on an as-required basis. As a result, he stopped taking his regular medication. He told Dr O’Brien that he had not been taking any prescribed medication in and around the time of the death of his son.
At the second interview, the defendant told Dr O’Brien that on the journey from Perth to Coober Pedy, he had stopped off at Ceduna and initially went to the general practitioner area of the local hospital, but he was kept waiting for 30 minutes and nobody would see him. At that time he was hearing voices telling him he was Jesus Christ. He decided to leave and then went to Poochera. Dr O’Brien asked why he had lied to the police after he was questioned by the Kununurra police about the whereabouts of his son. The defendant responded, “I don’t know, I was sick” and went on to say, “I was delusional at the time”.[17] Dr O’Brien considered the defendant was genuinely distraught about what had happened and said he had presented a convincing narrative of increasing psychiatric unwellness, which included delusional beliefs about his wife and other family members, demonic ritual preoccupation, restless and agitated behaviour and withdrawal from regular activity such as work.
[17] Report of Dr O’Brien dated 18 June 2008 at p 5.
After reading the detailed documentation provided to him, together with the interviews conducted by the police, Dr O’Brien concluded that at the material time, that is, when he killed Imran, the defendant was actively psychotic by virtue of his paranoid schizophrenia. Dr O’Brien expressed the opinion: [18]
… that as a result of his active illness, although he did know the nature and quality of his conduct (the killing of his son) he was not able at the material time to reason about the wrongfulness of his conduct “with a moderate degree of sense and composure”. It would seem to me that his behaviour was driven by the intensity of his psychotic and delusional belief system.
[18] Ibid at p 7.
He concluded that by virtue of the “wrongfulness” limb, the defendant had available to him a mental impairment defence.
Dr O’Brien adhered to that opinion in evidence. Mr Pearce put to Dr O’Brien the fact that for four or five days after the killing, the defendant had gone about his business and had been able to maintain a lie about his activities suggested a knowledge of the wrongfulness of what the defendant had done. Dr O’Brien conceded that was so, and made the same concession in respect of the fact that the defendant had concealed the body in a place where it might not easily be found, as well as fleeing the scene after the killing. Dr O’Brien said: [19]
I think they would be taken into consideration but I don’t think that they necessarily inform us about the legal test for wrongfulness. I have 30 years experience in forensic psychiatry. The scenario that you have described to me by my actions which appear to be purposeful is very common indeed. I don’t think that you can break down normal mental thinking into purposeful action and equate the two. You can act quite purposefully and be quite mad.
[19] Transcript p 163.
He went on to say: [20]
But because I have the diagnostic framework and the family history and the earlier hospitalisations, it allows me to interpret his actions in a more medically consistent fashion, and that is what I am doing. So I believe that he was in a disordered mental state for some time, which includes the period of the killing of his son, and that abnormal mental state was active psychosis which caused a great deal of psychic disequilibrium and disorganisation, and applying that mental state to the legal test leads me to believe that he wasn’t able to argue and reason about the wrongfulness of his act with a moderate degree of composure. As you know, we are not talking about wrongfulness in any colloquial sense, we are talking about a specific legal meaning, and I am applying the mental state to that legal test.
[20] Transcript pp 163-164.
It was also put to Dr Raeside that such matters as the defendant’s attempts to mislead the police, attempts to distance himself from the crime, fleeing the crime scene, changing his appearance and washing the knife suggested that the defendant knew what he had done was wrong. Dr Raeside responded: [21]
A.Yes, it indicated he did. Obviously in my assessment I tended to weigh up those factors versus the factors that suggest otherwise. At the end of it, in my opinion it was still more likely than not he did not know the wrongfulness. All of those factors decrease the certainty that he did not know the wrongfulness, certainly I wouldn’t be saying with 100% or even 75%, it would be around 65%, two-thirds in my opinion.
Q.I won’t hold you to those figures. It is really a case where the person considering the issue has to put them into the scales and decide what weight to give to the flight, the attempts to conceal evidence, disguise appearance and so on.
A.Yes.
[21] Transcript pp 134-135.
Submissions by prosecution and defence
There is no suggestion that the defendant comes within the provisions of s 269C(a): he did not know the nature and quality of his conduct. It is therefore unnecessary to canvass the evidence as to that aspect of the matter. However, Dr Raeside and Dr Brereton each expressed an opinion about the defendant’s ability to control his conduct. In the passage of his report earlier cited, Dr Brereton described the defendant’s ability to control his conduct as “severely impaired”. Dr Raeside said:[22]
… as I said, with some reservation, in the sense that I find that a problematic limb of the mental impairment test, mental incompetence test, from a practical point of view, in that you can’t prove that someone doesn’t have something, so proving that they were unable to control is problematic. The way I approach it is to look at evidence that they did control their behaviour and therefore if they did control, then they were able to control. In Mr Zilic’s case there does appear to be some efforts to control or resist. He talks about struggling with those thoughts, telling him to kill his son, and then finally giving in. On the basis of that account the intensity of those thoughts or possibly hallucinations, the commands to act, attempting to resist and then finally giving in when he seemingly didn’t want to because he recognised it was his son, I thought that may well meet the third limb. One of the difficulties I have is it’s not clear to me whether the Act means total and complete inability to control, which if it does, I don’t think he would meet that limb. Or whether it means substantial inability, or any variety of that severity. I simply was offering the opinion that he certainly struggled considerably and eventually relinquished to those psychotic impulses to kill his son.
[22] Transcript p 113.
In my opinion the law requires there to be a total lack of control in order for a defendant to avail him/herself of a defence pursuant to s 269C(c) CLCA. Although there is evidence that the defendant had some inability to control his actions when he killed his son, I do not consider that the impairment of control described by the medical practitioners is such as to provide the defendant with a defence to the charge, pursuant to the provisions of s 269C(c). It is unnecessary therefore to further explore that aspect of the matter.
In determining the question of the defendant’s mental competence, however, Ms Waldron relied upon the provisions of s 269C(b): that the defendant did not know his conduct was wrong. In R v Porter,[23] Dixon J (as he then was) expressed the test in the following way:
Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
[23] (1933) 55 CLR 182 at 189-190.

Ms Waldron relied upon the opinions expressed by each of the medical practitioners to support her submission that the defendant was not mentally competent at the time that he killed his son as he was not, at that time, able to reason about the wrongfulness of his conduct “with a moderate degree of sense and composure”. Although each of the doctors may have reached that conclusion by different routes, she submitted that was not significant. In the end they all agreed that the defendant had been mentally incompetent as a result of his psychotic illness at the time that he killed his son.
As earlier indicated, the prosecution does not dispute that the defendant suffers from a mental illness, namely paranoid schizophrenia. Mr Pearce nevertheless argued that the defendant had failed to discharge the presumption in favour of mental competence. Mr Pearce acknowledged the opinions expressed by each of the psychiatrists but pointed out that the conclusions of each of them depended upon inferences drawn from matters of fact and that in reaching a conclusion as to the state of mind of the defendant at the point in time at which he killed his son, each had placed substantial reliance upon the account given to him by the defendant, which was necessarily subjective and untested in cross-examination.
Mr Pearce submitted that the account given by the defendant was not necessarily consistent with other known facts and inferences that could be drawn from the evidence as to his activities at or about the time he killed his son. In particular, the only evidence as to what was operating in the mind of the defendant when he was at the mine shaft was wholly reliant upon the account given by the defendant.
Mr Pearce submitted that notwithstanding the possibility that the defendant might, at the relevant time, have been suffering from some confusion as a result of his mental illness, there were a number of proven facts that supported an inference that the defendant was aware of the wrongfulness of his actions when he killed his son. Therefore, a cautious approach to the opinions expressed by the medical practitioners was required. Mr Pearce referred to such matters as the way in which the defendant concealed his crime by placing Imran’s body in a disused mine shaft, the washing of the knife used in the killing, his flight from Coober Pedy, the shaving of his beard (which it was suggested was done to change his appearance), and the defendant’s activities in Kununurra where he tried to get work and obtain accommodation. Mr Pearce also referred to the manner in which the defendant lied to the police about any involvement in Imran’s disappearance and the fact that he had been able to maintain that lie over a number of days in the course of several interviews with the police.
I have earlier referred to the evidence of Dr Raeside and Dr O’Brien when these matters were put to them. They were not prepared to change their opinion as a result of them. Dr Brereton was also closely cross-examined by Mr Pearce about these various matters. Dr Brereton accepted that there was some level of purposeful behaviour and functioning in the way in which the defendant had moved around in the period both before and after the killing of Imran, but said that he would not expect the defendant to become entirely incapable of functioning on a day to day basis. [24]
[24] Transcript p 73.
Mr Pearce asked Dr Brereton about the defendant’s ability to maintain a lie over a number of days as to his involvement in Imran’s death. Dr Brereton responded:[25]
A.He gives an account I read in the witness statements of believing that, in some way – and it is difficult to hang together again because I think the degree of his disorder that, in some way, he felt he was dealing with the devil and he felt that he did not have to give a truthful account of what happened. I think he was, as I said, guarded, a little suspicious, probably a little confused and perplexed about what was happening to him and, understandably, that led to him being less than forthcoming.
Q.Why do you think he was a little bit confused about what was happening when he was speaking to police in Kununurra. On what do you base that.
A.That’s the nature of his illness. I think, as I mentioned, this degree of disorganisation, perplexed and confused thinking is part and parcel of being psychotic.
Q.What is it that is particularly confused when police go to a man who has just killed someone and say, ‘Do you know where the body is? Did you kill him?’ And that person maintains over a number of days the story ‘I know nothing about it. I didn’t do it. Indeed, I returned my son to the mother’. What is confused in your opinion about that account.
A.That specifically, I agree, seems fairly straightforward but we don’t know what kind of – what was going on exactly in Mr Zilic’s mind at the time other than to say that, in all likelihood, he was puzzled, perplexed, deluded, so I don’t find it entirely surprising that he wasn’t forthcoming at first.
[25] Transcript pp 76-77.
He later went on to say:[26]
A.I think you are right in saying that he maintained that lie and that he, in my opinion, he knew that he was lying at that time. I don’t infer from that that he was not psychotic at the time, though, and, when he does then admit to the offence there are a number of comments he goes on to make about demonic abuse and about his son being in a better place, and about being at peace now, that I think is strongly indicative that he continued to be psychotic throughout the time, the material time, the time we’re talking about.
[26] Transcript p 78.
Mr Pearce also suggested to Dr Brereton that the throwing of the body down a disused mine shaft in a remote outback town and washing and concealing the murder weapon were acts consistent with a man who was aware of what he had just done and was trying to conceal his crime. Dr Brereton responded that this was “trying to attribute rational acts to somebody who in my opinion was not rational at the time.”[27]
[27] Transcript p 87.
Finding as to mental competence
I am satisfied that the defendant suffers from a mental illness, namely paranoid schizophrenia, and that is a condition which has affected him for many years. That of itself does not provide the defendant with a defence of mental incompetence, that is that at the time that he killed his son, he was unaware that what he was doing was wrong. Each of the medical experts has expressed the opinion that the defendant was not mentally competent at the time he killed his son. But as Bray CJ said in Samuels v Flavel:[28]
… no court should abdicate its own judgment in favour of an expert or refuse to give proper weight to other evidence in the case, even non-expert evidence, which is contrary to the expert’s opinion.
[28] [1970] SASR 256 at 258.
In this case, Mr Pearce quite properly submitted that it is necessary to closely examine all the facts and circumstances surrounding these events and to draw appropriate inferences therefrom in order to determine the extent to which reliance can be placed on the opinions expressed by the medical practitioners.
The observations made by Tiffany Miller in Coober Pedy in the early part of April 2008 indicate that the defendant was in a disturbed state of mind prior to his return to Western Australia to collect his son. The somewhat chaotic way in which he later returned to Coober Pedy and the observations made by the various witnesses along the way support a conclusion that the defendant continued to be in that state of mind as he returned with Imran to Coober Pedy. As earlier indicated, there is little information, apart from that provided by the defendant, as to what occurred in Coober Pedy after his return and the defendant asserts a loss of memory for a substantial part of that time.
The defendant was, however, seen by Dr Richards at the Coober Pedy Clinic on 22 April 2008. It is not possible to say whether that was before or after the defendant killed his son. Although Dr Richards is not a psychiatrist, he described the defendant as being “slightly paranoid” at that time and he included in his treatment of the defendant a prescription for the anti-psychotic drug, Olanzapine.
Mr Pearce submitted that the fact that the defendant concealed his son’s body in a disused mine shaft in a remote area and then washed the knife used in the killing demonstrated that the defendant knew that what he had done was wrong. He submitted these were deliberate and conscious acts. Although Dr Brereton suggested that there may have been some religious overtone to the washing of the knife by the defendant, Mr Pearce pointed out that that was not the account of the defendant. The defendant simply told the police he washed the knife to remove the blood from it.
Ms Waldron pointed out that a rational person who was aware of having committed a crime and wished to conceal the evidence connecting him to it would have had no difficulty in disposing of the knife in a place where it would never have been found. It was therefore illogical for the defendant to have taken it back to his home. She therefore submitted that the defendant’s actions with respect to the knife were more consistent with the actions of a person affected by a mental illness operating on his mind than with a person who was aware of what he was doing. The defendant believed that he had carried out the act required of him by the voices that he was hearing, and had thereafter simply washed the knife and returned it to its rightful place.
In my opinion, the defendant’s immediate departure from Coober Pedy after killing his son indicates a degree of purposeful behaviour which supports Mr Pearce’s submission that the defendant was aware of what he had done. The observations made by the witnesses who saw him thereafter are, however, consistent with the defendant continuing to be affected by his mental illness. Although it appears that the defendant shaved off his beard in the course of this flight, I place little weight on that aspect of the matter as the defendant does not appear to have made any effort to conceal his identity as he travelled across the country. He continued to drive his own car and use a credit card in his own name. He also used his own name when trying to obtain employment and accommodation. As Dr Brereton said:[29]
… it’s possible for someone’s mental state to wax and wane, but having said that, I think his functioning in broad terms over that whole period going from place to place, not being able to settle down is representative of an impaired level of functioning.
[29] Transcript p 71.
Whilst it can be inferred from the lies told to the police that the defendant was at that time aware of the wrongfulness of his actions, there are psychotic overtones to a great number of the statements made to them. The police at Kununurra eventually became so concerned about the defendant’s mental health they sought medical treatment for him.
Dr Raeside and Dr O’Brien are experienced psychiatrists. Both of them were very clear in the opinions they expressed. They had regard to these various matters when reaching their conclusions as to the mental competence of the defendant. Dr Raeside had the additional benefit of examining the defendant only a few weeks after the defendant killed his son. Dr Raeside considered the defendant to be psychotic at the time of that interview. Dr Brereton has the advantage of being the treating psychiatrist for the defendant. He has seen the defendant on a regular basis since September 2008. He is therefore in a good position to assess the bona fides of the defendant and reach an opinion as to whether he is a malingerer. It is of some significance that the defendant’s mental state appears to have improved substantially following the alteration of his psychotic medication by Dr Brereton.
Despite the defendant’s attitude towards Ms Halilovic and some of the statements made by the defendant about her from time to time, it appears that she never interfered with his access to Imran, which included overnight stays. Each of the medical practitioners addressed the possibility that the defendant had killed his son out of some desire to hurt his wife, but eventually discounted that as a motive for his actions. There is no evidence of any motive for the defendant to kill his son and nothing to suggest that the defendant had anything other than a close and loving relationship with Imran, which makes the commission of this crime quite inexplicable.
This is not an easy matter to resolve. Having given careful consideration to all of these matters, I am satisfied on the balance of probabilities that when the defendant killed his son, he was suffering from a mental impairment in consequence of which he did not know that his conduct was wrong, thereby satisfying the provisions of s 269C(b) CLCA. He was therefore mentally incompetent to commit the crime of the murder of Imran Zilic.
ANNEXURE “A”
RELEVANT STATEMENTS AND EXHIBITS
TRIAL ON OBJECTIVE EVIDENCE AND MENTAL COMPETENCE
R v Zilic
Background:-
1. Mirsada HALILOVIC (1) 23/5/08 (statement made 29 April 2008)
2. “ “ (2) 23/5/08 (statement made 3 May 2008)
3. “ “ (3) 28/5/08 (statement made 28 May 2008)
4. Aziz HALILOVIC 5/6/08
5. Dzelia HALILOVIC 5/6/08
6. Mirsad HALILOVIC 4/6/08
7. Hussein HALILOVIC 4/6/08
8. Thomas ELLINSON 13/5/08
9. Shai BURNS
10. Dr Neil BECK 31/7/08
11. Medical / Hospital records NB1 statement of McEachern
Coober Pedy:   March 28^th - April 15^th 2008
19^th April 2008
21^st April 2008
23^rd April 2008
25^th April 2008
26^th April 2008
27^th - 28^thApril 2008
29^th April 2008
30^th April 2008
1^st May 2008
28^th April - 1^st May 2008 (Police):-
3^rd - 4^th May
6^th May 2008:
7^th - 9^th May 2008:
9^th May 2008
1. Jasna KOVACEVIC 1/5/08
2. David FURNISS 13/5/08 (compiled 30/4/08)
3. Dr Thomas RICHARDS 1/5/08
1. Tammie DUSELLI 30/6/08
1. Heidi LYNCH 30/4/08
2. William WATSON 30/4/08
1. Lyn LI 2/7/08
1. Kathryn SMITH 25/6/08
2. Kimberley POLLOCK 22/5/08
3. Catherine WOOLLATT 22/5/08
1. Patricia HILL 22/5/08
2. Fiona HEWITT 22/5/08
1. Kevin HOPKINS 22/5/08
1. Thelma BROWN 22/5/08
2. Ann DIAMOND 22/5/08
1. Katy JONES 22/5/08
2. Janet FEARN 22/5/08
1. Stephanie HOLMES 23/5/09
1. Alan MAGEE 7/6/09 and 18/6/09
2. Peter MAHER 9/6/08
3. Damian GLASSON 9/6/08
4. Graydon EDDY 11/6/08
5. Grant BARBER 4/6/08 (transcript of interview 1/5/08)
1. Justine ROSS 23/8/08 (at Royal Perth Hospital)
1. Stephen FOLEY 16/10/08 (ROI at Graylands)
2. Glenn SAVAGE-MORTON 4/12/08 and 9/7/09
3. Kevin GLYNN
1. Mark McEACHERN 16/10/08 (ROI’s at Graylands)
1. Frank ABBOTT 15/5/09
2. Geoffrey PAGE
FORENSIC SCIENCE WITNESSES:-
1. Paul ROBINSON 12/6/08
2. Cheryl CHARLWOOD 25/9/08
3. Paul SHELDON 25/6/08
4. Andrew DONNELLY 13/6/08
5. Stephen TULLY 16/6/08
POLICE INTERVIEWS:-
1. Alan Connor MAGEE - 7/6/08
1/5/08 - Kununurra Police station (no time stated):
Det Sgt Tom Doyle and Det Snr Sgt Connor Magee
1/5/08 at 10:01 am - Kununurra Police Station.
Det Senior Constable Grant Barber and Det Senior Constable Connor Magee
6/5/08 at 4.50 pm - Graylands Hospital WA
Det Senior Sgt Steve Foley; Det Senior Constable Glenn Savage Morton and Det S/C Kevin Glynn present.
1. Grant BARBER 4/6/08
1. Stephen FOLEY 16/10/08
1. Mark McEACHERN 16/10/08
Foley, McEachern, Savage-Morton and Glynn present.
·8/5/08 at 4.01 pm at Graylands Hospital , WA
Savage-Morton and McEachern.
·8/5/08 at 4.58 pm at Graylands Hospital, WA
Savage-Morton and Mc Eachern
·9/5/08 at 4.45 pm at Graylands Hospital, WA
Foley, McEachern and Glynn
·14/5/08 at 5.25 pm - Adelaide Airport.
McEachern, Paul Ward, Rod Huppatz and Registered Nurse Boris Majstrovic
·21/5/08 at 10.08 am at James Nash House
Mc Eachern & Huppatz present. Tony Davis and David Mullen (nurses).
OTHER EXHIBITS
51.     Statement given by Aliya Zilic to Magee.
52.     3 maps hand drawn by accused, referred to in statement of Glynn and Savage-Morton.
53.     Exhibits referred to in statement of McEachern:
1. Street map marked by Aliya Zilic, AZ0
2. Map AZ3.1
3. Medical notes Greylands GH1
4.     Medical notes Kununurra GH3
5.     Medical notes Royal Perth Hospital RP1
54.     Medical notes Coober Pedy Hospital
55.     Zyprexia Zydis prescription, box and receipt, SAPOL Rec08/A08606-2-6
ADDENDUM
I refer to my ruling delivered today that the defendant was mentally incompetent at the time he killed his son, in accordance with the provisions of s 269C(b) Criminal Law Consolidation Act 1935 (“CLCA”). It is now necessary to consider whether the objective elements of the crime of murder have been established. The prosecution relies upon the declarations contained in Exhibit P6 as establishing the objective elements for the crime of murder. The defence does not wish to make any further submissions or representations as to that aspect of the matter.
I have carefully considered the contents of Exhibit P6. I refer in particular to the defendant’s statements to the police about his actions at the time he killed his son. I am satisfied that the objective elements of the murder of Imran Zilic are established. I therefore find the defendant not guilty of the crime of murder, but declare that the defendant is liable to supervision.
I therefore make a supervision order. Pursuant to s 269O(1)(b)(i) CLCA I order that the defendant be committed to detention. Pursuant to s 269O(2) it is necessary for me to fix a limiting term, which is a term equivalent to the period of imprisonment or supervision that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established without taking into account the defendant’s mental impairment. As the objective elements prove the crime of murder, the limiting term must be a term of life and I order accordingly.