R v Garibovic - [2014] NZHC 2199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-3202 [2014] NZHC 2199

THE QUEEN

v

ZIJAD GARIBOVIC

Hearing: 11 September 2014

Appearances:

W P Cathcart for Crown
J D Anderson for Defendant

Judgment:

11 September 2014

(ORAL) JUDGMENT OF LANG J [on disposition of proceeding under the

Criminal Procedure (Mentally Impaired Persons) Act 2003]

R v ZIJAD GARIBOVIC [2014] NZHC 2199 [11 September 2014]

[1] Mr Garibovic is charged with murdering Mr Roy Eric Lowe. At an early stage in the proceeding it became apparent that Mr Garibovic suffers from some form of mental illness. For that reason the Court embarked on the procedure prescribed by the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”).

[2] On 15 May 2014, I determined that it was more likely than not that Mr Garibovic was responsible for the physical act that caused Mr Lowe’s death.1 At a subsequent hearing on 6 August 2014, I determined that Mr Garibovic suffered from a mental impairment that was sufficient to render him unfit to instruct counsel and/or stand trial.2 The remaining step in the process is for me to determine what final order the Court should make in relation to Mr Garibovic.

Background

[3] The offending with which Mr Garibovic is charged arises out of an incident that occurred at approximately 11.30 pm on 4 April 2014. At approximately 11.38 pm on that date, Mr Garibovic called the police. He provided the police with his address, and told them he had returned home to find a dead person in his house. He then asked the police to come to his address. When members of a police patrol attended a short time later, they found Mr Garibovic standing outside his unit in a distressed condition and spattered with blood. When they entered the address, they found Mr Lowe’s dead body also covered in blood. He had obviously been subjected to a significant attack involving multiple blows to the head. In addition, his face had been cut with a sharp object, and he bore signs of having been strangled. A subsequent post-mortem examination revealed that the cause of death was the blunt force trauma Mr Lowe had suffered to his head and neck.

[4] Mr Garibovic has always denied having anything to do with Mr Lowe’s death. He has always maintained that he arrived home to find Mr Lowe’s body in his

1 R v Garibovic [2014] NZHC 1022.
2 R v Garibovic [2014] NZHC 1840.

unit. The extent, however, to which Mr Garibovic was covered in the blood of the deceased and the fact that his fingerprints were found on a blood stained whiskey bottle in the address mean it is patently obvious that he was responsible for causing Mr Lowe’s death. No reason has ever been put forward to explain why this tragic incident occurred.

[5] The material before the Court makes it clear that Mr Garibovic suffers from an advanced form of dementia. It is likely that he has been…

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 Garibovic

Details

AGLC: R v Garibovic [2014] NZHC 2199
Case: [2014] NZHC 2199
Decision Date: 11 September 2014

CaseChat Overview and Summary

In the case of R v Garibovic, the defendant, Zijat Garibovic, is charged with the murder of Roy Eric Lowe. Garibovic has consistently denied any involvement in the killing, claiming he found Lowe's body upon returning home. The court had to determine the appropriate disposition under the Criminal Procedure (Mentally Impaired Persons) Act 2003 due to Garibovic's evident mental impairments, particularly dementia, which had worsened over time. The court had previously established that Garibovic was likely responsible for Lowe's death and that his mental state rendered him unfit to stand trial.

The legal issues before the court included deciding whether to order detention under section 24 or an in-patient order under section 25 of the Act. Section 24 allows for detention in a hospital as a special patient, subject to conditions set by the Minister of Health, while section 25 permits release by the clinician if deemed fit. The court had to consider the necessity of such orders in the public interest, balancing the protection of the community against the potential for rehabilitation. The Court of Appeal in M v R clarified that the necessity for a section 24 order must be assessed judicially, considering both immediate and long-term public interests.

The court determined that an order under section 24 was necessary. Garibovic's responsibility for the brutal killing and the risk he posed due to his violent tendencies and deteriorating mental state justified this decision. His lack of recollection of the events and continued denial of involvement further supported the need for stringent measures. Given the lack of any prospect for recovery, an in-patient order under section 25 was deemed inappropriate. The court concluded that the only suitable order was for Garibovic's detention as a special patient under section 24.

Accordingly, the court ordered that Zijat Garibovic be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, ensuring that he could not be released without the Minister of Health's approval.

Orders