R v Garibovic - [2014] NZHC 1840

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-3202 [2014] NZHC 1840

THE QUEEN

v

ZIJAD GARIBOVIC

Hearing: 6 August 2014

Appearances:

A J F Perkins for Crown
J D Anderson for Defendant

Judgment:

6 August 2014

JUDGMENT OF LANG J

[under s 14 Criminal Procedure (Mentally Impaired Persons) Act 2003]

This judgment was delivered by me on 6 August 2014 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v GARIBOVIC [2014] NZHC 1840 [6 August 2014]

[1] Mr Garibovic is charged with murdering Mr Roy Eric Lowe. An issue has arisen as to his fitness to instruct counsel and to stand trial. In a judgment delivered on 15 May 2014, this Court made a finding under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”) that Mr Garibovic committed the physical acts that caused Mr Lowe’s death.1 It is now necessary for the Court to make a determination under s 14(2)(b) of the Act as to whether Mr Garibovic is mentally impaired to the extent that he is unfit to stand trial.

The issues

[2] In determining whether Mr Garibovic is unfit to stand trial, the Court must apply the definition contained in s 4(1) of the Act, which provides as follows:

unfit to stand trial, in relation to a defendant,—

(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

(b) includes a defendant who, due to mental impairment, is unable—

(i) to plead:

(ii) to adequately understand the nature or purpose or possible consequences of the proceedings:

(iii) to communicate adequately with counsel for the purposes of conducting a defence.

[3] As will be evident from the words of the section, the Court is required to determine two issues. The first is whether Mr Garibovic is currently subject to a mental impairment in terms of s 4(1). If he is, the Court must determine whether that impairment has led to one or more of the consequences referred to in the section.

Mental impairment

[4] The Court has now received reports from Dr Krishna Pillai and Dr Shanmukh Lokesh, both of whom are consultant psychiatrists attached to Regional Forensic Psychiatry Services. They work at the Mason Clinic, to which Mr Garibovic is presently remanded. Dr Pillai has prepared reports dated 23 May and 29 July 2014,
whilst Dr Lokesh has prepared reports dated 2 May and 24 June 2014.

1 R V Garibovic [2014] NZHC 1022.

[5] Both psychiatrists diagnose Mr Garibovic as suffering from a form of dementia. Dr Pillai considers that Mr Garibovic displays symptoms pointing strongly towards the presence of a major neurocognitive disorder, which he characterises as Alzheimer’s dementia probably complicated by cerebro-vascular disease. He considers that Mr Garibovic has limited cognitive capacity, with rigidity in his thinking typical of those with organic brain disease. Dr Lokesh describes Mr Garibovic as suffering from “a chronic neuro…

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 1840
Case: [2014] NZHC 1840
Decision Date: 6 August 2014

CaseChat Overview and Summary

The case of R v Garibovic involves the defendant, Zijad Garibovic, who is charged with the murder of Roy Eric Lowe. The dispute revolves around the defendant's fitness to instruct counsel and stand trial due to his mental impairment. The case was heard in the High Court of New Zealand at the Auckland registry. The legal issues the court had to decide were whether Garibovic suffered from a mental impairment under the definition provided by the Criminal Procedure (Mentally Impaired Persons) Act 2003, and whether that impairment had led to the defendant being unfit to stand trial.

The court found that Garibovic was suffering from a form of dementia, specifically Alzheimer's dementia, as well as other health issues such as diabetes and cardiovascular disease. Both psychiatrists who examined Garibovic agreed that he had significant difficulty in communicating adequately with counsel for the purpose of conducting his defence. Based on the evidence provided by the psychiatrists and the statutory definition, the court concluded that Garibovic met the criteria for mental impairment and was unfit to stand trial. The court also found it highly unlikely that Garibovic would ever regain his faculties sufficiently to be able to stand trial.

As a result of the findings, the court ordered that enquiries be made to determine the most suitable method of dealing with Garibovic under either section 24 or 25 of the Act. The court granted Garibovic bail to reside at the Mason Clinic, subject to certain conditions, and excused him from attending the disposition hearing on 11 September 2014 unless his counsel requested his attendance. Additionally, a previously scheduled trial date of 6 October 2014 was vacated.

Orders