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 degenerative condition, mainly that of Alzheimer’s dementia”.

[6]      In addition, and adding to the problem, Mr Garibovic suffers from diabetes and cardiovascular disease.  He has recently suffered a blockage of vessels leading to his heart, and this required him to be admitted to hospital for the insertion of a pacemaker.  Unfortunately, that physical episode has led to further deterioration in Mr Garbivoc’s cognitive function.   Dr Pillai reports that Mr Garibovic has had periods of delirium (confusion) and probable worsening of the underlying dementia. He has now lost his limited grasp of the English language, and is becoming increasingly disoriented.

[7]      Although Dr Lokesh prepared his report before the most recent onset of Mr Garibovic’s cardiovascular problems, he confirms that Mr Garibovic has onset of dementia of at least some years in duration.  He considers there has been a gradual progress of impairment of cognitive domains.   Both psychiatrists accept that Mr Garibovic presents clear evidence of mental illness, including evidence of abnormal state of mind of a continuous nature characterised by delusions and disorder of perception and cognition.

[8]      Having regard to the material contained in both reports, I have no hesitation in concluding that Mr Garibovic suffers from a mental impairment for the purposes of the definition contained in s 4(1) of the Act.

Fitness to stand trial

[9]      Both psychiatrists agree that Mr Garibovic now has significant difficulty in being  able  to  communicate  adequately  with  his  counsel  for  the  purpose  of conducting his defence.  In his most recent discussion with Mr Garibovic on 28 July

2014, Dr Pillai found that Mr Garibovic was delusional.   Attempts to discuss the present case with him were essentially futile.  Dr Pillai concludes:

Overall Mr Garibovic has made no improvement in his condition.  On the contrary his physical condition has worsened leading to further impairment and  superimposition  of  a  confusional  state.    I  am  in  no  doubt  that  he continues to meet the criteria for mental impairment as defined in section 4 of the Criminal Procedure (Mentally Impaired Persons) Act and is unable to comprehend the charge against him, understand the nature and purpose of proceedings, enter a plea or communicate adequately with [counsel].  I have no hesitation in offering a clinical opinion that he continues to fall within the meaning of unfit to stand trial as defined in section 4 of the Act.

[10]     In a similar vein, Dr Lokesh opines:

39. Mr Garibovic, in my opinion, has significant difficult[y] in communicating adequately with counsel for the purpose of conducting a defence.  Although he was able to indicate to me what pleas were available to him, any attempt to explore this further lead to confabulatory explanation for the alleged offending and the surrounding circumstances.

[11]     Although both psychiatrists acknowledge that the issue of whether or not Mr Garibovic is fit to stand trial is a matter for the Court, they share the view that he is presently unfit to stand trial.   They also consider that his condition is unlikely to improve in the future.  Rather, the dementia is likely to become progressively worse.

[12]     The material contained in the reports by the psychiatrists persuades me that

Mr Garibovic is presently unfit to stand trial in terms of all the criteria specified in s

4 of the Act.  I therefore record a finding to that effect in terms of s 14(2)(b) and (c) of the Act.  I record also that it appears highly unlikely that Mr Garibovic will ever regain his faculties sufficiently to be able to stand trial.

Orders

[13]     Given the finding I have made, s 23 of the Act requires the Court to order that enquiries be made to determine the most suitable method of dealing with Mr Garibovic under either s 24 or s 25 of the Act.  The Court has the power under s

23(2) to make it a condition of a grant of bail that Mr Garibovic go to a place approved by the Court for the purpose of those enquiries.  Alternatively, the Court may remand the person to a hospital or secure facility for that purpose.

[14]     The Mason Clinic has requested that  Mr Garibovic be granted bail  with specific conditions permitting the Clinic to take him to anticipated medical appointments which would otherwise (if he were remanded in custody) require individual approval by the Minister of Health.  Both counsel therefore consent to the following orders being made:

1.Mr  Garibovic  is  granted  bail  to  reside  at  the  Mason  Clinic subject to s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992;

2.Mr Garibovic may only leave the Mason Clinic on the authority of his treating clinician or the Director of the Mason Clinic to attend pre-arranged medical appointments in the company of two escorts arranged by the Mason Clinic;

3.     Mr Garibovic is to comply with any directions given by the

Director of the Mason Clinic;

4.Mr Garibovic is to attend the High Court for any disposition hearing unless his attendance at the hearing is excused by the Court in advance.

[15]     I make orders by consent accordingly.

Next event

[16]     Section 23(4) of the Act requires enquiries under s 23(1) to be completed within 30 days after the date upon which the Court makes a determination under s 14.   The disposition hearing will therefore take place before me on  Thursday

11 September 2014 at 9 am.  I would be grateful if the material necessary to enable the Court to make orders under ss 23 or 24 of the Act could be filed with the Court and copies provided to counsel as soon as it becomes available.

[17]     At  this  stage  I  excuse  Mr  Garibovic  from  attending  the  hearing  on

11 September 2014 unless his counsel asks that he attend.

Vacation of trial date

[18]     A trial of ten days duration is currently scheduled to commence in this Court on 6 October 2014. That fixture is now to be vacated.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

J R F Anderson, Auckland