R v Bojnovic

Supreme Court of NSW|2019-11-18|Before: Cavanagh J

Judgment

On 3 April 2019 the accused, Steve Bojnovic, was charged by way of an indictment with the murder of his father, Slavko Bojnovic, on 29 September 2017 at Liverpool in the State of New South Wales. He has entered a plea of not guilty to the charge. As his Counsel confirmed at the hearing on 18 November 2019, he asserts that he is not guilty on the grounds of mental illness.
The accused has made an election under s 132 of the Criminal Procedure Act 1986 (NSW) to be tried by a judge alone in respect of the alleged offence. The Director of Public Prosecutions consented to this election on 4 June 2019 and orders were thus made that the matter proceed by way of a judge alone trial commencing 18 November 2019.
As set out in s 133 of the Criminal Procedure Act a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge has, for all purposes, the same effect as a verdict of a jury. A judgment by a judge sitting alone must include the principles of law applied by the judge and the findings of fact on which the judge relies.
At the commencement of the trial, I was informed by the parties that the only issue is whether I should enter a special verdict of not guilty by reason of mental illness, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The accused asserts that I should so find and, having regard to the evidence available before me, the Crown agrees. Having said that, it is a matter for me to consider all of the evidence and be satisfied that such a verdict should be entered.
No oral evidence was adduced on the trial. Agreed facts were tendered and there is a consistency of expert medical opinion, such that neither party required any medical expert for oral examination.

Background Facts

In making these findings, I have had regard to the agreed facts pursuant to s 191 of the Evidence Act, the information contained in the ERISP transcript, as well as the content of the medical reports and records.
The accused was born on 28 October 1977 and is now 42 years of age. His father, the deceased, was born on 16 February 1930 and was 87 at the time of his death.
The accused is the only child of the deceased and the deceased's wife who died from illness in 2013. The accused is not married and was not in any relationship. The accused had been cared for by and lived with both or one of his parents for the whole of his life. The accused and the deceased had lived together in the unit where the deceased died since the death of the deceased's wife and the accused's mother in 2013.
The deceased was born in Bosnia. The accused was born in Australia. The accused left school at the end of Year 10 and had worked spasmodically in his twenties, but had probably not worked since early 2000. He was originally on the Newstart Allowance and eventually received the disability support pension.
The accused had been a passenger in a fatal motor vehicle accident in December 2006. He had witnessed two pedestrians being knocked over and hit the windscreen of the car in which he was travelling (the pedestrians were killed), following which he was diagnosed with post-traumatic stress disorder ("PTSD") and developed depression, anxiety and insomnia. He had not worked at all since this accident and had essentially been cared for by his parents in the family home.
He was a long term patient of his general practitioner, Dr Marinkovich. Dr Marinkovich had been treating the accused at least since the motor vehicle accident and prescribed sleeping tablets for chronic insomnia and had referred the accused for psychological treatment on a regular basis. The accused had been treated by a local GP in Liverpool, Dr Krisimar Tomka for a brief period between 2016 and 2017 for issues relating to his insomnia but not for any mental health problems.
Following the motor vehicle accident, the accused had been admitted to Rozelle Psychiatric Hospital in 2007 and commenced taking anti-psychotic medication. This was related to his PTSD. He was managed by the Canterbury Community Mental Health team between 2007 and 2011. He ceased taking his anti-psychotic medication in 2009 when he considered that "his mood was pretty good and that he was normal". However, as noted by Dr Richard Furst, who examined him on 24 July 2018, the accused isolated himself at home and probably lacked insight into his condition at that time.
During the period 2009 to 2017, the accused led a relatively stable life in the sense that he lived at home with his father, did not work, received the disability pension and probably did very little. He probably had Benzo Diazepam dependence and he told the Police that he smoked cannabis once every two to four weeks.
Although I have referred to the accused's life being relatively stable during this period, I mean by that that there was a consistency in his behaviour, which demonstrates his lack of insight. As Dr Marinkovich observed as early as 2007, when he ceased to receive anti-psychotic injections, he developed delusional ideas of a persecutory nature.
At the time, this was seen as a symptom of his PTSD. Having said that, the treating psychiatrist at the Rozelle Psychiatric Hospital to which he was admitted for one month in June/July 2007, offered a diagnosis not only of depression with psychotic features and PTSD but also with psychosis, akin to schizophrenia or schizo-affective disorder.
There are a number of references in the notes and records of Dr Marinkovich (as summarised in the report of Dr Furst dated 17 November 2018) in which the doctor records the accused being delusional, believing someone was going to kill him, suffering from hallucinations, drinking excessively and being continuously depressed, although the references to hallucinations and believing that someone was going to kill him are not present in the few years prior to the events the subject of these proceedings (that is until 2017).
It seems likely that from about April 2017, the accused's condition and behaviour deteriorated. In April 2017 the deceased visited Dr Marinkovich and told him that the accused had pushed him for refusing to give him money. The deceased said the accused was stronger than him and that he could not fight the accused and that if he gives the money to him, the accused leaves the deceased alone. Dr Marinkovich noted that the accused had become more aggressive towards the deceased. He could hear them arguing in his surgery, mostly about money. Further, statements obtained from neighbours supported the increasing arguing. One neighbour recalls seeing the accused drunk and talking to himself. Sometimes he would hear the accused scream.

Events in the days prior to the death

Between 11.00pm and midnight on 25 September 2017, the accused attended Liverpool Police Station twice within 15 minutes. He was swearing profusely and appeared agitated. He initially reported that his father was "crazy or something". He then said that he wished to report a sexual assault that happened 20 years ago (meaning by his father).
The accused attended at the Liverpool Hospital with reported delirium, although no specific diagnosis was made. The accused was then assessed by Dr Marinkovich in the company of the deceased on 27 September 2017 for apparent delirium. The accused admitted to Dr Marinkovich that he had been feeling unwell, that he had been to Liverpool Hospital the day before because he had been feeling dizzy and was unable to concentrate and was unable to sleep.
Dr Marinkovich gave the accused a referral to the Concord Hospital, noting the accused was suffering from intermittent delirium and needed admission. Later that same day, the accused was seen at the corner pub in Liverpool. A patron, who previously had some sort of run-in with the accused, spoke to him. The accused made a comment to the effect that the accused's father had sexually assaulted him when he was 7. The accused pointed to an older male, suggesting that the deceased was not his father and that he was actually his stepfather. Later that same night, one of the accused's neighbours heard a male yelling out in English "I am going to kill you" and then a similar expression was used in Serbian. Another neighbour heard thumps during the middle of the night as if somebody was punching something.
The next day, the deceased visited Dr Tomka by himself. He complained about the accused's behaviour saying that he was mentally sick. He said that he had been knocked to the ground by the accused and that the accused had been going crazy and was continually asking for money. Dr Tomka did not observe any injuries, although he did not physically examine him.
During the afternoon of 28 September 2017 the deceased had a short conversation with his neighbour. The neighbour did not notice anything wrong with the deceased.
On the morning of Friday 29 September 2017 the accused and the deceased were at home together. The accused was seated on a couch in the lounge room. The deceased walked into the lounge room and the accused got up and started stabbing him with a pair of scissors. One of the stabs was delivered with such force that it caused avulsion of a tooth. The deceased fell to the ground. The accused then attacked the deceased by striking him repeatedly about the head with a mallet-style hammer. This caused significant trauma to the deceased's head, including fracturing of the skull. Whilst the deceased was on the ground, the accused used a knife to cut the deceased's throat.
It is part of the agreed facts that the deceased died as a result of blunt and sharp forced injuries to his head and neck sustained during the attack; that the attack was unprovoked and that the deceased did not have any real opportunity to defend himself.
The accused later recalled that when attacking his father with the scissors, he just kept going and going.
Subsequent to the attack, the accused left the premises, stopped at a payphone and called 000. He was observed to be calm and walking at a normal pace, looking straight ahead. He stopped to wash the blood off him. During the 000 call, he said that he thought he had hurt his father and tried to stab him and hit him with hammers. He told the operator he would be returning to the unit. He sounded calm. The accused arrived back at the unit at the same time as the Police. When asked what had happened, he said that he had tried to kill his father with a hammer. By the time the paramedics and/or Police attended upon the deceased, he had died.
It is not necessary to further detail the nature and the extent of the injuries sustained. There is no dispute as to the cause of his death. During the ERISP interview with the accused, he made a number of admissions as to what he had done and that he was trying to kill the deceased. The accused said he was frightened/freaked out by the deceased and that he was trying to get away from him. He did not seem to comprehend that his father had actually died.
I thus find that the accused committed a violent and unprovoked attack on his elderly father, with whom he had been living for the whole of his life, as a result of which his father died. During the days prior to the attack the accused had been delusional, according to one or other persons, believing that his father was out to get him, that his father was trying to kill him, that his father was not his father but his step-father, that his father had sexually assaulted him as a child (there is no earlier reference to such a complaint and no evidence to support such an assertion and the expert psychiatrists have viewed it as part of his delusional behaviour).

The defence of mental illness

The accused seeks, under s 38 of the Mental Health (Forensic Provisions) Act, a special verdict of not guilty by reason of mental illness. The accused bears the onus of proof on the balance of probabilities (Mizzi v The Queen (1960) 105 CLR 659 at 664-5; [1960] HCA 77).
There is no statutory definition of a defence of mental illness. Once the defence has been raised, it is to be resolved in accordance with the rules set out in R v M'Naghten [1843] 8 ER 718 ("the M'Naghten Rules").
Every person is presumed to be sane and responsible for his crimes until the contrary is proven. The accused must establish that at the time of committing the acts causing death, he was labouring under such a defect of reason from the disease of the mind as not to know the nature and quality of the act or, if he did know it, that he did not know what he was doing was wrong: R v Rodriguez [2010] NSWSC 198 at [33] ("Rodriguez"); R v Porter (1933) 55 CLR 182 at 189-90; [1933] HCA 1.
In R v Pratt [2009] NSWSC 1108 at [19]-[21], R A Hulme J summarised the principles as follows: "19 In relation to the concept of a "disease of the mind" which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community. 20 As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong. 21 A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong."
As observed by Johnson J in Rodriguez (at [45]): "it is the invariable experience of criminal courts in this State that medical evidence is adduced on [the issue of the defence of mental illness] … and [the Court] ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence". (Citations omitted.)

The Medical Evidence

Having regard to the agreed facts and the factual findings I have made, it is not necessary to comment on the autopsy report, the forensic dental report, the radiology report or the neuropathology report. There is no dispute as to the nature of the injuries sustained and the cause of death.
The accused was examined at the request of the Legal Aid Commission by Dr Richard Furst, Consultant Forensic Psychiatrist, on 24 July 2018 at the Metropolitan and Remand and Reception Centre ("MRRC") in Silverwater. Dr Furst prepared two reports dated 17 November 2018 and 29 August 2019.
The accused was examined on behalf of the Office of the Director of Public Prosecutions by Dr Kerri Eagle, a Forensic Psychiatrist, on 3 May 2019 at the MRRC. There is a further report from Dr Andrew White, the medical officer from the Justice Health and Forensic Mental Health Network dated 31 October 2019, obtained on behalf of the accused, setting out the accused's treatment and mental health condition since being taken into custody.
Dr Furst was asked to prepare a report and provide an opinion on a number of issues, including whether the accused was fit to be tried, whether he was substantially impaired by abnormality of mind according to the provisions of s 23A of the Crimes Act and whether he was mentally ill at the time of the commission of the offence according to "the standards of the McNaughton's Rules" (which he noted). Dr Furst recorded the accused's social and psychiatric history on which I have commented. He reviewed relevant documents, including the reports and records of Dr Marinkovich, medical records from the Liverpool Hospital, Canterbury Community Mental Health and Bathurst Street Medical Practice and other records from Justice Health. Again, to a large extent, I have already commented on these records, insofar as they record the pre-offence history.
On examination, the accused described the deceased doing crazy things in the period leading up to the alleged offence. He said that one week prior to his arrest, he had been afraid of his father and ended up sleeping on the lounge downstairs as he was too afraid to go upstairs. He said that on the Tuesday before he was arrested he had run out of the house around midnight, because he was scared of his father and ended up at Liverpool Station. He was suffering from insomnia and apparent delusions of reference, believing that the news programs were talking about him in a personal way. He heard his father's voice in his ear when he was sleeping in his bedroom two days prior to the alleged offence, even though his father was not in the room. Again, he went downstairs, feeling afraid. He said that on the night before the incident he was too scared to sit in the same house as his father and that he tried to make a bed of cushions in the back garden. On the morning of the offence, he recalled that his father had come downstairs. The accused believed that his father was looking at a large knife and he thought he was going to stab him with the knife. He continued to feel scared. He said that in this context he picked up the knife and jabbed him twice with the knife. He also recalled getting the scissors off the fridge and picking up a wooden hammer. He called the Police shortly after, stating he did not know what to do.
He said that after his arrest he heard voices speaking in a foreign language and that he was doing crazy things. He took some months to realise that his father was actually dead. However, since commencing on the anti-psychotic medication Invega Sustenna, he denied any recent paranoid thinking or auditory hallucinations. His mood was improved. He believed that the medication had helped him.
Dr Furst noted that the applicant had been assessed on a number of occasions by mental health nurses and psychiatrists following his arrest on 29 September 2017. On 1 October 2017, the accused had complained that his father had been playing mental games with him for weeks and that he had reported hearing voices. He appeared to believe that his father had abused him the night before his death and that he had been sexually abused as a child. He also denied having a mental illness.
On 4 October 2017 he was assessed by Dr Trevor Ma, Psychiatrist. Again, he reported hearing someone whispering in his ear and that he was fearful of his father and that he was living in the garden. His account of events was illogical and thought-disordered. He was assessed as suffering psychosis with a provisional diagnosis of schizophrenia.
On 20 October 2017, he was recorded as making the statement that he thought he was adopted and that they tried to change him into a girl. He was uncertain whether his father was dead or alive. Similarly, 10 days later, he again indicated uncertainty as to whether his father was dead or alive.
By 13 November 2017, there was some evidence of improvement. He was tearful, having come to the realisation that his father was dead.
On 20 November 2017 there were no other psychotic symptoms.
By February 2018 he had been transferred to Hamden, a mental health accommodation area or pod at the MRRC in Silverwater. No apparent psychotic symptoms or mood symptoms were evident when assessed by Dr White, the treating psychiatrist.
Dr Furst opines that the accused meets the criteria for the diagnosis of schizophrenia, post-traumatic stress disorder (in remission) and substance use disorder. As Dr Furst says, schizophrenia is a chronic psychotic illness, often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, mood instability and bizarre behaviour as a consequence of the illness. The available history, mental state features and behaviour/psychosocial impairment of the accused since adolescence are all in keeping with a primary diagnosis of schizophrenia with a long prodromal period and predominant negative symptoms.
Dr Furst concluded that the accused understood the charges he was facing, his plea options and was fit to be tried. However, he meets the criteria for the diagnosis of schizophrenia which is a disease of the mind. He appears to have suffered a relapse of more acute psychotic symptoms in the week prior to the offence. Dr Furst considered that the actions of attending Liverpool Hospital, the Railway Station and Liverpool Police Station all in the week prior to the offence were examples of bizarre behaviour indicating the presence of a mental illness. He had overwhelming paranoid beliefs about the deceased not being his real father, sexually abusing him and wishing him harm. It was in this context that he killed his father. He had no insight into his beliefs being part of a psychotic illness, leading to a gross impairment of his reality-testing and no capacity to reason about the wrongfulness of his alleged actions. He was probably unable to control himself.
Following receipt of Dr Furst's opinion, the Director of Public Prosecutions arranged for the accused to be examined by Dr Kerri Eagle, a Forensic Psychiatrist. Whilst there are some differences in the history and presentation, the content of Dr Eagle's report in terms of his background, history and presentation are consistent with the facts which I have already found and the history and presentation given to Dr Furst. Again, there is considerable emphasis on the period surrounding the commission of the offence (both before and after). Dr Eagle also noted that his symptoms of psychosis responded to treatment in November 2017. Dr Eagle records the accused believing that on the morning of the offence, the deceased was standing there with a big knife next to him on the table. He thought the deceased was going to use it on him so he banged him with a knife a couple of times and poked him with the scissors.
Dr Eagle also reviewed the ERISP referring to quite a number of the accused's answers, consistent with the accused not recognising that he had killed his father and referring to his delusional behaviour. Like Dr Furst, Dr Eagle diagnosed schizophrenia. She says the accused has experienced relapses of psychosis characterised by persecutory delusions, thought disorder and auditory hallucinations. Relapses of psychosis had occurred in the context of stresses and had been likely exacerbated by alcohol consumption. She also referred to the accused's PTSD and alcohol use disorder. She described schizophrenia as a psychotic illness and psychosis as being a disease of the mind. Dr Eagle believed that the accused was experiencing an episode of psychosis at the time of the commission of the offence. He was misinterpreting his surroundings and the behaviour of others. He was unable to determine what was real due to his symptoms. He was experiencing a defect of reasoning in that his thinking was disordered and he was acting in response to delusions. Although he was conscious and did not appear to be acting in an automatic manner, Dr Eagle concludes that the impact of symptoms of acute psychosis on his judgment and thought processes were such that at the time of the offence, he was unable to reason with any degree of calmness as to the moral quality of what he was doing and as such that he lacked the capacity to know that his actions were wrong.
On 29 August 2019, Dr Furst provided a further report having considered the additional medical material as well as the report of Dr Eagle. He had no reason to alter the opinions expressed in his earlier report. He concurred with the opinions expressed by Dr Eagle. He regarded all of the evidence as pointing to clear delusional reasons (defect of reason arising from his disease of the mind) when the accused killed his father in their family home.
Finally, I have regard to the report of Dr Andrew White, the accused's treating psychiatrist, whilst he has remained in custody. The main thing to emerge from Dr White's report is that it is apparent with proper treatment, medication and monitoring, the accused's condition, that is the effect of his schizophrenia, has been improving. He has developed insight into his illness and the need for indefinite treatment. He has a good understanding of the link between his mental illness and the death of his father and a good recollection of his symptoms around the time of the offence.
Dr White opines that there is little doubt that the accused suffers from schizophrenia. He has had two clear episodes of psychosis being in 2007 and 2017. There is evidence of long term poor psychosocial functioning which could be seen as chronic negative symptoms of schizophrenia. However, his illness has responded well to treatment and, in the restricted and monotonous environment of custody, he appears to be relatively free of negative symptoms. Dr White raised the prospect of transfer to a forensic medium secure unit.
Neither the Crown nor the Counsel for the accused made any submissions in relation to Dr White's comments. Counsel for the accused adopted the Crown's submissions. I am not suggesting that she should have done otherwise.

Verdict

Having regard to my findings and the medical evidence on which I have commented, I am satisfied that, when the accused killed the deceased, his father, on the morning of 29 September 2017, he was suffering from a mental illness. Both Dr Furst and Dr Eagle considered that the accused was suffering from acute psychosis at the time of the offence as a product of his underlying schizophrenic illness. He was suffering from persecutory delusions that his father intended to harm him. He had no insight into his beliefs and suffered from a gross impairment of his reality testing and no capacity to reason about the wrongfulness of his alleged actions. He lacked the capacity to know that his actions were wrong.
Various parts of the ERISP interview are consistent with the findings of the psychiatrists and support the defence of mental illness. Other evidence such as the records of his treating general practitioner, observations of neighbours and other persons as to events in the days before the incident and complaints by the deceased of aggression by the accused including in the short period prior to the incident, supports the opinions of the psychiatrists that the accused was suffering from a psychotic episode or relapse.
In all of the circumstances, I am satisfied on the balance of probabilities that at the time of the attack by the accused on the deceased he was suffering from a defect of reason from a disease of mind and that he had no capacity to reason about the wrongfulness of his actions. I thus enter a special verdict that the accused is not guilty of the charge of murder by reason of mental illness in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
As set out in s 39 of the Mental Health (Forensic Provisions) Act, I am required to consider what further orders ought to be made.
Having regard to the report of Dr White, it is apparent that the accused's mental state has improved, consequent upon proper treatment, medication, monitoring and supervision. Dr White raises the prospect that there has been such improvement in the accused's condition that it is possible that he may be able to be managed in a medium secure unit and he could be assessed for direct admission to one of those units. However, as Dr White says, he could not guarantee the outcome and it would be up to the medium secure unit to determine whether they would accept him. Other than that, the normal course would be for there to be an order for detention under s 39 of the Mental Health (Forensic Provisions) Act and for the accused to be referred for a hearing with the Mental Health Review Tribunal. That is what the Crown proposes. The accused has adopted the Crown's submissions. There is no submission on behalf of the accused that he should be transferred to a medium secure unit at this time (not that I am suggesting I would accept such a submission in any event). The appropriate course is that the accused be detained where he is currently being treated or at such other places that may be determined from time to time by the Mental Health Review Tribunal until released by due process of law.
I emphasise that the accused was not found unfit to be tried and further that the reason that he is entitled to a special verdict of not guilty based on mental illness is that at the time of the commission of the offence, he was suffering from an acute psychotic episode as part of his schizophrenia.
Unfortunately, although there is some reference to an earlier diagnosis of schizophrenia, he was not being treated for any schizophrenic condition in the years prior to the commission of the acts which led to the death of his father. Plainly, his father had increasing concerns about his behaviour and the accused had been referred for urgent treatment by his general practitioner but it is apparent that his delusional behaviour quickly deteriorated particularly in terms of his delusions about his father.
It is important that it be recognised that the accused's conduct was the representation of a psychotic episode which included delusional thinking and an inability to reason or know what he was doing was wrong. It is also important to recognise that with proper treatment since 2017 there has been a substantial stabilisation of the accused's condition and considerable improvement. However, having regard to the seriousness of the offence, the circumstances of the offending and the importance of continuing proper monitoring and treatment, the accused should remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal.
The community and any friends and persons associated with the deceased and indeed the accused should be aware that the accused will not be released until the Tribunal is satisfied that the safety of the accused or the public in general will not be endangered by his release. Whilst the accused is entitled to a special verdict of not guilty based on mental illness, he is not generally being released into the community but rather is being detained as a forensic patient and will continue to be treated, monitored and supervised. The accused will come under the supervision of the Mental Health Review Tribunal, a specialist and expert Tribunal.

Orders

In accordance with s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) I order that Steve Bojnovic be detained in the Hamden accommodation area at the Metropolitan Remand and Reception Centre or such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law.
I direct that, as soon as practicable, the Registrar notify the Minister for Health of this order.
I direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of this order and provide to the Mental Health Review Tribunal the following documents: 1. a copy of these reasons for verdict and orders; 2. a transcript of these proceedings; and 3. a copy of each of the exhibits tendered at the trial.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

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