R v Ivanoff

Evidence Adduced at the Inquiry

1. The evidence placed before the Court on this inquiry is documentary in nature. That evidence is as follows: 1. two reports of Dr Sharon Reutens, consultant psychiatrist, both dated 27 June 2017 (and curriculum vitae) (Exhibit A); 2. a report of Dr Anthony Samuels, forensic psychiatrist, dated 28 August 2017 (Exhibit B); 3. the Crown Case Statement prepared by the Crown (Exhibit C); 4. helpful written submissions prepared by Senior Counsel for the Accused dated 7 December 2017 (Exhibit D).

The Charge of Murder

1. For the purpose of this inquiry, it is not necessary to outline in any detail the circumstances of the alleged offence. It is sufficient to note that the Accused and his wife had been married for some 55 years. The Accused was 77 years old at the time of the events of 8 January 2017. The Accused's wife had a history of mental health difficulties. The Accused himself had been diagnosed with dementia.
2. The Crown Case Statement, and the reports of Dr Reutens and Dr Samuels, outline the nature of the circumstances alleged to have occurred on 8 January 2017. The death of Mrs Ivanoff was inflicted by a knife wound or wounds. It is clear from the circumstances alleged that there were significant mental health issues which affected her at the time and significant health issues which affected the Accused as well.
3. The nature of this inquiry is such that it is neither necessary nor appropriate to embark upon a closer analysis of what occurred.
4. The present task of the Court is confined to an assessment of the fitness of the Accused to stand trial on the charge of murder, bearing in mind the principles which I have already explained.

Assessment of Medical Evidence

1. The Court has received helpful reports prepared by two very experienced psychiatrists. Dr Reutens is not only an experienced psychiatrist, but has a speciality in the areas of neuropsychiatry and as a psychogeriatrician. Dr Reutens has played an active part, for a number of years, as a Senior Visiting Medical Officer in Old Age Psychiatry with Justice Health and has had an involvement in the establishment of facilities within correctional centres in New South Wales for the care and management of elderly prisoners.
2. The detailed reports of Dr Reutens express her conclusions following a cognitive examination of the Accused. Dr Reutens has indicated that the Accused has moderately severe dementia. On her examination of him on 23 May 2017 he was not oriented to time. There were impairments in visuospatial abilities.
3. In assessing the fitness of the Accused to be tried by reference to the Presser test, Dr Reutens formed the clear opinion that the Accused did not demonstrate a consistent understanding of the charge he faced. It was in this area in particular, and the capacity of the Accused to instruct his lawyers to meet the charge, that Dr Reutens was of the view that he was not fit to be tried.
4. There are other areas of deficiency and vulnerability of the Accused referred to in the report of Dr Reutens. She concluded that the Accused does not have the cognitive capacity to stand trial.
5. There is a separate report of Dr Reutens which goes to the availability of the defence of mental illness. That is not an issue for this inquiry, but it is to be noted that Dr Reutens expresses the opinion that that defence of mental illness is open in this case.
6. Dr Samuels examined the Accused on 28 August 2017. Dr Samuels had the benefit of the reports of Dr Reutens at that time. He conducted a very thorough examination including a document examination by reference to a range of medical records concerning the Accused and the Accused's wife. He also examined Justice Health records and reviews concerning the Accused since he entered custody in January 2017.
7. The report of Dr Samuels is emphatic in his finding of unfitness to be tried. With respect to each of the seven factors which I referred to earlier (at [11]) emerging from R v Presser, Dr Samuels indicated that the Accused did not meet any of those factors. Put shortly, Dr Samuels says that the Accused does not have even a basic understanding of the charge against him. He does not have the ability to plead to the charge. He does not have the ability to exercise his right to challenge. Although the Accused seems to have some understanding that there is going to be a court case, it is his belief that he is going to be hanged (that, of course, is an entirely erroneous and misplaced belief on its own).
8. Dr Samuels continued that the Accused would have no capacity to follow the court proceedings or what was happening in court in a general sense. He would not be able to understand the substantial effect of evidence that may be given against him and he does not have the ability to make a defence or answer the charge.
9. Dr Samuels concluded that the Accused is clearly not fit to stand trial.
10. The nature of the problems surrounding the Accused (in particular dementia) are such that these issues are expected to be continuing ones.
11. As I have said, helpful written submissions have been furnished on behalf of the Accused. They summarise accurately the evidence which points to one available conclusion only on the inquiry. The Crown agrees with the written submissions advanced on behalf of the Accused and endorses the orders which are proposed in those submissions.

Conclusion and Orders

1. Having considered the evidence, I have recorded my findings of fact based upon the reports of Drs Reutens and Samuels and express the conclusion that I am well satisfied on the balance of probabilities that the Accused is not fit to be tried on the charge of murder.
2. It is appropriate to make the orders sought by the parties. I make the following orders: 1. The Accused is referred to the Mental Health Review Tribunal pursuant to s.14 Mental Health (Forensic Provisions) Act 1990. 2. Pursuant to s.14(b)(iii) Mental Health (Forensic Provisions) Act 1990, the Accused is remanded in custody until such time as effect is given to any determination made by the Mental Health Review Tribunal. 3. I direct that the Registrar provide to the Mental Health Review Tribunal a copy of the exhibits tendered in these proceedings together with a copy of the Court's reasons (which I am presently delivering) with those documents intended to assist the Mental Health Review Tribunal in the discharge of its statutory functions under the Mental Health (Forensic Provisions) Act 1990.

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: 05 November 2018