HIS HONOUR: On 30 November 2018, the Court issued orders the effect of which was to find the accused, Simon Slavko Stojic, unfit to be tried and referring Mr Stojic to the Mental Health Review Tribunal pursuant to the terms of s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (hereinafter "the Act"). The accused was charged with the murder of Brett Jardine at Kingsgrove on 26 July 2017. The deceased, Mr Jardine, was shot, a number of times, with 0.32 calibre bullets that struck the deceased in the left shoulder and abdomen. The injuries were, as is obvious, fatal. This occurred at about 2:50 AM.
Fifteen days prior to the murder, according to the evidence that would otherwise have been adduced by the Crown, the accused was seen with a pistol of the same calibre as the murder weapon. CCTV footage shows the accused walking from his business to the location of the deceased's campervan (where the shooting occurred) around the time of the murder.
The Crown also was to have relied upon telephone records that disclose that the accused was in the area at the relevant time. Further, the accused had said that there was a dead body in the campervan, prior to the deceased being located. Admissions were made by the deceased and, on a search by Police, fired cartridge cases of the same calibre as were used to shoot the deceased were found in the accused's room.
The accused was arrested on 29 July 2017 in Tregear, while travelling in a VW station wagon belonging to Statewide Office Furniture. The accused was offered the opportunity to participate in an Electronically Recorded Interview of a Suspected Person (hereinafter "ERISP") in relation to the murder allegation. The accused declined to participate in that interview.
However, in relation to the finding of the ammunition in the boot of the accused's vehicle, the accused accepted the opportunity to participate in an ERISP and denied the allegations. During the course of that ERISP, the accused made a number of allegations relating to government operatives, ex-police informants and ASIO.
On 1 June 2018, the question of the accused's fitness to stand trial was raised. On 7 September 2018, it was determined that an enquiry should be conducted on the question of the accused's fitness to be tried for the offence. Section 8 of the Act is in the following terms:
"8 Procedure where question of unfitness raised before arraignment
(1) If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.
(2) The Court may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted."
Most of the provisions of the Act are, for current purposes, irrelevant, except, in addition to section 8, recited above, the following provisions:
"10 Procedure on raising question of unfitness
(1) If, in respect of an offence:
(a) the Court determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or
(b) the question of a person's unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence,
the Court must (except as provided by this section), as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.
(2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.
(3) Before conducting an inquiry, the Court may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the accused person bail in accordance with the Bail Act 2013,
(c) remand the accused person in custody for a period not exceeding 28 days,
(d) request the accused person to undergo a psychiatric examination or other examination,
(e) request that a psychiatric report or other report relating to the accused person be obtained,
(f) discharge any jury constituted for the purpose of those proceedings,
(g) make any other order that the Court considers appropriate.
(4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.
11 Determination of question of unfitness
(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone.
(2) Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
12 Conduct of inquiry
(1) At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by an Australian legal practitioner.
(2) An inquiry is not to be conducted in an adversary manner.
(3) The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.
(4) (Repealed)"
As is clear from the foregoing, s 11 of the Act requires the Court, being constituted by Judge alone, to determine any unfitness to be tried. Such an enquiry is not conducted in an adversarial manner: s 12 of the Act. Further, s 12 of the Act provides that there is no "onus of proof", in that the onus does not rest on any particular party to the proceedings.
It has long been held that the factors to be utilised in determining unfitness to be tried derive from R v Presser [1958] VR 45 at 48. Those minimum standards were:
for the accused to be able to understand with what he is charged;
that the accused is able plead to the charge and exercise his right of challenge
that the accused can generally understand the nature of the proceedings, being an enquiry as to whether he did that that with which he is charged;
to be able to follow the course of the proceedings in a general sense;
to be able to understand the course of the proceedings so that the accused knows what is occurring;
to understand the substantial effect of evidence that may be given against him;
to be able to give any necessary instructions;
to be able to decide which defence he will proceed and choose which, if any, defence will be relied upon by him and to make his defence and version of facts known to the Court and to his Counsel.
The High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 246; [1994] HCA 41 confirmed that an assessment of a person's fitness for trial must also take account of the length of the trial during which such instructions will need to be given: per Mason CJ, Toohey and Gaudron JJ.
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Psychiatric evidence
Each of the Crown and the accused qualified a psychiatrist. The accused qualified Dr Stephen Allnutt, Forensic Psychiatrist and the Crown qualified Professor David Greenberg, Forensic Psychiatrist. There is no disagreement between the psychiatrists, in that each has formed the view that the accused is not fit to stand trial.
The report of Professor Greenburg recites a history, obtained not only from the accused but his co-workers, in which grandiose delusions and paranoia were displayed. The accused considered he was a federal agent, involved in a secret sanctioned operation and that he was part of the Queen's Guard, protecting Australia from "the evils of the Vatican".
Further, the accused believed he was required to clear safe houses "full of evil paedophilic cult worshippers". His delusions ran to involvement in the fight against drugs; paedophilia; and conspiracy theories relating to the Vatican and Mexican cartels who, he believed, had kidnapped and raped his wife.
Further again, he took a view that there was a secret history to mankind; that he was the preferred bodyguard of Princess Diana; and that he had worked for the CIA. These are some, but not all, of the delusions under which he operated. It should be added that each of the psychiatrists and the accused's co-workers took the view that the accused believed these delusions.
Professor Greenburg assessed the accused with regard to the Presser criteria and records that he understands the nature of the charge that he is facing and a rudimentary understanding of the effect of a plea of guilty or not guilty.
The accused maintains he is not mentally ill.
Professor Greenberg came to the view that the accused is:
"[S]uffering from complex systematised paranoid and grandiose delusions. Assuming the allegations of his assault on another inmate were unprovoked, it appears he likely is acting on such delusional beliefs. He was emotionally labile and at times extremely agitated and hostile. He was preoccupied with the beliefs that his wife and son had been raped at this time and in my view, this would likely impair his concentration and attention during his trial.
I am of the opinion that [the accused] could not at this time decide on what defence he should make.
…
[The accused] was unable to give a coherent account of himself during the time of the alleged offence.
…
I am of the opinion that [the accused] would have difficulty instructing his legal counsel at this time. He is acutely unwell with a major psychiatric illness and is psychiatrically unmedicated at this time.
I am of the opinion that Mr Stojic cannot give evidence at this time, if required to do so because of his underlying psychotic mental state."
Dr Allnutt concluded, as earlier stated, that the accused was unfit to be tried. Dr Allnutt accepted that the accused manifested a "capacity to understand what it is he is charged with", but, even though he could understand the terms guilty and not guilty and the consequences of findings to that effect, "his significant delusional preoccupation raises concern about his capacity to give necessary instructions to counsel through the course of the trial".
As to the accused's psychiatric illness, Dr Allnutt expressed the opinion that the accused manifested:
"[A] delusional disorder in that he presents with a complex systematised constellation of delusions of a persecutory nature, involving government authorities, including law enforcement authorities, who have been conspiring against him, fabricated and buried evidence in relation to the Port Arthur massacre, and who have conspired to have various family members sexually assaulted. His symptoms have been present for a fairly long time but there are no significant perceptual disturbances.
…
I would regard him as manifesting a delusional disorder, persecutory type, with bizarre content. A differential diagnosis would include a schizoaffective disorder (given his rapid speech) and paranoid schizophrenia (given the presence of probable mild looseness of associations and thus mild thought disorder)."
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Conclusions
It would be perverse for the Court to come to a conclusion different from each of the psychiatrists. Each psychiatrist interviewed and examined the accused.
The Crown and Counsel for the accused agreed as to the orders that were to be made. On the evidence before the Court, it is clear that the accused is unfit to be tried, at least at the moment and will remain so for the next 12 months.
The accused needs to be referred to the Mental Health Review Tribunal and, as a consequence of the foregoing, the Court, as presently constituted, issued orders the general effect of which is earlier described in these reasons, at the fitness hearing.
The orders of the Court made were:
1. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the matter is referred to the Mental Health Review Tribunal.
2. In accordance with s 14(b)(iii) of the Act, the accused in remanded in custody until the determination of the Mental Health Review Tribunal pursuant to s 16 of the Act.
3. The Registrar of the Supreme Court is directed to provide the following documentation to the Mental Health Review Tribunal within 14 days:
1. A copy of the finding and reasons;
2. A copy of the orders made;
3. A copy of the transcript of the proceedings;
4. A copy of the psychiatric reports
5. A copy of the Crown Case Statement.
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Decision last updated: 07 December 2018