R v Zdravkovic

Supreme Court of NSW|2019-06-17|Before: Walton J, Button J

Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2017/370514

Judgment

HIS HONOUR: On 5 December 2018, Jacob Zdravkovic ("the accused") was arraigned on the count that he, on 6 December 2017, at Maryland in the State of New South Wales, did murder Zoran Zdravkovic ("the deceased").
Upon arraignment, the accused entered a plea of not guilty. His trial was fixed to commence in this Court on 17 June 2019. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the trial proceeded by way of a Judge alone trial.
The accused was further arraigned today and pleaded not guilty on that indictment.

The Defence of Mental Illness - General Principles

Justice Button observed in R v Gourlay [2015] NSWSC 67 at [50]: [50] If the Crown were to satisfy me beyond reasonable doubt that the accused voluntarily (without reference to any mental illness) did an act that caused the death of the deceased, I would then turn to the defence of mental illness. Although the defence is referred to in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), it is not defined by statute. Its elements were set out well over 150 years ago in McNaghten's Case (1843) 8 ER 718 at [722] …
In order to establish a defence on the grounds of mental illness, it must be established that, at the time of committing the act causing the deceased's death, the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and the nature of the act that he was doing or, if he did know it, that he did not know what he was doing was wrong.
A person does not know the nature and quality of his act if he does not know the physical nature of what he is doing or the implications of it (see R v Porter (1933) 55 CLR 182 ("Porter") at 188). A person does not know what he was doing was wrong when he does not know that it is wrong according to ordinary standards of right and wrong adopted by reasonable persons: see Porter at 190 and Stapleton v R (1952) 86 CLR 358 at 367.
The test under the second limb of that definition was stated by Dixon J in Porter (at 189-190) in the following terms: The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know, in this sense, whether his act was wrong if, through a disease or defect or disorder of the mind, he could not think rationally of the reasons which, to ordinary people make, that act right or wrong? If, through the disordered condition of the mind, he could not reason about the matter with a moderate degree of sense and composure, it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the every day standards of reasonable people.
A disease of the mind is any disease which is capable of affecting the mind, irrespective of whether it has a mental or physical origin and irrespective of whether or not the defect of reason caused is temporary or permanent. However, it does not include the transitory effects of some application of an external factor such as violence or drugs or a psychological trauma to an otherwise healthy mind (see R v Falconer (1990) 171 CLR 30 at 75).
The onus of proving the defence is on the accused, who must prove it on the balance of probabilities: Mizzi v R (1960) 105 CLR 659 at 664. If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: Tumanako v R (1992) 64 A Crim R 149 at 160-161.
In R v Minani [2005] NSWCCA 226 at [32], the Court discussed the approach to be taken by a Court in considering mental illness in an offence of specific intent (the matter concerned malicious wounding with intent to inflict grievous bodily harm). Hunt AJA (with whom Spigelman CJ and Howie J agreed), stated (at [32]): [32] Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent.
Extrapolating those principles to the present case, the Court must determine whether it was the act of the accused that caused the death of the deceased and, if so, then move on to consider whether the accused was criminally responsible for doing that act. It is at that time that the Court determines whether the defence of mental illness is made out. The question of whether the specific intent was proven only arises where the answer to the mental illness defence is decided adverse to the accused.

FACTUAL BACKGROUND

There was no dispute as to the relevant factual background in this matter, which I now summarise with the assistance of the written submissions for the accused.

General Background

In December 2017, the accused lived at premises in Maryland ("the premises"). Also living at these premises was his brother David Zdravkovic ("the accused's brother") and the deceased, the father of the accused.
For some time prior to 6 December 2017 there had been discord within the family home, mainly from the accused towards the deceased. The accused had been previously charged with offences of violence against the deceased and at the time of the offence the accused was on parole for one of the earlier matters. He was also subject to an AVO for the protection of the deceased.

Surrounding Circumstances

The immediate surrounding circumstances of the stabbing of the deceased are conveyed by uncontested evidence.
Ms Donna Johns lived on the same street as the premises, in a neighbouring property, and had done so for the last five years. She knew the occupants of the premises. In a statement dated 12 December 2017, Ms Johns observed that approximately one month earlier the accused had returned to live at those premises. She observed at that time he was always friendly and never had any trouble with him for those first few weeks. However, she did hear arguments coming from the house that included arguments between the accused and the deceased as well as arguments between the accused's brother and the deceased.
At approximately 6:45pm on 5 December 2017, Ms Johns heard arguing coming from the premises. She was advised by her partner that he had seen the accused earlier that day that the accused appeared tense and agitated at that time.
At approximately 8:45pm on 6 December 2017, Ms Johns again heard arguing coming from the premises. On this occasion she heard the deceased and the accused arguing. During the argument, she heard the deceased yelling, "I've already written a statement, I've just gotta sign it, you're out. That's it, you're out." The argument continued with a lot of swearing and yelling and Ms Johns heard the accused yelling, "I want to kill you like you want to kill me". She was "100% certain that it was [the accused] and [the deceased] arguing".
The argument appeared to escalate and Ms Johns called triple-0. Whilst she was on the phone to triple-0, she walked out of her premises and up her driveway. When she reached the top of her driveway she saw that the deceased was lying on the front lawn of the house on the corner of Ajax Avenue and Delray Court. By this time there were other persons assisting him.
Janet Waters also lived on the same street as the premises in Maryland. She was aware of the Zdravkovic family, given that her house was across the road from their premises. She was friendly with the Zdravkovic family and knew of the issues that were present in their lives. At approximately 9:10pm on 6 December 2017, she heard a disturbance and recognised the voice of the deceased. She ran out of her house and saw the accused running down the middle of the road and into the premises. Immediately following this, she heard the deceased calling for help. She saw that he was outside on the footpath. He fell to the ground. She observed that he had blood all over his neck and his shirt was soaked with blood. She called triple-0 and, together with other people, attempted CPR. At some stage ambulance officers arrived and took over from Ms Waters and others. However, the deceased could not be revived.
Mr David Keane resided at a property in an adjacent street to the premises and was aware of the Zdravkovic family. On 6 December 2017, he was in his bedroom and heard an altercation outside which was very close to his house. It continued on for about two minutes and upon looking out of his window, Mr Keane saw the accused standing over the top of the deceased as he lay on Mr Keane's front lawn. He heard the accused yell out, "give me the phone, give me the phone". He observed the accused to be holding a knife which was about 40cm long. The blade was silver. The accused was holding the knife in the air, waving it around and just kept repeating, "give me the phone, give me the phone". He then saw the accused turn and run off down the street in the direction of his house. He had a mobile phone in his right hand and was holding the knife in his left hand. Mr Keane then went outside and found the deceased had moved approximately 6-8 metres towards his driveway. He had a lot of bleeding around his face, mouth and cheeks. Mr Keane assisted as well as he could.
Senior Constable Alex Seivle works in the Police Dog Unit. On 6 December 2017, he was called to the street of the premises in Maryland and upon arrival saw ambulance officers performing CPR on a male on the footpath. He was advised of certain information and took his police dog into the premises. He observed a large kitchen knife on the table that had an amount of blood on it. He received further information and deployed the police dog to search for a track. The police dog led him to a nearby parkland where he located a mobile phone. He continued into Bill Elliott Oval and onto bush land next to Rosamond Street. The police dog tracked to the accused who was in nearby bushland.
Despite being ordered to show his hands, the accused made no attempt to comply. The police dog was deployed. The accused was quickly controlled and handcuffed.
Senior Constable Farrar attended this location and arrested the accused. The following conversation ensued: Farrar: Jacob my name is Senior Constable Farrar from Waratah Police. You are under arrest for stabbing your father. You don't have to say or do anything if you don't want to, do you understand? Accused: For what? Farrar: For stabbing your father. I will record what you say and can use that in Court. Do you understand? Accused: I didn't do anything. Farrar: Your father is dead Jacob, do you understand? You have killed him. Accused: Why would you say that? No he's not you're lying.
The accused became upset and was taken to Waratah Police Station. He was later transferred by ambulance to the Mater Hospital for treatment of his dog bite injuries. His behaviour at the hospital was regarded as "aggressive towards police and nursing staff". Senior Constable Farrar observed that at the hospital he could hear the accused continually talking to himself.
Detective Senior Constable Grob also attended the street of the premises on 6 December 2017. He received information from the crime scene and later returned to Waratah police station. At approximately 4:20am on 7 December 2017, he attended upon the accused in the charge room of Waratah Police Station in the company of Detective Sergeant Faber. The following conversation occurred: Faber: Jacob do you understand you're under arrest for your father's murder? The accused looked up and shook his head. Accused: What? You're joking. You're not serious. Faber: No mate, I'm afraid so, we are serious. Accused: What? Why? Faber: Because I'm afraid your father is dead as a result of you stabbing him. That's why you are under arrest. The accused did not respond. In Detective Grob's opinion he appeared to be well affected by an unknown substance. He was fidgeting and grinding his teeth and making sudden movements. Faber: Can you hear me Jacob? Can you actually understand what I'm saying? The accused still did not respond. Faber: Do you know where you are Jacob? The accused still did not respond. Faber: We need to speak to you later about the incident but in the mean time we need to cover your hands because we want to test them later for blood. Accused: Why? Faber: Because we want to test your hands for blood we need to cover your hands to protect them from any further contamination. The accused was unresponsive and had a vacant look in his eye.
Sergeant Luke Thompson was the Custody Manager at Waratah Police Station on 6 December 2017. He had the following conversation with the accused: Thompson: My name is Sergeant Thompson, I'm the Custody Sergeant. I'm here to look after you while you're in police custody, do you understand that? Accused: I don't know why the fuck I'm even here. I've done nothing. Thompson: Don't you know why you're here? Accused stared at me and said nothing. Thompson: I'm sorry mate but I have to tell you that your father has died and it's my understanding is that you are here because the police believe you have something to do with his death. Accused: Fuck off (laughing), you're fucking lying. Why would you say that? Thompson: Mate I would not lie about something like that I'm sorry. The accused continued to stare at Sergeant Thompson, laughing. Thompson noticed that the accused's eyes were very dilated and he was clenching his jaw, his movements were jerky and he was unsure from his reaction to his conversation whether he understood what was said to him.
Sergeant Thompson attempted to ask him a number of questions relating to his health in order to complete a custody management record. The accused appeared unable to comprehend those questions and did not reply in any way.
Sergeant April Banks took over duties as the Custody Manager from Sergeant Thompson. She observed the accused to wake up at varying times and start mumbling. When she attempted to engage in conversation there was no answer and he appeared to have trouble focusing. At 7:55am on 7 December 2017, Sergeant Banks engaged with the accused in a conversation in which she read him his rights.

Autopsy Report

An autopsy was conducted upon the deceased on 8 December 2017. Dr Calla opined that the direct cause of death was a stab wound to the chest. The most significant stab wound medically was one in the left upper outer chest below the axilla (armpit). The wound passed through the left fourth rib, left lung, pericardium around the heart and ended in the great vessel of the mediastinum (centre of the chest), having penetrated the pulmonary trunk and aorta. The wound was approximately 15cm deep. Once inflicted, the wound would have caused immediate and severe blood loss from the left lung and the great vessels. At least moderate force was used to cause this stab wound.

Psychiatric Evidence

In relying upon the mental health defence, the accused relied upon the opinions of Dr Richard Furst, Consultant Forensic Psychiatrist, who produced a report dated 20 June 2018 and also the report of Dr Jonathan Adams, Forensic Psychiatrist, who provided a report dated 12 November 2018.

Dr Richard Furst

Dr Furst reviewed the police facts and witness statements including the custody management records and the behaviour of the accused outlined in those records. Additionally, Dr Furst reviewed the medical records of the Mater Hospital and the Maitland Hospital and the medical records of the Justice Health Department.
After discussing the accused's psychiatric and drug and alcohol history and medical history, Dr Furst outlined the accused's subjective history and records that between October and November 2017, the accused felt that: 1. "My brother and my father were picking fights with me. Messing with my head. I was unable to get a stable job, which made me feel worthless. My family and my old friends were laughing at me". 2. "[My father] would pick fights with me, I would retaliate". 3. In December 2017, he felt on the edge. He said "everyone was laughing at me and playing games with me. I felt like I couldn't do nothing. I'd given up on myself. Everyone was making jokes. I was being watched 24/7. I felt like I was being watched by a bunch of people, even though there was no one in the room. I saw people in the house. It was like I was living in a horror film. I felt my father and brother were responsible for what was happening. Playing with my head. Trying to scare me. I love my family". 4. With regards to the comment of playing with his head, the accused said "shadow people and commentary".
Dr Furst was of the view that the accused met the criteria for the following diagnoses: 1. Schizophrenia; and 2. Substance Use Disorder (methylamphetamines and cannabis).
Dr Furst was of the opinion that the accused was fit to be tried, notwithstanding some residual paranoid symptoms, affective blunting and deficiency in some areas of his knowledge.
With regards to the availability of a mental illness defence, Dr Furst opined as follows: 1. The available history from the accused and a review of all the available medical records was consistent with persistent auditory hallucinations and paranoid thinking over the last two years which included voices providing a commentary about his actions, beliefs that he was being watched, set up, tested and framed, beliefs that messages were being sent through the television and observations of his behaviour and an affective manner indicative of a serious mental illness (including laughing inappropriately, mumbling to himself, being guarded in his response and repetitive motor movements). 2. The persistence of his psychiatric symptoms over a number of months after his arrest whilst under the observation of two senior psychiatrists working for Justice Health were indicative of a schizophrenic illness as opposed to the effects of drugs such as methylamphetamine alone or drug induced psychosis alone. 3. It is likely that the use of the drug ice and cannabis precipitated and maintained the accused's schizophrenia, especially given his vulnerability to developing schizophrenia. 4. The history indicated that, for approximately two years, the accused withheld the fact that he was experiencing auditory hallucinations. There was a large body of evidence which indicated that he had, during that period, been observed mumbling to himself, generally a sign of an individual experiencing auditory hallucinations. 5. The observations of clinicians who assessed the accused around the time of his alleged offence, coupled with his self-report of paranoid delusions about his family, especially his father, ("playing with his head", giving a commentary, and wanting to "get rid of him") make it more likely than not that his alleged offending was driven by his delusional and paranoid thinking at the time in question.
Dr Furst's ultimate opinion with respect to the accused's mental state at the relevant time was as follows: In my opinion it is likely Mr Zdravkovic was suffering from a defective reason in the form of delusional thinking at the time in question before the Court on 6 December 2017. He was also highly disturbed in his mental state, was experiencing distressing auditory hallucinations, had no insight into being mentally ill, perceiving those around him, including his father, as a threat. As such I am of the opinion that Mr Zdravkovic was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure and he has the mental illness defence available to him with respect to the alleged murder of his father Zoran Zdravkovic at Maryland on the 6th of December 2017.

Dr Jonathan Adams

In his report of 12 November 2018, Dr Adams conducted a similarly thorough and methodical review of all the available material. It is noted that, in respect of the alleged offence, the accused advised him that the deceased was messing with his head. In respect of auditory hallucinations, it was reported that the accused said, "it was getting worse." He was feeling increasingly paranoid but said that, as a result of his methamphetamine use, he was not caring.
Dr Adams reviewed the documentary material and referred largely to similar matters that were referred to by Dr Furst.
Similar to Dr Furst, Dr Adams opined that the accused's clinical presentation was consistent with the diagnosis of schizophrenia and also a substance use disorder. Although the accused had difficultly providing a detailed account, in Dr Adams' view this was most likely a manifestation of his schizophrenic illness.
Dr Adams observed: From reviewing the available medical reports, it is evident that the accused has experienced a deteriorating trajectory of his mental health during the years preceding the alleged offending behaviour. The medical records from Local Health Districts as well as the Justice Health medical records from approximately six weeks prior to the alleged offence are consistent with symptoms of schizophrenia. It is evident that he has endured delusional thinking, auditory hallucinations, and thought disorder, together with psychosocial decline.
Dr Adams was concerned with the effect of the accused's illicit drug use upon his mental state. It was his opinion that the accused's substance use disorder was a comorbid diagnosis given the trajectory of the mental health thus far and an ongoing symptomatology in the apparent absence of illicit substance use. In Dr Adams' view, the accused's clinical presentation was not in keeping with a diagnosis of substance induced psychotic disorder. Rather, a comorbid diagnosis of schizophrenia was appropriate.
Dr Adams dealt with the availability of a mental health defence at page 16 of his report where he stated the following: I am aware that the term a "disease of the mind" is a legal one, however I understand the diagnosis of schizophrenia is considered to be consistent with this legal construct. With the above discussion in mind, in my opinion there are reasonable grounds to conclude that Mr Zdravkovic was suffering from a "disease of the mind" at the material time of the alleged offence. The legal term defect of reason from a psychiatric perspective is understood in terms of someone's decision making capacity. In my opinion it is reasonable to conclude that Mr Zdravkovic was indeed experiencing a defect of reason at the material time of the alleged offending behaviour. As discussed above in more detail, in my view it is apparent that Mr Zdravkovic was experiencing symptoms of schizophrenia at the material time, in the form of delusional beliefs centring upon his father - the alleged victim - as well as auditory hallucinations. It is well accepted that symptoms of schizophrenia impact upon someone's decision making capacity, judgment and consequential thinking. At this point it is difficult to come to a firm conclusion whether Mr Zdravkovic generally understood the nature and quality of the alleged offending. I note his reluctance to engage with the arresting police officers or medical staff when he was taken to hospital immediately after the alleged offence. I also note his denial of the alleged act of murder. However in my opinion it is reasonable to conclude that Mr Zdravkovic would not have had the requisite capacity to fully understand the moral wrongfulness of his behaviour, and to reason with a moderate degree of sense and composure, as a result of his symptoms of schizophrenia. Therefore on balance, in my opinion Mr Zdravkovic has the defence of not guilty by reason of mental illness available to him.

CONCLUSION: MENTAL ILLNESS

The accused conceded that it was his act that caused the death of his father. The unanimous opinion of the assessing psychiatrists was that, at the time of stabbing his father, the accused suffered from a disease of the mind, namely, schizophrenia, and was suffering from a defect of reasoning and unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure as a result of that disease.
In the circumstances, and having regard to the aforementioned principles as to the defence of mental illness, the accused was mentally ill at the time of the offence and must, therefore, be found not guilty of the offence of murder by reason of mental illness.

Section 39 of the Mental Health (Forensic Provisions) Act

Having found the accused not guilty by reason of mental illness, the Court is required by s 39 of the Mental Health (Forensic Provisions) Act to make a determination regarding the accused's immediate future. That provision is in the following terms: 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order.
Counsel for the accused did not propose that the accused be released into the community at this time. Having regard to the medical evidence of Dr Furst and Dr Adams, I accept that submission. The accused requires ongoing assertive psychiatric care from the mental health services of Justice Health and ongoing assertive input from forensic mental health services.

ORDERS

In those circumstances, I make the following orders: 1. I find Jacob Zdravkovic not guilty of the murder of Zoran Zdravkovic on the grounds of mental illness. 2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law. 3. I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable. 4. The Registrar is to provide the Tribunal with a copy of my reasons and of the reports of Dr Furst and Dr Adams.

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: 19 June 2019

Mental Health (Forensic Provisions) Act 1990(NSW)

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