Regina v GAVRANOVIC

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: Following an election made by the accused pursuant to s 32(1) of the Criminal Procedure Act, which election was consented to by the Crown, Rafael Gavranovic was tried by myself, in the absence of a jury, for the crime of murder. 2 He pleaded not guilty to that offence. While the factual material adduced by the Crown in its case was uncontested by the accused, he raised a defence of mental illness. It is trite law that the onus of proving that defence is upon the accused, the standard of proof being the civil standard, namely, proof on a balance of probabilities. I should add that in determining the Crown's factual allegations, I have utilised the criminal standard, namely, proof beyond reasonable doubt. 3 I turn then to the Crown case. The Crown alleged that the accused murdered Jiri Zoufal, a Czech tourist, near Kings Cross on Saturday, 6 September 1997 at around 7 pm. Shortly beforehand the late Mr Zoufal was observed by the accused near Hyde Park. The accused thought that at that time the deceased was staring at him and when the deceased looked away from him, the accused was of the view that the deceased was looking at him out of the corner of his eye. That apprehension arose because the accused at the time was suffering from paranoid schizophrenia. 4 Co-incidentally, with his apprehension that the deceased was looking at him, the accused was suffering from an auditory hallucination which manifested itself in the form of voices, which appeared threatening to himself, his mother and other members of his family. His mental illness caused the accused to think that the voices which he thought he was hearing, emanated from the deceased. The combination of his apprehension that the deceased was staring at him and his auditory hallucinations, caused the accused to feel threatened. 5 That feeling had been present for some days prior to 6 September 1997. Indeed, as will be revealed later in these reasons, in the past, the accused had suffered from auditory hallucinations, which had been recorded in medical records following his admission to hospitals. So threatened had he felt as a consequence of the paranoiac element of his mental condition, that the day before the killing of the deceased, he had purchased a tomahawk from a hardware store in Balmain, so he could protect himself against the threats which he perceived were being made to him. 6 After seeing the deceased, as a consequence of his apprehension as to the observation the deceased was making of him and as a result of his auditory hallucinations, the accused believed that the only way in which he could deal with the threat he perceived from the deceased, was to follow him. This he did. 7 He followed the deceased into William Street, and indeed overtook the deceased at one stage, when the deceased ignored a greeting directed by the accused to him. 8 When the deceased stopped at one point in William Street, to look at cars in a showroom window, the accused because of his deluded state, was of the view that the deceased had stopped in order to look at him out of the corner of his eye, confirming the accused's view, that he was being threatened by the deceased. 9 After the deceased had crossed to the northern side of William Street, the accused followed him. When the deceased reached the corner of Dowling and William Streets, the accused was directly behind him. At that point the accused removed the tomahawk which he had purchased the day before, from the lining of his jacket. 10 He then struck the deceased on the back of his head with the blunt end of the tomahawk blade. The deceased fell to the ground as a consequence of the blow. The accused then struck him six times with the sharp end of the tomahawk blade and proceeded to kick him. 11 The blade of the tomahawk became embedded in the deceased's head and in attempting to extract the weapon from the deceased the accused dragged him several metres. 12 As he attempted to remove the tomahawk from the deceased's head, its rubber handle became disengaged. The accused then threw that rubber handle into Dowling Street. After removing the tomahawk, the accused hid the weapon in his coat and departed. 13 Pathological evidence tendered, revealed that the deceased must have died within a few minutes of the attack as a consequence of trauma to his brain and blood loss. 14 Following the attack the accused walked to the Fitzroy Gardens in Macleay Street and having remained there for a short time, returned to William Street and indeed walked past the crime scene where police and ambulance were then present. 15 He then walked to Balmain where he was then living with his mother. When he arrived at Balmain he went to the harbour side at the end of a street known as Lookes Avenue and threw the tomahawk into the water. 16 He then went home to his mother's home where he removed his clothes and shoes which he put into a plastic bag and left for the garbage collection by council workers. 17 Over three months later, namely 19 December 1997, the accused went to the Kings Cross police station and told police that he had killed a person. He was then interviewed by police using an ERISP machine. He made full admissions during that interview. 18 It is of importance to note that during the interview he told police that he had discarded the rubber handle of the tomahawk at the crime scene and revealed where he had thrown the tomahawk into the harbour. 19 While some difficulty was encountered by police in recovering the tomahawk from the harbour, a further interview on 29 December with police at Silverwater prison, following further information given to police at that time, the tomahawk was found by police divers near the point where the accused had indicated he had thrown the weapon into the harbour. 20 The importance of the accused telling police that he had discarded the tomahawk rubber handle and where he had thrown the weapon itself is that these were matters which could have only been known to the killer of the deceased. 21 The uncontested material which was tendered in evidence by the Crown in support of the allegations, which I have just narrated, provide convincing proof beyond reasonable doubt of all the elements of the crime of murder. In the absence of a valid defence, such as mental illness, I would have found the accused guilty of that crime. 22 However, there is ample evidence from both lay and medical sources which is powerfully indicative that the accused was, at the relevant time, mentally ill according to law. 23 The lay evidence is to be found in statements taken from his mother, his half brother and two acquaintances, a Mr Wai and a Mr Sevilla. 24 His mother stated that he had exhibited violence and extraordinary behaviour while living with her. The extraordinary behaviour involved him throwing cutlery and plates into a rubbish bin and taking, on some occasions, up to ten showers a day over a considerable period. He had exhibited violence to her, so much so she had taken out an apprehended violence order against him. She had observed the tomahawk in her son's bedroom. 25 His brother also reported the accused's extraordinary behaviour in terms both of violence and his destructive conduct over a period of time. Of importance is his brother's observation, that within a few months of the killing of the deceased, he observed his brother laughing for no reason, shaving his legs and using crayons and play dough in a child-like fashion. He also reported the accused's curious conduct in putting kitchen utensils into the garbage. Indeed, when his brother confronted the accused as to this latter conduct his explanation was, "I am just trying to do the right thing. I was just cleaning up for Mum." 26 Both his mother and the brother reported an episode of violence at his mother's home on 2 December 1997 that is seventeen days before he surrendered himself to police. 27 Mr Sevilla, who in the past had a sexual relationship with the accused, stated that he had not seen the accused for some months, until he made an unexpected appearance at Sevilla's flat in November 1997, that is some two months after the killing of the deceased. 28 Like the accused's brother he reported inexplicable laughter from the accused together with narcissistic conduct, represented by the accused looking at himself in the mirror and flexing his muscles. 29 Mr Wai, a photographer, was also friendly with the accused. He had known the accused since late 1995. At one stage the accused lived in Mr Wai's flat for some two months, during which time the accused's conduct on occasions, was so odd as to make Mr Wai believe the accused was mad. 30 At one time the accused told Mr Wai that homosexual people were looking at him around the Darlinghurst area and that he hated these people and not only talked about getting a gun for the purpose of killing them but he asked Mr Wai for money so that he could buy one. 31 In September 1997, and I gather shortly after the killing of the deceased, having met the accused at a nightclub, the pair eventually went to Mr Wai's premises. While there, the accused grabbed a large cooking knife from the kitchen, grabbed Mr Wai by his shirt collar and held the knife above him in a threatening manner. Mr Wai said: "Why are you trying to kill me." The accused replied: "What did you say about my mum?" Eventually Mr Wai was able to mollify the accused to the extent that the accused released him from his grip. Mr Wai then ran from the premises and called police. He told police that while he did not want the accused charged he needed to help stop the accused doing things like that. Thus the lay evidence is indicative of the paranoid and extraordinary conduct on behalf of the accused, in the time around the killing of the deceased. 32 The accused has a history of admissions to hospital when he has exhibited psychotic symptoms. In evidence at this hearing, clinical notes from the Royal Prince Alfred Hospital, the Caritas Unit at St Vincent's Hospital and the Rozelle Hospital were tendered. 33 In August 1995 he was admitted to Royal Prince Alfred Hospital where he gave a history of violence which he could not explain and also a history of violent sexual thoughts and visions. Relevantly, during that admission, he gave a history of experiencing auditory hallucinations. 34 A medical officer at that hospital was of the view that the accused was exhibiting signs of psychotic illness. He was then referred to the Rozelle Hospital, where after a similar history was received, a tentative diagnosis of schizophreniform psychosis was made. 35 In March and July 1996 he was seen at the Caritas Centre at St Vincent's Hospital. Again a history of auditory hallucinations was obtained together with a history of anger. A diagnosis on both occasions of either schizophrenia or schizophreniform disorder was made. 36 Following his surrender on 19 December 1997 he has been seen by two forensic psychiatrists, Dr Olav Nielssen and Dr Bruce Westmore, both of whom have furnished the court with reports and Dr Nielssen amplified his report with oral evidence. 37 Both received accounts relating to the killing of the deceased which are entirely consistent with the narrative given earlier in these reasons. Both doctors came to the same diagnosis, namely that the accused is suffering from paranoid schizophrenia. Both were of the view that the accused had a defence of mental illness as a result of his disease of mind. 38 Dr Westmore was of the view that while the accused was aware of the nature and quality of his actions and in the legal sense that his actions were wrong, he was of the view that the accused's illness totally deprived him of a capacity to understand that his behaviour was wrong in a moral sense and that he was unable, due to his illness, to rationalise and reason about his experiences and his perceptions of his environment as an ordinary person would. Dr Westmore was of the view that the accused required long term psychiatric care and supervision. 39 Dr Nielssen, like Dr Westmore, was of the view that the accused was aware of the nature and quality of his acts but because of his illness was powerless to control his actions. Like Dr Westmore, Dr Nielssen was of the view that the accused would require indefinite supervision by forensic psychiatry services. 40 In oral evidence Dr Nielssen referred to observations made by a psychiatric registrar, to which reference has already been made, of auditory hallucinations. 41 Oral evidence was also given by Professor Robert Hayes, the President of the Mental Health Review Tribunal going to the functions of that Tribunal once a person has been found not guilty on the grounds of mental illness. That evidence was given so that I could direct myself, as I would direct a jury as required by s 33(3) of the Criminal Procedure Act 1996 of the effects of s 37 and s 38 of the Mental health (Criminal Procedure) Act. This I have done and later in these reasons, the nature of that direction will become apparent. 42 I should also add, that during his first record of interview, the accused volunteered the fact that he had suffered from auditory hallucinations consistent with those referred to in my narrative of the events leading to the killing of the deceased. 43 I turn then to the law relating to the defence of mental illness. The classic statement of the defence of mental illness was made 156 years ago in England in Regina v McNaughton (1843) 8 ER 718 at 722 in these terms: "Was the accused at the time the offence was committed suffering from a defect of reason, from a disease of the mind such as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong." 44 That early statement of law has been the subject of amplification in Australia in a number of well known cases. 45 Dixon J (as he then was) in directing a jury in the Australian Capital Territory in Regina v Porter (1933) 55 CLR 182 at 189-190 stated the test as follows: "Was the accused able to appreciate the wrongness of the particular act he was doing at the particular time? … If through 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 what he was doing was wrong." 46 That amplification was further taken by the High Court in Regina v Sodeman (1943) 55 CLR 192 at 215 where the law was stated to be as follows: "If the disease so governs the faculties that it is impossible to reason with some moderate degree of calmness in relation to the moral quality of what he is doing he is prevented from knowing what he does is wrong." 47 The unchallenged medical and lay evidence in the matter squarely places this case within the law as stated in the authorities to which I have just referred, particularly within the tests as adumbrated in Sodeman. Accordingly I am driven to the conclusion that the accused has made out his defence of mental illness. It follows that the verdict of the court will be not guilty by reason of mental illness. 48 It is important that I make clear for the information of Mr Gavranovic, his family, the deceased's relatives and the community at large, what are the ramifications of this verdict. 49 This special verdict does not mean that the accused will be released as he would following a verdict of not guilty, that is an outright acquittal. The accused, in fact, will be detained in strict custody by virtue of s 39 of the Mental Health (Criminal Procedure) Act. This Court must further order that the accused be detained in such a place and in such a manner as the court thinks fit. 50 Accordingly, I order that he be detained, until directed otherwise by the Mental Health Review Tribunal at the Long Bay prison hospital. 51 Following the making of that order he comes under the supervision of the Mental Health Review Tribunal which is headed by Professor Hayes, to whose evidence I have already referred. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. The review could take more than 14 days to complete but at the conclusion it would make a recommendation to the Minister for Health. That recommendation could be either unconditional, or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal was satisfied, but only if it was satisfied, that the safety of the accused or any member of the public would not be seriously endangered by his release, it could make a recommendation as to his release. If it makes such a recommendation then that would be considered by the Department of Health which in turn would advise the Governor-in-council. The Governor-in-Council would then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release conditional or unconditional. The Governor-in-Council could only make an order for release where the Tribunal itself had recommended release. After that first hearing of the Mental Health Tribunal, assuming no recommendation for release is then made, it can at any later time and must at least once every six months, review the case of the accused. 52 After hearing the evidence at a later review, it must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to his release conditional or unconditional. I stress that the Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council. 53 If the accused was at any time released back into the public on conditions and it happened that a breach of those conditions took place, then the Governor-in-Council may order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person is released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over him and a breach of any conditions would lead to him being apprehended and detained once again. 54 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the patient or the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients. 55 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I previously explained, the accused or a forensic patient in his position, can never be released unless the Mental Health Tribunal, comprising persons with special qualifications, was satisfied, on the evidence available to it, that his safety and the safety of any member of the public would not be seriously endangered. 56 The verdict and orders of the court will those I have already stated.

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