R v Stojic

On 2 March 2020, I conducted an inquiry into the fitness to be tried of the accused, Mr Stojic. At this hearing, there was no dispute concerning the background or procedural history of the matter. There was also no significant dispute regarding the medical and other evidence as to the accused’s mental state or abilities.

On 29 July 2017, the accused was arrested and charged with the shooting murder of Brett Jardine at Kingsgrove on 26 July 2017 and with a number of firearms and prohibited weapons offences allegedly committed on 29 July 2017. On 2 March 2020, the Court gave the Crown leave to file in court an indictment dated 26 February 2020 relating to those charges, on the basis that the Chief Justice had given the appropriate exemption.

The accused is also facing aggravated assault charges relating to alleged conduct while the accused was in custody. These are being dealt with in the District Court.

On 30 November 2018, Rothman J found the accused unfit to be tried on the murder charge, on the evidence available at that time: R v Stojic [2018] NSWSC 1893. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), his Honour referred the matter to the Mental Health Review Tribunal (MHRT) and made other appropriate orders.

On 22 February 2019, Berman SC DCJ found the accused unfit to be tried in respect of the firearms and prohibited weapons charges.

On 30 May 2019, the MHRT determined, pursuant to s 16 of the MHFP Act, that the accused was unfit to be tried on the murder charge and the firearms and prohibited weapons charges, and would not become fit to be tried on those charges within 12 months of the courts’ findings of unfitness. In reaching that conclusion, however, the Tribunal noted that the accused’s treating psychiatrist at Long Bay Hospital considered that it was possible that he would become fit with assertive mental health treatment, but was not confident that this would occur.

On 25 July 2019, Mr Stojic was found by Ellis DCJ, sitting in the District Court in Newcastle, unfit to be tried on the aggravated assault charges.

The accused’s fitness for trial on the aggravated assault charges was considered by the Tribunal in September 2019 but the Tribunal adjourned its consideration of that matter to allow more time for assertive mental health treatment and to allow the treating psychiatrist to speak to the accused’s legal advisers.

Between August and November 2019, the accused was assessed by Dr Stephen Allnutt and Prof David Greenberg, forensic psychiatrists, who provided reports to the MHRT. In addition, Dr Anna Farrar, the accused’s treating psychiatrist expressed a view on 25 November 2019 that the accused had become fit to be tried.

On 28 November 2019, the MHRT conducted a hearing in relation to the accused. In addition to psychiatric evidence, the Tribunal received evidence from the accused’s solicitor, Mr Emanuel. That evidence included that a trial was likely to last in the order of three weeks, and both the solicitor and the accused’s counsel considered that the accused was now able to concentrate for lengthy periods of time and to give appropriate responses about a range of legal issues including the charges which he was facing. It was said that the accused’s legal representatives felt very comfortable that the accused had understood the advice which was given to him and was able to weigh up that advice and give views on his preferred approach.

On 6 December 2019, the Tribunal determined as follows:

In accordance with s 16(3) of the MHFP Act, the Tribunal informed the Court of its determination of 6 December 2019.

On 10 January 2020, Dr Allnutt conducted a clinical evaluation of the accused and provided a report dated 20 January 2020 to the solicitors for the accused. Dr Allnutt concluded in his report:

Prof Greenberg carried out a further psychiatric assessment of the accused on 12 February 2020 at Long Bay Hospital. He provided a report dated 17 February 2020 to the solicitor at the office of the Director of Public Prosecutions. Prof Greenberg expressed his conclusion in the following terms:

The question of Mr Stojic’s present fitness has been raised prior to his arraignment before a jury on the charges in respect of the murder offence and the firearms and prohibited weapons offences. It is clear that the question has been raised in good faith.

In these circumstances and in accordance with ss 8(1) and 10 of the MHFP Act, it was determined that an inquiry should be conducted before the hearing of the proceedings in respect of the murder offence and the firearms and prohibited weapons offences. The inquiry concerning the accused’s fitness took place before me on 2 March 2020.

Both the Crown and the accused submitted that Mr Stojic was now fit to be tried. In addition to the MHRT’s reasons for its determination on 6 December 2019, the Court had before it the reports of Dr Allnutt of 20 January 2020 and Prof Greenberg of 17 February 2020.

Under s 7 of the MHFP Act, the question of a person’s unfitness to be tried, which I take to include the question of a person’s fitness to be tried, may be raised at any time and may be raised on more than one occasion in respect of the same proceedings.

Under s 11 of the MHFP Act the determination of fitness is to be undertaken by a judge alone. Section 12(1) generally requires the accused to be represented in the inquiry, as he was by Mr Clark of counsel on this occasion.

Section 12(2) provides that the inquiry is not to be conducted in an adversarial manner and s 12(3) establishes that the onus of proof does not rest upon any particular party.

Under s 13, if, following an inquiry, an accused person is found to be fit to be tried for an offence, the proceedings against the person are recommenced or continued.

The assessment of whether a person is unfit or fit to be tried is to be determined by reference to the criteria identified by Smith J in R v Presser [1958] VR 45; (1958) ALR 248 (Presser) and the length of the trial: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 (Kesavarajah) at 246 (Mason CJ, Toohey and Gaudron JJ).

In Presser, Smith J set out the “minimum standards which [an accused] needs to equal before he can be tried without unfairness or injustice to him”:

Mason CJ, Toohey and Gaudron JJ summarised the Presser criteria in Kesavarajah, at 245, as being the ability:

Further, in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29, Gleeson CJ referred to the following as “sound propositions” to be applied in a context analogous to the present, at [26] and [27]:

As I have already noted, the most recent psychiatric evidence concerning the accused’s fitness to be tried is:

Dr Allnutt conducted an evaluation of the accused on 10 January 2020. At this time, Mr Stojic was taking Clopixol, an antipsychotic medication, 20mg daily and was being seen regularly by a psychiatrist.

The accused presented as cooperative and did not manifest behaviours consistent with side effects to psychiatric medication or neurological illness. There was no evidence of significant frustration and he spoke in a clear coherent manner. His affect was somewhat flat, and he did endorse some depressive symptoms. There was no evidence of mania, hypomania, suicidal or aggressive ideation, plan or intent or psychosis. He appeared to have reasonable cognitive capacity and his capacity for insight and judgement seem to be adequate.

Dr Allnutt was of the opinion that Mr Stojic likely suffers a chronic delusional disorder, with a differential diagnosis of a schizoaffective disorder or a paranoid schizophrenia. It was also Dr Allnutt’s view that since he last saw him on 22 August 2019 there had been a significant improvement in his mental state. It was noted that he continued to take his antipsychotic medication and that this was likely to have contributed to the improvement noted. The doctor’s impression was that the accused continues to manifest ongoing residual symptoms of a complex systematised paranoid delusional system, but there has been a reduction in their intensity and his levels of preoccupation, and probably a rescinding of earlier delusional beliefs.

In particular, Dr Allnutt assessed that:

It appeared that, in relation to whether the accused had the ability to understand the substantial effect of any evidence that may be given in support of the prosecution and to make a defence or answer to the charge, Dr Allnutt was satisfied that he had this ability, given the matters he referred to earlier in the report.

In summary, Dr Allnutt was satisfied that at this stage, the accused is fit to stand trial, even though there is a risk of deterioration.

Prof Greenberg assessed Mr Stojic on 12 February 2020. In his report of 17 February 2020, he reached essentially the same conclusions as Dr Allnutt, although the accused was apparently more guarded in what he would disclose to Prof Greenberg concerning his defence.

Prof Greenberg diagnosed chronic delusional disorder with residual delusions (differential diagnosis: late-onset schizophrenic disorder). He also queried whether there was alcohol and cannabis use disorder.

In relation to the Presser criteria, Prof Greenberg was of the opinion that the accused:

Prof Greenberg went on to say:

Prof Greenberg was of the opinion that the accused could instruct his legal counsel at this time and give evidence, if required to do so. He had an understanding of the nature of an oath and the consequences of perjury.

As noted above, Prof Greenberg was of the view that the accused was currently “fit to stand trial and/or fit to enter a plea at this time”.

In considering whether the accused is fit to be tried, I have also taken into account the views of the MHRT, as expressed in their reasons for decision dated 6 December 2019. The Tribunal noted the persuasive evidence of Dr Farrar, his treating psychiatrist, and Mr Emanuel, his solicitor, that there had been a significant improvement in the accused’s mental state since the previous review by the Tribunal. In addition it was recorded that his counsel advised that they now had been able to have lengthy and complex conferences with him and he appeared to have been able to understand and absorb their advice. This was in contrast to their experience over the previous two years.

The MHRT also said:

Finally, I note that Mr Clark, the accused’s counsel, did not suggest that any of the comments made by Dr Allnutt, Prof Greenberg or the MHRT concerning the accused’s ability to confer with, and give instructions to, his counsel and other legal advisors were incorrect. Nor did he put any submissions contrary to those of the Crown in support of the conclusion that the accused should be found to be fit to be tried.

In all the circumstances and applying the principles set out above, I find on the balance of probabilities that the accused is fit to be tried for the offences the subject of the charges in the indictment filed on 2 March 2020.

In these circumstances, the proceedings in respect of those offences are to continue. To this end, the matter should be listed in the arraignments list before the Criminal List Judge on 6 March 2020, or such later date as the List Judge determines.

Accordingly the orders of the Court are: