R v Stojic

1. [1]

   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.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   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:

7. [7]

   Most of the provisions of the Act are, for current purposes, irrelevant, except, in addition to section 8, recited above, the following provisions:

8. [8]

   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.

9. [9]

   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:

10. [10]

    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.

Psychiatric evidence

1. [11]

   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.

2. [12]

   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".

3. [13]

   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.

4. [14]

   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.

5. [15]

   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.

6. [16]

   The accused maintains he is not mentally ill.

7. [17]

   Professor Greenberg came to the view that the accused is:

8. [18]

   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".

9. [19]

   As to the accused's psychiatric illness, Dr Allnutt expressed the opinion that the accused manifested:

Conclusions

1. [20]

   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.

2. [21]

   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.

3. [22]

   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.

4. [23]

   The orders of the Court made were:

   1. (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. (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. (3)

      The Registrar of the Supreme Court is directed to provide the following documentation to the Mental Health Review Tribunal within 14 days: