R v Markov (a pseudonym) - [2024] NSWSC 233

Supreme Court

New South Wales

Medium Neutral Citation: R v Markov (a pseudonym) [2024] NSWSC 233
Hearing dates: 08 March 2024
Date of orders: 08 March 2024
Decision date: 08 March 2024
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) A special verdict be entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely the act is proven but the defendant is not criminally responsible due to mental impairment.
(2) Under s 33(3) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) I am not satisfied on the current material, on the balance of probabilities, that the safety of the defendant or any member of the public will not seriously be endangered by his release.
(3) That pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until he is released by due process of law.
(4) That the Registrar notify the Minister for Health of these orders within 7 days.
(5) That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within 7 days.
(6) That the Registrar provide the Mental Health Review Tribunal with a copy of this judgment, orders and exhibits tendered within 7 days.
(7) That the Registrar notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days.
(8) There is to be no access to the court file or the exhibits until further order and only then if the parties have been notified of an application to do so.
(9) I recommend to the Mental Health Review Tribunal that, in accordance with s 145 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), [the accused’s] family be heard in any hearing conducted by the Mental Health Review Tribunal.

Catchwords:
CRIMINAL LAW – murder – special verdict – defence of “mental health impairment” – where experts and parties agree defence is established – man kills wife of 51 years by strangulation – evidence of delusions – hearing voices – where statements to police inconsistent with history of delusions provided to doctors – explanation by expert psychiatrist – “plethora” of evidence of mental illness – where defence lawyer briefs psychiatrist shortly after accused man charged – strong evidence accused still mentally ill – presumption accused not mentally ill – onus of proof on accused – defence established – special verdict entered – consequential orders made for detention of the accused and referral to the Mental Health Review Tribunal

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15A(1), 15A(1)(b), 15A(1)(c), 15A(5), 15A(7)
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 8(1)(c), 11, 12, 10, 10(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 30L
Criminal Procedure Act 1986 (NSW), s 133(3)
Mental Health and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Markov (a pseudonym)

Details

AGLC: R v Markov (a pseudonym) [2024] NSWSC 233
Case: [2024] NSWSC 233
Decision Date: 08 March 2024

CaseChat Overview and Summary

The case of R v Markov involved the defendant, Markov, charged with the murder of his wife by strangulation. The court was required to determine whether Markov was mentally unfit to be held criminally responsible for the offence. Both experts and parties agreed that Markov was suffering from a mental health impairment at the time of the offence, though there was some dispute regarding the consistency of his statements to the police with his history of delusions. The court had to decide whether the defence of mental health impairment was established and whether the onus of proof lay with Markov.

The court considered the evidence of Markov's delusions, hearing voices, and other symptoms of mental illness. It examined the explanation provided by the expert psychiatrist for the inconsistency in Markov's statements. The court was satisfied that there was a "plethora" of evidence demonstrating Markov's mental illness, and that the defence lawyer had briefed the psychiatrist shortly after Markov was charged, which did not affect the impartiality of the expert's opinion. The court held that the onus of proof was on Markov to establish the defence of mental health impairment, and that this onus had been met. Accordingly, the court entered a special verdict of not guilty by reason of mental health impairment.

Consequently, the court made orders for Markov's detention and referral to the Mental Health Review Tribunal. This decision highlights the importance of the consistency and comprehensiveness of evidence in establishing a defence of mental health impairment, and the careful consideration required when assessing the onus of proof in such cases.

Orders