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 Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 28(1), 28(2), 28(3), 29, 31, 31(a), 31(b), 31(c), 33, 33(1), 33(3), 34, 145

Cases Cited:

AB (APseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386

R v Hutchinson, Wilkinson & Greentree (No 3) [2018] NSWSC 1758

R v Jackson [2021] NSWSC 1404

R v Lailna [2023] NSWSC 48

R v Lambros [2023] NSWSC 462

Category:

Principal judgment

Parties:

Rex
Markov (a pseudonym)

Representation:

Counsel:
R Kotsis (Rex)
P Dwyer SC (Markov (a pseudonym))
Solicitors:
Director of Public Prosecutions (Rex)
Uther, Webster and Evans (Markov (a pseudonym))

File Number(s):

2022/00298686

Publication restriction:

A number of non-publication and suppression orders have been made in the proceedings (see paragraphs [47]-[57]).

EX TEMPORE Judgment (revised)

1. [Redacted], an independent woman with [redacted] adult children and [redacted] grandchildren, was killed in her own home in a [redacted] suburb of Sydney on [date redacted]. She died by strangulation and/or asphyxia. She would have turned 76 just couple of weeks ago. It was a brutal and seemingly inexplicable killing committed by her husband of something like fifty years, [redacted]. An awful detail of the of killing is that it was committed in the presence of their [redacted] [grandchild]. The [child], whose name cannot be published, was confused but brave and tried to stop [the accused] from attacking [the deceased]. But [they] could not.

2. [The accused], who was almost exactly one month older than [the deceased], was charged with murder and was to stand trial for that crime. He raised the defence of “mental health impairment”, arguing that he is not criminally responsible because he was suffering from schizophrenia at the time of the killing and did not know that what he was doing was wrong. Because the prosecution agrees that the defence is established, this is an “evidentiary inquiry” (as it has sometimes been described)[1] under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”).

   1. R v Jackson [2021] NSWSC 1404 at [7]; R v Lailna [2023] NSWSC 48 at [24]; R v Lambros [2023] NSWSC 462 at [5].

3. The couple was married when they were 22 years of age. [The deceased] had a career as a [redacted] and [the accused] was a [redacted]. While the marriage was never dissolved, the couple was estranged for many years before the tragic events of [redacted]. Between 1997 and 2002, the relationship became “remote”, or that is how it was described in an agreed statement of facts tendered by the parties formally this morning. By 2002 they were sleeping in separate bedrooms and the marriage, again to adopt the language of the agreed facts, was one of convenience.

4. In around the year 2000, [the accused] started working in Port Macquarie and would live there through the week while spending weekends in Sydney. Then, in 2005, he moved [interstate]. He worked on large infrastructure projects and, over time, acquired three investment properties. Issues surrounding those properties assume some relevance and significance to the issues I am now to resolve. It seems also that he began drinking heavily when he lived [interstate].

5. Between 2007 and 2012 the accused and his wife lived largely independent lives. They remained amicable but the relationship was not intimate. Between 2012 and 2015 [the accused] drifted away from the family. There was little contact between the couple; they would speak over the telephone every few months.

6. In 2016, [the accused] returned from [interstate] to Sydney and retired from full-time work. He returned to live in the family home, but he and his wife continued to live independent and largely separate lives. However, they would help their children with the care of their grandchildren and with their pets. Their [grandchild] who was present at the time of the killing would stay over once or twice a month and the accused would [redacted] fairly regularly. The immediate family, and some members of the extended family, would often get together on a Thursday night to have dinner together at the family home. Such a family occasion was planned on [the day of the killing], and I will turn to describe what happened that afternoon and evening.

7. The child (who I will call “Z”) arrived at around 5pm. Z and their grandparents were the only people in the house over the next hour. Z, [redacted], later spoke to police and told them that nana and pop had a fight. Z said pop was angry and was choking [their] grandmother. He was squeezing her neck very tight and would not let her breathe. Z said nan was crying for help and Z was saying “Pop, that’s hurting Nan. Why would you even do such a thing?” Z put [a] hand on [the deceased’s] stomach, but it was not going up and down. Z told police that pop was then “a bit sad so he tried to help [nan] instead of killing her again”.

8. Sometime, shortly after the incident, the accused’s brother [redacted] arrived for the family dinner. Z met him at the door and said, “something happened with nana and pop, they had a fight, and its really bad”. [Redacted] called 000 and police arrived very shortly after. The accused told the police:

“[W]e had a fight … I had an argument with my wife a couple of days ago … it came up again … I choked her.”

9. The accused told the police that Z tried to stop him and asked him to stop hurting nan.

10. Police could smell alcohol on [the accused’s] breath but did not think he was intoxicated. They noticed scratches and bruises on his face.

11. He told the police that the argument and fight was about the sale of the family home. He wanted to sell it, but his wife did not. He told police:

“… we had a fight a week ago. Said I wanted to sell the house and she shouted at me and said I never sell this house. The house is old, we can’t afford to renovate it, we can’t even afford to paint it, we might have to downsize. I can’t keep up with the maintenance, I can’t do anything. [We had an] argument about it this afternoon.”

12. He told the police that he had “put a plastic bag over [his wife’s] head” to suffocate her. The police found no plastic bag at the scene and the child, whose account was lucid and graphic, said nothing about seeing a plastic bag throughout the course of the incident.

13. Meanwhile, police and paramedics attempted to assist and resuscitate [the deceased]. They noticed a faint pulse and she was rushed to [redacted] Hospital. Attempts to revive her were unsuccessful and at 3:40am her life was pronounced extinct.

14. By that time, the accused had been arrested and transported to [a local] Police Station. He told the custody manager “I know I hurt her bad. I’ve been drinking and I’d had enough of her going on about it”. As I have said, police could smell alcohol on [the accused’s] breath but did not think he was drunk. I assume [the accused] was speaking about his wife “going on” about the sale of the property but it is not completely clear.

15. Based on the factual matters I have just recounted, all of which reflect the agreed statement of facts tendered as part of Ex A and none of which is in dispute, I am satisfied beyond reasonable doubt that the elements of murder are established. That is, I am satisfied to that very high standard that:

1. The accused caused the death of [the deceased] by his voluntary act of strangling or choking her.

2. His act was done with the specific intention of inflicting really serious (that is, grievous) bodily harm or with the intention of killing her.

16. Those things are not in dispute. Similarly, there is no dispute between the parties that [the accused] had what the law now calls a “mental health impairment” at the time he killed his wife and that he is not criminally responsible for the murder by virtue of the provisions of ss 4 and 28 of the Act. However, that issue is somewhat more complex than that surrounding the proof of elements of the offence.

17. Section 31 of the Act provides:

31 Special verdict where defendant and prosecutor agree on impairment

The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—

(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b) the defendant is represented by an Australian legal practitioner, and

(c) the court, after considering that evidence, is satisfied that the defence is so established.

18. It is apparent, from the written submissions of the parties, that subs (a) is satisfied. Further, the defendant is represented here by an extremely capable and experienced Senior Counsel who is instructed by a highly regarded solicitor with significant expertise in criminal law. His solicitor, Ms Evans, has been in the case from the beginning and the result is that a report from one of the expert witnesses is based in part on consultations with [the accused] a short time after the incident. [2] Accordingly, subs (b) of s 31 is also satisfied.

    2. This sentence was added when revising the ex tempore judgment.

19. As to subs (c), there is room for some controversy, largely because of the things the accused said at the scene and, perhaps more significantly, the things he did not say. I propose to provide quite brief reasons now, noting the grieving family is present in Court or is watching the proceedings via audio visual link (“AVL”), and should not be subjected to any unnecessary delay. However, the final version of the judgment, which I hope to publish early next week, will be somewhat more expansive.

20. Section 28(1) provides for the defence of “mental health impairment” and s 4 defines that expression. Subsection (3) creates a presumption that a person does not have a “mental health impairment” and subs (2) casts a burden on the accused to establish the defence on the balance of probabilities. Section 28(1) provides:

28 Defence of mental health impairment or cognitive impairment

(1)  A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—

(a)  did not know the nature and quality of the act, or

(b)  did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

21. I have reports of two distinguished and well-regarded forensic psychiatrists who provided similar opinions on the relevant issues.

22. The legal representatives of the accused retained Dr Olav Nielssen who provided a report dated 25 January 2023. The Director of Public Prosecution (“the Director”) briefed Professor David Greenberg who supplied an initial report dated 6 July 2023 and a supplementary report dated 23 September 2023. Insofar as there are relevant differences between the opinions of the two psychiatrists, I generally prefer the evidence of Professor Greenberg for two main reasons. First, his report provides far more detail in terms of the early interaction between the accused and Justice Health and Corrective Services staff, and also does what my esteemed colleague N Adams J might describe as a “deep dive” into the statements of various relevant witnesses. On the other hand, Dr Nielssen spoke with the accused at a much earlier stage. He spoke with him on 25 October 2022, that is just two weeks after the killing, at which time “it was obvious that [the accused] was still mentally ill”.

23. Based on the history and a review of some of the documents, and [the accused’s] presentation in interviews conducted by AVL on 15 December 2022 and 24 January 2023, Dr Nielssen was of the opinion that [the accused] was suffering from late onset schizophrenia at the time of the killing. He also said [the accused] had an alcohol use disorder which was in remission. [The accused’s] mind was affected by delusional beliefs and he was in the throes of an episode of psychosis at the time. He held the delusional and persecutory belief that he needed to kill his wife “to save her from being burned to death”. This belief stemmed from his concerns that he was under threat from “bikies” with whom he had disputes [interstate] over the investment properties, to which I made passing reference at the beginning of these remarks. His mind told him these or associated “bikies” were motivated to drive him and his wife from their matrimonial home.

24. The history provided to Dr Nielssen by [the accused] included that he was having auditory hallucinations that the bikies were somehow able to monitor his telephone, and that people were able to read his thoughts.

25. Dr Nielssen believed the killing occurred in the first episode of psychosis and referred to literature (authored in part by himself but peer reviewed) that showed that this was “a period of greatly increased risk of homicide and other violence” because the person had yet to receive any medical explanation by which they would understand the significance of their symptoms.

26. Dr Nielssen concluded his report by expressing the following opinion:

“At the time of the offence he was affected by frightening delusional beliefs and gross impairment in the capacity for logical thinking, which deprived him of the ability to recognise that his actions were wrong, or the ability to reason with any measure of sense or composure about the wrongfulness of his actions.”

27. Professor Greenberg’s first report is far more extensive, and I will make greater reference to it when I revise this judgment for publication. However, in short, he received a reasonably consistent history from [the accused] and came to similar opinions to Dr Nielssen as to the accused’s mental state at the time of the killing.

28. Professor Greenberg’s conclusion was that [the accused] had a “mental health impairment” in that he was suffering from “[very late onset schizophrenia]” at the time of the killing. Specifically, he had delusional thoughts. Professor Greenberg believed, on balance, that the accused had an understanding of the nature and quality of his acts and may even have understood that his actions were “legally wrong”. However:

“[M]orally, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.”

29. Professor Greenberg set out, in some detail and with admirable clarity, the history of the delusional beliefs held by [the accused] in the period leading up to the events of [redacted]. He heard voices saying he was at risk, he was very concerned about his house being bugged and he thought he was being followed while he was driving. When he heard noises from tradesmen carrying out renovations in a neighbouring property, he thought they were the sounds of the builders torturing him; that they would “cut off [his] arms” and “grind glass in [his] eyes”. His mind extrapolated from actual events [interstate] involving his investment properties and the involvement of “bikies”, to a delusional belief that the “bikies” or some malevolent individuals “in cahoots” with the “bikies” were trying to drive him and his wife from their home of many years.

30. Professor Greenberg set out several interactions [the accused] had with Corrective Services and Justice Health staff after he was taken into custody. These included, in the immediate aftermath of the incident, an attempt at self-harm or even perhaps suicide. He had thrown himself from a bed and caused a head injury (to himself) and had cut his wrist with a piece of plastic on 11 October 2022. On 13 October 2022, [3] a “clinical nurse specialist” recorded a history that clearly enough provided evidence of persecutory delusions. [The accused] said in the weeks leading up to his arrests, he felt he was being followed, and heard voices in his head and now heard gunshots outside his cell. Over the next two days, he told the nurse that he was “currently hearing voices” and “could hear voices which were his own voice” and the voices told him he should be ashamed of himself and kill himself. Dr Eugene Ho saw the accused on 10 November 2022 and said he was “dishevelled and appeared irritable and preoccupied”. He spoke of domestic violence within his relationship which appears to be completely contrary to the agreed facts. One of [the accused’s] children told a psychiatric registrar that his father began to “express persecutory delusions since July 2022 and was acting out of character”. By the end of 2022 there was a solid and documented history of “chronic auditory hallucinations” and delusional thoughts reported by a wide variety of people and recorded in the notes which Professor Greenberg summarised in his report. [4]

    3. Wrongly recorded as 2023.

    4. This barely adequate summary of this part of Professor Greenberg’s report was added when revising the judgment.

29. The history continued in the early part of 2023, although the accused appeared at times to be avoidant and reluctant to talk about his thoughts. He was treated with anti-psychotic medication and his mental state began to improve. On 6 February he told Dr Andrew Watt he was enjoying AVL visits with his family but said, in retrospect, “I was talking to myself … [v]oices telling me that I was at risk … I was hearing voices … [h]iding in corners … [t]wo of my family told me to get help”. [5]

    5. This paragraph was added when revising the judgment.

30. In my assessment, this part of the history established two things. First, it added significant force to the opinions of the psychiatrists as to the “mental health impairment” afflicting the accused at the time of the killing. Secondly, it demonstrated that as he began to comprehend what he had done, [the accused] was wracked with guilt and viscerally remorseful to the point of wanting to take his own life. This impression was confirmed by the following statement by Senior Counsel at the hearing:

“DWYER: Yes, sorry, I beg your pardon. If your Honour enters that verdict, then you will. And so the time for this may be appropriate before or after, but if I just might say on the record, if you'll accept from me and my friend has no objection, [the accused] is truly terribly, terribly sorry for the loss. He is grief stricken himself but terribly, terribly sorry for the burden for his children and grandchildren and the loss that he has caused them. He lives with that every day and he did ask me if I could convey that to the Court and to them.” [6]

6. This paragraph was also inserted when revising the judgment.

33. An issue that jumped off the page when reading the psychiatric reports and the history of hearing voices and delusional beliefs, was the stark inconsistency with the things [the accused] told the police in the immediate aftermath of the killing. He said nothing about hearing voices, or of malevolent forces trying to drive him and his wife from the home, or of saving her from being burned alive. He told the police that he was drunk, that he and his wife had an argument about whether to sell the home because, in his view, they could not afford its upkeep, and that he strangled her as a result.

34. Clearly astute to this and several other issues, those representing the Director sent a series of challenging questions to Professor Greenberg and asked whether the matters raised impacted on his opinions. He provided a second report and responded in some detail to those questions. I will, in the published version of this judgment, set out in a little more detail the issues raised by the Director and addressed in Professor Greenberg’s supplementary report. However, for present purposes I will simply state that I accept Professor Greenberg’s manifestly reasonable responses to the matters raised. I will also say it was entirely reasonable and proper for the Director, who ultimately represents the community in this difficult and sensitive prosecution, to challenge the doctor’s opinions by reference to the various matters raised.

35. All of what follows was added in revising the judgment and represents a very short analysis of the questions raised by the Director and the responses in Professor Greenberg’s supplementary report:

1. The Director raised the failure of the accused to refer to his delusional thinking when first spoken to by police and referred to the police officers’ body worn video recording of what he said. Professor Greenberg said that “at face value” there is very limited evidence of delusional thinking in the initial exchanges with police. However, after a review of all of the relevant material there was no doubt about the diagnosis and the symptoms of delusions at the relevant time. There was a “plethora” of such information.

2. While the failure of the accused to raise hearing voices when he spoke to the police was relevant (in Professor Greenberg’s opinion), there was a sensible explanation for his failure to do so. It is possible that he did not at the time recognise that these were “voices” and thought they merely represented his own thinking or thoughts.

3. The evidence that the accused was “angry” about his wife’s refusal to sell the house was also relevant but Professor Greenberg believed the anger, and the extent of it, was closely related to his delusional belief that he and his wife were in danger.

4. The Director referred to evidence that there were – in fact – “bikies” involved in the [interstate] real estate conflict and asked the psychiatrist to comment on whether this undermined the diagnosis of delusional thinking. Professor Greenberg was of the view that this did not impact on his opinions because any belief that the “bikies” were involved in the Sydney property was clearly a delusion.

5. Professor Greenberg confirmed that he had taken into account the evidence of the [interstate] witnesses in formulating his report and details of those matters, and further evidence provided to him, did not impact on his opinions.

6. Professor Greenberg accepted that it was relevant that [the accused] had not spoken about hearing voices before he was arrested for murder but noted “it is not uncommon for paranoid psychotic individuals not to disclose these symptoms”.

7. Further statements provided by members of [the accused] family supported Professor Greenberg’s initial opinions. There was evidence that his children noted a change in their father’s mental health “as far back as 4 June 2022”.

8. In summary, nothing in the matters raised by the Director or in the additional evidence provided changed Professor Greenberg’s firmly held opinions. [7]

   7. As noted, this entire paragraph was added when revising the judgment.

Conclusions: the defence is established

36. I accept the joint position of the psychiatrists as to the “mental health impairment” suffered by [the accused]. I observe that at least part of what he told police appeared to be wrong, if not delusional, that is that he attempted to smother his wife with a plastic bag. That account is inconsistent with the findings at the scene and with the evidence of his [grandchild]. The findings of the forensic pathologist, as I understand it from the material before the Court, indicated that the post-mortem examination was unable to resolve this issue or contribute to it in any way. The lack of evidence at the scene and the account provided by his [grandchild], bravely given, satisfied me that there was no plastic bag. It is also significant that there was no previous incident of domestic violence in the fifty years of the marriage and that other family members had noted a change in the accused’s mental health around a year before the incident. So what I described in the opening part of this judgment as a “seemingly inexplicable” killing can be explained and it can be explained in this case by one thing and one thing only and that is the mental health impairment suffered by [the accused] at the relevant time

37. I have commenced, as I am legally required to do, with the presumption that [the accused] did not suffer from a “mental health impairment” at the time. I have cast the burden of proof on him.

38. Based on all of the evidence I am satisfied on the balance of probabilities that [the accused] had a “mental health impairment” at the time of his wife’s killing. He was delusional and psychotic as a result of late onset schizophrenia. He was deprived of the capacity to reason clearly or with a moderate degree of sense and composure. I am thoroughly satisfied that he did not know that what he was doing was wrong.

39. If this were a trial by jury, I would be required to direct the jury in accordance with s 29 of the Act. It is customary for judges sitting alone to provide themselves with the same warnings and directions as those provided to a jury in criminal proceedings. [8] I am aware of the legal consequences of a finding that the defence of “mental health impairment” is established. [The accused] will not walk out of the door of the gaol in which he is held because he is found not to be criminally responsible. I have ignored the consequences of the finding I am about to announce and have simply applied the facts as I find them to the applicable legal tests.

    8. Cf Criminal Procedure Act 1986 (NSW), s 133(3).

Special verdict

40. For those reasons, I will enter a special verdict that the act is proven but that [the accused] is not criminally responsible.

The anguish of the killing on the family of both the victim and the accused [9]

9. What follows is a brief summary of the procedures that followed the entry of a special verdict. It was added in revising the judgment.

41. In accordance with s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court was privileged to receive the statements of the accused’s [redacted] children after the special verdict was announced.

42. These statements were harrowing to listen to and the emotion in the courtroom was palpable. The impact on the entire family has been utterly shattering. The children are grief stricken and the grandchildren have lost both their grandmother and grandfather.

43. As I indicated to the family in Court, I had no words capable of doing anything to relieve their grief and anguish. I was however very grateful that they provided this information to the Court and impressed by the courage shown in providing it. I can only hope that their pain abates over time and that each member of the family take comfort in the fact that they have each other and the closeness of the family left behind to deal with this bewildering loss.

44. While, in the circumstances of the case, the victim impact statements had no impact on the orders the Court could make, I did add a recommendation that the family be heard in any hearing conducted by the Mental Health Review Tribunal.

Orders consequent on the entry of a special verdict.

45. Considering the evidence in the case, I am not satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered by [the accused’s] release: s 33(3) of the Act. Accordingly, I will make the orders contended for by both parties which accord with the provision in s 33(1) of the Act.

Orders (and recommendation)

46. I make the following orders:

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 seven days.

5. That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within seven days.

6. That the Registrar provide the Mental Health Review Tribunal with a copy of this judgment, orders and exhibits tendered within seven 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 seven 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), that members of [the accused’s] family be heard in any hearing conducted by the Mental Health Review Tribunal.

Non-publication orders

Local Court orders

47. The Local Court made a non-publication order by consent in the following terms:

“1. The Court makes the following final non publication order pursuant to section 10 of the Court Suppression and Non Publication Orders Act 2010, prohibiting publication of;

a. Anything that tends to identify the identity of a child witness who was present at the premises where the alleged offence particularised in charge sequence 2 - H91158252 occurred.

b. Anything that tends to identify the identity of the accused person charged with sequence 2 - H91158252.

c. Anything that reveals the facts comprising the allegations the subject of charge sequence 2 - H91158252

2. The order is made on the grounds that the order is necessary to protect the safety of a person; s 8(1)(c) Court Suppression and Non Publication Orders Act 2010

3. The order applies to publication of the information referred to at 1(a) and 1(b) throughout Australia

4. The order applies until 5pm on 13 September 2034”

[Emphasis in original.]

48. That order has not been vacated or varied and neither party sought any variation or revocation of the order.

Statutory prohibition on publication

49. The child in question cannot be named by operation of ss 15A(1)(b) or (c) of the Children (Criminal Proceedings) Act 1987 (NSW). Naming the child under that section includes publishing “any information, picture or other material that identifies the person or is likely to lead to the identification of the person”: s 15A(5). It is at least arguable, if not clearly the case, that naming the victim, the accused or any of their family members may constitute a breach of the terms of ss 15A(1) and (5). Such a publication may give rise to a criminal sanction including imprisonment for up to one year: s 15A(7).

Interim orders made at the conclusion of the hearing in this Court

50. At the conclusion of the hearing, I made an interim non-publication order pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Suppression and NPO Act”) that there is to be no publication of anything that occurred at the hearing. Those redactions have been made.

Final orders under the Suppression and NPO Act

51. Final orders, if any, needed to be made “as a matter of urgency”: s 10(2). I questioned the necessity of the order in light of the provisions in s 15A and indicated that this judgment is to be published on legal websites and that there is a strong public interest in open justice. However, I invited submissions from the parties, or a joint submission if (as it appeared) the parties shared the opinion, that such an order was “necessary”. That question remained outstanding at the time of providing this judgment in draft to the parties for their submissions on what, if any, redactions or modifications are needed to protect the identity of the child or otherwise.

52. I received extremely helpful submissions from Senior Counsel for the accused (marked in chambers, along with accompanying documents, as MFI 4). I also received an email from a solicitor employed by the Office of the Director of Public Prosecutions (MFI 5). The email suggested several redactions to this judgment.

53. It is not appropriate to provide detail of the material received with Senior Counsel’s submissions as it contains personal and sensitive information about children and the family. That material will be placed in a sealed envelope and marked “not to be opened except by order of a judge of this court or a higher court”.

54. I am persuaded, in the unusual and tragic circumstances of the case, that there should be restrictions on publication and some suppression orders. This is to protect the welfare of the children and other family members or, in the words of s 8(1)(c) of the Suppression and NPO Act, to protect their safety. As Ms Dwyer submitted, “safety” is not limited to physical harm and might include psychological harm: cf AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [59].

55. The evidence attached to Senior Counsel’s submission amply justifies making some orders to protect the welfare of the children and other family members. In reaching that decision, I have taken into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”: Suppression and NPO Act, s 6. I have also applied the strict test of necessity required by s 8. While there is a statutory prohibition on identifying the children, I accept Ms Dwyer’s submission that the orders proposed will ensure there is no inadvertent breach of that prohibition (for example) by identifying the accused or the victim: cf Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 at [26] and R v Hutchinson, Wilkinson & Greentree (No 3) [2018] NSWSC 1758.

56. I am not persuaded that the orders should be so wide as to order “non-publication” of “anything that reveals the facts comprising the allegations the subject of the indictment”. Such an order would prevent publication of this judgment on legal websites and its legitimate use by lawyers and judges. I propose to modify the orders to prevent more general publication but to allow the publication of the judgment on legal websites and for the purposes of litigation and legal study.

57. For those reasons, I make the following orders:

1. A suppression order over the name of the deceased and the accused and the adults who provided victim impact statements.

2. A non-publication order over anything that tends to identify the accused in the indictment signed 4 December 2023.

3. Apart from publication on legal websites and law reports, and/or for the use in litigation, research and academic study, a non-publication order over the facts, allegations and evidence adduced at the hearing in the Supreme Court on 8 March 2024.

4. For the purpose of this order (4), a redacted version of this judgment will be published on Caselaw NSW. An unredacted version will be placed on the court file.

5. These orders are made pursuant to s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) and are necessary to protect the safety of certain people.

6. Pursuant to s 11, the orders will have effect throughout the Commonwealth of Australia.

7. Pursuant to s 12, the orders will remain in force for a period of 10 years form the date of the special verdict.

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Endnotes

Decision last updated: 18 March 2024