R v BB [2022] NSWSC 1698

Supreme Court New South Wales

Medium Neutral Citation: R v BB [2022] NSWSC 1698 Hearing dates: 12 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Common Law Before: Wilson J Decision: 1. With respect to the offence of murder charged against the accused by the indictment dated 1 August 2022 the Court returns the special verdict of act proven but not criminally responsible pursuant to Section 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW). Catchwords: CRIME – murder – defence of mental health impairment – availability of the special verdict where defendant and prosecutor agree that evidence establishes a mental health impairment – s 31 Mental Health Cognitive Impairment Forensic Provisions Act – post-natal depression – bipolar disorder Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) Evidence Act 1995 (NSW) Category: Principal judgment Parties: Rex BB Representation: Counsel: A Robertson (Crown) R Pontello SC (Accused)

Solicitors: Solicitor for Public Prosecutions NSW (Crown) Madison Marcus (Accused) File Number(s): 2021/31275 Publication restriction: Nil

Judgment 1. HER HONOUR: This is a matter which involves the alleged murder of a child. Section 15A(1)(c) of the Children (Criminal Proceedings) Act 1987 (NSW) applies, and prohibits publication of the name of the deceased. Because of that provision, and of the operation of s 15A(5) of that Act, it is intended to refer in this judgment to the both the deceased and the accused by pseudonyms. 2. Having been arraigned before this Court on 5 August 2022 on an indictment charging her with the murder of an eight week old baby (who will be referred to as Baby Z) the accused, Ms BB, appeared for trial before the Court sitting without a jury on 12 December 2022. 3. Rather than proceed to trial the parties advised the Court that they agreed that the evidence establishes a defence of mental health impairment, and the Court was asked to proceed pursuant to s 31 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act"). 4. On the basis of the evidence contained within Exhibit A, that was clearly an appropriate course for the Court to take.