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 (A Pseudonym) 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]).