R v Muldrock [2024] NSWDC 107

District Court New South Wales

Medium Neutral Citation: R v Muldrock [2024] NSWDC 107 Hearing dates: 5 April 2024 Date of orders: 12 April 2024 Decision date: 12 April 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [27] Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Sexual offences — sexual intercourse without consent Legislation Cited: Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: Fleming v The Queen (1998) 197 CLR 250 R v Presser [1958] VR 45 Category: Principal judgment Parties: Rex (The Crown) Derek Muldrock (The Offender) Representation: Counsel: Watts for Muldrock Hanna for the Crown File Number(s): 2022/00061030 Publication restriction: NA

JUDGMENT 1. Derek Muldrock (hereafter "the accused") as a result of events alleged to have occurred on 1 March 2022 was charged with a number of offences. Based on a charge certificate dated 15 September 2022 two matters are to proceed in this court. The first is a charge under section 112(2) of the Crimes Act alleging the offender did break and enter a dwelling and in the dwelling committed a serious indictable offence namely sexual assault in circumstances of aggravation namely that he knew there was a person present within the dwelling. In the alternative it is charged that on the same date he had sexual intercourse with the complainant without her consent and knowing she was not consenting. 2. The offender was arrested on 2 March 2022 and has remained in custody since that time. On 13 October 2023 he was committed for trial. On 4 December 2023 he was to be arraigned but that did not occur due to concerns raised as to his fitness. 3. On 4 December 2023 an order was made pursuant to section 40(1) and 42(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act ("the Act") that a fitness enquiry be conducted. 4. The evidence in this hearing consisted of a Crown bundle which became exhibit A. It included the charge certificate dated 15 September 2022, a Crown case statement, a report of forensic psychiatrist Dr Adam Martin of 18 March 2024, a large amount of material said to have been considered by Dr Martin which are in essence historical psychiatric and health records of the accused dating back as far as the year 2000 ("the historical material") and the accused's criminal history. The court was not taken to any part of this material apart from the report of Dr Martin with the court being invited to consider such of the historical material it might consider necessary to better understand Dr Martin's report. The accused relied on a report of a consultant neuropsychologist Dr Sally McSwiggan dated 13 February 2023. At the outset it can be noted that both the Crown and the accused's representatives are agreed that the reports of Dr Martin and Dr McSwiggan support a finding that the accused is unfit to be tried and further on the balance of probabilities during the 12 months after such a finding the accused may become fit to be tried for the matters of which he has been charged. 5. Should the court agree with that conclusion the accused will be referred to the Mental Health Review Tribunal for review and the exhibits in this matter will be forwarded to the Tribunal. In an effort to assist the tribunal it is noted that it was the view of the accused that the only evidence that is necessary for this hearing are the reports of Dr Martin and Dr McSwiggan, and that the Crown's view that the historical material should be provided would seem to be one of an abundance of caution. The Tribunal of course will consider such matters as they consider appropriate.