REGINA v MASSEI [2005] NSWSC 1030

New South Wales Supreme Court

REGINA v MASSEI [2005] NSWSC 1030 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 13/5/05, 24/6/05, 8/7/05, 13/8/05, 3/8/05, 12/8/05, 2/9/05

JUDGMENT DATE : 2 September 2005

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : Proceedings adjourned for twelve months; Bail to continue; Liberty to the parties to apply to vary bail.

CATCHWORDS : Sentence - manslaughter - mental illness - significance - time limits for orders under s11 Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900 s23A LEGISLATION CITED : Crimes (Sentencing Procedure) Acrt 1999 s11 Mental Health (Criminal Procedure Act 1990 s38

CASES CITED : Maxwell v The Queen (1995-1996) 184 CLR 501

Regina

PARTIES : v

Marcelo Dario MASSEI

FILE NUMBER(S) : SC 2003/97

Mr J Kiely SC - Crown COUNSEL : Mr W Terracini SC - Offender

I V Knight - Crown SOLICITORS : Vivian Evans, Uther Webster & Evans - Offender

LOWER COURT JURISDICTION :

Ex tempore - revised

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

ADAMS J

2 September 2005

2003/97 REGINA v Marcelo Dario MASSEI

JUDGMENT

1 HIS HONOUR: On 30 September 2002 Marcelo Dario Massei killed his wife Alejandra Rosa Massei in the bedroom of their home in Rockdale. On 19 July 2004 Massei pleaded not guilty to the charge of murder on which he was arraigned but guilty of manslaughter on the grounds of substantial impairment under s 23A of the Crimes Act 1900. The Crown accepted this plea in full satisfaction of the indictment on the basis that, although at the relevant time Mr Massei intended to kill his wife, the Crown agreed that his capacity at that time to control himself and to judge right from wrong was so substantially impaired by an abnormality of the mind which arose from an underlying condition that his liability for murder was justifiably reduced to manslaughter. 2 The acceptance by the Crown of Mr Massei's plea was, of course, based upon psychiatric opinion obtained from Dr Ellard, a very well qualified and experienced psychiatrist retained by the Crown. In due course the medical opinion available to the Crown or, at least, the Crown's view of that opinion developed somewhat and an application was made that I should reject the plea and permit the Crown to present a fresh indictment against Mr Massei to enable the question whether there should be a special verdict under s38 of the Mental Health (Criminal Procedure) Act 1990. The Crown, in effect, submitted that the correct outcome of such a trial would be the acquittal of the accused upon the grounds of mental illness. For reasons sufficiently set out in my judgment of 13 July 2005, I rejected this application. 3 This brief history is sufficient to show that this case is not a simple one.