REGINA v MASSEI [2005] NSWSC 695

New South Wales Supreme Court

CITATION : REGINA v MASSEI [2005] NSWSC 695

HEARING DATE(S) : 13/05/05, 24/06/05, 13/07/05

JUDGMENT DATE : 13 July 2005

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : Motion refused; Conviction for the crime of manslaughter confirmed.

CATCHWORDS : Murder - plea to manslaughter accepted - whether Crown may withdraw acceptance - fresh evidence that accused mentally ill - whether acquittal following trial in interests of justice - Crown application refused

Crimes Act 1900 s23A LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 ss38, 39

BWM 1991 A Crim R 260 Maxwell v The Queen 1995-1996 184 CLR 501 CASES CITED : R v M'Naghten (1843) 8 ER 718 R v Porter (1926) 55 CLR 182

Regina PARTIES : v Marcelo Dario MASSEI

FILE NUMBER(S) : SC 2003/97

Mr J P Kiely SC (Crown) COUNSEL : Mr W C Terracini SC (Offender)

Mr Ian Knight (Crown) SOLICITORS : Uther Webster & Evans (Offender)

LOWER COURT JURISDICTION :

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

ADAMS J

Wednesday 13 July 2005

70079/03 REGINA v Marcelo Dario MASSEI

JUDGMENT

1 HIS HONOUR: On 19 July 2004 the accused, Marcelo Dario Massei, was arraigned upon an indictment charging him with the murder of Alejandra Rosa Massei. His plea was not guilty of murder but guilty of manslaughter. The Crown prosecutor accepted that plea of manslaughter in satisfaction of the indictment. I then formally entered a conviction of manslaughter. The prosecutor tendered a large volume of material and indicated that it was intended to call, when the sentence hearing resumed, a psychiatrist, Dr John Ellard, to give evidence about matters not disclosed in his report. The prosecutor said that the plea to manslaughter was accepted by the Crown – "On the basis of [the accused's] not being able to distinguish from right to wrong, lacking the capacity to distinguish right from wrong at that time." 2 It was submitted by the prosecutor that this did not amount to a complete defence in the circumstances of this case although "it is close". The defence of mental illness, as expressed in R v M'Naghten (1843) 8 ER 718 arises where "the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong" (see also R v Porter (1926) 55 CLR 182 at 188). On the face of it, it is difficult to see how, if the accused lacked the capacity to distinguish right from wrong, the defence did not arise. In an area of the law bedevilled by fine distinctions, I must confess that the nuance articulated by the prosecutor's qualification escapes me. At all events, the prosecutor foreshadowed (as I understood him) that Dr Ellard would give evidence explaining the distinction sought to be made. The prosecutor expressly indicated that the Crown accepted that the accused suffered substantial impairment by way of an abnormality of his mind under s23A of the Crimes Act 1900. Mr Terracini SC, for the accused, confirmed that the plea of guilty to manslaughter was proffered upon the grounds that the accused's criminal acts, otherwise amounting to murder, should result in a conviction of manslaughter by virtue of s23A. 3 Mr Terracini indicated that there was additional medical evidence which he wished to present on the accused's behalf in due course but that he was not presently in a position to do so. Accordingly, the further hearing of the sentence proceedings was adjourned. 4 For various sufficient reasons the hearing was substantially delayed. In due course, the matter came back before me on 13 May 2005. The Crown called Dr Ellard, who gave the following evidence – "Q. Doctor, just one or two questions, if I may? Insofar as your assessment of the prisoner, did you form any opinion as to whether he understood the nature and quality of his act as at the time he killed his wife? A. Well, I believed that he knew that he was killing her but he was psychotic at the time.