R v Maissin [2009] NSWSC 203

New South Wales Supreme Court

CITATION : R v Maissin [2009] NSWSC 203

HEARING DATE(S) : 20 February 2009

JUDGMENT DATE : 27 March 2009

JUDGMENT OF : Fullerton J

DECISION : Not guilty of murder by reason of mental illness. I order his detention in accordance with s 39 of the Mental Health (Criminal Procedure) Act until released by due process of law.

CATCHWORDS : CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - insanity and mental impairment - disease of the mind, mental disease or mental infirmity

LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990

CATEGORY : Principal judgment

PARTIES : The Crown Jean Claude Maissin

FILE NUMBER(S) : SC 2008/12420

COUNSEL : C Everson (Crown) C Smith

SOLICITORS : Director of Public Prosecutions (Crown) G Elks

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

FULLERTON J

27 MARCH 2009

2008/12420 R v JEAN CLAUDE MAISSIN

JUDGMENT 1 HER HONOUR: On 11 March 2008, after a number of patients from the Rozelle Hospital raised the alarm, the deceased, David Zidansek, was found by staff seriously injured having sustained multiple stab wounds. Jean Claude Maissin was charged with his murder on that day. 2 On 6 February 2009 Mr Maissin was arraigned before Barr J and pleaded not guilty after which, with the consent of the Crown, his trial was set down without a jury pursuant to s 132 of the Criminal Procedure Act 1986. 3 On 20 February 2009 Mr Maissin was re-arraigned before me and pleaded not guilty to the murder of David Zidansek on the ground of mental illness as provided for in s 22 of the Mental Health (Criminal Procedure) Act 1990 ("the Act"). 4 The sole issue in the trial was whether I was satisfied Mr Maissin should be acquitted of murder on the grounds of mental illness pursuant to the provisions of s 38 of the Act. Although at the time of the attack that resulted in the death of the deceased Mr Maissin acknowledged some appreciation that he had done the wrong thing, the Crown did not seek to persuade me that a special verdict ought not be entered in this case. No oral evidence was called in the proceedings either by the Crown or Mr Maissin. 5 By consent, and without objection, the Crown tendered a bundle of material containing a number of witness statements, a transcript of an interview between police and Mr Maissin and medical reports. Given the nature of the proceedings, however, the critical documents were the report of Dr Olav Nielssen dated 21 November 2008, tendered on behalf of Mr Maissin, and the report of Dr Rosalie Wilcox dated 22 January 2009, tendered by the Crown. 6 The reports reflect a uniformity of opinion to the effect that at the time of the fatal stabbing Mr Maissin was suffering from a mental illness that deprived him of the capacity to consider the moral or legal consequences of his behaviour. 7 Accordingly, as provided for in s 38 of the Act, I found Mr Maissin not guilty of the murder of David Zidansek by reason of mental illness and ordered his detention in accordance with s 39 of the Act until released by due process of law. 8 After entering the verdict I indicated that I would publish reasons in support of that finding. The balance of this judgment constitutes those reasons.