Citation: R v Watt [2025] NSWDC 443
Court: District Court of New South Wales
Date: 30 October 2025
Judge: Priestley SC DCJ
Background
The accused faced three counts arising from events at Tweed Heads on 18 September 2023. Count 1 alleged larceny of a knife set valued at $60 from Kmart Australia Limited. Count 2 alleged armed robbery of a key and motor vehicle from a private individual while the accused was armed with a knife. Count 3 was framed as an alternative to Count 2, alleging assault while armed with a knife with intent to take, and then taking and driving, the same vehicle without the owner's consent.
The matter proceeded as a judge alone trial by order made on 10 September 2025. From the outset, both the prosecution and the defence agreed that a mental health impairment defence under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) was established.
The accused did not contest that the physical elements of Counts 1 and 2 were made out. The Crown's evidence included uncontested CCTV footage and an electronically recorded interview. The court was left to determine whether the requirements for a special verdict of "act proven but not criminally responsible" under s 31 of the Act were satisfied.
Legal Issues
- Whether the physical elements of the charges were proved by the Crown beyond reasonable doubt
- Whether the mental health impairment defence under s 28 of the Act was established on the balance of probabilities
- How to resolve the procedural tension between the judge alone trial obligations under s 133 of the Criminal Procedure Act 1986 and the power to enter a special verdict at any stage under s 31 of the Act
- Whether the requirements of s 31 of the Act were satisfied so as to permit entry of the special verdict
- What orders were appropriate following entry of the special verdict, including those directed at public safety under s 33 of the Act
Decision
The court directed itself that the Crown bore the burden of proving the physical elements of each offence beyond reasonable doubt. The accused bore the burden of establishing the mental health impairment defence on the balance of probabilities. The physical elements of Counts 1 and 2 were not in dispute and the court was satisfied they were proved. The court also noted that the physical elements of Counts 2 and 3 were, in substance, identical, differing only in matters related to specific intent rather than physical conduct.
On the tension between s 133 of the Criminal Procedure Act 1986 and s 31 of the Act, the court followed the approach taken by Wilson J in R v Tonga [2021] NSWSC 1064. That approach recognises that where a judge alone trial is ordered but both parties agree the s 28 defence is established, the court retains its functions as tribunal of law, including the power under s 31 to enter a special verdict without providing the fuller findings of fact and directions ordinarily required by s 133. The court set out the fundamental directions appropriate to establishing the physical elements, but did not proceed to a full s 133 analysis.
The court was satisfied on the balance of probabilities that the accused suffered a mental health impairment at the time of the conduct. The impairment had the effect described in s 28(1)(b) of the Act, in that it deprived the accused of the capacity to know that her conduct was wrong. The judgment records that the accused was experiencing hallucinations and delusions concerning her children at the time of the offences. All three requirements of s 31 were met: the parties agreed the evidence established the defence; the accused was represented by an Australian legal practitioner; and the court was independently satisfied the defence was established.
Under s 32 of the Act, entry of the special verdict on Count 2 does not require a further special verdict on Count 3, which was framed as the alternative charge. The court accordingly confirmed that consideration of the s 28 defence in relation to Count 3 was unnecessary if the special verdict was entered on Count 2. Formal entry of the verdict was deferred at the parties' request, pending receipt of psychiatric evidence and submissions on the appropriate orders under s 33 of the Act concerning the accused's release and any conditions attaching to it.
Orders Made
• No formal orders will be made upon the publication of these reasons on 30 October 2025
• On 30 October 2025, the court will hear evidence and submissions concerning appropriate orders under section 33
• The court will return the special verdict and make such other orders as are found to be appropriate on either that day or an adjourned day
The judgment records that no formal orders were made upon publication of reasons on 30 October 2025. The court indicated it would hear evidence from a forensic psychiatrist and submissions from the parties on the same day, then return the special verdict and make orders under s 33 of the Act either that day or on an adjourned date.
Key Takeaways
-
Where both parties agree that a mental health impairment defence under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 is established, s 31 of that Act permits a court to enter a special verdict of "act proven but not criminally responsible" at any stage of the proceedings, including in a judge alone trial.
-
A tension exists between the comprehensive fact-finding obligations imposed on a judge in a judge alone trial by s 133 of the Criminal Procedure Act 1986 and the more streamlined path available under s 31 of the Act. Following R v Tonga, the District Court confirmed that the court retains its functions as tribunal of law even in a judge alone proceeding, and may exercise the s 31 power without producing a full s 133 judgment, provided the statutory preconditions are satisfied.
-
Under the Act, the accused bears the burden of establishing the mental health impairment defence on the balance of probabilities; the Crown is not required to disprove it beyond reasonable doubt.
-
Section 32 of the Act provides that entry of a special verdict on a principal charge does not automatically require entry of a special verdict on any alternative charge, reducing the scope of the court's inquiry once the principal charge is resolved.
-
Before any order for release can be made following a special verdict, s 33(3) of the Act requires the court to be satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered, which typically requires forensic psychiatric evidence.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 29, 31, 32, 33
- Criminal Procedure Act 1986 (NSW), s 133
Cases
- R v Jackson [2021] NSWSC 1404
- R v Tonga [2021] NSWSC 1064
- R v Kennedy [2025] NSWDC 251