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Supreme Court 20 November 2025

R v Cummings

[2025] NSWSC 1371

Homicide
CRIMINAL LAW MURDER DEFENCE OF MENTAL ILLNESS TRAUMATIC STRESS DISORDER

Citation: R v Cummings [2025] NSWSC 1371
Court: Supreme Court of New South Wales
Date: 20 November 2025
Judge: Fagan J

Background

The accused was charged with the murder of a man at whose Nambucca Heads home she had been living as a paying housemate since approximately July 2024. The deceased's body was found on 22 August 2024 at a rural property some 70 kilometres away, wrapped in blankets and a surfboard bag. When police attended the shared address the following afternoon, the accused was present and voluntarily confessed to the killing, describing how she had strangled and stabbed the deceased before transporting his body.

The accused did not dispute that her acts caused the death. From the outset of proceedings, she indicated her intention to rely on the defence of mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The accused was diagnosed with schizophrenia, substance use disorder, and post-traumatic stress disorder. Her account to police contained assertions consistent with a paranoid delusional state, including statements about the deceased's conduct that the court accepted as reflecting delusional perception rather than reliable descriptions of actual events.

The matter proceeded as a judge-alone trial by consent under s 132(1) of the Criminal Procedure Act 1986 (NSW). Because both the Crown and the accused agreed, on the basis of two independent psychiatric reports, that the evidence established the mental health impairment defence, the trial took an abbreviated form under s 31 of the Mental Health Forensic Provisions Act.

  • Whether the accused had a "mental health impairment" within the meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) at the time of the killing.
  • Whether that impairment had the effect, under s 28(1)(b), that the accused could not reason with a moderate degree of sense and composure about whether her acts, as perceived by reasonable people, were wrong.
  • Whether the three conditions in s 31 were satisfied so as to permit the court to enter a special verdict of "proven but not criminally responsible" by agreement.

Decision

Both psychiatric experts retained by the parties, Dr Andrew Ellis (for the accused) and Dr Kerri Eagle (for the Crown), concluded that the accused was suffering from a mental health impairment at the time of the killing. The impairment arose from her schizophrenia, which constitutes a psychotic disorder under s 4(2)(c) of the Act. Fagan J accepted the factual premises underlying both experts' opinions and was satisfied on the balance of probabilities that the accused had the requisite mental health impairment.

The critical question under s 28(1)(b) was whether that impairment meant the accused could not reason with a moderate degree of sense and composure about whether her acts, as perceived by reasonable people, were wrong. Both experts reached the same conclusion on this point, conducting similar analyses of how the accused's schizophrenic delusional state prevented such reasoning. Dr Eagle did not share Dr Ellis's view that the accused also failed to know the nature and quality of her acts under s 28(1)(a), but this difference was immaterial because both doctors agreed the s 28(1)(b) condition was met.

Fagan J was satisfied on the balance of probabilities that, at the time of the killing, the accused could not reason with a moderate degree of sense and composure about whether her acts were wrong. All three requirements of s 31 were satisfied: the parties agreed the evidence established the defence, the accused was legally represented, and the court was independently satisfied the defence was made out.

Orders Made

  • Special verdict entered: "Proven but not criminally responsible" on the charge of murder.
  • The accused is to be detained at the Forensic Hospital, Malabar, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020).
  • The accused is referred to the Mental Health Review Tribunal (pursuant to s 34 of the Act).
  • The Registrar is directed to notify the Minister for Health within 7 days.
  • The Registrar is directed to notify the Mental Health Review Tribunal within 7 days and to provide a copy of the reasons for judgment and exhibits.
  • The Registrar is directed to notify Justice Health within 7 days and to provide a copy of the reasons for judgment and exhibits.

Key Takeaways

  • Under s 28(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the relevant test is whether, at the time of the acts, the accused could reason with a moderate degree of sense and composure about whether those acts, as perceived by reasonable people, were wrong.
  • A special verdict under s 31 requires three conditions to be satisfied: the parties agree that the proposed evidence establishes the defence, the accused is represented by an Australian legal practitioner, and the court is independently satisfied the defence is established.
  • The Supreme Court's role in a judge-alone trial under s 31 is not merely to rubber-stamp party agreement; the court must itself be satisfied on the balance of probabilities as to the factual premises and expert conclusions underlying the defence.
  • Where the impairment arises from a psychotic disorder such as schizophrenia, the presence of a co-existing substance use disorder does not automatically disqualify the accused from the defence, provided the impairment is not caused solely by a substance use disorder or the temporary effects of ingesting a substance, as excluded under s 4(3).
  • Statements made by an accused that reflect a delusional state are capable of being treated as evidence of that mental state rather than as reliable assertions of fact about other persons' conduct, as Fagan J confirmed in declining to make findings about the deceased's behaviour based on the accused's account.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 34
- Criminal Procedure Act 1986 (NSW), s 132(1)
- Mental Health Act 2007 (NSW)

Cases cited: No cases were cited in the judgment.