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Supreme Court 2 December 2025

R v Art

[2025] NSWSC 1450

Homicide
CRIME CHARGE OF MURDER DEFENCE OF MENTAL HEALTH IMPAIRMENT EVIDENCE BY FORENSIC PSYCHIATRISTS SPECIAL VERDICT CONSEQUENTIAL ORDERS

Citation: R v Art [2025] NSWSC 1450
Court: Supreme Court of New South Wales
Date: 2 December 2025
Judge(s): Walton J

Background

The defendant was charged with the murder of his housemate at a residential address in Russell Lea. In the days leading up to the offence, the defendant displayed markedly erratic behaviour, including an altercation at work, references to self-harm, walking into traffic while agitated, and expressing fears that someone was trying to kill him. He had also recently attempted to obtain anti-psychotic medication from a medical centre.

In the early hours of 27 June 2024, the defendant arrived home in an agitated and irrational state, armed with multiple weapons including a sword, knives, a claw hammer, and a meat cleaver. He accused his housemate of trying to have him killed and subjected her and another occupant to a prolonged and terrifying confrontation.

The defendant was charged with murder and, when arraigned on 1 August 2025, entered a plea of not guilty on mental illness grounds. Both the prosecution and defence agreed that the evidence established the defence of mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act").

  • Whether the three criteria under s 31 of the Act were satisfied, permitting the court to enter a special verdict without a jury trial.
  • Whether the evidence established, on the balance of probabilities, that the defendant had a "mental health impairment" as defined in s 4 of the Act at the time of the offence.
  • Whether that impairment had the effect under s 28(1)(b) of the Act that the defendant did not know the act of killing was wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
  • What orders were appropriate under ss 33 and 34 of the Act following the entry of a special verdict.

Decision

Walton J conducted an evidentiary inquiry under s 31 of the Act, consistent with earlier authority confirming that such a proceeding is not a trial. The court considered expert reports from two forensic psychiatrists: Dr Sathish Dayalan (retained by the defence) and Dr Adam Martin (retained by the Crown). The court also received an agreed joint exhibit bundle and documents relating to the defendant's criminal and custodial history, relevant to the consequential orders.

The court was satisfied that the first two criteria under s 31 were met: the prosecution and defence agreed the evidence established the defence, and the defendant was legally represented. The remaining question was whether the court itself, after considering the evidence, was satisfied the defence was established under s 31(c).

Applying the two-limb structure of s 28, as analysed in R v Siemek (No. 1) [2021] NSWSC 1292, the court found that both limbs were satisfied on the balance of probabilities. The defendant had a mental health impairment within the meaning of s 4 of the Act, and that impairment had the effect under s 28(1)(b) that he did not know the act of killing was wrong at the time of the offence.

On consequential orders, the court accepted that the defendant requires long-term, assertive psychiatric intervention. Walton J ordered detention in a correctional facility or such other place as determined by the Mental Health Review Tribunal, and referred the defendant to the Tribunal. Following the approach taken in R v Fineanganafo (No 2) [2024] NSWSC 1407, the court also recommended that family members of the deceased be afforded the opportunity to be heard in any Tribunal proceedings.

Orders Made

  • A special verdict entered under s 31 of the Act: the act of murder is proven, but the defendant is not criminally responsible.
  • The defendant to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal from time to time, until released by due process of law (s 33(1)(b) of the Act).
  • The defendant referred to the Mental Health Review Tribunal (s 34 of the Act).
  • The Registrar to notify the Mental Health Review Tribunal within 7 days and provide: a copy of the judgment and orders, a transcript of proceedings, the expert reports of Dr Dayalan and Dr Martin, copies of the Victim Impact Statements, and copies of exhibits.
  • The Registrar to notify the Justice Health and Forensic Mental Health Network within 7 days and provide: a copy of the judgment and orders, and copies of the reports of Dr Dayalan and Dr Martin.
  • The court recommends to the Mental Health Review Tribunal, under s 145 of the Act, that members of the deceased's family be heard in any hearing conducted by the Tribunal.

Key Takeaways

  • Under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a special verdict of "act proven but not criminally responsible" can be entered without empanelling a jury, provided the prosecution and defence agree that the evidence establishes the defence, the defendant is legally represented, and the court is independently satisfied the defence is made out.
  • A s 31 proceeding is an evidentiary inquiry, not a trial: the court must still examine the evidence and satisfy itself of the defence, rather than simply endorsing the parties' agreement.
  • The s 28 defence operates through two distinct limbs: the defendant must have had a mental health impairment at the time of the act, and that impairment must have produced one of the specified effects (here, that the defendant did not know the act was wrong).
  • "Not knowing the act was wrong" under s 28(1)(b) requires more than a subjective belief: the defendant must have been unable to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
  • Consistent with R v Fineanganafo (No 2), the Supreme Court reaffirmed the practice of recommending to the Mental Health Review Tribunal that family members of deceased victims be given the opportunity to be heard in subsequent Tribunal proceedings.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 34, 145
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30N(4)
- Mental Health Act 2007 (NSW)

Cases:
- R v Fineanganafo (No 2) [2024] NSWSC 1407
- R v Jackson [2021] NSWSC 1404
- R v Sands [2021] NSWSC 1325
- R v Siemek (No. 1) [2021] NSWSC 1292