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District Court 11 June 2026

R v BELCHER

[2026] NSWDC 204

Assault & violence
CRIME VIOLENT OFFENCES CRIMINAL PROCEEDINGS DEFENCE OF MENTAL HEALTH IMPAIRMENT WHETHER S 31 IS ENGAGED

Citation: R v Belcher [2026] NSWDC 204
Court: District Court of New South Wales
Date: 11 June 2026
Judge(s): Turnbull SC DCJ

Background

The accused was charged with one count of wounding with intent to cause grievous bodily harm, and two further matters on a section 166 certificate: assault occasioning bodily harm and intimidation with intent to cause fear of physical or mental harm. The complainant was the accused's brother. The accused had a long-standing diagnosis of schizophrenia and had ceased taking his medication after his treating physician retired, having been unmedicated for approximately three years at the time of the alleged offending.

On 30 December 2024, the complainant attended the accused's home in Windsor with the intention of encouraging him to accept mental health treatment. During that visit, the accused became agitated when the complainant raised the subject of mental health services, produced a small knife, and slashed the complainant across the face, jaw, neck, and head, causing significant wounds. The complainant sustained additional cuts to his hand while trying to restrain the accused. Neighbours intervened and emergency services were called.

Following his arrest, the accused was assessed at Blacktown Hospital. Clinicians noted that he appeared thought-disordered, held paranoid and bizarre delusions, and posed a risk of harm to others. The central question before the District Court was whether section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) was engaged, which would allow the court to return a special verdict of act proven but not criminally responsible.

  • Whether the preconditions in section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 were satisfied on the evidence.
  • Whether the court's power to enter a special verdict under section 31 is mandatory once those preconditions are met, or whether the court retains a discretion to decline.
  • Whether agreement by the parties as to the application of section 31 is itself determinative, or whether the court must form its own independent view.

Decision

Issue 1: Whether section 31 was engaged

The court considered psychiatric evidence from two experts, Dr Adam Martin and Dr Sathish Dayalan. Both assessed the accused as suffering from chronic schizophrenia and concluded that his mental health impairment substantially impaired his capacity to reason about the lawfulness of his conduct and to control his actions at the time of the offending. The accused had been unmedicated for approximately three years, and his mental state at the time of the offending and at arrest was consistent with active psychosis. The court was satisfied, on the evidence, that the conditions in section 28 of the Act were met and that section 31 was therefore engaged.

Issue 2: Whether agreement by the parties is determinative

Both the Crown and the defence agreed that a special verdict under section 31 should be entered. The court examined whether that agreement removed any need for independent judicial assessment. Drawing on the Court of Criminal Appeal's reasoning in Hancock v R [2025] NSWCCA 213 and the High Court's observations in Warren v Coombes (1979) 142 CLR 531, Turnbull SC DCJ concluded that the court is not simply bound by the parties' agreement. The court must form its own independent view on the evidence before entering a special verdict.

Issue 3: Whether the power under section 31 is mandatory or discretionary

The court held that once the preconditions in section 31 are established, the provision operates mandatorily rather than conferring a discretion to decline to enter the special verdict. The court also examined the legislative history of the Act, including the second reading speech and the NSW Law Reform Commission Report 138, to confirm this interpretation. The accused's conduct in relation to Count 1 (wounding with intent) and Sequence 3 on the section 166 certificate (intimidation) satisfied the preconditions. Sequence 2 (assault occasioning bodily harm) was withdrawn and dismissed by the Crown.

Orders Made

  • A special verdict of act proven but not criminally responsible entered under section 31 of the Act for:
  • Count 1: wounding with intent to cause grievous bodily harm
  • Sequence 3 (section 166 certificate): intimidation with intent to cause fear of physical or mental harm
  • The accused is to be detained in a correctional facility, or such other place as the Mental Health Review Tribunal determines, until released by due process of law (section 33(1)(b) of the Act).
  • The accused is referred to the Mental Health Review Tribunal (section 34 of the Act).
  • The Registrar is to notify the Minister for Health, the Mental Health Review Tribunal, and the Justice Health and Forensic Mental Health Network as soon as practicable, providing each with the judgment, orders, transcript, and expert reports of Dr Martin and Dr Dayalan.
  • Sequence 2 (assault occasioning bodily harm) withdrawn and dismissed.

Key Takeaways

  • Under section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, once the preconditions for a mental health impairment defence are established on the evidence, the District Court held that entry of a special verdict is mandatory rather than discretionary.
  • A court is not bound by the parties' agreement that a special verdict should be entered. The court must independently assess the evidence and satisfy itself that the statutory preconditions are met before acting under section 31.
  • Where both forensic psychiatrists agree that a diagnosed mental illness substantially impaired the accused's capacity to reason about the lawfulness of conduct and to exercise self-control, that expert consensus will be significant to the court's independent assessment.
  • The judgment reaffirms that the special verdict of "act proven but not criminally responsible" is not an acquittal in the conventional sense: it triggers a separate regime of ongoing detention and review by the Mental Health Review Tribunal.
  • Chronic untreated mental illness, here schizophrenia with no medication for three years following a change in treating practitioners, formed the factual foundation for the successful invocation of the defence.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31, 33, 34
- Criminal Procedure Act 1986 (NSW), s 132
- Victims Rights and Support Act 2013 (NSW), s 6

Cases
- Hancock v R [2025] NSWCCA 213
- Warren v Coombes (1979) 142 CLR 531
- Bugmy (No 2) [2026] NSWSC 70