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District Court 28 May 2026

R v Barbera (a pseudonym)

[2026] NSWDC 225

Assault & violenceDomestic & family violence

Citation: R v Barbera (a pseudonym) [2026] NSWDC 225
Court: District Court of New South Wales
Date: 28 May 2026
Judge: Sutherland SC DCJ

Background

The accused (referred to by a pseudonym throughout proceedings) faced two primary charges arising from her assault of her 11-month-old son on 28 July 2023: common assault (Count 1) and assault occasioning actual bodily harm (Count 2), with common assault as an alternative to Count 2 (Count 3). The assaults were captured on high-quality CCTV footage recorded inside a friend's apartment and included repeated slapping, smothering, and placing the accused's weight on the infant's face and neck. The child sustained bruising and soft tissue injuries confirmed by a paediatrician.

In August 2024, a separate judge found the accused unfit to be tried and determined she would remain unfit for the following 12 months. After the NSW Director of Public Prosecutions elected to proceed under s 53(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the matter came before Sutherland SC DCJ on 18 May 2026 as a Special Hearing.

A Special Hearing is the statutory mechanism under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that allows proceedings to continue where an accused has been found unfit to stand trial. The hearing determines whether the acts constituting the offences are proven and, if so, whether a statutory defence such as mental health impairment or cognitive impairment applies.

  • Whether the physical acts constituting Counts 1 and 2 were established on the available evidence
  • Whether the accused had a mental health impairment, a cognitive impairment, or both at the time of the assaults
  • Whether that impairment meant the accused either did not know the nature and quality of her acts (s 28(1)(a)) or did not know that her acts were wrong in the sense that she could not reason with a moderate degree of sense and composure about their wrongness (s 28(1)(b)) under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  • Whether the safety of the accused or any member of the public would be seriously endangered by her release

Decision

Physical acts established: The factual basis of the charges was not disputed. The court was satisfied on the available evidence that the physical acts constituting both Count 1 and Count 2 were proven. Given that finding, consideration of the alternative Count 3 was unnecessary.

Existence of impairment: It was not contested that the accused had a mental health impairment, a cognitive impairment, or both at the time of the assaults. The dispute centred on the legal consequences of that impairment, specifically whether either limb of s 28(1) was satisfied.

The s 28(1) defence: The court applied the longstanding legal test drawn from Dixon J's directions in R v Porter [1933] HCA 1, which underpins s 28(1)(b): the question is whether, through a disordered condition of the mind, the accused could not reason about the wrongness of the act with a moderate degree of sense and composure. The court was satisfied on the balance of probabilities that the defence of mental health impairment or cognitive impairment had been established in respect of both counts. Accordingly, special verdicts were entered: the acts were proven, but the accused was not criminally responsible.

Safety and release: The Crown initially submitted that the accused should be detained in a correctional facility pending determination by the Mental Health Review Tribunal. However, in light of a proposed community support plan and unchallenged oral testimony about reduced risk, the Crown withdrew that submission. The court was satisfied on the balance of probabilities that the safety of the accused and any member of the public, including her child, would not be seriously endangered by her conditional release.

Orders Made

  • Special verdicts entered under s 30 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in respect of Counts 1 and 2: acts proven, accused not criminally responsible by reason of mental health impairment or cognitive impairment
  • Accused conditionally released from custody on the following conditions:
  • Continue to reside at her current address with the Women's Housing Company, or such other address as organised or approved by them
  • Continue with mental health treatment, including psychological counselling as directed by her NDIS support worker and Gandangara Health Services
  • Continue to take medication as prescribed by medical practitioners at Gandangara Health Services
  • Comply with the Apprehended Violence Order made in favour of her son (the identified PINOP)
  • Accused referred to the Mental Health Review Tribunal
  • Registrar of the District Court directed to notify the Mental Health Review Tribunal of the orders and provide copies of the judgment, trial transcript, exhibits, and documents marked for identification

Key Takeaways

  • Under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person is not criminally responsible for an offence if, at the time of the act, a mental health or cognitive impairment meant they did not know the nature and quality of the act, or could not reason with a moderate degree of sense and composure about whether the act was wrong.
  • The statutory test in s 28(1)(b) reflects the common law formulation articulated by Dixon J in R v Porter [1933] HCA 1, confirming the continuity between the earlier common law defence and its modern statutory form.
  • In a Special Hearing, the physical commission of the acts constituting the offences is assessed separately from the question of criminal responsibility; a special verdict can be entered where acts are proven but the accused is not criminally responsible.
  • The burden of establishing the s 28 defence rests on the accused on the balance of probabilities.
  • Where unchallenged evidence supports a community-based management plan and reduced public risk, the District Court may order conditional release rather than remand in a correctional facility, with the matter referred to the Mental Health Review Tribunal for ongoing supervision.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 30, 53
- Evidence Act 1995 (NSW)

Cases
- R v Porter [1933] HCA 1; (1933) 55 CLR 182
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- R v Iusi Afele [2014] NSWSC 366
- R v Kirkman [2019] NSWSC 1826
- R v Mirza [2024] NSWDC 224