Citation: R v O'Donnell [2026] NSWDC 243
Court: District Court of New South Wales
Date: 29 June 2026
Judge: Montgomery DCJ
Background
The defendant faced an indictment containing two counts arising from separate wounding incidents. The first involved stabbing his brother six times, driven by paranoid delusions that his brother had been sexually involved with the defendant's former partner and that this was being broadcast through a microchip implanted in his brain. The second involved wounding a Corrections Officer, prompted by a delusional belief that officers had poisoned his food with faecal matter.
Both incidents were connected to a long-standing and highly treatment-resistant mental illness, identified by the two expert psychiatrists as chronic schizophrenia (and in one expert's opinion, paranoid schizophrenia). The defendant had suffered from this condition since youth, with substance abuse also forming part of his history.
The parties agreed to proceed by way of Special Hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The defendant pleaded not guilty on arraignment and was represented by both solicitor and counsel throughout.
Legal Issues
- Whether the physical elements of each offence were proven beyond reasonable doubt
- Whether, on the balance of probabilities, the defendant had a mental health impairment at the time of each offence that meant he did not know his actions were wrong within the meaning of s 28(1)(b) of the Act
- What order was appropriate following a special verdict of act proven but not criminally responsible, pursuant to s 33 of the Act
Decision
Issue 1: Fitness to be tried
Both psychiatrists agreed that the defendant had sufficient capacity to understand the proceedings and his plea options. He understood the charges and pleaded not guilty on arraignment. The court noted this common ground as a preliminary matter before proceeding to the Special Hearing.
Issue 2: Physical elements of the offences
Montgomery DCJ was satisfied beyond reasonable doubt that the physical elements of both counts were established. Count 1 involved wounding by stabbing, and count 2 involved wounding of the Corrections Officer, both facts being agreed on the evidence.
Issue 3: Mental health impairment defence
The court accepted the agreed expert opinions of Dr Richard Furst and Dr Rafe Pulley. Both psychiatrists concluded that, at the time of each offence, the defendant's schizophrenia had the effect that he could not reason with a moderate degree of sense and composure about whether his acts were wrong as perceived by reasonable people. His actions were driven by active paranoid delusions and auditory hallucinations. Montgomery DCJ was satisfied on the balance of probabilities that the defence under s 28(1)(b) was made out for both counts, and entered a special verdict of act proven but not criminally responsible in relation to each count.
Issue 4: Appropriate order under s 33
The court found that the only appropriate order was detention under s 33(1)(b). The defendant's mental health impairment persisted at the time of the hearing, remained highly treatment-resistant, and the expert evidence described a cycle of psychotically driven aggression and resulting harsh restrictions that in turn worsened his paranoia. Neither party opposed the detention order. Montgomery DCJ ordered that the defendant be detained at the Long Bay Hospital Mental Health Ward, Long Bay Correctional Centre, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.
Orders Made
- Special verdict entered on each count: act proven but not criminally responsible
- Order made under s 33(1)(b) that the defendant be detained at Long Bay Hospital Mental Health Ward, Long Bay Correctional Centre, or such other place as determined by the Mental Health Review Tribunal from time to time, until released by due process of law
- Defendant referred to the Mental Health Review Tribunal pursuant to s 34 of the Act
- Registrar directed to deliver the Exhibit A bundle (including the reports of Dr Furst and Dr Pulley) to the Tribunal
Key Takeaways
- Under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a person is not criminally responsible for an offence if, at the time of the act, a mental health impairment had the effect that 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 it was wrong. This question is determined on the balance of probabilities.
- A special verdict of act proven but not criminally responsible does not require a finding of unfitness to stand trial. The defendant here was found fit to be tried, yet the special hearing procedure still applied because both parties agreed the mental health impairment defence was established.
- Where the defendant's treatment-resistant mental illness persists at the time of the hearing and expert evidence describes ongoing risk driven by active psychosis, a detention order under s 33(1)(b) may be the appropriate outcome following a special verdict.
- Following a special verdict and detention order, s 34 of the Act requires referral to the Mental Health Review Tribunal, which then has the power to determine placement going forward.
- The District Court emphasised that the two psychiatric reports, though commissioned by different parties, reached materially consistent conclusions, and that agreement between Crown and defence experts on the essential questions significantly shaped the court's approach.
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31, 33, 34
Cases:
- No cases were cited in the judgment.