Citation: R v Delaney [2026] NSWSC 1003
Court: Supreme Court of New South Wales
Date: 21 August 2026
Judge(s): Dhanji J
Background
The accused was charged with the murder of his sister at Cambridge Park between 2 and 9 June 2020. The two had lived together in a granny flat on a shared family property. The prosecution alleged that the accused struck the deceased repeatedly to the head with a hammer, causing her death, before leaving the property and spending several days at hotels and friends' houses before voluntarily admitting himself to a hospital.
The accused initially pleaded guilty in 2022 and was sentenced to 21 years' imprisonment with a non-parole period of 15 years and 9 months. The Court of Criminal Appeal granted leave to appeal and quashed that conviction in June 2025, finding that a miscarriage of justice had occurred because the accused had pleaded guilty on the basis of expert opinion and legal advice that misunderstood the definition of "mental health impairment" under the applicable legislation: Delaney v R [2025] NSWCCA 76. The matter was remitted for retrial.
Following the remittal, the accused pleaded not guilty and elected to be tried by judge alone. Shortly before the trial was to commence in August 2026, both the Crown and defence agreed that the evidence established a defence of mental health impairment. The matter then proceeded as a hearing under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act).
Legal Issues
- Whether the Act applied to an offence alleged to have been committed before the Act's commencement on 27 March 2021, where proceedings were commenced after that date.
- Whether the physical elements of murder were proved by the Crown beyond reasonable doubt.
- Whether the defence of mental health impairment under s 28 of the Act was established on the evidence, such that a special verdict of act proven but not criminally responsible should be returned.
Decision
Issue 1: Application of the Act to pre-commencement offences
Dhanji J applied the reasoning in R v Tonga [2021] NSWSC 1064, which confirmed that the Act's legislative scheme applies to offences alleged to have occurred before its commencement where the relevant proceedings were commenced after 27 March 2021. That condition was satisfied here, so the Act governed the proceeding.
Issue 2: Physical elements of murder
Before turning to the defence, the Court confirmed it was required to be satisfied that the Crown had proved the physical elements of murder beyond reasonable doubt. On the basis of the agreed statement of facts, Dhanji J was so satisfied. The agreed facts described the accused striking the deceased repeatedly with a hammer and a course of conduct in the days that followed, including transfers of money from her accounts and repeated departures from the property.
Issue 3: Defence of mental health impairment
Section 31 of the Act permits a court to return a special verdict where both parties agree the proposed evidence establishes the defence, the accused is legally represented, and the court is satisfied after considering the evidence. The first two conditions were met. Dhanji J then considered the agreed tender bundle, which included multiple psychiatric reports from Dr Anthony Samuels and Dr Olav Nielssen prepared between 2022 and 2026. The Court was satisfied that the defence under s 28 of the Act was established, and that the accused did not bear criminal responsibility for the act. A special verdict was accordingly returned.
Orders Made
- A special verdict of act proven but not criminally responsible was entered on the murder charge.
- The accused is to be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (s 33(1)(b) of the Act).
- The accused is referred to the Mental Health Review Tribunal (s 34 of the Act).
- The victim impact statements of four family members are to be provided to the Mental Health Review Tribunal (s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
- The Registrar is to notify the Mental Health Review Tribunal and the Justice Health and Forensic Mental Health Network of the orders as soon as practicable, and to provide each body with the reasons for verdict and the exhibits, including the agreed facts and psychiatric reports.
Key Takeaways
- Under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a court may return a special verdict of act proven but not criminally responsible without a full trial where both parties agree the evidence establishes the mental health impairment defence, the accused is legally represented, and the court is independently satisfied the defence is made out.
- Following R v Tonga, the Act applies to pre-commencement offences where criminal proceedings were commenced after the Act took effect on 27 March 2021.
- A court conducting a s 31 hearing must first be satisfied that the Crown has proved the physical elements of the charged offence beyond reasonable doubt before considering the availability of the mental health impairment defence.
- The special verdict does not result in an acquittal in the ordinary sense. The accused remains subject to detention and ongoing oversight by the Mental Health Review Tribunal rather than being unconditionally released.
- Victim impact statements received in a s 31 hearing are formally acknowledged under s 30L(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and are transmitted to the Mental Health Review Tribunal as part of the post-verdict process.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) , ss 30L, 30N
- Crimes Act 1900 (NSW), s 18
- Criminal Procedure Act 1986 (NSW), s 132
- Evidence Act 1995 (NSW), s 191
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 34
Cases
- Delaney v R [2025] NSWCCA 76
- R v Delaney [2022] NSWSC 1327
- R v Lim [2026] NSWSC 378
- R v Siemek (No. 1) [2021] NSWSC 1292
- R v Tonga [2021] NSWSC 1064