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Supreme Court 26 August 2026

R v Graham

[2026] NSWSC 1017

Homicide
CRIMINAL LAW MURDER INDUCED PSYCHOSIS CANNOT BE EXCLUDED DID NOT KNOW HER ACT WAS WRONG SPECIAL VERDICT ENTERED CRIMINAL LAW VICTIM IMPACT STATEMENTS

Citation: R v Graham [2026] NSWSC 1017
Court: Supreme Court of New South Wales
Date: 26 August 2026
Judge: Lonergan J

Background

The accused was a homeless woman with a documented history of mental illness and methamphetamine use. In late October 2023, she had been staying with an old friend in Muswellbrook after the friend allowed her to move in from the streets. Between 28 and 30 October 2023, the accused killed her host by stabbing her multiple times to the head and neck.

In the days immediately before the killing, witnesses observed the accused behaving erratically in public: pulling her hair, speaking incoherently, claiming to be a police officer, and saying things such as "don't shape shift on me." Police had been called to incidents involving her, and she had been assessed by paramedics. Following her arrest on 30 October 2023, she was scheduled under the Mental Health Act 2007 (NSW) and admitted to a psychiatric emergency care ward, where she was treated with multiple antipsychotic medications before being discharged to police custody on 8 November 2023.

The matter came before the Supreme Court for a hearing under section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") to determine whether a special verdict of "act proven but not criminally responsible" should be entered. Both the prosecution and the accused's lawyers agreed that the special verdict was appropriate, based on the opinions of two expert psychiatrists.

  • Whether the accused was suffering from a "mental health impairment" within the meaning of the Act at the time of the killing
  • Whether the exception in section 4(3) of the Act applied, which excludes from the definition of mental health impairment an impairment caused solely by substance use disorder or intoxication
  • Whether the accused's impairment meant she did not know her act was wrong, or did not understand its nature and quality, satisfying section 28 of the Act
  • Whether a special verdict of "act proven but not criminally responsible" should be entered under section 31 of the Act

Decision

Issue 1: Mental health impairment at the time of the killing

Both psychiatrists, Professor Greenberg and Dr Furst, agreed that the accused was suffering from schizophrenia at the time she killed the deceased. Professor Greenberg noted an additional diagnosis of chronic substance use disorder, which meant he could not entirely exclude the possibility of drug-induced psychosis contributing to her condition. Despite this complexity, both experts agreed on the central conclusion: that the accused was suffering from a mental health impairment as defined by the Act.

Issue 2: The substance use exception under section 4(3)

Section 4(3) of the Act excludes from the definition of mental health impairment any impairment caused solely by substance use disorder or intoxication. Lonergan J found that this exception did not apply. Because the accused was suffering from schizophrenia, her impairment was not caused solely by substance use disorder or intoxication. The presence of an independent psychotic illness meant the statutory exclusion had no operation.

Issue 3: Knowledge of wrongfulness and understanding of the act

Having found that the accused suffered from a qualifying mental health impairment, the court was satisfied that she was unable to reason with a moderate degree of sense and composure about whether her act was wrong. She did not know her act was wrong within the meaning of section 28 of the Act. Professor Greenberg also expressed the view that she did not understand the nature and quality of her actions. Both psychiatrists and the parties jointly supported the conclusion that she was not criminally responsible.

Issue 4: Victim impact statements

Following the entry of the special verdict, the court received victim impact statements from the deceased's sister and daughter. Lonergan J acknowledged the profound grief expressed in those statements, including the particular complexity of the daughter's grief arising from a troubled and unresolved relationship with her mother. The court recorded its condolences to the deceased's family and friends.

Orders Made

  • A special verdict pursuant to section 31 of the Act of "act proven but not criminally responsible" is entered for the murder of the deceased in October 2023.
  • The accused is to be detained in a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, pursuant to sections 33 and 34 of the Act.
  • The Registrar of the Supreme Court is to notify the Mental Health Review Tribunal of the verdict and orders within 7 days, and provide copies of the orders, reasons, and exhibits.
  • The Registrar is to notify Justice Health and the Forensic Mental Health Network and provide copies of the orders, reasons, and exhibits within 7 days.
  • The charges of intimidation and damage to property are withdrawn.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the exclusion in section 4(3) for impairments caused solely by substance use disorder or intoxication does not apply where an accused is also suffering from an independent mental illness such as schizophrenia, even if substance use disorder co-exists as a diagnosis.
  • A special verdict of "act proven but not criminally responsible" requires the court to be independently satisfied that the statutory criteria are met, even where both the prosecution and defence are in agreement; the hearing under section 31 is not merely a formality.
  • Schizophrenia causing an accused to be unable to reason with a moderate degree of sense and composure about the wrongfulness of an act satisfies the mental health impairment defence under section 28 of the Act.
  • Following a special verdict, the court retains an important function in receiving and acknowledging victim impact statements, including those involving grief of a complex and deeply personal character.
  • Upon entry of a special verdict, the Supreme Court is required to notify the Mental Health Review Tribunal, Justice Health, and the Forensic Mental Health Network, with the Tribunal then responsible for ongoing detention and review decisions.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW)
- Mental Health Act 2007 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Not stated