R v JJ (a pseudonym)
[2025] NSWDC 321
•25 July 2025
District Court
New South Wales
Medium Neutral Citation: R v JJ (a pseudonym) [2025] NSWDC 321 Hearing dates: Special Hearing - 26, 27, 28, 29 May 2025
Mention - 25 June 2025
Judgment - 25 July 2025Date of orders: 25 July 2025 Decision date: 25 July 2025 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [12]
Catchwords: CRIME – Mental Health Impairment – Special Verdict
Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited: R v Miller [2022] NSWSC 802
R v Patterson (No 6) [2024] NSWSC 458
Category: Principal judgment Parties: The Crown (Rex)
JJ (a pseudonym)Representation: Counsel:
Solicitors:
Mr Shaw (for the Crown)
Ms Moen (for the accused)
Ms Lorizio (for the Crown)
Ms Manookian (for the accused)
File Number(s): 2023/00006391 Publication restriction: Non-publication and suppression order as to the name of the accused.
JUDGMENT
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The question in this matter is whether the accused is entitled to a defence of mental health impairment, as defined under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW):
28 Defence of mental health impairment or cognitive impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
(2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.
(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.
(4) In this Part, act includes—
(a) an omission, and
(b) a series of acts or omissions.
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The experts, Dr Chew and Dr Nielssen agreed that the accused suffered from a mental health impairment. The question was whether or not that impairment had the effect that:
she did not know the nature and quality of the act; or,
she did not know that the act was wrong.
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The other issue which arose was due to the fact that the accused had consumed alcohol prior to the offending. That engaged for consideration the exception to the definition on mental health impairment in s 4(3) of the act:
“(3) A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.” (emphasis added)
EVIDENCE
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There is considerable evidence from experts in this matter. I do not intend to refer to all of it as, in my view, the opinion of the two main experts substantially merged during the concurrent evidence on the 29th of May 2025. I am, however, grateful to the Crown for the detailed summary of the experts reports and the evidence given in Court, to which I have had regard.
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In the course of the concurrent evidence, the following exchanges occurred at [T157.31]-[T158.02]:
“HIS HONOUR: So the first point of difference is in relation to 3? I'll just read the bold section. So, it seems the experts both agree that s 28 is engaged either by reason of it being a dissociative episode or by reason of there being an acute emotional arousal experience by a person with borderline personality disorder. Is that the correct interpretation of the report, doctors?
WITNESS NIELSSEN: If I speak first. Look, it is the correct interpretation. I guess it just depends on whether the - the effect of alcohol excludes the use of that section, but we certainly both agree about the underlying disorder, but I’ll leave it to Dr Chew to confirm that.
WITNESS CHEW: Yes, I--
HIS HONOUR: Dr Nielssen, before you pass on to Dr Chew, you had previously been of the opinion that the accused was suffering from some sort of alcohol induced amnesia. Have you now adjusted your opinion in light of further consideration?
WITNESS NIELSSEN: No. I think it says there I just can’t exclude one or the other. I mean, certainly alcoholic amnesia is quite - seemed quite likely given the history that I got but - but similarly I can’t exclude that it was some sort of emotional reaction, called a dissociation.”
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And, at [T158.32]-[T159.10]:
“HIS HONOUR: Can I ask you a very direct question? You have just agreed that s 28 is engaged based on the evidence subject to s 28 being available in circumstances of alcoholic intoxication. Is that correct?
WITNESS NIELSSEN: Yes.
HIS HONOUR: Putting to one side whether legally it’s excluded in those circumstances, you both agree then the accused is entitled to the benefit of s 28?
WITNESS NIELSSEN: Well, again, I’ll let Dr Chew speak for himself but I think that was certainly my - my opinion. You know, she had a condition that - that affected her - her ability to consider the wrongfulness of her actions right at that moment.
HIS HONOUR: And that is whether it’s the full dissociation episode or alternatively simply an acute emotional arousal experience by her given her background of borderline personality disorder?
WITNESS NIELSSEN: Yes. Yeah, it is a - it’s a well-documented condition in her case and a - and it’s a disabling condition when it’s unstable and - and a severe condition and - and so, yes, that is my opinion.
HIS HONOUR: Thank you, and Dr Chew, is that also your opinion?
WITNESS CHEW: Yes. Yes, I concur with that opinion. I think, yes, it’s certainly more straightforward if it was dissociation but even if it was just intense anger and rage and emotional dysregulation, I think - I think that she does, you know, meet - have s 28 open to her, yes.”
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The experts were then directed to consider which of the two subparagraphs in s 28(1)(a) and (b) apply (at [T159.12]-[T159.50]):
“HIS HONOUR: And just to be clear, the question under s 28 is that she is; “Not criminally responsible for an offence if at the time of carrying out the act constituting the offence she had a mental health impairment” - that’s agreed - “and it had the effect that the person, A, either did not know the nature and quality of the act or, B, did not know the act was wrong”. And in brackets it says, “That is, the person could not reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong”. So, did she come within both or just one of those categories?
WITNESS CHEW: If - if she’s dissociated she comes within both, quite clearly.
HIS HONOUR: Yes, and if she--
WITNESS CHEW: If she is - if she is in an intense borderline range and emotion is dysregulation it’s more the ability to reason with a moderate sense of composure that what she’s doing is wrong in that moment, in that very instant. There’s very poor impulse control and difficulty with regulating one’s actions and emotions.
HIS HONOUR: So, do you say that if it’s just the emotional dysregulation given her borderline personality disorder she would know the nature and quality of the act?
WITNESS CHEW: I think she would, yes.
HIS HONOUR: Dr Nielssen, do you agree?
WITNESS NIELSSEN: Again, there’s a considerable impairment in her awareness in that acute state but - but clearly there’s some - there’s some purposeful action in the sense of identifying the people that have been attacked and finding the - the weapon so I’m assuming, given the very high threshold for not knowing the nature and quality of her acts, she would have known the nature and quality of her action even if she doesn’t remember it.
HIS HONOUR: Right.
WITNESS NIELSSEN: However, I agree with the - that the second leg would be met, that knowledge of wrong and her ability to reason with sense of composure was - she was deprived of that at that moment.”
FINDINGS
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Based upon that evidence I find that the accused is not criminally responsible as at the time of carrying out the act constituting the offences, she had a mental health impairment that had the effect that she did not know the act was wrong (s 28(1)(b)). That is, that the accused could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
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The question then remains whether s 4(3)(a) disentitles the accused to the beneficial effect of s 28. In order for that exclusion to operate, the evidence would need to establish on the balance of probabilities that the accused’s impairment was caused solely by the effect of alcohol (see R v Miller [2022] NSWSC 802 at [53]-[62] per Cavanagh J; R v Patterson (No 6) [2024] NSWSC 458 at [5] per Dhanji J).
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I accept the submission of Counsel for the accused that the onus of establishing s 4(3) lies on the party relying upon the exception, on the balance of probabilities. There is no evidence from either of the expert psychiatrists called in this matter that the impairment was caused solely by the consumption of alcohol. The highest the evidence went is that alcohol may have “amplified” the underlying mental health impairment. It is on this basis that I find that alcohol was not the sole cause of the accused’s impairment.
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Accordingly, for each of the counts on the indictment, I return a special verdict.
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Section 33 then needs to be considered, in particular, whether the accused is likely to seriously endanger the safety of herself or any member of the public. That was raised with the experts during their concurrent evidence (at [T160.39]-[T161.43]), as follows:
“CROWN PROSECUTOR: Doctors, section 33, paragraph 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act requires the Court to consider whether the release of the defendant is likely to serious endanger the safety of the defendant or any member of the public. Given you’ve had access to her hospital records and her history of treatment - perhaps I’ll ask you first, Dr Nielssen. Can you express an opinion as whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public and what conditions you would recommend be placed upon her pending her being placed before the Mental Health Review Tribunal?
WITNESS NIELSSEN: Yes. I mean, I have considered this in advance, so - so my opinion would be that, you know, she’s been on bail without endangering herself or the public for some time, and that the bail conditions haven’t done her any harm whatsoever, which is the condition of sobriety. So I - I don’t foresee any serious risk to herself or the public if she were to continue with those conditions, so with the standard conditions of conditional release, there’s 20 standard conditions - 20 or so standard conditions that are imposed by the Mental Health Review Tribunal that will review her care, and the particular ones that I would recommend are complete abstinence from alcohol, to be checked with ETG tests.
Now, I can’t tell you off the top of my head what it is but it’s a very sensitive test for recent use of alcohol, and - and also ongoing participation in appropriate counselling, and she did quite well with the DBT program, so either enrolment in a DBT program or at least enrolment with a one-to-one counsellor with experience in supporting people with her condition. So, they’d be the two specific conditions that I would add to the 20 standard conditions.
HIS HONOUR: Yes. Dr Chew, do you agree?
WITNESS CHEW: Look, I don’t disagree with anything Dr Nielssen has said. I however want to - to make a proviso that I haven’t actually turned my mind to a - a formal risk assessment for the - for this purpose, and all I’ve had access to - obviously a lot of material and - and - and reviewed her, I haven’t turned my mind in a - in a formal way using any risk assessment tools or anything like that. I guess the - the other comment I have is I - my understanding of the system is, often with disposition, the - Justice Health New South Wales was very helpful and they had the Community Forensic Mental Health Service who I believe does disposition reports, like, very in-depth reports with recommendations for disposition and follow-up and treatment. That’s my understanding of - of part of the system and they provide that - I understand they provide that service for anyone who has this - this verdict, and whether it’s on bail on the - in the community or - or in custody.
CROWN PROSECUTOR: Dr Chew, just on the fact that you said you haven’t had access to material, does the fact, as Dr Nielssen has noted, the accused has been on bail and hasn’t committed further offences a matter of some materiality in assessing whether she’s likely to endanger the safety of herself or others?
WITNESS CHEW: It definitely points very much to a low - obviously that she has been low risk, but I - as I - as I said, I haven’t - you know, I haven’t turned my mind formally, like, in - with a formal risk assessment and - and the usual process, using, for example, tools like the HCR20 and things like that, but I - I do agree with everything Dr Nielssen said.”
ORDERS
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Accordingly, pursuant to s 33(1) I make the following orders:
that the accused be referred to the Mental Health Review Tribunal for review;
that the Mental Health Review Tribunal have close regard to the recommendations made by Dr Nielssen in his evidence at [T160-161];
I direct a copy of the transcript of the evidence of the hearing and all of the exhibits be provided to the Mental Health Review Tribunal.
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Decision last updated: 19 August 2025
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