R v JJ (a pseudonym)

[2025] NSWDC 321

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 2025

Date 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:
Mr Shaw (for the Crown)
Ms Moen (for the accused)

Solicitors:
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

1. 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.

2. 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:

1. she did not know the nature and quality of the act; or,

2. she did not know that the act was wrong.

3. 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

4. There is considerable evidence from experts in this…