R v Kennedy - [2025] NSWDC 251

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kennedy [2025] NSWDC 251
Hearing dates: 27 June 2025
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction: Criminal
Before: Anderson SC DCJ
Decision:
See [70] - [72]

Catchwords:
CRIME – aggravated break and enter and specially aggravated break and enter.
CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders
MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)
Road Transport (Driver Licensing) Regulation 2017 (NSW)

Cases Cited:
R v Munday No 3 (2021) NSWDC 629
R v Porter (1933) 55 CLR 182

Category: Principal judgment
Parties: Rex (Crown)
Faron Kennedy (Offender)
Representation:
Counsel:
Mr N Ashby (Crown, ODPP Dubbo)
Mr M Stone (Trial Advocate, ALS Walgett)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s): 2024/00012707

JUDGMENT

Background

The accused, Faron Kennedy, is alleged to have committed three offences, an aggravated break and enter contrary to s 112(2) of the Crimes Act and a specially aggravated break and enter contrary to s 112(3) of the Crimes Act. There was also a related offence before the Court under s 166 of the Criminal Procedure Act, being that he was a learner driver unaccompanied when he was driving, an offence contrary to s 15(1)(a) of the Road Transport (Driver Licensing) Regulation 2017. I note that that last charge has now been withdrawn by the Crown and it will be formally dismissed by me when I make my final orders.
Mr Kennedy entered a plea of not guilty on the grounds of act proven but not criminally responsible. Mr Kennedy filed an election seeking to have his trial heard before a judge sitting alone, pursuant to s 132A of the Criminal Procedure Act. An order to that effect was made by me today, 27 June 2025, it having been raised with the Court on 12 May 2025.
Before turning to the evidence, it is appropriate to set out in summary some of the legal principles that will still apply in this case.

Legal Principles

This being a criminal trial it is the Crown that carries the burden of proving the guilt of the accused with the offences, with the standard of proof being that of beyond reasonable doubt.
The accused has the benefit of the presumption of innocence. He was not required to give evidence and no inference adverse to him may be drawn by the fact that he did not. Where the defence of mental health impairment has been raised, the Crown must still prove beyond reasonable doubt that the accused undertook the physical elements of the charges. The defendant in this case does…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kennedy

Details

AGLC: R v Kennedy [2025] NSWDC 251
Case: [2025] NSWDC 251
Decision Date: 27 June 2025

CaseChat Overview and Summary

In the matter of R v Kennedy, the respondent faced charges related to aggravated and specially aggravated break and enter offences. The case was heard by the court, which was tasked with determining the respondent's criminal responsibility given the defence of cognitive impairment. The court had to decide whether the respondent was criminally responsible for the alleged offences and, if not, what appropriate consequential orders should be made. The court was required to consider the evidence presented regarding the respondent's cognitive impairment and its impact on their criminal responsibility.

The legal issues before the court involved assessing the defence of cognitive impairment and determining the appropriate legal consequences if the respondent was found not to be criminally responsible. The court had to establish whether the respondent's cognitive impairment met the threshold for a finding of not criminally responsible and, if so, consider the implications for their future liberty and treatment. The court also had to weigh the evidence and decide on the most appropriate orders under the mental health legislation to ensure the respondent's well-being and public safety.

The court concluded that the respondent's cognitive impairment was significant enough to render them not criminally responsible for the offences. Given the findings, the court ordered that the respondent be referred to the Mental Health Review Tribunal for further assessment and potential conditional release. The court made clear that the respondent's current medical evidence supported the appropriateness of conditional release, taking into account the need for continued treatment and supervision to manage the respondent's condition and mitigate any risk to the community. The orders were designed to balance the respondent's right to liberty with the imperative to protect public safety.

Orders

Orders of the court

See [70] - [72]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Kennedy [2025] NSWDC 251
Hearing dates:	27 June 2025
Date of orders:	27 June 2025
Decision date:	27 June 2025
Jurisdiction:	Criminal
Before:	Anderson SC DCJ
Decision:	See [70] - [72]
Catchwords:	CRIME – aggravated break and enter and specially aggravated break and enter. CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) Road Transport (Driver Licensing) Regulation 2017 (NSW)
Cases Cited:	R v Munday No 3 (2021) NSWDC 629 R v Porter (1933) 55 CLR 182
Category:	Principal judgment
Parties:	Rex (Crown) Faron Kennedy (Offender)
Representation:	Counsel: Mr N Ashby (Crown, ODPP Dubbo) Mr M Stone (Trial Advocate, ALS Walgett) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number(s):	2024/00012707