R v Jensen

1. [1]

   HIS HONOUR: On 16 February 2026, the accused, Morten Birkegaard Jensen, was arraigned before me on indictment dated 16 February 2026, which charged that, on 9 April 2023, at Merrylands in the State of New South Wales he did murder Erin Mullavey (“the deceased”) (“the alleged offence”). When arraigned, the accused pleaded not guilty.

2. [2]

   The accused advanced his plea on the basis of the defence of mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Forensic Provisions Act”). The overwhelming majority of the evidence in the trial was directed to this issue, and so too were the parties’ submissions.

3. [3]

   The accused had previously applied for an order for a trial by judge alone. The Crown consented on 1 September 2025 and, in accordance with s 132 of the Criminal Procedure Act 1986 (NSW), Hamill J made orders on 5 September 2025 for the trial to proceed in that manner.

4. [4]

   Consequently, no jury was empanelled. As the tribunal of fact, I am responsible for determining the question of the accused’s guilt in this case. In doing so, I must comply with s 133 of the Criminal Procedure Act, which is set out in the following terms:

5. [5]

   The requirements created by ss 133(2) and (3) of the Criminal Procedure Act are, as the High Court held, legal imperatives. [1] More is required than simply setting out the legal principles and the findings of facts. Rather, the High Court in Fleming held that the judgment must expose “the reasoning process linking [the legal principles with the findings of fact] and justifying the latter and, ultimately, the verdict that is reached.” [2]

6. [6]

   As the following reasons reveal, I have decided that the act is proved but the accused is not criminally responsible. In reaching that ultimate verdict, I have acted impartially and dispassionately as I am so obliged. However, I also recognise that no order of the Court can reverse what the accused did to Ms Mullavey. Her death was tragic. Nor can I undo the lasting devastation the accused’s actions have inflicted upon Ms Mullavey’s family and friends. This trial has concerned a tragic set of circumstances and, clearly, there was nothing logical about the accused’s violent and fatal actions on 9 April 2023.

Section 29 of the Forensic Provisions Act

1. [7]

   Where the defence of mental health impairment under the Forensic Provisions Act is in issue, s 29 requires explanations to be given for the jury’s understanding before a conclusion on the accused’s criminal responsibility is reached. I intend to give those necessary explanations publicly even though there is no jury in this trial.

2. [8]

   To this end, s 29 provides the following:

3. [9]

   If my verdict is “not guilty”, the accused walks from the Court a free person and the criminal process comes to an end – though, a “not guilty” verdict to both murder and manslaughter is not reasonably open in this case. If my verdict is “guilty of murder” or “not guilty of murder but guilty of manslaughter”, the Court will determine the appropriate punishment to impose upon the accused.

4. [10]

   If I determine a special verdict of “act proven but not criminally responsible”, neither of those things happen. Instead, the law provides for a process of review, to determine whether the accused poses a risk to himself or to others, and whether he should be released into the community or detained and treated.

5. [11]

   If I am satisfied that the safety of the accused and members of the community will not be seriously endangered by the accused’s release into the community, he can be released, either unconditionally, or with conditions, such as a requirement that the accused accept medical treatment, or live at a particular place. If I conclude that it is not appropriate to release the accused into the community at present, I can order his detention until it is safe to release him. Detention can be in a prison, a secure hospital or some other facility, and it would continue until the Mental Health Review Tribunal (“the Tribunal”) decided that the accused could be released.

6. [12]

   The Tribunal is a special body with expertise in this area. It has members rather than judges, but the members of the Tribunal are all people with special qualifications and expertise. They include judges or senior lawyers, but also medical and other professionals, such as psychologists and psychiatrists.

7. [13]

   The Tribunal will review the accused’s situation regularly and will not order the release of the accused until it is satisfied the safety of the accused or any member of the public would not be seriously endangered. Until that time, the accused would be held in a secure place, where medical treatment can be provided.

8. [14]

   I must not be influenced by the consequences of a special verdict of act proven but not criminally responsible in deciding a verdict.

The onus and standard of proof

1. [15]

   In criminal trials, the Crown almost always bears the onus of proof where the standard of proof is beyond reasonable doubt. With few exceptions, the accused in a criminal trial has no obligation to prove anything. However, an exception does arise in this case. It concerns the defence of mental health impairment under the Forensic Provisions Act, which must be proved by the accused to the lesser standard, being proof on the balance of probabilities.

2. [16]

   Section 28 of the Forensic Provisions Act outlines the defence of mental health impairment:

3. [17]

   In order for the accused to prove that he falls within s 28(1), he needs to prove that, at the time he killed the deceased, he had a “mental health impairment” (there is no issue live in this case that the accused had a “cognitive impairment”). Section 4 describes what a “mental health impairment” is in the following terms:

4. [18]

   The accused must establish that he has a mental health impairment within s 4(1), but if the evidence discloses either of the matters in s 4(3) and the Crown seeks to argue that s 4(3) applies, the onus is on the Crown to show that, more probably than not, the impairment was caused solely by either one of those matters. [3]

5. [19]

   The Court of Criminal Appeal recently confirmed that the following directions provided by Dhanji J in Patterson (No 6) should be accepted as the preferred directions in circumstances where an accused relies on a mental health impairment and the Crown relies on sub-s (3), which in this case it does: [4]

6. [20]

   Until the defence is in fact proved, it is presumed that the accused did not have a mental health impairment. [5]

The elements of the charge

1. [21]

   Murder, consistent with the definition of that offence in s 18 of the Crimes Act 1900 (NSW), is made out where it is proved beyond reasonable doubt that:

2. [22]

   In this case, there is really no issue at all that the Crown has established the first element of murder. It is accepted between the parties that the accused attended the deceased’s apartment in Merrylands and viciously attacked her with a bladed weapon, causing her death.

3. [23]

   If, as I do, I find the first limb or element of the offence of murder proven to the requisite criminal standard, it is for the accused to prove on the balance of probabilities that he is not criminally responsible for the offence charged by reason of the defence of mental health impairment.

4. [24]

   Where the defence of mental health impairment is raised in a prosecution for murder, as it is here, no question of intent arises for determination if the accused is not criminally responsible for his act. [6] In any case, given the nature of the wounds inflicted, I have no difficulty in finding that, when the accused stabbed the deceased in each instance, he did so intending to at least cause grievous bodily harm or, in all likelihood, death.

5. [25]

   If the accused does not satisfy me that he is not criminally responsible because of a mental health impairment, or if the Crown proves that the impairment was caused solely by either of those matters in s 4(3) of the Forensic Provisions Act, then I would need to consider whether the accused is guilty of murder or otherwise guilty of manslaughter by operation of s 23A of the Crimes Act.

Manslaughter

1. [26]

   Section 23A of the Crimes Act provides the following:

2. [27]

   As I have said, it will only be necessary to consider the application of s 23A of the Crimes Act if the accused fails to establish the defence of mental health impairment. If this becomes necessary, the accused must prove on the balance of probabilities that he is not liable to be convicted of murder but guilty only of manslaughter by reason of s 23A.

Impartiality

1. [28]

   In considering the evidence and the ultimate verdict, I must act impartially and dispassionately. I must not let my judgment be swayed by mere emotion or prejudice or sympathy. They have no role to play in the determination of this case. Even though the events that culminated in the tragic loss of the deceased’s life are very disturbing, I must not let that tragedy lead me to make conclusions that are not based on a completely dispassionate evidence-based assessment. Nor can I shirk the making of important judgments because of the consequences of those judgments. I must act in accordance with law. If I am wrong about the law, I can be corrected on appeal.

Right to silence

1. [29]

   When the accused was arrested, he declined to participate in a record of interview but asserted to the police that he “… had [nothing] to do with it” and that they “… had the wrong guy”. [7] Clearly, that assertion was false. Nevertheless, that disclaimer has limited relevance. It is just one fact that needs to be considered in the broader context of whether the accused has established the defence of mental health impairment, and more specifically whether, in accordance with s 28(1)(b), the accused did not know that killing the deceased was wrong (in the sense that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). At trial, the Crown Prosecutor specifically directed my attention to this false assertion as a way to demonstrate the accused was reasoning properly about how wrong his acts were (for the purpose of s 28(1)(b)), together with other evidence from both before and after the alleged offence. Notwithstanding this, and for reasons that I will explain throughout this judgment, I am convinced on balance 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.

2. [30]

   The accused did not give evidence in this trial. But nor was there any obligation upon him to do so. He was entitled not to participate in police questioning and he was entitled not to give evidence at trial. These decisions cannot be used against him in any way at all during the course of my deliberations. They certainly do not constitute an admission of guilt.

3. [31]

   Nor should I draw any inferences or reach conclusions based on his failure to give evidence. I cannot fill gaps that I might otherwise have thought to exist in the evidence because of the accused’s decisions to invoke his right to silence. Those decisions do not strengthen the Crown case or help the Crown prove the accused’s guilt beyond reasonable doubt.

Inferences

1. [32]

   I am entitled to draw inferences from the direct evidence. In a criminal trial like this, where proof of the offence is required beyond reasonable doubt, I direct myself that I should not draw any inference adverse to the accused from the direct evidence unless I am satisfied that it is the only rational inference in the circumstances.

2. [33]

   In this trial, various matters need to be proved or disproved under ss 4 and 28 of the Forensic Provisions Act – with shifting onuses of proof. [8] Inevitably, I will be required to draw inferences which are reasonable and allow for a conclusion on the balance of probabilities. This accords with, and I direct myself pursuant to, the following direction given by Campbell J in Mavin: [9]

Tendency and bad character evidence

1. [34]

   The Crown tendered evidence that suggested the accused has served time in custody for unrelated criminal charges. Some of the evidence might suggest the accused had tendencies to act in a particular way or to have particular states of mind. But the Crown has not sought to use any of this evidence either for the purposes of demonstrating that the accused is a person of bad character or for any tendency-related purpose. The evidence of the accused’s previous interactions with the criminal justice system was tendered solely to assist the Court to understand the context in which the relevant acts were committed and to provide insight into the factual chronology in which decisions about whether the accused had a mental health impairment need to be made.

The expert evidence

1. [35]

   Only two witnesses gave oral evidence in this trial. Those witnesses were forensic psychiatrists Dr Andrew Ellis and Dr James Baée. Their opinion evidence naturally formed the overwhelming focus of the parties’ oral submissions.

2. [36]

   In my view, there was a remarkable degree of conformity between the experts’ opinions. Despite that they diagnosed the accused differently, they both held a unanimous opinion that the accused, at the time of the alleged offence, suffered from a mental health impairment, as defined by s 4(1) of the Forensic Provisions Act. Dr Ellis stated that the most likely diagnosis was schizophrenia, while Dr Baée diagnosed the accused as suffering from a drug induced psychosis. Irrespective of their differing diagnoses, they were both firmly of the view that the accused suffered from a mental health impairment at the time of the alleged offence and, more specifically, both diagnoses could be described as a psychotic disorder.

3. [37]

   The two experts also opined that the accused’s mental health impairment had the effect that he could not reason with a moderate degree of sense and composure about whether his killing of the deceased was wrong – as perceived by reasonable people (s 28(1)(b) of the Forensic Provisions Act). They also opined that the accused’s mental health impairment was not caused solely by the temporary effect of ingesting a substance, or by a substance use disorder (s 4(3) of the Forensic Provisions Act).

4. [38]

   In my view, the evidence of both Dr Ellis and Dr Baée is determinative. While I am not bound to accept and act upon expert evidence, I am not entitled to disregard it capriciously. [10]

5. [39]

   If the medical evidence is unanimous, I cannot reject that evidence (as the tribunal of fact) in the absence of other material which casts some doubt on it. [11] Or, as Dhanji J directed the jury in Patterson (No 6) recently: [12]

6. [40]

   In the course of submissions, the Crown Prosecutor suggested that there is in fact evidence that casts doubt upon the medical evidence concerning the accused’s capacity to determine that his acts were wrong and whether there was more than one cause of the diagnosed psychotic condition. For the reasons that I will articulate further below, I disagree with the Crown’s submissions in these respects.

7. [41]

   But briefly, although there is evidence to suggest that the accused had some degree of understanding that, by killing the deceased, he would be liable for criminal punishment, I am satisfied on the balance of probabilities that at the time of the killing his ability to reason was so impaired that he could not reason with a moderate degree of sense and composure about the wrongfulness of his acts, as a reasonable person would perceive them to be.

8. [42]

   Also, I am not satisfied on the balance of probabilities that the sole cause of the accused’s psychosis was from the ingestion of drugs or a substance abuse disorder.

9. [43]

   Even in their consideration of s 23A of the Crimes Act, both experts agreed that the psychotic illness that the accused was suffering from at the relevant time would have substantially impaired his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself.

The circumstances surrounding the deceased’s death

1. [44]

   The accused has accepted that he killed the deceased, and the evidence establishes as much. Accordingly, I need only give a very brief description of these tragic events.

2. [45]

   The deceased was known to the accused through her husband, Mr Nicholas Gilbert. On the evening of 9 April 2023, Mr Gilbert returned home and discovered the deceased had been brutally killed inside of their unit. The accused caused the deceased’s death that evening. He inflicted multiple injuries upon her using a bladed weapon, causing sharp force injuries to her head, neck and body.

3. [46]

   The parties helpfully set out a detailed account of the events before and after the alleged offence in the Agreed Facts. I have considered the Agreed Facts document carefully and find that those Agreed Facts are proved beyond reasonable doubt.

Dr Ellis

1. [47]

   Dr Ellis examined the accused on 22 July 2024 and 29 July 2024 by audio-visual link for a total of 2 hours and 30 minutes. That is almost one year and four months after the alleged offence. He prepared reports on 13 September 2024 and 3 February 2026 on behalf of the accused. Those reports were tendered by the Crown as part of a bundle which was marked as Exhibit A.

2. [48]

   Dr Ellis reported on the accused’s clinical issues, including his history of paranoia and depression. More relevantly though, Dr Ellis found that the accused held various delusional beliefs around the time of the killing. Specifically, the accused held beliefs in Satan and secret societies, in addition to other beliefs such as being on some form of mission guided by a bigger purpose. Further, the accused believed that the deceased had put an evil spell on him and his partner, Witness M, and that she was attempting to destroy his relationship with Witness M. These delusions, which are plainly illogical, were addressed in some detail by Dr Ellis in his report dated 13 September 2024.

3. [49]

   No history of psychiatric admission was observed by Dr Ellis. However he noted other clinical notes from Neami National, which disclosed earlier reporting of psychosis, paranoia, post-traumatic stress disorder, an acquired brain injury and drugs. These clinical notes were tendered as evidence and marked as Exhibit 3 in the trial. Dr Ellis also reviewed a Sentencing Assessment Report dated 2023, which was tendered as evidence and marked as Exhibit 1. This Sentencing Assessment Report makes reference of an earlier diagnosis of drug induced psychosis, although no other details are disclosed.

4. [50]

   The accused reported to Dr Ellis that he suffered a head injury after falling from a roof when he was approximately 30 years of age. In addition to the head injury he sustained, he also fractured his pelvis, ribs and spine, requiring surgical fixation at Westmead Hospital. A computerised tomography (CT) brain scan showed fractures around the right middle ear and a possible sub-dural haematoma. Westmead Hospital clinical notes were tendered as evidence in the trial and marked as Exhibit 4.

5. [51]

   Further, the accused reported a somewhat complex family history. Based on his own report, his sister has an intellectual disability, his father has issues with alcohol and his maternal uncle had problems with drugs and paranoia.

6. [52]

   Dr Ellis asked the accused to recount the alleged offence. That account accorded with the Crown case statement. The following matters disclosed by the accused are particularly notable: the accused believed he had been in contact with, and was essentially under instructions from, a Nigerian man otherwise referred to as the “witchdoctor”; this person told him that his relationship would be ruined if the deceased did not stop cursing him; he believed his world was going to end; he felt as though he was possessed; and, following text messages he exchanged with Witness M about a conflict involving handbags and the deceased, he formed a view he had to kill the deceased.

7. [53]

   Relevantly, when Dr Ellis examined the accused, the accused maintained a belief in the accuracy of these delusions. For example he still believed that the deceased interfered with his relationship and that secret societies exist, although not to the same extent. He said he was 90% sure it was still true. [13]

8. [54]

   Ultimately Dr Ellis opined that the accused was suffering from a psychotic disorder, which was most likely schizophrenia, characterised by delusions and hallucinations.

9. [55]

   This was considered by Dr Ellis to be a “mental health impairment”, by reference to s 4(1) of the Forensic Provisions Act. In this respect, Dr Ellis gave the following oral evidence: [14]

10. [56]

    Dr Ellis acknowledged that the accused was using illicit substances around the time of the killing, which calls into question s 4(3) of the Forensic Provisions Act if the Crown so asserts, which in this case it does. This naturally formed the subject of further questioning.

11. [57]

    In particular, Dr Ellis was unable to conclusively determine what precisely caused the defendant’s psychotic disorder at the time of the killing. But he was firmly of the view that neither of the matters created by s 4(3) were the sole cause of his psychosis. He said as much in oral evidence: [15]

12. [58]

    The potential application of s 4(3) is an important issue in this case and I address it in my reasons further below.

13. [59]

    Regarding s 28(1)(b) of the Forensic Provisions Act, Dr Ellis said that the accused likely did not know his act of killing the deceased was wrong. This was grounded in the accused’s delusional beliefs, including that killing the deceased was required to save the world and his relationship. There was also reference to the idea that he would be sanctioned by secret societies, police and the Nigerian witchdoctor. These delusions, in Dr Ellis’ opinion, would have impaired the accused’s ability to reflect with a moderate degree of sense and composure.

Dr Baée

1. [60]

   Dr Baée examined the accused on 15 January 2025 via audio-visual link for a total of 2 hours and 30 minutes. This is approximately six months after Dr Ellis examined the accused. Dr Baée prepared reports on 29 January 2025, 3 March 2025 and 5 February 2026 on behalf of the Crown. Those reports were also tendered by the Crown as part of the bundle which was marked as Exhibit A.

2. [61]

   The accused recounted various delusional beliefs to Dr Baée. They included his experiences with the Nigerian witchdoctor and other conspiracy-based ideas relating to evil and satanic power. As for the witchcraft ideas specifically, the accused said he still believed “about 80%” in it. [16]

3. [62]

   Dr Baée reported on the accused’s account of the alleged offence in some detail. The accused associated that time of this life with generally quite negative feelings. For example he said he did not feel in control and that maybe he was possessed.

4. [63]

   Dr Baée also reported on the accused’s medical and past psychiatric history. He similarly noted the accused’s report of falling from a building in November 2020. While no past psychiatric admission was recorded, the accused told Dr Baée that, while in custody, doctors had told him that he has post-traumatic stress disorder or schizophrenia.

5. [64]

   Ultimately, Dr Baée formed the opinion that the accused was suffering from a “mental health impairment”, as defined by s 4(1) of the Forensic Provisions Act. In particular, Dr Baée considered that the accused was suffering from a psychotic disorder at the time of the alleged incident, namely a drug induced psychosis. This was questioned in examination when the following exchange occurred: [17]

6. [65]

   In Dr Baée’s opinion, a drug induced psychosis was more likely than schizophrenia. A number of reasons were advanced in support of that diagnosis. They included: that some of his beliefs at the time of his examination in prison were better explained as cultural or spiritual beliefs as opposed to psychotic symptoms which had so far failed to resolve; his lack of other associated psychotic symptoms on examination; and that his confidence in the validity of the beliefs had reduced from 90% (when Dr Ellis examined him) to 80%, which showed that his beliefs were not necessarily fixed, as typical delusions are.

7. [66]

   Dr Baée also addressed s 4(3) of the Forensic Provisions Act. He stated that, at the time of the alleged offence, the accused was suffering from symptoms that he generally did not suffer from – despite a prolonged history of substance abuse. Dr Baée considered that the drug induced psychosis was related to the combination of symptoms he was suffering, such as auditory hallucinations, ideas of reference, thought disorder and delusions of being cursed. Other contributors, aside from drugs themselves, included his genetic predisposition, his fall which may have caused a brain injury and other associative factors which heighten psychotic symptoms.

8. [67]

   Dr Baée said the following in his report: [18]

9. [68]

   In Dr Baée’s opinion, the accused has an internal vulnerability to psychotic symptoms – arising from factors such as his genetic predisposition, head injury, prolonged history of substance use, multiple use of substances and higher intensity of use of substances. [19] These cause “psychotic symptoms beyond what would be expected in an average [intoxicated] person”. [20]

10. [69]

    Finally, Dr Baée considered s 28(1) of the Forensic Provisions Act and suggested that the defence was available to the accused. He opined that, despite evidence which suggested some degree of reasoning, the accused could not reason with a moderate degree of sense and composure about whether the act was wrong as perceived by reasonable people.

Forensic Provisions Act

1. [70]

   There is no dispute that the accused falls within ss 4(1) and (2) of the Forensic Provisions Act. The evidence clearly establishes that. The only point of difference, which the evidence does not so clearly resolve, is how the “mental health impairment” should be characterised.

2. [71]

   In the Crown Prosecutor’s submission, Dr Baée’s diagnosis is to be preferred. For reasons that I have outlined below, I do not accept that. Counsel for the accused did not advance a preference either way – rather it was emphasised that, either way, the accused experienced a psychotic disorder at the time of the alleged offence.

3. [72]

   The Crown asserted that s 4(3) of the Forensic Provisions Act should apply. If in fact it does, then the accused’s defence of mental health impairment under s 28(1) necessarily fails. I should note that, as per the Crown Prosecutor’s submissions in closing, this argument on s 4(3) only arises if I accept Dr Baée’s diagnosis of a drug induced psychosis.

4. [73]

   However, before I turn to the Crown’s argument, it is worthwhile returning to the expert witnesses’ unanimous opinion on this issue that ultimately being, s 4(3) is not engaged. In particular, both experts agreed that the accused’s “mental health impairment” was not solely caused by either of the matters created by s 4(3), being: the temporary effect of ingesting a substance; or a substance use disorder. The experts agreed that there were other causes (or at least one other cause) at play. Although neither witness could say for sure which one or ones were actually operating as a cause (and in this sense, the other factors could be described as “potential causes”), nevertheless, they both agreed that there was at least one extra cause over the temporary effects of ingesting a substance and/or a substance use disorder.

5. [74]

   Dr Ellis described these other potential causes as “internal liabilities”, while Dr Baée described them as “vulnerabilities”. These expressions encompassed various factors internal to the accused, such as his genetic predisposition, his chronic and continuing exposure to substances and his previous head injury.

6. [75]

   Understandably, neither expert was able to conclusively determine which of these potential causes was in fact operating when the accused killed the deceased. This would otherwise be going beyond the capacity of modern science. Or as Dr Ellis said during examination: [21]

7. [76]

   All of this provides a necessary contextual backdrop to the Crown’s argument on s 4(3) of the Forensic Provisions Act. In essence, it was submitted that the state of the evidence regarding these “potential causes” was not sufficient to establish that s 4(3) does not apply. Of the various potential causes, there was “… nothing concrete other than the ingestion of a drug”. [22]

8. [77]

   Within this context, the Crown argued that the “potential causes” of the accused’s impairment at the time of the alleged offence, aside from the ingestion of a drug, were only possibilities. This meant they were insufficient to defeat the application of s 4(3). In making such a submission, the Crown referred to various authorities, but most notably to Button J’s judgment in Murray where his Honour remarked: [23]

9. [78]

   Adopting this reasoning, the Crown contended that it would be absurdly broad for the other “potential causes” to nullify the carve-out in s 4(3). According to the Crown, these “potential causes” did not fit within that aspect of the “… brain, or mind, or mental or emotional functioning” referred to by Button J, because they were simply not known. In this respect, the Crown said that if something cannot be known, then it cannot defeat s 4(3) or else it would be absurdly broad. [24]

10. [79]

    The accused advanced a competing view and argued that: [25]

11. [80]

    A number of submissions were put forward to support this position. Relevantly, this included a submission that the Crown’s interpretation of s 4(3) has the effect of reversing the onus of proof.

12. [81]

    In addition, the accused submitted that Button J’s remarks in Murray simply guard against other putative causes that are completely external to the mind from nullifying the carve-out in s 4(3). [26] On that interpretation, the accused submitted that the other potential causes were within the ambit of what Button J had contemplated in Murray (at [67]). In other words, the potential causes of the accused’s impairment (other than from ingestion of a drug) were directly related to some aspect of his brain, mind or mental or emotional functioning.

13. [82]

    The parties’ submissions on s 28 of the Forensic Provisions Act focused exclusively on sub-section (1)(b); that is, whether the accused could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. That approach is correct. There is no suggestion that the accused did not know the nature and quality of his acts as per sub-section (1)(a).

14. [83]

    The Crown argued that, if I direct myself in accordance with the expert evidence direction, and if I bring some common sense to bear, then there are several factors which point to the accused being able to reason with a moderate degree of sense and composure. This was also referred to as “countervailing evidence” at trial. [27]

15. [84]

    The Crown directed my attention to various matters from both before and after the alleged offence. Relevantly, this included phone message correspondence between the accused and Witness M on the evening of 9 April 2023.

16. [85]

    According to the Crown, another factor was that the accused employed methods to avoid police detection after the killing: he changed his clothes immediately afterwards; he entered his unit from a neighbouring property; he asked Witness M to delete his phone number; and he left his unit in the early hours of the following morning and travelled to a further away train station at Guildford as opposed to a closer train station at Merrylands. He also purchased a new phone and travelled to the Northern Beaches in Sydney, where he stayed for a number of days. These are all matters that are clearly established by the evidence.

17. [86]

    Counsel for the accused responded to the Crown’s argument in some detail. He also addressed parts of the chronology referred to by the Crown, such as that phone message correspondence between the accused and Witness M. In essence he argued that the “countervailing evidence” fits within the overall narrative to which the expert witnesses accepted and acted upon.

18. [87]

    Further, the accused submitted that both expert witnesses examined the accused and formed a view that his self-described symptoms were typical symptoms of someone experiencing psychosis. In his submission, this was important from a credibility perspective as both experts are well versed in detecting any signs of lingering or feigned symptoms.

Section 23A of the Crimes Act

1. [88]

   Few submissions were advanced on s 23A of the Crimes Act. In any case, as it will become clear, there is no need for me to address those arguments.

2. [89]

   I will now set out my findings of fact based around the issues that arise for determination. These findings are based on all of the evidence and my consideration of the parties’ submissions. My reasons are disclosed in the foregoing analysis of the evidence and/or in the reasons provided below.

Did the accused cause the death of the deceased by a voluntary act?

1. [90]

   As I have already found, the accused caused the deceased’s death by assaulting her with a bladed weapon inside of her unit on the evening of 9 April 2023. There was no dispute about this issue and, in any case, it is the only rational inference available on the whole of the evidence.

Does the accused have a mental health impairment? (ss 4(1) and (2))

1. [91]

   Both Dr Ellis and Dr Baée agreed that, at the relevant time, the accused was suffering from a mental health impairment as defined in s 4(1), namely, a psychotic disorder. They differed about the exact diagnosis. Dr Ellis preferred schizophrenia. Dr Baée preferred drug induced psychosis. But they both agreed that the psychosis meant that the accused had either a temporary or ongoing disturbance of thought, mood, volition, perception or memory; that the disturbance was significant for clinical diagnostic purposes; and that the disturbance impaired the accused’s emotional wellbeing, judgment and/or behaviour. The accused argued that it matters little whether the psychotic disorder was one diagnosed by Dr Ellis, namely schizophrenia, or the one diagnosed by Dr Baée, namely a drug induced psychosis.

2. [92]

   It is notable that s 4(2)(c) specifically states that a mental health impairment may arise from a psychotic disorder and that s 4(2)(d) states that a mental health impairment can also arise from a substance induced mental disorder that is not temporary. On both witnesses’ diagnoses, I am satisfied that s 4(1) has been comfortably established and certainly on the balance of probabilities.

3. [93]

   Of the two diagnoses, I accept Dr Ellis’ diagnosis of schizophrenia.

4. [94]

   I accept Dr Ellis’ evidence that, when he interviewed the accused in July 2024 (more than 15 months after the killing) he continued to suffer from delusional thinking. The accused told Dr Elliis that he had “always had a ‘weird feeling’ that he ‘understands too much about the world’”, and that Satan and secret societies run the government and the world. [28] He had these beliefs irrespective of whether he was high on drugs and that methylamphetamine “opens your third eye…”. [29] Although he thought that it might be that the drugs were tricking him, he was “at least 90% certain that it was all true”. [30]

5. [95]

   At the time of assessment, he still believed that he was stronger than other people, that there was a secret society trying to recruit him and that there were bad people who are Satanic and evil people and good people who can “see outside the box”. [31] Although he did not believe he is a prophet, he thought that there is some sort of bigger purpose for him. He still thought he may be a superhero. He also believed that the deceased was interfering with his relationship and that the world may end. [32]

6. [96]

   Dr Ellis said of the accused’s thinking on the night of the alleged offence that he had “bizarre, persecutory, referential and grandiose delusions” and that at the time of the interviews in custody, the accused “had poor insight into these and maintained a belief in their accuracy”. [33]

7. [97]

   The existence of these beliefs so long after the night of the killing is important in considering the appropriate diagnosis. If the accused had been suffering from a drug induced psychosis at the time he killed the deceased, these delusional thoughts would not have been active when Dr Ellis interviewed him. Even though the evidence showed that the accused had on some occasions been taking contraband drugs in custody, it was likely that the most frequent illicit drug the accused had ingested in prison was buprenorphine, a sedative, which would not have been so significant in its effects on his mental health as drugs like methylamphetamine. Both Dr Ellis and Dr Baée inferred that, whatever drug use the accused was sustaining in custody, it was not likely to cause psychosis. [34]

8. [98]

   Dr Baée did not think that, by the time of his interview with the accused in January 2025, the accused had any current delusional thinking. Dr Baée regarded the accused’s then current beliefs about conspiracies and witchcraft as cultural or spiritual beliefs, not psychotic symptoms. [35] The fact that the accused was then only 80% certain of the reality of the beliefs was, according to Dr Baée, a sign that the beliefs were not necessarily fixed as typical delusions are and, in any event, there was an apparent weakening of the accused’s beliefs from the 90% certainty that was reported to Dr Ellis about 6 months previously. [36]

9. [99]

   On balance, I accept Dr Ellis on this issue. He is a very experienced clinician and regarded the accused’s history of the delusions as consistent with his observations and therefore, his diagnosis of schizophrenia. But, for reasons further discussed below, ultimately nothing depends on whether the accused’s psychosis was schizophrenia rather than a drug induced psychosis. In other words, even if Dr Ellis is wrong about his diagnosis, and Dr Baée is correct about his, the accused’s drug induced psychosis is still a “mental health impairment” for the purposes of s 4(1) of the Forensic Provisions Act. It was a significant psychotic illness that was responsible for the manifestation of delusional beliefs, which ultimately motivated the accused on the evening of 9 April 2023 when he killed the deceased.

Was the sole cause of the mental health impairment from ingesting a substance or from the accused’s substance use disorder - (s 4(3))?

1. [100]

   Both Dr Baée and Dr Ellis concluded that, on balance, the accused’s mental health impairment was not caused solely by ingesting a drug or a substance use disorder. They identified other potential causes, which, as I have noted already, Dr Baée described as “vulnerabilities” and Dr Ellis described as “internal liabilities”. For simplicity, I will adopt the expression “internal liabilities” from this point forward.

2. [101]

   The Crown nevertheless asserted that the carve-out in s 4(3) should apply (if I accept Dr Baée’s diagnosis of a “drug induced psychosis”). While there is no need to engage with the Crown’s argument on this issue because I have accepted Dr Ellis’ diagnosis of schizophrenia, I will still address it.

3. [102]

   As I summarised earlier, the Crown Prosecutor argued that the evidence only establishes one conclusive cause of the accused’s impairment: the ingestion of a drug. It necessarily follows in the Crown’s case that s 4(3) is engaged. I disagree with this argument for the reasons below.

4. [103]

   First, it is important to bear in mind that the ingestion of a drug is not a disqualifying factor of a “mental health impairment” as defined by s 4(1). This is clear from s 4(2)(d), which confirms that a “substance induced mental disorder that is not temporary” is a type of disorder through which a “mental health impairment” may arise. Thus, the fact that the accused ingested a drug, which likely exacerbated or contributed to his psychosis, does not enliven the operation of s 4(3). Rather, s 4(3) is only open where the impairment was caused solely by the ingestion of a drug (or a substance use disorder).

5. [104]

   Secondly, the evidence demonstrates that the psychotic symptoms that the accused had around the time of the killing were not the typical consequences of the effect of ingesting drugs.

6. [105]

   Thirdly, the Crown’s construction of s 4(3) is, in my view, problematic. The question for me to resolve is not whether the evidence establishes, to any particular state of certainty, what precisely “caused” the accused’s mental health impairment other than the ingestion of a drug or a substance use disorder. Rather, the question is squarely whether the Crown has satisfied me on balance that the accused’s impairment was caused solely by either the ingestion of a drug or a substance use disorder. There may be instances where, as fact finder, I am not so satisfied even where no other “causes” of an impairment have been conclusively established by the evidence. Indeed, this is one of those instances.

7. [106]

   Fourthly, accepting the Crown’s argument would consequently shift the onus of proof with respect to s 4(3). As I summarised earlier, the Crown ultimately asserted that, because the other potential causes identified by the experts do not rise above mere possibilities, and intoxication was the only definitive cause of the accused’s impairment, s 4(3) applies. I accept the accused’s submissions on this point. The Crown’s interpretation of s 4(3) would, if accepted, require the accused to prove the existence of other cause(s) of an impairment to a particular state of certainty. Yet the Crown bears the onus, not the accused. It is a matter for the Crown, and the Crown only, to prove on balance that the impairment was solely caused by the ingestion of a drug or a substance use disorder.

8. [107]

   Fifthly, I disagree with the Crown’s submission that it would be “absurdly broad” for s 4(3) to be nullified by the accused’s internal liabilities. Specifically, I do not accept the Crown’s submission that, with reference to Button J’s remarks in Murray, the internal liabilities which the expert witnesses identified do not fit within some aspect of the accused’s brain, mind or mental or emotional functioning. His internal liabilities were real and not speculative physical phenomena. They are typically associated with the development of psychosis. They are not external to his mind simply because the evidence cannot conclusively identify which precise internal liability or liabilities caused his psychosis at the time of the alleged offence. In my view, Button J’s remarks in Murray should be read to guard against other putative causes that are clearly external to a person’s mind from nullifying s 4(3).

9. [108]

   So, having regard to the totality of the evidence, I am not satisfied on balance that s 4(3) applies. As I have already noted, the evidence establishes that the accused has internal liabilities associated with the development of psychosis. These include his possible genetic predisposition, his repeated and continuing exposure to substances and the head injury that he suffered in 2020. It is likely that any combination of his internal liabilities worked in conjunction with the accused’s intoxication to develop into psychosis at the time of the alleged offence. While the accused’s genetic predisposition to psychosis may be more speculative, there is a cogent body of evidence supporting the existence of other internal liabilities, such as his previous experiences of drug induced psychosis, his longstanding exposure to substances and his fall from a height in 2020. As Dr Ellis said: [37]

10. [109]

    The fact that neither expert could conclusively determine which of his internal liabilities did in fact contribute to his psychosis is entirely understandable. Dr Ellis explained it in the following way: [38]

11. [110]

    I accept that the accused was under powerful delusions at and around the time of the alleged offence. Indeed, both experts agreed that his delusional beliefs endured for a significant period of time, and were most likely well beyond the temporary effects of any acute intoxication. [39] It is entirely expected that the evidence is unable to reach such a level where it could conclusively establish, precisely, which internal liability or liabilities contributed to the manifestation of the accused’s psychosis.

12. [111]

    Even assuming I accepted Dr Baée’s diagnosis (which I have not), I am not satisfied on balance that the accused’s mental health impairment was solely caused by the temporary effect of ingesting a substance or a substance use disorder. In other words, the Crown has not discharged its onus to prove that the carve-out in s 4(3) applies.

Did the accused know the act was wrong?

1. [112]

   The expert witness evidence on s 28(1)(b) was unanimous. I cannot reject that evidence in the absence of other material which casts some doubt on it.

2. [113]

   Notwithstanding, the Crown Prosecutor has urged me to find otherwise. In particular, the Crown Prosector suggested that there is countervailing evidence that calls into doubt the issue of whether the accused did not know his act was wrong within the meaning of s 28(1)(b) of the Forensic Provisions Act. I disagree.

3. [114]

   Although there is evidence to suggest that the accused had some understanding that by killing the deceased he would be liable for criminal punishment, I am convinced on balance that his ability to reason about how wrong it was to kill the deceased was very significantly impaired to the point that he could not reason with a moderate degree of sense and composure about the wrongfulness of his acts as a reasonable person would perceive them to be.

4. [115]

   The accused’s mental health impairment involved significant delusional thinking. As well as his commonly held paranoid beliefs, he was suffering from very particular delusions that must have made his understanding of events quite frightening and distorted. He believed that the deceased had put an evil spell on him and Witness M, and that she was attempting to destroy their relationship with each other. [40] He believed that the deceased’s destiny was death – which was necessary for him to commit in order for him to save, not just his relationship with Witness M, but the whole world. [41]

5. [116]

   These beliefs were linked to other bizarre beliefs like his need to join a secret society and his need to follow instructions from a Nigerian witchdoctor. [42]

6. [117]

   These delusions generated powerful emotions. He was likely very distressed and scared. He felt great pressure to act on the delusions. To him, killing the deceased was both logical and necessary. If he did not act, then the world would be at risk, evil would triumph and his relationship with Witness M would be destroyed. I find that these delusions were central to why he killed the deceased.

7. [118]

   While he was in this altered mode of thinking he received disturbing messages from Witness M which demonstrated how threatening the deceased had been towards her in late 2022. There is no doubt that those messages made him angry and they may well have been an operative factor in his actions on the evening of 9 April 2023. But there can be multiple motivations for homicide. I accept the expert witnesses’ evidence that, rather than demonstrate that his actions were accompanied by rational thinking and were not driven by deluded and confused thinking, his delusions accompanied his angry emotions and operated upon him in a way which made it very difficult for him to consider his proposed actions with anything like a moderate degree of sense and composure about whether the act of killing the deceased was wrong as reasonable people would so obviously perceive.

8. [119]

   The accused’s thinking was affected by a continuing belief that his actions were externally controlled. His psychotic thinking was volatile. It was a powerful driving influence on him and was not, in my opinion, cancelled out by logical or understandable anger about the deceased’s threatening text messages to Witness M.

9. [120]

   Dr Ellis considered the accused finding out about the threatening messages this way: [43]

10. [121]

    Dr Baée agreed with this evidence: [44]

11. [122]

    The Crown also argued that the accused’s attempts to avoid discovery for the killing, including his lies about being the killer, his blaming of Mr Gilbert, his attempts at disguising his clothing, his flight from the Merrylands area in the early hours of the morning, his purchase of a new telephone and his encouragement of Witness M to delete his phone number all suggest that he well knew that what he had done was wrong and did so at the time of the killing. But it is likely that, whilst he did all of these things knowing that he was liable for arrest and punishment in a court (for instance, he knew he could “get 25 years”), [45] he was nevertheless driven by delusional thinking as described above at the time of the killing. He knew that what he was doing was illegal but he felt compelled to act in that way because it was the morally correct way to act in response to the thoughts that drove his thinking. Knowing an act is contrary to law does not automatically mean that he could reason with a moderate degree of sense and composure about whether the act was wrong as perceived by reasonable people. They are simply different issues. [46]

12. [123]

    As Dr Ellis said during examination: [47]

13. [124]

    Further, Dr Ellis also said: [48]

14. [125]

    Dr Baée was of the same view. In his report, he accepted that the accused showed some degree of reason despite his psychotic symptoms (essentially the features relied upon by the Crown). Nevertheless, Dr Baée found “… on the balance of probabilities [the accused] was not able to reason with a moderate degree of sense and composure that the act was wrong.” [49] The reasons why he made this conclusion were set out in his report, [50] and related to the accused’s delusions about the deceased cursing him and his relationship with Witness M, that his behaviour prior to the killing was significantly out of character, his ongoing conversations with the Nigerian witchdoctor, his symptoms of hallucinations and ideas of reference and the fact that he had no specific grievances with the deceased.

15. [126]

    In evidence, Dr Baée repeated his view by saying: [51]

16. [127]

    I accept the expert witnesses’ views on the issue of s 28. In my view, the accused could not reason with a moderate degree of sense and composure about the wrongfulness of his acts when he killed the deceased.

17. [128]

    That being the case, I conclude that, when he killed the deceased, the accused had a mental health impairment arising from a psychosis. On balance, that psychosis was schizophrenia. I am not persuaded that the psychosis was caused solely by the temporary effect of ingesting a substance or by a substance use disorder. Even if I am wrong about the psychosis being schizophrenia and it was, indeed, a drug induced psychosis, I am not convinced on balance that the psychosis was caused solely by the temporary effect of ingesting a substance or by a substance use disorder.

18. [129]

    I find that, although the accused knew the nature and quality of his acts when he killed the deceased, he did not know that what he was doing was wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether his acts were wrong as reasonable people would perceive them.

19. [130]

    In those circumstances, the accused has satisfied me that the defence of mental health impairment has been established and, accordingly, the only appropriate verdict is that the act is proven but that the accused is not criminally responsible.

20. [131]

    There is no need then to consider s 23A of the Crimes Act. The verdict of manslaughter is not available in this case.

21. [132]

    The verdict that will be entered on the indictment is “act proven but not criminally responsible”. I will hear the parties about any ancillary matters and/or consequential orders.