R v Art

Catchwords: CRIME – charge of murder – defence of mental health impairment – parties agree defence of mental health impairment established – evidence by forensic psychiatrists – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – special verdict – orders under s 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – consequential orders – victims impact statement

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited: R v Fineanganafo (No 2) [2024] NSWSC 1407
R v Jackson [2021] NSWSC 1404
R v Sands [2021] NSWSC 1325
R v Siemek (No. 1) [2021] NSWSC 1292

Texts Cited: Nil

Category: Principal judgment

Parties: Rex (Crown)
Benjamin Scott Art (Defendant)

Representation: Counsel:
A Morris (Crown)
C Feiner (Defendant)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Defendant)

File Number(s): 2024/237981

Publication restriction: Nil

JUDGMENT

1. By an indictment of 23 July 2025, Mr Benjamin Scott Art (“the defendant”), was charged with the offence of murder of Annette Kiss. He was committed for trial on 18 June 2025.

2. On 1 August 2025, the defendant was arraigned before Hamill J and entered a plea of not guilty to murder on mental illness grounds. The parties indicated to the Court, on that date, that the proposed evidence in the proceedings established the defence of mental health impairment and there was agreement in relation to this position pursuant to s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act").

3. In those circumstances the Court may enter a special verdict of ‘act proven but not criminally responsible’ if it is satisfied that the criteria under s 31 of the Act are satisfied, namely:

4. the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment; and

5. the defendant is represented by an Australian legal practitioner; and

6. the Court, after considering the evidence, is satisfied that the defence is so established.

7. The first two criteria under s 31 of the Act are satisfied in the present matter. As I have mentioned, the prosecutor and defendant have agreed that the proposed evidence in the proceedings establishes a defence of mental health impairment, and the defendant is represented by an Australian legal practitioner.

8. The remainder of this judgment is directed to the consideration of whether the Court is satisfied on the evidence, that a defence is established for the purposes of s 31(c) of the Act*,* and a special verdict may therefore be entered that whilst the act is proven, the defendant is not criminally responsible for the offence due to his mental health impairment, and that one or other of the effects in s 28(1) of the Act has been established.

9. In this matter, the attention of the parties was directed to s 28(1)(b) of the Act, namely, the defendant had a mental health impairment that had the effect that he did not know that the act of killing Ms Kiss was wrong. The balance of this judgment is also directed to that consideration.

10. The term "mental health impairment" is defined in s 4 of the Act as follows:

4 Mental health impairment

(1) For the purposes of this Act, a person has a mental health impairment if—

(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a) an anxiety disorder,

(b) an affective disorder, including clinical depression and bipolar disorder,

(c) a psychotic disorder,

(d) a substance induced mental disorder that is not temporary.

(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.

8. Section 28 of the Act provides for the defence of mental health impairment or cognitive impairment in the following terms:

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.

9. Section 31 of the Act states as follows:

31 Special verdict where defendant and prosecutor agree on impairment

The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—

(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b) the defendant is represented by an Australian legal practitioner, and

(c) the court, after considering that evidence, is satisfied that the defence is so established.

10. A hearing under s 31 is not a trial: R v Sands [2021] NSWSC 1325 at [3]-[4] (“Sands”) at [4] and R v Jackson [2021] NSWSC 1404 (“Jackson”) at [7]. The procedure contemplated by s 31(c) has been referred to as an evidentiary inquiry: Jackson at [7].

11. In R v Siemek (No. 1) [2021] NSWSC 1292, Johnson J noted that the defence under s 28 has “two limbs” (at [84]), and operated as follows (at [85]-[87]):

“[85] The first limb is that the Accused, at the time of carrying out the act constituting the offence, had a mental health impairment or cognitive impairment or both: s 28(1) [the Act].

[86] The second limb is that the relevant impairment had one or other of the effects referred to in s 28(1)(a) or (b).

[87] The presence of each limb is to be determined on the balance of probabilities (s 28(2)) and, until the contrary is proved, it is presumed that the Accused did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in s 28(1): s 28(3) [the Act].”

12. Mr Alex Morris, Crown Prosecutor, relied upon the expert report of the forensic psychiatrist, Dr Adam Martin, dated 7 May 2025. The Crown also adduced in evidence, without objection, an agreed joint bundle marked as "Exhibit 1" as well as some further documents that went to considerations that might arise under s 33 and 34 of the Act, namely, the defendant’s NSW and Victorian criminal history and NSW custodial record.

13. The defendant relied upon the expert reports of the forensic psychiatrist, Dr Sathish Dayalan, dated 20 January 2025 and 13 February 2025.

14. The facts bearing upon the charge brought against the defendant are uncontentious and are amply and accurately summarised in the written submissions of counsel for the defendant, Ms Cara Feiner.

15. The defendant and Annette were housemates at an address in Russell Lea. Three other persons lived in the house.

16. The defendant was exhibiting erratic behaviour in the days leading up to the offence. These included the defendant reportedly having had an altercation with someone at work and losing his job, an incident where he referred to wanting to kill himself by walking in front of a truck, walking into traffic in an agitated state, and telephone communications with a friend about someone trying to kill him and needing a car.

17. In the days prior to the offence, the defendant had attended a medical centre and attempted to obtain further scripts for medication he had previously been prescribed, including the anti-psychotic medication Seroquel. He became agitated when a doctor at the medical centre refused to give him another prescription. Eventually he was reviewed by another doctor at the medical centre, who prescribed him medication which included Olanzapine and Lyrica.

18. On 27 June 2024 the defendant arrived at the house in the early hours of the morning in an agitated and irrational state. He accused Annette of trying to kill him or set him up. Annette tried to reassure him that that was not the case. He ran into the house holding a sword. He demanded to know who was in the house and moved around the house checking inside the bedrooms. The defendant had other weapons in his possession, including what appeared to be a screwdriver, knives, a claw hammer, meat cleaver and long black pole.

19. Two of the occupants of the house, who had been in the bedroom, became alarmed and left the house and slept in a car outside for a period.

20. The defendant told a male occupant of the house and Annette to get into the loungeroom and sit down. After they complied, the defendant stood over Annette holding knives. Sometime after that, the defendant grabbed the mobile phones of Annette and the male and smashed them with the claw hammer. He questioned Annette about messages he was receiving from an unknown woman. Annette said she did not know who the woman was.

21. He continued to accuse Annette and the male occupant of the house of trying to get him killed. He was pointing outside and talking about people who were going to “get him” being outside.

22. The male in the room left the room for a period. When he returned to the room he saw the defendant was becoming agitated again and expressing the same accusations that Annette was trying to set him up or have him killed.

23. After again accusing Annette of trying to kill him, he put his arm around her shoulder and neck. The male tried to deter him by picking up a chair and lunging at the defendant, but the defendant raised the meat cleaver at him, and he retreated.

24. The defendant dragged Annette onto the floor, held her by the hair, lifted her head and sawed at the back of her neck with the meat cleaver. The male occupant of the house ran out of the house. While this was occurring, the occupants of the house who were in the car in the driveway heard loud screaming from inside the house and called the police.

25. Police attended shortly thereafter and observed blood in the lounge room and the defendant lying on top of Annette with blood on him. The defendant was holding a sword. A meat cleaver and a kitchen knife were nearby, both had blood on them. A hammer and another kitchen knife were also located nearby.

26. The defendant was yelling and screaming. He told police that he had been stopping Annette from hurting herself and had been trying to help her.

27. After the defendant was taken into police custody he was in a highly agitated state and was speaking about having been kidnapped and people trying to kill him. He was sedated by ambulance officers and taken to Royal Prince Alfred Hospital where he was scheduled under the Mental Health Act 2007 (NSW). While he was being sedated, he said he was hearing voices.

28. He was recorded on body worn video at the hospital speaking to police. He referred to people trying to kill him and various suspicions he had about Annette’s involvement in that. He denied hurting Annette.

29. He was discharged into police custody by the psychiatric registrar in consultation with the consultant psychiatrist. The registrar observed that the defendant did not express any overtly delusional content or apparent response to internal stimuli during the psychiatric review, but noted that the review was limited by lack of patient engagement.

30. A post-mortem was conducted on Annette, who was found to have extensive injuries to her body including multiple stab wounds, incised wounds and “chop wounds”. The most significant, and likely fatal, stab wounds were to her back and right flank.

31. Both the Crown and defendant contended that the Court should find that, on the balance of probabilities, that on the date of the offence the defendant suffered from a mental health impairment.

32. In relation to diagnosis, Dr Dayalan opined:

“[A] [l]ong history of substance abuse and reluctance to engage in psychiatric assessment (until recently) complicates the diagnostic picture. In view of the chronic nature of his reported psychotic symptoms, persistence of symptoms in the absence of substance use and functional impairment, I am of the opinion that [the defendant] probably suffers from schizophrenia as per the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5. Substance induced psychosis is a differential diagnosis.”

33. In relation to the defendant’s mental health at the time of the offence, Dr Dayalan opined:

“Based on the available information, [the defendant] was suffering from a psychotic episode around the time of the alleged offence. The psychosis was probably attributable to his schizophrenia that was exacerbated by use of substances and irregular compliance with treatment. Even if the psychosis was attributed to use of substances, it cannot be stated that the impairment was solely caused by ingesting a substance as [the defendant] has underlying vulnerability that predisposes him to psychosis. Of note, he claimed that he had not used any substances for a couple of days prior to his arrest. Around the time of the alleged offence, [the defendant] was suffering from a mental health impairment as per the definition in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.”

34. Further, Dr Dayalan also opined:

“It is probable [the defendant] could not reason with a moderate degree of sense and composure about the wrongfulness of his actions at the time of the alleged offence due to his psychotic symptoms and secondary distress. On a balance of probabilities, I am of the opinion that [the defendant] would have the defence of mental health impairment.”

35. Dr Martin noted that, at the time of his assessment, the defendant referred to paranoid beliefs, reported experience of ideas of reference, thought interference and ongoing auditory hallucinations. The impression conveyed from the defendant’s account was that these had lessened in intensity as a result of the medication in recent times. Dr Martin reported speaking with the defendant’s current treating doctor in custody, Dr Andrew White, who confirmed a diagnosis of schizophrenia and management with antipsychotics.

36. Dr Martin opined that, at the time of the offending:

“[the defendant] had mental health impairment in that he had an ongoing disturbance of thought, mood and perception that would be regarded as significant for clinical diagnostic purposes and impaired his emotional wellbeing, judgment and behaviour.”

37. Dr Martin was of the view that the mental health impairment “arose from a psychotic disorder or alternatively a substance-induced mental disorder that was not temporary.” He considered it reasonable to conclude that it was not a mental health impairment that was caused solely by the temporary effect of ingesting a substance or a substance use disorder, as whilst his substance use had a detrimental effect on his mental state, it could not be seen to be the sole cause.

38. Further, Dr Martin opined that:

“In my opinion, while it is reasonable to find that while he probably knew the nature and the quality of the act given the protracted and apparently deliberate severe violence, my view is that he did not know that the act was wrong in that he was a person who could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. In my opinion, his presentation in the time just following his arrest, as captured by police body worn video, clearly demonstrates that he would have been unable to reason with a moderate degree of sense and composure about his actions.”

39. In the circumstances of this case, neither Dr Dayalan nor Dr Martin were of the opinion that the mental health impairment of the defendant was caused solely by the temporary effect of ingesting a substance or a substance abuse disorder.

40. In relation to s 31(c) of the Act, I find that the undisputed evidence established that, at the time of carrying out the act constituting the offence, the defendant, on balance, suffered from a mental health impairment. Dr Dayalan and Dr Martin opined that he was likely suffering schizophrenia, which was exacerbated or complicated by substance use.

41. I further find that, having regard to the opinions of Dr Dayalan and Dr Martin that the defendant’s mental health impairment had the effect that he did not know that his acts at the time of the offence were wrong, such that, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. As such, the Court would be satisfied that the evidence establishes the defence.

42. For those reasons, the Court enters a special verdict of act proven but not criminally responsible pursuant to s 31 of the Act.

43. Before turning to the question of consequential orders pursuant to s 33 and 34 of the Act, I propose to mention the victim impact statements which were read following my announcement, during the course of the hearing, that I would enter a special verdict. The Court may consider such a statement when considering the conditions to be imposed upon release (see s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”)).

44. I listened carefully to the very moving tributes to Annette in the victim impact statements of her 2 sons and daughter. It is obvious that Annette played a very significant role in their lives and her granddaughter’s life. She was greatly loved and respected. Her killing has badly affected all family members and their wider circle of friends. As they have made plain, their lives will never be the same again.

45. It is difficult to rationally comprehend her brutal and senseless killing. However, it is important that I explain the effect of the special verdict that I have found and the effect of the orders I propose to make after some further consideration. The effect of the orders will be that the defendant will remain in custody and be held as a forensic patient under the supervision of the Mental Health Review Tribunal (“the Tribunal”). Any release of the defendant will be dependent upon assessments by the Tribunal, such as the safety of the public and the defendant himself.

46. The Act is the mechanism by which the State has determined how mentally ill persons, who have committed crimes, are to be dealt with in the balancing of community interests.

47. Although the parties are in agreement as to the orders to be made by the Court, which do not involve the release of the defendant, s 30N(4) of the Sentencing Procedure Act states that the Court is required to provide a copy of the victim impact statements to the Tribunal. I intend to take that step.

48. Following a verdict of act proven but not criminally responsible, the Court may make one of the following orders pursuant to s 33(1)(a) – (d) of the Act:

49. an order that the defendant be remanded in custody until a further order is made under this section;

50. an order that the defendant be detained in the place and manner that the Court thinks fit until released by due process of law;

51. an order for the unconditional or conditional release of the defendant from custody; or

52. other orders that the Court thinks appropriate.

53. Section 34 of the Act requires that the Court must refer the defendant to the Tribunal, if no order for unconditional release is made. The defendant did not make an application for unconditional or conditional release under s 33(1)(b) of the Act.

54. Both Dr Dayalan and Dr Martin were of the opinion that the defendant continued to experience symptoms arising from his mental health impairment.

55. When he was assessed by each of the psychiatrists, he was housed in the Hamden Pod, an area in the gaol which primarily houses inmates suffering with chronic mental illness. The defendant indicated to Dr Dayalan that he accepted that he suffered from a psychotic illness and was willing to engage in treatment. At the time of his assessment with Dr Martin (which was the most recent in time, on 1 May 2025) the defendant was medicated with anti-psychotic Seroquel (Quetiapine), Olanzapine, Mirtazapine (an anti-depressant), Lyrica (for chronic pain) and Buprenorphine.

56. Dr Martin specifically addressed risk management factors. It was Dr Martin’s opinion that:

“…[the defendant] requires extended supervision in an appropriate secure forensic facility in order to monitor behaviour, adequately control risk to others, minimise exposure to destabilising substances and to ensure adequate anti-psychotic medication. This placement is likely to be required for the foreseeable future. He will require ongoing assertive oversight by the Mental Health Review Tribunal. In short, he has a high level of forensic needs, and in my opinion, will require assertive psychiatric intervention for many years.”

53. The appropriate order in the circumstances is that the defendant be detained in a correctional facility or at such other place as determined by the Tribunal, until released by due process of law. The defendant should be referred to the Tribunal.

54. I agree with the submission of the Crown, that I should follow the decision of Davies J in R v Fineanganafo (No 2) [2024] NSWSC 1407, by making a recommendation that the members of Ms Kiss’ family be heard in any hearing conducted by the Tribunal.

ORDERS

55. The Court makes the following orders:

56. A special verdict is entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely, that the act of murder is proven but the defendant is not criminally responsible.

57. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Benjamin Scott Art 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, until he is released by due process of law.

58. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Benjamin Scott Art is referred to the Mental Health Review Tribunal.

59. The Registrar is to notify the Mental Health Review Tribunal within 7 days of the terms of these orders and is to provide the Tribunal with the following documentation:

(a) A copy of the judgment of this Court and its orders (b) A transcript of the hearing of these proceedings (c) Copies of the expert reports of Dr Dayalan and Dr Martin (d) Copies of the Victim Impact Statements read during these proceedings, pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (e) A copy of the exhibits in these proceedings

5. The Registrar is to notify the Justice Health and Forensic Mental Health Network within 7 days of the orders of the Court and is to provide to Justice Health copies of the following documents:

(a) A copy of the reasons of this Court and orders (b) Copies of the reports of Dr Dayalan and Dr Martin

6. The Court recommends to the Mental Health Review Tribunal, in accordance with s 145 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that members of the deceased’s family be heard in any hearing conducted by the Mental Health Review Tribunal.

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