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File Number(s): 2024/00048848

JUDGMENT Ex Tempore (revised)

1. The Accused, Connor Bulluss, is before the Court pursuant to an indictment dated 10 April 2026 charging him that on 7 February 2024, at Tweed Heads West in the State of New South Wales, he murdered Donna Baraket (the Deceased) pursuant to s 18(1)(a) of the Crimes Act 1900 (NSW) (the Crimes Act).

2. The Accused was arraigned on 10 April 2026 and pleaded not guilty. On that occasion, the parties informed the Court that the sole issue was whether a mental health defence was open to the Accused.

3. On 22 April 2026, the Court ordered, after the parties consented, that the Accused be tried by judge alone.

4. The matter was listed before me on 24 June 2026 for a trial concerning the availability of a mental health defence. When the matter was called, the Crown applied for the matter to be adjourned so that the Crown’s forensic psychiatrist, Dr Kerri Eagle, could prepare a supplementary report on an issue that had arisen. The Crown submitted that fairness dictated that Dr Eagle’s opinions be set down in a report rather than being given that day, viva voce, in a manner which could cause prejudice to the Accused. The Accused did not oppose the adjournment and I agreed that fairness dictated that Dr Eagle’s opinions be provided in a supplementary report. The matter was adjourned and listed before me on 9 July 2026.

5. On 6 July 2026, the parties advised the Court that they had agreed, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), that the evidence established the defence of mental health impairment.

6. The matter proceeded before me by way of hearing under s 31 of the Act. As the Accused had been arraigned on 10 April 2026, it was not necessary to re-arraign him at the commencement of the hearing.

7. Following the hearing, I returned a special verdict of act proven but not criminally responsible pursuant to s 31 of the Act in relation to the charge.

The evidence

8. A bundle of material tendered by the Crown was marked Exhibit A, subject to one exception to which I will return shortly. That Crown bundle contained the following material:

9. the indictment;

10. a statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) dated 6 July 2026;

11. a psychiatric report prepared by Professor David Greenberg OAM, forensic psychiatrist, dated 9 November 2023;

12. a psychiatric report prepared by Dr Richard Furst, forensic psychiatrist, dated 19 May 2024;

13. a second psychiatric report prepared by Dr Furst, dated 6 September 2025;

14. a psychiatric report prepared by Dr Kerri Eagle, consultant forensic psychiatrist, dated 14 November 2025;

15. a third psychiatric report prepared by Dr Furst, dated 28 March 2026;

16. a second psychiatric report prepared by Dr Eagle, dated 26 June 2026; and

17. a victim impact statement of Bill Burgess, the Deceased’s first cousin.

18. The Court may only accept victim impact statements after a special verdict of act proven but not criminally responsible has been returned: Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA) s 30L(1). Accordingly, Mr Burgess’ victim impact statement was not included in Exhibit A. After returning the special verdict, I marked the victim impact statement Exhibit B.

19. Both the Crown and Mr Watts of Counsel, who appeared for the Accused, provided detailed written submissions, for which I express my gratitude.

Victim impact statements

11. The Court must acknowledge receipt of the victim impact statements: s 30L(2) of the CSPA. The Court is also required to provide a copy of the victim impact statements to the Mental Health Review Tribunal as soon as practicable after making a decision that results in the accused becoming a “forensic patient” within the meaning of the Act: s 30N(4) of the CSPA.

12. Following the return of the special verdict, but before making orders and directions, I received, and considered, Mr Burgess’ victim impact statement, which was provided pursuant to Subdiv 5 of Div 2 of Pt 3 of the C**SPA.

13. I begin by acknowledging the deep distress and grief Mr Burgess has suffered in losing Ms Baraket.

14. Mr Burgess is the first cousin of the Deceased; his mother is the sister of the Deceased’s mother. His statement describes the Deceased as a “happy, free-spirited person” who grew up in Sydney, where she attended local Catholic schools and excelled academically before, in later years, moving to Tweed Heads so she could be collocated with her mother, who had moved to Coolangatta.

15. In the last ten or so years, of her life, the Deceased provided care to her mother Nancye, who had developed dementia, as well as Mr Burgess’ own parents, who had also moved to the Tweed Heads area. Mr Burgess confirms that, by her death, the Deceased’s mother has been left alone and his own parents have moved back to Sydney to live with his family in consequence of the trauma they have suffered by the Deceased’s murder.

16. The difficulty he faced in explaining to the Deceased’s mother as to why her daughter is now absent was aptly described by him as “heartbreaking” and I acknowledge the trauma caused to Mr Burgess and his family as well as his sense of deprivation at no longer being able to speak to his beloved cousin.

17. The Court extends its condolences to Mr Burgess and the rest of the Deceased’s family.

18. This was not a trial and, therefore, reasons for verdict under s 133 of the Criminal Procedure Act 1986 (NSW) are not required: R v Summers-Smith [2026] NSWSC 125 at [19] (Yehia J). However, having regard to the strong public interest in the community understanding the reasons for verdict on a serious charge, and in the interests of open justice, what follows are my reasons for my decision to return a special verdict under s 31 of the Act.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

19. The Act has been analysed in previous judgments of this Court. Justice Chen in R v Lailna [2023] NSWSC 48 (Lailna) at [11]–[33] provided a comprehensive and detailed summation of the relevant provisions. I gratefully adopt his Honour’s analysis.

20. At [22]–[33] of Lailna, Chen J observed the following:

“22 Section 31 of the Act confers upon the Court the power at any time to enter a special verdict of act proven but not criminally responsible. That section provides:

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.

23 It is clear from the terms of s 31, that the power conferred upon the Court is conditioned upon satisfaction of each of the matters in sub-paragraphs (a)-(c). In the present case, the impairment said to exist – and to be in existence on 20 May 2020 – is a “mental health impairment”. Specifically, a schizophrenic disorder.

24 In relation to the special verdict, and the power conferred by s 31, the following matters should also be noted. First, the hearing under s 31 is not a trial: R v Sands at [4]; R v Jackson [2021] NSWSC 1404 at [7]. Secondly, the procedure contemplated by s 31(c), has been described as an “evidentiary enquiry”: R v Jackson at [7]. Thirdly, if the court is satisfied that the defence is established for the purposes of s 31(c), the Court is required to enter a special verdict of “act proven but not criminally responsible”: R v Jackson at [8]. Fourthly, it has been suggested that, because a hearing under s 31 is not a trial, but an inquiry, strictly, there is no requirement to comply with the legal imperatives contained in s 133 of the Criminal Procedure Act 1986 (NSW); nevertheless, the Court is not relieved of a requirement to provide reasons, which include the findings, and consequences of those findings: R v Tonga at [98]-[100]; R v Siemek (No. 1) at [17]-[18]; R v Sands at [4].

25 Section 31(a) refers to an agreement that the evidence establishes, relevantly here, a “defence of mental health impairment”. It is the case, and I find, that there is such agreement.

26 Section 31(b) requires the defendant to be represented by an Australian legal practitioner. The accused is so represented – by Counsel and by a solicitor.

27 The final requirement is for the Court to receive the “proposed evidence in the proceedings” – which the Crown and the accused agree establishes a defence of mental health impairment – in order to be “satisfied that the defence is so established”: s 31(c). I have received the evidence… which I will address shortly, and thereafter discuss why I am satisfied the defence is established. Before doing so, I will set out the remaining statutory provisions that are relevant to the mental health impairment defence.

Mental health impairment

28 Part 3 of the Act concerns the defence of mental health impairment or cognitive impairment. The Act defines each concept. The relevant concept here is ‘mental health impairment’, which is defined by s 4. That section provides:

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.

29 Upon demonstration that the accused “has” a ‘mental health impairment’, consideration then needs to be given to the defence created by s 28 of the Act.

The defence of mental health impairment

30 Section 31(a) directs attention to the defence raised by the accused – viz., a “defence of mental health impairment or cognitive impairment”. Here, as I have noted, the accused relies upon a defence of ‘mental health impairment’.

31 Section 3(1) provides that phrase is as defined by s 28(1) of the Act, which relevantly is in these 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 … 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 … 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 … that had that effect.

(4) In this Part, act includes —

(a) an omission, and

(b) a series of acts or omissions.

32 It should be noted that although s 28(2) refers to the question of whether a defendant had a mental health impairment being determined by the jury on the balance of probabilities, that reference “includes a reference to a judge in proceedings determined by a judge alone”: s 6. Further, under the Act, an accused is presumed to have been mentally well at the time of the alleged offence, and until the contrary is proven on the balance of probabilities: s 28(3).

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

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) MHCIFP Act.

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

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) MHCIFP Act.

21. Regarding the three limbs of s 31 of the Act, the Accused and the Crown agree that the evidence tendered in the proceedings establishes a defence of mental health impairment or cognitive impairment. I also confirm that the Accused is represented by an Australian legal practitioner.

22. As to the requirement in s 31(c) of the Act, it is necessary for the Court, after considering the evidence, to be satisfied that the defence is so established. I have received the evidence set forth in paragraph [8] above. I propose to address this evidence in detail to explain why I am satisfied that the defence is established.

The facts

23. The following is drawn from the statement of agreed facts in the Crown bundle.

24. The Accused was born on 27 January 1999 and was 25 years of age at the date of the offence. The Deceased was born on 7 January 1963 and was 61 years of age as at the date of her death. The Deceased had resided at a house in Tweed Heads West for over 15 years, though she would at times reside elsewhere with friends or her elderly mother. The house was not connected to the electrical grid. Neighbours described it as poorly maintained, with an overgrown garden and rubbish and other items strewn about.

25. The Deceased was known to assist the homeless. Neighbours reported that, over the years, a number of people, some seemingly drug-affected, would come and go from the house. Arguments were on occasion overheard coming from within the Deceased’s home.

26. One of the Deceased’s neighbours, whose house shared a common boundary with the Deceased’s, described some of the visitors as “shady” but regarded the Deceased as “harmless and quiet”, she “never bothered us, was never rude or aggressive”.

27. The Accused had been associated with the Deceased as far back as 2018, when he stayed with her during a period of homelessness.

28. On 17 November 2023, the Accused was granted bail by the Tweed Heads Local Court in respect of an unrelated matter. A condition of his bail was that he reside at an address within the Tweed Shire. The Accused moved into the Deceased’s house soon thereafter.

29. In early December 2023, the Accused introduced himself to a neighbour, saying that the Deceased had moved out of the house and he was renting it from her. Around December 2023 to January 2024, that neighbour would sometimes see the Accused outside the house and they would exchange pleasantries. He found the Accused to be clean, calm and friendly.

30. On 5 January 2024, an officer with the Tweed Heads Community Corrections Office completed a breach report in respect of the Accused, who had made contact with the Office on 4 December 2023 but left without further reporting instructions and could not be located. Tweed Heads Local Court issued an arrest warrant, which was executed on 27 January 2024. The Accused was granted conditional bail.

31. On 29 January 2024, the Accused attended the Community Corrections Office and told his supervisor that he was using cannabis and ice and drinking alcohol. He added that he was receiving assistance from the Tweed Heads Mental Health Outreach Team, including monthly depot injections and oral medication for schizophrenia. The Accused said he was living at the Deceased’s house but refused to disclose the identity of any other residents. The supervisor observed the Accused to be “his usual polite self”, apparently unaffected by drugs or alcohol, neatly dressed with good hygiene, and calm in manner and speech.

32. On 5 February 2024, a neighbour heard the Accused yelling at and abusing the Deceased. He said “get the fuck out, you dumb bitch” and, about five minutes later, “I’ll be fucking homeless”. The neighbour heard the Deceased reply but was unable to make out precisely what she said.

33. At around lunchtime on Tuesday, 6 February 2024, a neighbour whose home backs onto the Deceased’s, heard the Accused yelling and screaming at the Deceased, with “fuck off” being yelled a lot. He did not hear the Deceased say anything back. At 2.32 pm, the Accused attended Tweed Community Mental Health, three hours late for his appointment. He met with a social worker from the Homeless Health Outreach Team. The Accused said that his flatmate had taken his clock and he did not know when he was meant to attend. The Accused told the social worker that he was not getting along with “Donna”, the owner of the house he lived in, and that Donna had returned to the house after, in his opinion, being kicked out of her mother’s house. He felt that Donna was “making things difficult for [him]”, that she “[wanted] him to leave for no reason” and this made him upset; and that he and Donna yell at each other and he gets very angry. The worker offered to call Link2Home to help the Accused leave the property, but he declined. He ultimately agreed to a referral to Social Futures for housing support and then left.

34. At around 1pm that day, a woman whom the Deceased had recently befriended and invited to stay, travelled with the Deceased to the house and pitched a tent on the patio. The Deceased showed her friend around the house, saying “there is young Connor here. I tend to take the homeless in and he just got out of gaol”. She mentioned that the Accused stayed in the front room.

35. It rained that night, and at 10pm the Deceased’s friend moved inside. The Deceased went to the home of some different friends and told them about the issues she was having with the Accused. She said “I went to my house. He was up screaming in my face – you can be here for 10 minutes and then you can get the fuck out. This is my house now. I’m going back to gaol anyway, so killing you isn’t a problem”. The Deceased then discussed ways she could get the Accused to leave. One of her friends thought the Deceased seemed a bit angry about what the Accused had said but was not afraid. The Deceased had spoken to those friends about her difficulties with the Accused, including that he would have other homeless people come and stay at her house, that he lived there “rent-free” on the sole (unfulfilled) condition that he washed her mother’s car, and that he did strange things such as dragging old mattresses in from the yard to sleep on them in the house.

36. At around 2am, the Deceased returned home.

37. At around 9am on 7 February 2024, the Accused came out of his bedroom and began talking to the Deceased’s friend about a stolen clock. He also discussed time in general, saying to her “you’ve got to have time”, that he had missed an appointment and that he had to go to probation at 2pm.

38. At around 10.30am, the Deceased, awoken by her friend, heard the Accused leaving. The Deceased and her friend went into a bedroom, smoked some cannabis, chatted and drank a small quantity of port.

39. At around 1.30pm, the Accused attended the Agape Outreach Centre in Tweed Heads, where he was given some food. At around 2pm, he attended the Department of Community Corrections for his scheduled appointment with his supervisor, who noticed that the Accused appeared unkempt. His t-shirt was dirty and stained; he was unshaven and looked as though he had not showered. He was nevertheless polite and his manner was more “joyful” than usual: he smiled a lot, appeared in a good mood, and spoke clearly in a normal, unslurred voice.

40. During their 30-minute meeting, the Accused and his supervisor discussed his case plan, which would involve regular visits from the Tweed Hospital Outreach Mental Health Team. They formulated a plan for depot injections to treat his schizophrenia, with the next injection scheduled for 20 February 2024. He told his supervisor that he was living with a woman called “Donna” whom he had known for five to seven years. He described her as “a 61-year-old woman” who was “a little crazy” and said that she had mental health issues. He said “one day I cleaned the house. It was very clean. I left and came back and Donna had different pieces of furniture in the kitchen. She was always accusing me of things I haven’t done. It always has to be her way”.

41. The Accused also told his supervisor that he had used ice on the weekend and cannabis during the week and that he and the Deceased had a deal whereby each would share ice with the other. He said a younger homeless girl was living at the house and that “she is clean and I like her”. He confirmed he would like assistance in obtaining more stable housing but that he did not have to leave the Deceased’s house as soon as possible and he was “ok” there.

42. His supervisor then walked the Accused to Social Futures nearby. During their walk, the Accused told his supervisor, “I want to get my own place, but no hurry”. As for his plans for the rest of the day, the Accused told her that he intended to eat his meal from Agape Outreach Centre and take the bus home.

43. When the Accused returned to the house that afternoon, he found the Deceased and her friend in the Deceased’s bedroom. He offered them pasta from Agape Outreach Centre and the Deceased accepted some.

44. After 4pm, the Deceased and her friend went to the supermarket to buy food and drinks. On their return, the Deceased’s friend saw the Accused lying on the lounge in the living room. She soon left again, leaving the Accused and the Deceased at the house.

The murder

45. After the Deceased’s friend left the house, the Accused armed himself with a large stainless-steel knife approximately 30 centimetres in length. Sometime between 4.30 and 5.30pm, the Accused, armed with the knife, entered the Deceased’s bedroom. He stabbed her multiple times in the face, neck, back and chest. The Deceased was stabbed with such force that she sustained penetrating wounds to her lungs, heart and aorta. She suffered extensive blood loss. Injuries to the Deceased’s forearms were consistent with her trying to protect herself.

46. During the attack, the Accused accidentally stabbed his own hand. There were no witnesses to the attack and none of the neighbours heard it. Leaving the Deceased bleeding on the bedroom floor, the Accused grabbed a towel, wrapped it around the wound on his hand and walked to a local pharmacy.

The aftermath

47. At around 5.30pm, the Accused approached a man outside the man’s property nearby, asked, “excuse me, mate, can you give me a lift to the hospital?” and showed him a cut on his finger. The man, having drunk some alcohol that day, declined and suggested the Accused instead use the payphone across the road. The Accused phoned “000” from the phone box and requested an ambulance, stating that he had accidentally stabbed himself. He presented as calm throughout the call, answered all the operator’s questions and could be heard speaking in a friendly manner to the man across the road. A staff member from the local pharmacy gave him water and arranged for the pharmacist to come out and check on him. The staff member also contacted “000”. When later asked whether the Accused was being violent or aggressive, the pharmacy staff member replied “no, he’s very pleasant. He’s very quiet”. Whilst waiting for the ambulance, the Accused told the pharmacist there had been an “incident” and that “he was done with the owner” as she had “kicked him out”.

48. When the ambulance arrived, the Accused was seated on a stretcher. Asked by the paramedic how it happened, he replied “you don’t want to know”. He said he had been involved in an altercation with his housemate. Asked whether the housemate was okay, the Accused said “yes, I think she is gone”.

49. Police officers arrived and activated their body-worn video cameras. The Accused told them there was someone back at the house who would need an ambulance. Asked “ok, did you do anything to her?”, the Accused said “yeah” and “we got in a fight, over drugs or something, and then I just lashed out and bloody stabbed her”. He said he had stabbed the Deceased “in the chest” and, asked how badly injured she was, said “it’s bad. She’s gone”.

50. Police attended the Deceased’s address and entered through the open front door. In the back bedroom they found the Deceased’s body face down, covered in and surrounded by a significant amount of pooled and spattered blood. On a side table to the right of the Deceased was a large blood-stained stainless-steel knife. The officers saw several stab wounds and lacerations on the Deceased’s back and arms and could detect no signs of breathing or pulse.

51. At 6pm, ambulance officers arrived at the property and examined the Deceased using a LifePak monitoring system. Her injuries were found to be “incompatible with life” and she was declared dead at 6.08pm.

52. A post-mortem examination conducted on 13 February 2024 showed multiple stab wounds to the Deceased’s face, neck and anterior and posterior chest walls, with defence-type injuries to the forearms. Internal examination revealed multiple penetrating stab wound tracts which transected the airways and major blood vessels in the neck and left chest region, perforating wound tracts through the lungs, penetrating wounds to the heart and proximal aorta, and evidence of extensive blood loss. The direct cause of death was recorded as “multiple stab wounds to the neck and chest”. No other underlying or significant conditions contributed to the death. Toxicology revealed methamphetamine, amphetamine and delta-9-tetrahydrocannabinol in the Deceased’s blood.

53. The Accused was taken to Tweed Heads Hospital under police guard. He had sustained two wounds, one to the palm of his left hand and one to the webbing between two of his fingers. He was medically cleared to leave that evening and directed to return for surgery at 8am the following morning.

54. Interviewed by police at the hospital, the Accused said he had lived at the Deceased’s house for four months. He continued that the Deceased had been “kicked out” of her mother’s house and “thought she could just waltz back in” four or five days earlier and that it had since been a “nightmare”, with the Deceased breaking the Accused’s clock, “trashing” the house and the two of them arguing “heaps” over the days leading up to the offence. He said he told the Deceased “this place is mine until, until I’m ready to move on, you know?”

55. The Accused said that after returning from his appointment at Community Corrections, he was smoking his tobacco bong. The Deceased was having a “yarndi session” in her bedroom and had “at least 50 cones” but refused his request for some, he said, “that got me fuming again”.

56. He said that after the Deceased’s friend left, he “snapped”. He smoked his last tobacco cone, grabbed a knife from the kitchen, opened the door to the Deceased’s bedroom and said “give me a fucking cone”. The Deceased said “no, no”. The Accused said “that was it”. He later said he was being “intimidating” so he could “grab her chop” and, when the Deceased said no, he “just lashed out and started stabbing her”. The Accused said the Deceased was standing in the room when he stabbed her in the chest, holding the knife in his right hand and stabbing about ten times. She fell face down and a pool of blood started coming out, at which point he looked at his hand and decided to go to hospital. Asked how he got the cuts to his hand, he said, while smiling, “yeah I missed her with one… and it got me”. He said after the Deceased was lying on the floor he just walked out, that he “[didn’t] want to deal with it no more”, and that he could not recall what he did with the knife.

57. The Accused admitted that he was trying to kill the Deceased when he stabbed her, though he later clarified “it wasn’t so much that I wanted to kill her, but just that she wouldn’t stop”. He thought she was dead before he left the house. He denied drinking alcohol or taking any drugs that day. Asked whether he felt bad about what had happened, he said “no. I feel like it’s going to help a whole lot of other people, not putting up with her pain”.

The ERISP

58. The Accused was taken to Tweed Heads Police Station and entered into custody. After caution and confirming that he did not wish to contact a legal representative, he participated in an electronic record of interview with a suspected person (ERISP) at 1.33am on 8 February 2024.

59. During the ERISP, the Accused said he had lived with the Deceased four times. His current period of residence had commenced some four months earlier. He paid the Deceased weekly rent of $250 for the entire house. He said the Deceased had initially been staying with, and caring for, her mother but moved back into the house around a week earlier without his permission and that she had since been trying to “kick him out”. He did not want to go and saw no reason why he should have to leave. He described the Deceased as a “compulsive liar” who had been taking his things and said that although he was always cleaning the house, she would come back and “turn it upside down”.

Section 31(c) of the Act

60. As I have noted above, the third element of s 31 of the Act is that the Court must be satisfied that the defence of mental health impairment is established.

61. The Crown must prove the physical elements of the charge of murder R v Jackson [2021] NSWSC 1404 at [8] (Johnson J). In relation to that charge, the Crown must prove beyond reasonable doubt that a voluntary act of the Accused caused the death of the Deceased.

62. The Crown submits that it is appropriate for the Court to proceed to consider the matter on the basis of the facts contained in the statement of agreed facts set out above. Those facts satisfy me beyond a reasonable doubt that the Accused’s physical acts caused the Deceased’s death.

63. I am, accordingly, satisfied that the physical elements of the charge of murder have been proved by the Crown beyond reasonable doubt. In the circumstances, I must consider the mental health impairment defence without considering the question of proof of the mental element of murder: R v Tonga [2022] NSWSC 1064 at [15]; R v Siemek (No. 1) [2021] NSWSC 1292 (Siemek) at [16]; Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 at 511. The mental health impairment defence is to be determined on the balance of probabilities: s 28(2) of the Act.

The mental health impairment defence

64. The three psychiatrists in this matter have, between them, produced six reports. Professor Greenberg prepared one report, Dr Furst prepared three and Dr Eagle prepared two. In explaining my reasons for returning the special verdict, I will consider these reports in detail.

Professor Greenberg’s report

65. Professor David Greenberg OAM, a senior forensic psychiatrist, prepared a medico-legal forensic psychiatric report of the Accused at the request of the Local Court. Clearly, that report, dated 9 November 2023, predates the offence of 7 February 2024. Professor Greenberg undertook the assessment on 19 October 2023 by an audio-visual link (AVL) whilst the Accused was housed at Clarence Correctional Centre. Professor Greenberg noted the inherent clinical limitations of an AVL assessment, but he was nevertheless satisfied that those limitations did not compromise the overall validity of his assessment and opinions.

Psychiatric history

66. The Accused said that he had grown up an angry child whose mother did not want to look after him. He reported being “kicked out of home” at the age of 16, whereupon he became homeless and used cannabis. After an intervention by his mother, he was admitted to hospital and diagnosed with psychosis. He remained at Lismore Base Hospital for six months thereafter. He described two admissions to the Tweed Heads Psychiatric Unit and one to Lismore Base Hospital Psychiatric Unit, each for a diagnosis of schizophrenia.

67. The Accused’s medical records disclose that his first episode of psychosis occurred in September 2015. His psychosis was drug-induced, and the Accused spent four months in hospital. At the age of 17, he suffered another episode of psychosis and was diagnosed with co-morbid substance dependence. His mother brought him into hospital due to his aggressive and agitated behaviour. He believed his deceased grandfather was communicating through the television.

68. The Accused was weaned off antipsychotic medication in 2017 but relapsed in April 2018, when he presented with psychosis associated with substance use. He was incoherent, disorganised and aggressive. The Accused was diagnosed with chronic psychosis, associated substance use and history of attention deficit hyperactivity disorder. On 27 August 2021, the Accused was diagnosed with schizophrenia and prescribed antipsychotic medication.

69. At the time of his assessment with Professor Greenberg, the Accused described his mood as “stable”. His appetite and energy were “good” and his weight was also stable. He denied thoughts of self-harm or suicide but reported that he had at the age of 18 attempted to hang himself but ceased because he had planned a party to take place a few days later.

70. Professor Greenberg recorded an extensive substance use history, including alcohol from age 15, cannabis from age 16 (daily from age 21), methamphetamine from age 17 (including intravenously from either 22 or 23). He had also used heroin, LSD, cocaine, buprenorphine and MDMA.

Family history

71. In terms of the Accused’s family history, his parents separated when he was 13. He described his father as a truck operator in a mine. His father had previously abused alcohol. The Accused’s mother is a broker for a bank. The Accused reported that his mother suffered from anxiety and depression. He was the second of four siblings, having an older sister and two younger brothers. The Accused dropped out of school in year 9 after starting to use cannabis. After that, he worked as landscaper for a short period before working in a pizza parlour and as a removalist. In the five years leading up to Professor Greenberg’s assessment, the Accused had spent approximately 65% of his time unemployed. He had four periods in custody, mainly related to assault charges.

72. The Accused reported that at the age of 16, he met a woman who became pregnant with his daughter. He had visited his daughter once.

Professor Greenberg’s conclusions

73. Professor Greenberg made three diagnoses:

74. history of psychotic disorder (schizophrenia) with no current positive psychotic symptoms;

75. substance use disorder; and

76. personality problems with anger management issues.

77. Professor Greenberg concluded that there were no reasonable grounds to believe the Accused was suffering from a mental illness or mental disorder within the meaning of Ch 3 of the Mental Health Act 2007 (NSW). Professor Greenberg further concluded that there were no reasonable grounds to believe that the Accused had an intellectual disability disorder. In Professor Greenberg’s opinion, the Accused presented as a man with “a significant substance use disorder as well as personality problems associated with anger management difficulties.”

Dr Furst’s reports

75. Dr Richard Furst, who was engaged by Legal Aid NSW, prepared three reports for this matter.

Dr Furst’s first report

76. For his first report, Dr Furst was asked to assess the Accused in relation to, amongst other things, the Accused’s fitness to be tried and for preliminary views on the availability of the mental health defence as well as the partial defence of substantial impairment under s 23A of the Crimes Act.

77. Dr Furst assessed the Accused face-to-face on 2 April 2024 at the Shortland Correctional Centre for approximately 60 minutes. In preparing his report, Dr Furst had regard to the Court Attendance Notice, Police facts, the Accused’s criminal history, the Accused’s bail report, Professor Greenberg’s 9 November 2023 report, the transcript of the Accused’s ERISP, a statement of the Accused’s mother dated 9 February 2024 and medical records from Tweed Heads Hospital, Community Mental Health and Justice Health.

78. Dr Furst recorded that the Accused was, at the time of the interview, a 25-year-old single male with a nine-year-old daughter (with whom he had no contact). The Accused was unemployed and had recently applied for a disability support pension. Dr Furst noted the Accused’s history of mental health problems, substance use and medication. That history was also recorded by Professor Greenberg and need not be repeated.

79. Unlike Professor Greenberg’s report, Dr Furst’s assessment took place after the offence. During the assessment, the Accused expressed animosity towards the Deceased in the following terms:

“I ran into her and she said ‘come and stay’. I knew her from a while back. I was trying to stay away from her. She’s not a good person. Everyone knows what she does to people. She steals from people. Does bad stuff. Annoys people. Gets under their skin. Whatever you do, it’s not good enough for her.”

80. He stated that the Deceased would rearrange things after he had tidied and that she would give him a hard time for not mowing the lawn or washing her car. He believed that she had “lured him in to piss him off”.

81. In respect of the offence the Accused stated as follows:

“There was plenty [of cannabis] there. She said ‘no’ and I said ‘give me a cone or I’ll kill you’. She just walked towards me. I fired up as she was stealing my clothes in my property. I was so angry. I lashed out at her.”

82. Doctor Furst also recorded the Accused’s account of the events leading up to the offence, including that the Deceased had told him to move out for two weeks and that the local council was coming to fix the house. When the Accused returned, the Deceased was smoking cannabis with a friend and refused to give him any. The Accused asked the Deceased why she had lied to him about the council and, after the Deceased’s friend had left, again asked for cannabis. The offence occurred after the Deceased refused his request.

83. Dr Furst noted that the Accused’s description in the ERISP of various ways in which the Deceased had annoyed and upset him over the preceding weeks was consistent with the account provided during the assessment. The Accused admitted to stabbing the Deceased multiple times. He said that the Deceased was “fucking with my head” and that he had recurrent thoughts of stabbing or hurting the Deceased for around 6 days before the offence.

84. Near the conclusion of the ERISP, the Accused claimed to have a partner named “Tia” and various young children. There was no apparent factual basis for those claims. In Dr Furst’s opinion, it was unclear whether the Accused had confabulated those people or was simply delusional. To Dr Furst, this raised the possibility that the Accused was also delusional about the Deceased moving things, taking things and deliberately irritating him.

85. Dr Furst summarised the Justice and Northern Rivers Mental Health records, which documented recurrent presentations from 2015 with psychotic symptoms in the context of substance use and non-compliance with medication. This included a presentation to Tweed Heads Hospital on 31 May 2015 due to strange behaviour. The Accused had been outside an apartment block saying that a woman named “Sarah” was his girlfriend. He added, among other things, that Sarah was “inside his Twisties packet”.

86. On 6 June 2016, the Accused was admitted to the Valley Clinic for treatment of “first episode of psychosis”. His symptoms included “delusions of reference from the television and the belief that his deceased grandfather was communicating with him through the television.” When discharged, the Accused was subject to a community treatment order.

87. In October 2018, the Accused was assessed as being acutely psychotic and was subsequently diagnosed with a drug-induced psychosis. In April 2023, a reception nursing entry recorded the Accused saying that he was hearing voices and reported using methamphetamine once or twice a week.

88. Dr Furst diagnosed the Accused with schizophrenia together with an alcohol/substance use disorder. He noted that the Accused’s recurrent psychotic episodes had, over time, come to be understood as a schizophrenic illness rather than being solely attributable to substance use.

Dr Furst’s second report

89. After being provided with additional briefing material, Dr Furst produced a second report dated 6 September 2025. The new material comprised the Accused’s interview with the local hospital on the evening of 7 February 2024, the 8 February 2024 ERISP, body-worn footage of attending police at around 6pm on the afternoon of 7 February 2024, CCTV footage and the Accused’s “000” call.

90. In his second report, Dr Furst confirmed his diagnosis of schizophrenia. In his opinion, the Accused’s description of building tension over days leading up to the offence, his sharpening of the knife and saying to himself words to the effect of “Connor, no”, suggest that he was aware it was wrong to stab and kill the Deceased in the manner he did. Otherwise, Dr Furst opined, he would probably not have resisted the urge as much in the days prior.

91. Dr Furst’s conclusion in his second report was that the Accused had a mental health impairment in the form of schizophrenia but was probably aware it was wrong to stab and kill the Deceased notwithstanding some underlying delusional thinking.

92. The third, supplementary, report of Dr Furst, dated 28 March 2026, was prepared after he was provided Dr Eagle’s first report of 14 November 2025. In the circumstances, I need not discuss Dr Furst’s third report.

Reports of Dr Kerri Eagle

93. Dr Kerri Eagle is a consultant forensic psychiatrist. She was instructed by the Office of the Director of Public Prosecutions to undertake a psychiatric assessment of the Accused and thereafter prepare a report to assist the Court in determining issues relating to any mental health impairment at the time of the offence. Specifically, Dr Eagle was asked to address whether the Accused had any mental health impairment or cognitive impairment and, if so, whether it was possible to say from the available material that any such impairment was operative at the time of the offence so as to allow, amongst other things, a special verdict of “act proven, but not criminally responsible”. In undertaking her report, Dr Eagle assessed the Accused in person for over 90 minutes on 2 October 2025 at the Long Bay Correctional Centre.

94. During the assessment, the Accused acknowledged that he had suffered schizophrenia for some time and that he would hear voices through the radio or in music. Those voices would tell him to do things. He would resist the voices but then “it needs me to do it”. Dr Eagle considered the Accused’s psychiatric history, his substance abuse history, the clinical records of Northern NSW and mid-North Coast Health Services, and the Community Justice mental health records leading up to the offence. Among this material was a multidisciplinary assessment undertaken on 28 November 2023 at the Tweed Heads Acute Care Service by, among others, a psychiatry registrar. That psychiatry registrar, when reviewing the Accused on 5 December 2023, remained concerned that the Accused was still psychotic.

95. The Accused gave Dr Eagle his account of the offence. He stated that the Deceased, whom he had met at age 18, mistreated and abused him mentally, that he would “clean up the whole house and then she’d trash it deliberately”. The Accused said that on the day of the offence, he was hearing voices through the radio telling him “do it” as well as “something about killing someone”. He said that this “really set me off thinking about it”. He described the Deceased telling him that he had to leave for two weeks because the council was coming and then he heard a song on the radio “tempting me, telling me to kill her” and that after the Deceased’s friend left, he had a tobacco “cone” and thought “enough is enough”. He told Dr Eagle that the Deceased was “rousing at me because I didn’t clean the car and [mow] the lawn” and that she “stole my wallet”. He continued “[i]t all just came up. I grabbed the knife and started sharpening it. I was thinking ‘no don’t do it, put it away...’” then he thought “stuff it, I’m going to do it”. He said he told her to “[g]ive me a cone or I’ll kill you” but “[s]he just walked towards me and that was it... I was very angry”.

96. Having undertaken an extremely comprehensive review of all the material available to her, Dr Eagle diagnosed the Accused as having established schizophrenia, diagnosed at 16 following a first episode of psychosis. His symptoms over time included persecutory and religious delusions, referential ideation and beliefs, disorganised thoughts and behaviour, and auditory hallucinations. Dr Eagle opined that the Accused’s schizophrenia caused ongoing disturbances of thought, mood, perception and memory which she considered significant for clinical diagnostic purposes and which impair the Accused’s emotional wellbeing, judgement and behaviour. On that basis, Dr Eagle concluded that the Accused would be considered to have a mental health impairment within the meaning of s 4 of the Act. In addition, Dr Eagle opined that the Accused had an independent cognitive impairment within the meaning of s 5 of the Act.

97. Dr Eagle’s view was that, at the time of the offence, the Accused was experiencing psychosis due to schizophrenia and was therefore under a mental health impairment. In support of this, she noted his beliefs that the Deceased was persecuting him, stealing his belongings and intentionally upsetting him, as well as his report of hearing voices through the radio suggesting he kill the Deceased and his observable poor self-care during the interview with his supervisor on 7 February 2024.

Section 28 of the Act

98. Dr Eagle considered the Accused mental health impairment through the lens of s 28 of the Act. In her opinion, the Accused had a mental health impairment at the time of the offence and displayed signs of a psychotic relapse due to his established schizophrenia, an illness which can impair a person’s ability to perceive and interpret events reliably, to reason and exercise sound judgement, and to understand what is real from what is not. She considered that, at the time of the offence, the Accused appeared to have been experiencing auditory hallucinations, referential ideation and persecutory delusions, including auditory hallucinations from the radio which endorsed his persecutory beliefs and that he believed were telling him to kill the deceased. Dr Eagle acknowledged that the Accused’s account suggested that he was aware that his actions were wrong. She noted that he had not referred to the voices in the context of his offending towards others, that he lacked insight or had anosognosia regarding his symptoms and that his justifications to police that he had done others “a favour” indicated distorted reasoning, which appeared to arise predominantly from the effect of persecutory beliefs and impaired reasoning associated with his illness.

99. Dr Eagle concluded as follows:

“If it is accepted that [the Accused] was experiencing auditory hallucinations in addition to persecutory delusions... Those symptoms most likely had the effect, combined with the other cognitive and function deficits associated with his illness, of preventing him from reasoning with a moderate degree of sense and composure about whether the act... as perceived by reasonable people, was morally wrong (even if he was aware it was legally wrong).”

100. On that basis, Dr Eagle’s opinion was that, from a psychiatric perspective, it would be open to the Court to find that the Accused had the mental health impairment defence available to him.

Supplementary report dated 26 June 2026

101. Dr Eagle provided a supplementary report which is intended to be read with her initial report. The supplementary report addresses a series of specific questions. Dr Eagle did not conduct a further assessment nor was she provided with additional material for the supplementary report.

102. The first issue which required clarification was whether the defence under s 28 was predicated on an acceptance of auditory hallucinations. In this regard, she clarified her opinion that the Accused being unable to reason with a moderate degree of sense and composure was not predicated solely on acceptance that he was experiencing auditory hallucinations, but on acceptance that he was experiencing symptoms of psychosis at the time, which included both auditory hallucinations and delusions operating on his mental state.

103. Dr Eagle’s supplementary report also addressed a statement the Accused made in April 2024 that he had “no voices currently” and that the “last time” had been at the Deceased’s house before Christmas 2023. Dr Eagle felt this was likely an answer to a specific question which used the term “voices” and that it reinforced her opinion that the Accused did not recognise experiences such as hearing voices through the radio as a symptom of psychosis but believed them to be real.

104. The supplementary report also dealt with various other issues, including the Accused being treated with antipsychotic medication; statements he made to police, Justice Health practitioners and Dr Furst consistent with his experiencing an episode of psychosis at the time of the offence; his presentation to the police; and his “000” call. Despite these matters, Dr Eagle maintained that, from a psychiatric perspective, the Accused was experiencing psychosis at the time of the offence, characterised by persecutory and referential delusions and auditory hallucinations. Dr Eagle continued that these symptoms impaired the Accused’s ability to think and reason such that he was unable to reason with a moderate degree of sense and composure about whether his actions as perceived by reasonable people were wrong.

Consideration

105. After careful consideration of the expert evidence, particularly the reports of Dr Furst and Dr Eagle, both of whom had the advantage of assessing the Accused in person (and after the commission of the offence), I am satisfied that, at the time of the offence, the Accused knew the nature and quality of the act but did not know that the act was wrong for the purposes of s 28(1)(b) of the Act. That is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

106. In arriving at this conclusion, I have placed particular weight on the supplementary report of Dr Eagle, which clarified some matters which were rightly identified as deserving of specific further deliberation, and Dr Furst’s third report. Unlike certain matters where the facts make it abundantly clear that the Accused did not know that the act was wrong, the particular constellation of facts in this matter point in different directions. Whilst the totality of the expert evidence, including that of Professor Greenberg, established, beyond any question, that the Accused suffered from schizophrenia for a considerable period of time prior to the commission of the offence, that may not in itself establish that, at the time that the offence was committed, the Accused did not know that the act was wrong in the sense defined by the Act, particularly in the presence of medication addressing that diagnosis. For example, the fact that the Accused sought to reason with and dissuade himself from killing the Deceased could be viewed as significant insofar as the Accused understood that the act was wrong. However, that, taken in isolation rather than, as is necessary, through a wider aperture including, importantly, the auditory hallucinations, does not displace my conclusion that, at the time of the offence, the Accused was experiencing symptoms of psychosis including both those hallucinations and delusions that operated on his mental state.

107. In arriving at this conclusion, I have also given due and proper deference to the statements by this Court, both at the appellate level and at first instance, that if the medical evidence relating to the issue of mental illness is unanimous, I should not reject such evidence in the absence of other material which casts some doubt on it. I am not entitled to disregard such evidence “capriciously”: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 (RA Hulme and Bellew JJ at [337]); Siemek at [93] (Johnson J).

108. Based on the foregoing, I am satisfied that the elements of s 28(1)(b) of the Act have been established on the balance of probabilities, justifying a special verdict of act proven but not criminally responsible.

109. I have considered all of the reports furnished by the three experts. I accept the experts’ unanimous conclusion that the Accused has a mental health impairment, namely, a schizophrenic disorder. I am satisfied, based on their conclusions, that the Accused was unable to determine, in the sense required, that his act was wrong.

Conclusion and verdict

110. Having returned the special verdict of act proven but not criminally responsible, I turn to s 33(1) of the Act, which provides as follows:

33 Effect of special verdict

(1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders—

(a) an order that the defendant be remanded in custody until a further order is made under this section,

(b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

(c) an order for the unconditional or conditional release of the defendant from custody,

(d) other orders that the court thinks appropriate.

111. By s 33(3), the Court cannot make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release.

112. If the Court does not order the release of the defendant, then the Court must refer the defendant to the Mental Health Review Tribunal under s 34 of the Act. The note to s 33 clarifies that a person referred to the Tribunal under s 34 becomes a “forensic patient” within the meaning of that Act.

Orders

113. Accordingly, I make the following orders in relation to the offence of murder charged against the Accused:

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

115. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Accused is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

116. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) the Accused is referred to the Mental Health Review Tribunal.

117. Pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim impact statement of Mr Bill Burgess is to be provided to the Mental Health Review Tribunal.

118. I make the following directions:

119. The Registrar is to notify the Minister for Health as soon as practicable of the making of these orders.

120. The Registrar is to notify the Mental Health Review Tribunal as soon as practicable of the verdict and orders in this matter and to provide the Tribunal with the following documentation:

(a) a copy of the Court’s reasons for verdict and orders; (b) the transcript of these proceedings; and (c) copies of the exhibits in the proceedings including the reports of Professor Greenberg, Dr Furst and Dr Eagle.

3. The Registrar is to notify the Justice Health and Forensic Mental Health Network as soon as practicable of the verdict and orders in this matter and provide it with copies of the following documents:

(a) a copy of the Court’s reasons for verdict and orders; and (b) copies of the exhibits in the proceedings including the reports of Professor Greenberg, Dr Furst and Dr Eagle.

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