R v Kennedy

Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Road Transport (Driver Licensing) Regulation 2017 (NSW)

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

Category: Principal judgment

Parties: Rex (Crown)
Faron Kennedy (Offender)

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

File Number(s): 2024/00012707

JUDGMENT

Background

1. The accused, Faron Kennedy, is alleged to have committed three offences, an aggravated break and enter contrary to s 112(2) of the Crimes Act and a specially aggravated break and enter contrary to s 112(3) of the Crimes Act. There was also a related offence before the Court under s 166 of the Criminal Procedure Act, being that he was a learner driver unaccompanied when he was driving, an offence contrary to s 15(1)(a) of the Road Transport (Driver Licensing) Regulation 2017. I note that that last charge has now been withdrawn by the Crown and it will be formally dismissed by me when I make my final orders.

2. Mr Kennedy entered a plea of not guilty on the grounds of act proven but not criminally responsible. Mr Kennedy filed an election seeking to have his trial heard before a judge sitting alone, pursuant to s 132A of the Criminal Procedure Act. An order to that effect was made by me today, 27 June 2025, it having been raised with the Court on 12 May 2025.

3. Before turning to the evidence, it is appropriate to set out in summary some of the legal principles that will still apply in this case.

Legal Principles

4. This being a criminal trial it is the Crown that carries the burden of proving the guilt of the accused with the offences, with the standard of proof being that of beyond reasonable doubt.

5. The accused has the benefit of the presumption of innocence. He was not required to give evidence and no inference adverse to him may be drawn by the fact that he did not. Where the defence of mental health impairment has been raised, the Crown must still prove beyond reasonable doubt that the accused undertook the physical elements of the charges. The defendant in this case does not dispute those physical acts occurred.

6. If the Court is satisfied that the physical elements of the charges have been proved by the Crown beyond reasonable doubt, the Court must then consider the defence of a mental health impairment. Consequently, the Court’s focus becomes the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, (“the Act”).

7. A “mental health impairment” is defined at s 4 of the Act as:

8. 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:

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.

9. That section is the critical consideration in this matter because under the Act the accused is presumed to have been mentally well at the time of the alleged offence and it is a matter for the accused to prove the contrary proposition on the balance of probabilities. What must be established is that the accused either did not know the nature and quality of his act or did not know that it was wrong in accordance with s 28 of the Act.

10. Section 28(1)(b) imports what was said by His Honour Dixon J, in the well-known authority of R v Porter (1933) 55 CLR 182. Section 31 of the Act is also relevant to this matter given both parties agree a special verdict is available.

The evidence

11. The evidence in this matter was summarised in an agreed statement of facts which was tendered and forms part of exhibit 1, being an agreed tender bundle.

12. In addition to the agreed facts the parties tendered by consent, firstly, a report by Dr Sathish Dayalan psychiatrist dated 25 October 2024. Secondly, a report from Matthew Jones psychiatrist dated 31 December 2024. Thirdly, a statement from Allen Rutherford dated 16 January 2024, and an affidavit from Mr Rutherford dated 12 May 2025. There is also a note from Justice Health dated 5 September 2024, a treatment recommendation from Dr Andrew White dated 3 April 2025, and a letter from the Coonamble Aboriginal Health Service dated 26 June 2025.

13. The accused was assessed while in custody by Dr Dayalan on 11 October 2024. He was assessed by Dr Jones on 30 December 2024. Their reports largely form the basis of my assessment as to whether the accused has established that he did not know his acts were wrong because of a mental or cognitive impairment.

14. Mr Kennedy was born on 9 June 1993. He is the son of Lloyd Kennedy who was the alleged victim in count 1. At the time of the offence Lloyd Kennedy lived in Limerick Street Coonamble. He has sadly since passed away as a result of various health issues completely unconnected to the offence alleged.

15. The second alleged victim is Mr William Hopgood. At the time of that offence he resided Wareena Lane Coonamble. Mr Hopgood is the stepfather of the accused and has been in a relationship with the accused’s mother for approximately 12 years.

16. Mr Hopgood spoke with the accused on the day of these incidents prior to the offending arising. There were no issues between himself and the accused at the time, however Mr Hopgood reported in a subsequent statement to the police that he observed the accused to be highly agitated. This is an important fact which I will return to. I infer from the evidence that the accused had no issues with his father either.

17. Prior to the offences said to have occurred, the accused’s house mate, Mr Allan Rutherford, reported that the accused did not seem to have been sleeping well for the two weeks prior to the offending. He observed that the accused stopped using Yarndi or cannabis. The accused appeared to Mr Rutherford to be paranoid and he did not attend a doctor’s appointment which had been booked for him during early January 2024.

18. At approximately 1am on 11 January 2024, the accused was at his home in Yarran Street Coonamble, with Mr Rutherford. At this time the accused asked Mr Rutherford for his phone and his house keys, Mr Rutherford handed them over only to see the accused open the front door and then to drive off in Mr Rutherford’s Holden Cruze motor vehicle.

19. The accused had a Learner’s driver’s licence and was unaccompanied when driving. This gives rise to the s 15(1) driving matter.

20. At about 1.45am the accused attended Limerick Street Coonamble where his father was. Mr Lloyd Kennedy was lying on his bed in the front bedroom. The window of this bedroom looks out over the front of the home. The accused removed the mesh of the bedroom window and climbed in through it into the bedroom. The accused then went into the kitchen and picked up a knife. While he did this he was calling out “Dad, I love you. I’m going to kill you”.

21. Not surprisingly Mr Lloyd Kennedy was fearful as to what the accused may do next and told him that the police were on their way. The accused jumped back out of the bedroom window.

22. Approximately 10 minutes later the accused came back into the house breaking a window and holding a knife. The accused approached his father swinging the knife towards his rib area. Lloyd Kennedy attempted to block the knife and, in the struggle, the accused knife broke. The accused then left the house again through the bedroom window.

23. The accused was then next spotted in Wareena Lane at the home of William Hopgood, this was at about 2am. Mr Hopgood was lying on a mattress in the lounge room watching television. The facts note Mr Hopgood had consumed about two and a half bottles of Chardonnay, although I am not sure why that is relevant.

24. It is agreed the accused forced open the front door, closed it and then locked it behind him. Once the accused entered the home, he approached Mr Hopgood, then went to the kitchen and picked up a steak knife. He swung the knife towards Mr Hopgood’s throat, with Mr Hopgood deflecting the knife with his arms. The accused then stabbed Mr Hopgood in the chest before running out of the front door.

25. Importantly in terms of the accused’s state of mind at that time of these events, throughout the confrontation he was saying “I’m sorry Will”, with Will being a reference to Mr Hopgood. The accused left the house and Mr Hopgood closed the front door behind him, then contacting the police and Emergency Services. Whilst on the phone to Emergency Services the accused returned and began kicking the front door. Mr Hopgood told the Triple-0 operator that the accused was trying to break back in.

26. Again, importantly in terms of the court’s consideration of the ultimate question, Mr Hopgood observed to the Triple-0 Operator that the accused was “talking a bit silly”. Police arrived at the premises at about 2.19am. Police observed blood throughout the premises and took photos of Mr Hopgood and a bloodied knife.

27. Around that time, police heard a vehicle approaching from the southern end of the street. The vehicle had a flat tyre. Police approached and saw the vehicle enter the driveway of Mr Kennedy’s property and drive down the driveway towards a police vehicle. The vehicle stopped and the accused got out from the driver’s door. He was the only occupant of the car. Police told him to stop but he ran towards Mr Kennedy’s unit.

28. At this point police tasered the accused and then arrested him. Police observed blood on the accused’s right arm. The accused was conveyed to Coonamble Police Station a short time later. He remained in custody for these matters until I released him on bail on 12 May 2025.

29. After his arrest the accused was taken to hospital because he said he was not feeling well. He was discharged from the hospital and returned to the care of the police, who formed the view that he was not fit to participate in an electronically recorded interview or to consent to a forensic procedure. Those observations and decisions by the police are also quite instructive with respect to the accused state of mind at the relevant time.

30. As a result of the accused actions Mr Hopgood sustained a 2-to-3-centimetre stab wound to his chest. Mr Kennedy did not sustain any injuries beyond soreness to his left side.

Mr Kennedy’s state of mind

31. The elements of the offences of counts 1 and 2 contain several physical elements which the Crown must prove beyond reasonable doubt. There is no dispute that the Crown has established each of those elements beyond a reasonable doubt in this case. Consequently, the Cout must focus instead on the defence of mental health impairment that is raised by the accused.

32. I have referred already to some of the evidence that is of a direct consideration of the Court when it comes to this question. The accused has received very little in the way of mental health treatment or analysis prior to the facts in question arising. Although there is a reference that in 2008 and in 2015, he underwent mental health assessments.

33. There is also a reference in Dr Dayalan’s report that during 2008 the accused was described as having trouble sleeping and in a low mood. In 2015 he was thought to have autism, although this was subsequently ruled out. He has not received treatment in the community until he was bailed to Mr Rutherford’s house by me on 12 May 2025.

34. Mr Rutherford is an important witness in this case, while he is not a doctor he has known the accused for 20 years. He remembers the accused having what he described as “mental health issues” when the accused was around 16 or 17. One of the recurrent themes in the expert reports and in Mr Rutherford’s evidence is the accused’s long-term use of cannabis.

35. In the leadup to the two incidents Mr Rutherford made the following important observations which are set out in his unchallenged statement. At para 12 of his statement of 16 January 2024 Mr Rutherford said this,

“Some time before Wednesday 10 January 2024 Faron had stopped using yarndi I can’t remember the day he came out of his room and told me he was off it he had given his yarndi to his brother and thrown his bong out. He’d also stopped drinking coffee and Sustagen. He was worried about the taste of some foods. He had given away his hand controller for the PlayStation I thought that was a bit odd. He told me a number of times that he didn’t feel right.”

36. And at para 13,

“A little bit after this time Faron was being weird about phones and TVs he didn’t want them near him and seemed a bit paranoid he was worried about the news on the TV and being brainwashed by the games. He stated he wanted to read books more. He left the TV off for a few days and didn’t touch his phone I hadn’t seen him like this before I have seen him depressed but this was something different.”

37. Mr Rutherford goes onto say this at paras 19 and 20,

“On the way to Walgett Faron was very fidgety he was sitting in the front with me he was moving his seat up and down a lot constantly lighting smokes and putting the window up and down. He asked to play music a few times he listened to a few songs before he didn’t want to listen to them anymore then he did that again.

He seemed very confused on that trip. He asked his mother a few times if he was okay and if he needed help, I think that mostly that happened on the way back. He opened the window on the way back before he yelled out the windows of something I don’t know what that was about. I remember Faron saying to his mother that he needed help and might need to be medicated.”

38. Mr Rutherford then described the night of the two incidents, stating that everything had been normal in their house up until perhaps 1am when the accused came and woke him up and asked for his keys and mobile phone. The next time he heard about the accused was after the accused had been arrested.

39. In Dr Jones report he states that the offender had been hearing voices a week or two prior to these alleged offences. The accused told Dr Jones that after he had been sent into custody, he believed he had been getting messages sent to him from the television. For example, he recalls watching a TV show called “The Chase” and he believed that the contestants on the show were talking about him. He switched to another show and believed that he was also being spoken about there and that messages were being sent to him from that show.

40. The accused remembers talking to himself and placing a towel around his neck and, separately, placing both a sock and then ultimately a string around his testicles. He did these things in an attempt to stop the voices and to stop the sperm travelling to his brain.

41. Dr Jones stated that the accused was very unclear as to exactly what happened during the offences, but he believed he was being under the influence of cannabis at the time and that he was hearing voices which he described to Dr Jones as being “quite pushy”.

42. Dr Jones reviewed the accused custody management record, the ambulance records, Justice Health records, the medical records held at the Coonamble Multi-Purpose Service and of the Dubbo Hospital and Community Mental Health Services.

43. Dr Jones makes reference to the ambulance records which were recorded on the night of the accused arrest, which stated that the accused appeared to be erratic in both his thoughts and speech and appeared to have a poor ability to recognise his thoughts as well as having a lack of insight. Dr Jones refers to the Justice Health records that included a notation on 12 January 2024, that the accused was telling the Justice Health nurse that his car had been talking to him and that his car had instructed him to attack both his father and his father-in-law.

44. At the time Dr Jones spoke with the accused on 30 December 2024 -which I note is now some six months ago - there was no evidence of any formal thought disorder or active delusional thoughts.

45. His impression of the accused was that his speech was normal, he was co-operative, attentive and displayed no abnormal movements. The accused told him he was not experiencing any abnormalities consistent with psychosis. According to Dr Jones the accused has responded well to treatment in custody and is free from the symptoms of psychosis.

46. Dr Jones stated at p 14 of his report,

“The offender has a mental health impairment which is a temporary or ongoing disturbance of thought, mood, volition, perception or memory. This definition is satisfied by Mr Kennedy’s experience of acute psychosis around the time of the alleged offences and his disturbance can be regarded as significant for clinical diagnostic purposes.

Mr Kennedy has been assessed by myself and others as having first episode psychosis likely as part of the beginning of a chronic schizophrenic illness and his disturbance impaired his emotional wellbeing, judgment and behaviour. This is evident in that Mr Kennedy had no provocation for his attack on his father and father-in-law. He was directed by psychotic symptoms such as voices and ideas of reference and he was clearly unwell from a mental health perspective something which persisted for several months afterwards.

Mr Kennedy’s mental health impairment was caused in my opinion and the opinion of others by a psychotic disorder and was not merely the result of a temporary effect of ingesting a substance or a substance use disorder. It is noted that Mr Kennedy had consumed alcohol and marijuana around the time of the alleged offences. However his significant psychotic illness persisted for a number of months following cessation of the substance use indicating it was predominantly caused by his psychotic illness rather than merely by substance misuse.

I agree with Dr Dayalan that the alleged offending behaviour was driven by his psychotic symptoms and Mr Kennedy was unable to reason the moral wrongfulness of his actions with a moderate degree of sense and composure at the time. He may have been aware of the quality and nature of his actions given his apology to one of the victims and stating he was going to kill the other.”

47. Dr Dayalan prepared a report on behalf of the Crown. Dr Daylan reported that the accused came from a family with a history of mental illness including his father having been diagnosed with schizophrenia, three brothers who were prescribed anti-psychotic medication and a sister who takes medication to deal with panic attacks.

48. Dr Dayalan also went through the Justice Health notes and made the same observations as Dr Jones. His assessment was some nine months after the alleged offences. Dr Dayalan’s conclusion commencing at para 65 is that:

“…Mr Kennedy suffers from schizophrenia with reference to the criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5.

The acute psychotic symptoms were in remission at the time of the assessment.

The pattern of use of substances would indicate that Mr Kennedy suffers from Alcohol and Cannabis Use Disorder that are in remission in a controlled environment.

Around the time of the alleged offences Mr Kennedy was suffering from a psychotic episode characterised by disorganised behaviour, auditory hallucinations and probable persecutory delusions not eating due to concerns of being poisoned.

It is noted he had been smoking cannabis around this time of the offences but due to the persistence of symptoms despite abstinence, substance use cannot be regarded as solely contributory to his psychosis.

Mr Kennedy was suffering from a psychotic episode attributable to schizophrenia and the episode was probably triggered or exacerbated by the use of cannabis. Schizophrenia fulfils the criteria for mental health impairment as per the definition within the Mental Health and Cognitive Impairment Forensic Provisions Act.

In my opinion the alleged offending behaviour was driven by his psychotic symptoms and Mr Kennedy had been unable to reason the moral wrongfulness of his action for the moderate degree of sense and composure at the time. On a balance of probabilities Mr Kennedy would have the defence of mental health impairment available to him.”

Is the defence established?

49. Having considered all of the evidence placed before the Court and noting both the Crown and the accused, who was legally represented, are of the view that the defence of mental health impairment is established, I am also satisfied that the defence of a mental health impairment under s 31 of the Act has been established and a special verdict will be returned.

50. The accused’s history suggests that he has an emerging schizophrenic illness which had manifested shortly before the events of 12 January 2024. I give considerable weight to the opinions of Dr Jones and Dr Dayalan.

51. Each psychiatrist was comprehensively briefed with material going to the accused psychiatric history to the extent that it had been documented. His circumstances preceding his two attacks and the witness accounts of the relevant events. Each initially made their own forensic psychiatric assessment, there was no challenge to their expertise or their qualifications, nor their conclusions and there is no good reason for the Court not to accept the evidence contained in their reports.

52. The accused condition has been and remains in remission, but it can become a debilitating one if ongoing psychiatric care is not provided and if the experts advice is not adhered to. This includes remaining abstinent from cannabis and other illicit substances.

53. There can be no doubt that the psychotic episode from which he suffered on 12 January 2024 and the schizophrenia from which Mr Kennedy still suffers is an ongoing disturbance of thought, mood and perception.

54. It is one of clinical significance and it has impaired his judgment and would perhaps return to impair his judgment if he did not remain abstinent from those illicit substances and did not continue his medication and treatment regime within the community.

55. There is no doubt in my mind that s 4 definition of the Act has been met.

56. Dr Dayalan expressly states that the offender had been smoking cannabis around the time of the offence, but due to the persistence of the symptoms despite the abstinence from that drug, that it alone cannot be regarded as the trigger for the psychosis.

57. I am satisfied that the accused’s capacity to reason about the moral wrongfulness of his acts was impaired such that he was precluded from reasoning with a moderate degree of sense and composure the defence as I have said is made out. Having reached that finding, that is, a special verdict the question becomes how the matter is to be dealt with.

Disposition

58. Section 33 and 34 of the Act must be considered. Section 33 is directed towards the protection of the community together with the welfare of the person who has committed the offences, giving rise to the special verdict.

59. It states that on the return of a special verdict of act proven but not criminally responsible the Court has a number of options available to it as per s 33(1) of the Act which states that 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) (c) an order for the unconditional or conditional release of the defendant from custody, (d) (d) other orders that the court thinks appropriate.

60. In this case the Court will ultimately make orders that the accused not be detained in any type of custodial environment, but instead there will be a conditional release. That position has been reached having considered the psychiatric evidence which is available and appropriate. In this instance I not only have the reports of Dr Dayalan and Dr Jones, but more recent material which I will refer to in a moment.

61. Section 33(3) states that,

“The Court must not make an order for the release of the defendant unless it is satisfied on the balance of probabilities that the safety of the defendant and the community will not be seriously endangered by the defendant’s release.”

62. Section 34 of the Act must also be considered, it states that,

“The Court must refer the defendant to the Tribunal if a special verdict of act proven but not criminally responsible is returned.”

63. For the purpose of s 33(2) of the Regulations to the Act, they provide for a report to be prepared by a registered psychologist as well as a psychiatrist and that this could be available for the Court to consider.

64. This matter is going to be finalised today because I have formed the view that there is sufficient material before the Court to do so and it is unnecessary to obtain any further material. I note this is view is shared by the Crown and by Mr Stone, who appears on behalf of the accused.

65. Section 69 sets out the objects of Part 5 of the Act which is relevant to the treatment of a person found not criminally responsible for the commission of a crime due to a mental impairment. Those objects are much wider than to achieve the involuntary psychiatric treatment of an individual. The objects of Part 5 include the protection and safety of members of the public. The Act provide an opportunity for persons such as Mr Kennedy who are found not criminally responsible, to obtain appropriate care. Obviously, there is a need to both protect the safety of the accused’s victims and potential victims in the future.

66. The most recent evidence before the Court is a letter from the Coonamble Aboriginal Health Service dated 26 June 2025, being yesterday, which refers to the accused’s ongoing compliance with his treatment regime. The letter states,

“Faron reports that since the initiation of anti-psychotics his mental health has stabilised significantly. His mood is well regulated and he reports sleeping and eating well. He has shown no signs of hallucinations or delusions and his overall psychological state is stable.

Faron also has a mild consumption of alcohol typically once a week with a couple of standard drinks and does not use illicit substances. His risk of harm to himself or others is assessed at low.”

67. There is also a treatment recommendation letter from Dr Andrew White dated 5 April 2025. Dr White is employed in the Mental Health Unit of Justice Health and he has been treating the accused since May 2024. I place significant weight on Dr White’s opinion given his long-term relationship with the accused. He states,

“At the time of his discharge from the Mental Health Screening Unit he had recovered from his acute psychotic episode and was presenting well.

During his time under my care, he has remained free of symptoms and psychosis and has been adherent to medication at all times. He does not exhibit negative features of schizophrenia such as poor self-care, lack of emotional expression or difficulties with social interaction ...

In my experience someone who is presenting as well as Mr Kennedy is, is unlikely to be thought to need long term follow up with a community mental health team and would likely be referred ultimately to a general practitioner ...

It is imperative that Mr Kennedy remain abstinent from illicit substances.”

68. Dr White notes that if the accused had remained in custody there would have been potentially a two year wait between this judge and before he could be seen at the Forensic Hospital, which frankly, is fairly appalling.

69. I have been referred to the judgment of his Honour Judge Haesler SC in R v Munday No 3 (2021) NSWDC 629. In that decision his Honour gives a very practical explanation as to a possible option the Court may pursue in dealing with a matter such as this. However, given the material before me I am going to resolve all matters today.

70. Having reached the finding I have set out regarding the offender’s condition at the time of these offences, I make the following orders:

71. On the charges at sequences 1 and 2 on the indictment, the Court finds that the offences are proven, but the accused is not criminally responsible.

72. The verdict that will be entered on the indictment is one of act proven but not criminally responsible.

73. The matter before the Court on the 166 Certificate was withdrawn and is formally dismissed by the Court.

74. Pursuant to s 33(c) of the Act, an order for conditional release of the defendant will be made on the following conditions, specifically he is to:

(a) obey all directions of the Mental Health Review Tribunal. (b) attend all appointments with or organised by the Mental Health Review Tribunal. (c) live at REDACTED with REDACTED for the foreseeable future, noting that this Order may be varied with the permission of the Mental Health Review Tribunal. (d) not to go near or contact Mr William Hopgood. (e) to accept any referral by Justice Health to the Coonamble Aboriginal Health Service for treatment in the community. (f) accept all treatment as prescribed by a doctor including taking prescribed medication. (g) not to drink alcohol or take drugs unless those drugs are prescribed by a doctor.

71. Pursuant to s 34 of the Act, the Court refers Mr Kennedy to the Mental Health Review Tribunal for ongoing assessment.

72. The Registrar is to notify:

(a) the Minister for Health as soon as practicable of the making of these orders. (b) the Mental Health Review Tribunal as soon as practicable of the making of these orders and to provide the tribunal with these reasons as well as the reports of Dr Jones, Dr Dayalan, Dr White and the Coonamble Aboriginal Medical Service. Copies of exhibit 1 will also be provided to the Mental Health Review Tribunal.

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Amendments

11 July 2025

Minor amendment