R v Sherrin-Hill

Catchwords: CRIME – murder – special verdict – where defence and prosecution agree mental health impairment defence is available – a total of 30 knife stab wounds to neck, chest, arms and legs – schizoaffective disorder – psychiatric evidence – where forensic psychiatrists agree the accused suffers from a mental health impairment – whether the evidence satisfies that the defence is established – verdict of act proven but not criminally responsible entered

Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31, 33, 34

Cases Cited: R v Jackson [2021] NSWSC 1404
Da-Pra v R; R v Da-Pra [2014] NSWCCA 211

Category: Principal judgment

Parties: Rex (Crown)
Tristan Sherrin-Hill (Offender)

Representation: Counsel:
C Young (Crown)
P Krisenthal (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2023/331160

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: Tristan Sherrin-Hill is charged that on 16 October 2023, at Umina Beach in the State of NSW he did murder Daniel Bruns. He was committed for trial from the Local Court. At his arraignment on 5 June 2025, Mr Sherrin-Hill pleaded not guilty to that count. The sole issue in the trial was expected to be whether Mr Sherrin-Hill qualified for a special verdict of act proven but not criminally responsible. Since Mr Sherrin-Hill’s arraignment, the parties have agreed that the evidence to be tendered in the proceedings establishes a defence of mental health impairment. In that circumstance, the parties agree that it is appropriate to deal with the matter pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Background

2. In 2023, Mr Sherrin-Hill lived in Umina Beach. He was employed in his parents’ flue cleaning business and regularly worked with Mr Bruns, with whom he formed a close relationship. That relationship was, however, punctuated with periodic violence between the men. They also occasionally engaged in criminal activity together. Text messages recovered by police indicate the men had a habit of meeting each other in the late evening and early morning.

3. In the early hours of 16 October 2023, Mr Bruns picked up Mr Sherrin-Hill in his partner's vehicle. They drove to the Ocean Beach Surf Life Saving Club and parked in the carpark. Whilst situated in the car park, Mr Sherrin-Hill produced a knife and stabbed Mr Bruns in the neck, chest, arms and leg a total of 30 times. One wound perforated his left internal carotid artery and left jugular vein which caused his death.

4. Mr Sherrin-Hill sustained significant injuries to all four fingers on his left hand during the stabbing and these injuries later required surgical repair.

5. Mr Sherrin-Hill left the area and at 1.43am and telephoned his father. After talking to his son for approximately two minutes, Roy Benchoam and his wife decided to search for him. They ultimately located Mr Bruns in the car at Ocean Beach. They alerted police who attended the scene and confirmed Mr Bruns was dead.

6. Just before 6am, Mr Sherrin-Hill went to a friend’s house, who called Mr Sherrin-Hill’s father. He arranged for his daughter to collect Mr Sherrin-Hill and she took him to Gosford Police Station. Police called an ambulance and Mr Sherrin-Hill was taken to Gosford Hospital where he was admitted for treatment of his injuries. He remained an inpatient until 18 October 2023 when he was discharged and charged with the present offence.

Issue at Trial

7. It is not in dispute that Mr Sherrin-Hill stabbed Mr Bruns on 16 October 2023 with at least the intention to cause grievous bodily harm. Nor is it in dispute that the injuries suffered by Mr Bruns from those wounds directly caused his death. Mr Sherrin-Hill contends that at the time of so doing he was suffering from a mental health impairment, namely schizoaffective disorder, and that he satisfies the requirements of s 28 of the Act so that he is not criminally responsible for his actions.

8. Both experienced assessing psychiatrists have agreed upon the availability of the mental health defence. Mr Sherrin-Hill relies upon s 31 of the Act, which is in the following terms:

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.

Section 31 Procedure

9. In R v Jackson [2021] NSWSC 1404, Johnson J considered the provisions of s 31 as follows:

[7] A hearing under s 31 of the Act is not a trial. No trial date has been fixed. Accordingly, there is no need for the Accused to elect to be tried by Judge alone under s 132 Criminal Procedure Act 1986: R v Sands [2021] NSWSC 1325 at [3]. The s 31(c) procedure has been described as an "evidentiary inquiry": R v Gough [2021] NSWDC 180 at [13].

[8] If the Court is satisfied that the defence of mental health impairment is established for the purpose of s 31(c) of the Act, the Court is required to enter a special verdict under s 31 of "act proven but not criminally responsible". The Court must then consider what consequential orders should be made under ss 33 and 34 of the Act.

[9] In the absence of s 31, a criminal trial would take place for the purpose of determining whether the defence of mental health impairment had been established. A criminal trial is conducted as adversarial litigation where an accusatorial process is involved, in which the prosecutor bears the onus of proving the elements of the crime charged: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In this case, if the matter proceeded to trial, it would be for the Crown to prove that the Accused committed the act in question and the other elements of the crime of murder (apart from the question of intention) and it would be for the Accused to establish, on the balance of probabilities, the defence of mental health impairment under s 28(2) of the Act.

[10] Section 31 is a statutory modification of these usual procedures and permits the Court to consider the agreed position of the parties without the need for a criminal trial. In R v Siemek (No. 1) [2021] NSWSC 1292, reference was made (at [19]) to the origin of s 31 as explained in the second reading speech:

"In the second reading speech for the MHCIFP Bill, the Attorney General explained that s 31 'aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found' (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added 'extra safeguards' in that 'the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established'. This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, 'People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences', 2013, paragraphs 3.159-3.160."

[11] The operation of s 31 has been considered in cases which had been fixed for trial and where, following an election for Judge-alone trial, the trial proceeded but culminated in a special verdict by way of s 31: R v Tonga [2021] NSWSC 1064; R v Siemek (No. 1). In those cases some consideration was given to the interaction between s 31 of the Act and ss 132 and 133 Criminal Procedure Act 1986.

[12] However, that analysis has no application to the present case where s 31 has been engaged before any trial date has been fixed, let alone any election for Judge-alone trial.

[13] It remains the case, however, that the Court is required to provide reasons for a decision to return a special verdict under s 31. In R v Siemek (No. 1), the Court said in this respect at [21] and [22]:

"21 However, the Court's decision fulfills another important purpose. It provides reasons for the verdict of the Court announced in open court on a serious charge where there is a strong public interest in the community understanding the basis upon which the verdict has been returned. The provision of reasons for a decision is an expression of the open justice principle. The importance of a public explanation for final decisions has long been recognised: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[58].

22 In addition, where the Court returns a special verdict of act proven but not criminally responsible under s 31 MHCIFP Act, it is necessary for the Court to consider what further orders should be made under s 33 in circumstances where the Court must refer an accused person to the Mental Health Review Tribunal under s 34 MHCIFP Act if such a special verdict has been returned. The reasons of the Court for reaching the verdict, and for making consequential orders, serve an important role in the discharge by the Mental Health Review Tribunal of its functions with respect to a person in relation to whom such a special verdict has been returned: cf Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 at [17] (concerning the giving of reasons where the parties signed consent orders in civil proceedings under rule 36.1A Uniform Civil Procedure Rules 2005)."

The Relevant Evidence

10. Mr Sherrin-Hill has been assessed by Dr Richard Furst and Dr Adam Martin, both of whom are very experienced forensic psychiatrists. Both specialists agree that Mr Sherrin-Hill suffers from a mental health impairment, namely, schizoaffective disorder. With respect to the availability of the mental health defence, Dr Furst was of the following opinion:

“It is now apparent that it is more likely than not Mr Tristan-Hill [sic] was suffering from a severe disturbance of mood as at 16 October 2023 and was also paranoid and erratic in his thinking and behaviour as at the time of the alleged offence. He remained mentally disturbed and erratic in his mood and behaviour when he attended Gosford Police Station later that morning and when he was detained in hospital later that afternoon for a treatment of his hand injuries [evident in the Police body-worn video].

With the benefit of the Crown case statement and additional information contained therein, coupled with the statement of Katrina Butler and revising the earlier witness statements and video footage, I am now [of] the opinion that Mr Tristan Hill has a mental health impairment, as defined under section 4(2)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in the form of schizoaffective disorder.

Although his motivations for fatally stabbing his friend Burns [sic] multiple times in the manner alleged remain unclear, I am [of] the opinion that the most likely reason for his actions was a severe mood disturbance combined with paranoid thinking and that he was erratic in his behaviour as a consequence of those problems.

I am also [of] the opinion that Mr Sherrin-Hill was aware of his actions on the night in question, but was unable to reason about the wrongfulness of his alleged actions with a moderate degree of sense and composure about whether the alleged act, as perceived by reasonable people, was wrong because he was psychotic and unstable in his thinking and his mood. Accordingly, it would appear that the accused has a defence available to him within the meaning of section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).”

11. Dr Martin also addressed this issue in the following terms:

“Taking into account the above answers, in my view, it is likely that there was a direct nexus between mental health impairment and the alleged offending. The alleged offending obviously sounds deliberate and intentional, and in my view, it seems reasonable to accept that he knew the nature and quality of the alleged actions.

However, in my view, it is highly likely that the Court will find that he did not know that the act was wrong [that is, he could not reason within a moderate degree of sense and composure about whether the act was wrong].

Taking into account allegations such as comments that he made to his family, and making an apparent confession to the police, on a superficial level, it is likely that he knew that the actions were legally wrong. However, taking into account the likelihood that he has an enduring major mental illness likely operating at the time of the alleged offending, the multiple stabbings of his friend without obvious provocation, in my view, the most likely scenario is that the alleged offending occurred while severely mentally ill, and where he would have had a highly diminished capacity to reason with a moderate degree of sense and composure about wrongfulness. Obviously, this is an ultimate issue for the court, but in my view, the defence of mental health impairment can be reasonably argued and is available to him.”

Consideration

12. Both the Crown and the defence agree that the requirements of the mental health defence are established. Mr Sherrin-Hill is represented by an Australian Legal Practitioner. It remains for me to be satisfied that the material establishes that the defence is made out.

13. In *Da-*Pra *v R; R v Da-*Pra [2014] NSWCCA 211 RA Hulme and Bellew JJ observed at [337]:

"If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: see R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173; and Tumanako v R (1992) 64 A Crim R 149."

14. There is no evidence before me that would cast any doubt on the evidence of Drs Furst and Martin. Accordingly, I am satisfied that the material establishes the mental health defence. It is appropriate that I return a verdict of act proven but not criminally responsible.

Consequential Orders

15. Having returned that verdict, I am also required by s 33 of the Act to make a determination regarding Mr Sherrin-Hill’s immediate future.

16. Dr Furst is of the opinion that he requires long term treatment by a forensic mental health service with antipsychotic medication. Dr Furst said that:

“Mr Sherrin-Hill has obvious mental health treatment and rehabilitation needs that will be long-term. He is at high risk of completing suicide over the medium to long-term by virtue of his schizophrenic illness and seriousness of the attempts he made on 29 and 30 October 2023, suggesting that placement in a psychiatric hospital as a forensic patient would be much more therapeutic and far more preferable than disposition under Section 23A(1)(a) of the Crimes Act 1900.”

17. Dr Martin does not expressly deal with this issue. However, I accept, having regard to Dr Furst’s opinion in the light of all of the evidence and the doctors’ detailed reports, that it would not be appropriate at this stage to release Mr Sherrin-Hill into the community.

18. In these circumstances, the appropriate orders to make in this case are as follows:

19. In relation to the single count on the indictment, I enter a special verdict pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 of act proven but not criminally responsible.

20. Pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Tristan Sherrin-Hill 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.

21. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, Tristan Sherrin-Hill is referred to the Mental Health Review Tribunal.

22. I direct the Registrar to notify the Minister for Health of these orders within 7 days.

23. I further direct the Registrar to notify the Mental Health Review Tribunal of the verdict and these orders within 7 days;

24. The Registrar is to provide the Mental Health Review Tribunal with a copy of these orders and my reasons for judgment and the exhibit within 7 days.

25. The Registrar is to notify Justice Health of the verdict and orders, and provide a copy of the reasons for judgment and orders and exhibit to Justice Health within 7 days.

Note

19. When these proceedings were before me on 4 July 2025, I received oral victim impact statements from Katrina Butler, the partner of Mr Bruns, as well as a statement read on behalf of his family. Those statements are very poignant and bear witness to the unique distress and suffering caused by the death of Mr Bruns. I consider that I should make a further order in the circumstances as follows:

(8) I direct the Registrar within 7 days to provide the Victim Impact Statements read to the Court on 4 July 2025 to the Mental Health Review Tribunal.

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