R v Watt

File Number(s): 2023/298515

JUDGMENT

Introduction and nature of the trial

1. The accused, Hope Watt is charged on indictment with 2 counts, and with a third count, count 3, in the alternative to count 2. Those charges are alleged to have occurred on 18 September 2023 at Tweed Heads, and are as follows:

2. That the accused stole a knife set to the value of $60, being the property of Kmart Australia Limited;

3. That the accused whilst armed with an offensive weapon, namely a knife, robbed Alexander Smith of a key and a motor vehicle;

4. That in the alternative to count 2, the accused while armed with an offensive weapon namely a knife assaulted Alexander Smith with intent to take a motor vehicle and took and drove that motor vehicle, without the consent of Alexander Smith, the owner of that motor vehicle.

5. On 10 September 2025 an order was made for the matter to proceed as a judge alone trial.

6. Ordinarily, in accordance with s133 of the Criminal Procedure Act 1986 ("CPA"), the judgment of the judge alone trial must include the principles of law applied by the judge and the findings of fact on which the judge relies, and also that the judge take into account any warning required by any Act or law to be given to a jury.

7. In the present case, the parties are agreed that the defence provided for by s28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"), is made out. As a consequence by s31 of the Act, if that section is otherwise satisfied, the court may "at any time in the proceedings" enter a special verdict of act proven but not criminally responsible ("the special verdict").

8. There is authority for the special verdict being entered even before a date has been set for trial; see R v Jackson [2021] NSWSC 1404.

9. As a consequence a trial in which s31 operates may not require the same degree of compliance with s133 CPA as a trial where s31 does not operate.

10. R v Tonga [2021] NSWSC 1064 was, like the present trial, ordered to be heard by a judge alone, and the defence of mental health impairment was raised at the outset. The charge in that case was murder. At [15] Wilson J held "If the Court is satisfied that the physical elements of the charge of murder have been proved by the Crown beyond reasonable doubt, the Court must consider the defence of mental health impairment, without at that stage considering the question of proof of the mental elements of murder".

11. Later, from [96], her Honour considered the "interplay" between s133 of the Criminal Procedure Act ("CPA") and s31 of the Act. Given the fundamental importance of s133 of the CPA, it is appropriate to set out the passages in full (and it should be noted that by this stage of the judgment the physical elements of the offence had been found to be established beyond reasonable doubt):

96 Section 133 of the Criminal Procedure Act gives a judge trying criminal proceedings without a jury all of the powers that a jury would ordinarily exercise, whilst also imposing particular responsibilities or burdens on that judge as the tribunal of law. Once a trial by judge order has been made, ordinarily, the judge exercises the functions of both tribunal of fact and tribunal of law, with the trial proceeding in the usual course.

97 Section 31 of the MHCIFP Act provides for the court to enter a special verdict in certain circumstances, at any time in the proceedings. It is in these 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.

98 The tension I perceive between the two provisions is that, a trial by judge order having been made, the Court is obliged to comply with s 133 of the Criminal Procedure Act, and formally record all of the principles of law applied, and each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled. Section 31 of the MHCIFP Act permits the trial judge to enter a special verdict at any stage in the proceedings, as long as those things in ss (a), (b) and (c) are satisfied. That would suggest that, if the Court takes that course, and enters a special verdict pursuant to s 31, it would not be necessary to formally record findings of fact, and all relevant principles of law and warnings that the tribunal of fact would apply. The consequences of that would include, for example, the obviation of the need to explain those matters referred to in s 29 of the MHCIFP Act.

99 Having considered the interplay between the two provisions, in my opinion it is open to me at this stage to proceed pursuant to s 31 of the MHCIFP Act given that, although the Court is exercising the powers and functions of the tribunal of fact, the Court retains the powers and functions of the tribunal of law, one of which is the function provided by s 31.

100 Accordingly, although I am well aware of those matters in s 29 of the MHCIFP Act, and of the legal principles that apply to the determination of a matter such as this, I do not propose to consider them further for present purposes.

9. In Tonga, and also in a case relied on by the accused of R v Kennedy [2025] NSWDC 251, the judgments set out some fundamental principles of law as would be expected in a judge alone judgment, without being as fulsome as might be expected had the s28 defence not been raised. Notably, and logically, those principles have particular relevance to establishing whether the physical elements of the charge or charges have been made out. It is appropriate that this judgment follow that course.

Fundamental directions

10. I direct myself that the onus of proof is "beyond reasonable doubt" and that the Crown bears the burden of proof. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them.

11. As this is a criminal trial the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. In this case that burden relates to establishing the physical elements of the charges. In respect of the defence raised under s28 of the Act, by s28(2) that is a question of fact that needs to be determined by the fact finder on the balance of probabilities, with the burden of proof being on the accused; that is, it is not a matter like an issue of self defence that the Crown must establish beyond reasonable doubt is not the case.

12. A critical part of the criminal justice system is the presumption of innocence. What it means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades a jury that the person is guilty beyond reasonable doubt.

13. The Crown needs to establish beyond reasonable doubt the physical elements of the offences, whereafter the s28 defence is to be considered. Those physical elements are:

14. In respect of count 1 that the accused took a knife set which was the property of Kmart;

15. In respect of count 2, that when in possession of a knife the accused took from Alexander Smith a key and a motor vehicle (hereafter "the car");

16. In respect of count 3 that when in possession of a knife assaulted Alexander Smith and took and drove the car.

17. As the Crown submitted, when limited to the physical elements, there is little if anything to distinguish counts 2 and 3. One distinction between them, apart from the specific intent aspect of count 3, which is plainly not a physical element, is that count 2 involves robbery, and count 3 involves assault. A physical element of robbery is the use of force or a threat, and the same can be said of assault. Similarly to rob by definition means to take from (count 2, and here the allegation is of driving the car away), and in count 3 the physical element is to take and drive away. It follows there is no difference in the physical elements of counts 2 and 3, apart perhaps from the fact that count 3 by its terms does not involve a key, yet it is certainly a factual necessity in the way the events allegedly happened.

18. Further I note section 32 provides where a court enters the special verdict, it does not result in a requirement for the court to also enter a special verdict in respect of an offence available for as an alternative to the offence. Whatever the rationale for this may be, the result is that should the special verdict be entered for count 2, there is no requirement to also enter the special verdict for count 3.

The facts

16. There is no issue raised by the accused that the physical elements of counts 1 and 2 are made out. The evidence in the Crown case included CCTV footage that is not contested, an ERISP interview in which frank admissions are made by the accused to the acts constituting the actus reus of counts 1 and 2, and there was tendered under s191 of the Evidence Act agreed facts.

17. The following summary is drawn from this evidence. I am satisfied beyond reasonable doubt by this evidence that the physical elements of counts 1 and 2, and also count 3, are established. This is because by the CCTV the accused can be seen to be entering and leaving the Kmart store, the car can be seen to be entered by the accused and driven away, and that this footage is entirely consistent with the location and timing of the alleged offences. To be added to this is the frank admissions made by the accused in her ERISP and in the BWV.

18. On 18 September 2023 at about 2.55pm the complainant, Mr Smith, parked the car, which belonged to him, in the car park of the Tweed City shopping centre. At that time the accused was seated nearby close to where the shopping trolleys are placed in racks. The accused and the complainant made eye contact. The complainant walked into the shopping centre from his car and the accused followed him. The complainant walked into Coles. In evidence was a diagram of the shopping centre which shows that in order for the complainant to walk to Coles he needed to pass by Kmart. The accused watched the complainant enter Coles, loitered near the entrance and then moved away to enter Kmart. Inside Kmart she walked to an area where knives were displayed and put a two-piece knife set under her arm and left the store without paying for the knife set. She later told police she put it in her bag. The knife set was valued at $60. The accused then walked through the shopping centre back to the car park and to the complainant's car. She tried but could not open the door. She crouched down near the car. Whilst waiting she removed the larger of the two knives from the packaging. The knife was 10 to 15 cm in length.

19. I accept this evidence, which, once accepted, self evidently, and beyond reasonable doubt establishes the physical elements of count 1. That summary is taken from the facts which are agreed to by the accused and which she also agreed to in her ERISP.

20. The complainant then walked back towards his car and saw the accused moving around near the driver's side door. He recognised her as the woman he had seen earlier when he got out of his car. He asked her to get away from his vehicle and the accused stated "gimme your car key or I'll fucking stab you". The complainant could see the accused holding a knife in her right hand. The complainant turned and ran to the top of the car park yelling for help and the accused ran after him. The accused caught up with the complainant near the entrance to the shopping centre and grabbed him by the hair. The complainant screamed for help to a bystander who did not help him. The accused said "give me my car key". The accused swung the knife towards the head, torso and arms of the complainant in a roundhouse motion at least 10 times. I note that there is a photograph in evidence which is a still from the CCTV showing the accused with her right arm raised holding a knife and pointing it towards the complainant. The complainant tried unsuccessfully to push the accused away. In an effort to prevent the accused from taking his car key he raised his right arm high in the air. The accused managed to break the retaining clip of the car key fob and took the key.

21. From the struggle over the key the complainant suffered scratches to the inside of his left forearm, a cut to his left pinky finger and a scratch to the back of his right arm as well as soreness to his right shoulder and scalp.

22. After the accused had taken the complainant's key she ran back to the car, got into the driver seat and drove away. The complainant chased her and took a photograph of the back of the car as the accused drove away.

23. They are the facts relied on for count 2 which I accept and as already noted satisfy me beyond reasonable doubt that when in possession of a knife the accused took a key from the complainant and thereafter drove the car away so that the physical elements of count 2 are made out.

24. The following day the accused returned to the Kmart store, and was recognised by staff who notified police. It was later that day that she was arrested. The police located her at a makeshift campsite in a reserve at Tweed Heads South which was located not far from the Tweed City shopping centre as demonstrated by an aerial photograph annexed to the agreed facts.

25. When she was located the complainant took part in an interview which was recorded on body worn video. She was then later taken to the police station and a formal police interview conducted. It is in those two interviews that admissions were made. No issue was taken as to the way that either interview was conducted and the appropriate caution was issued. That said the admissions were not entirely in accordance with the facts. For example at page 8 of the statement of Detective Senior Constable Culgan the accused admits to stealing a knife from Kmart, to holding the complainant's hair and asking for his keys, grabbing the keys and then getting in the car and driving to Cabarita. She denies however, threatening him with the knife which is plainly false. The accused by the agreed facts later admits threatening the complainant with the knife.

26. Relevantly to the section 28 defence the accused explained to police the reason for her conduct was because "someone raping my kids mutilating them… Cutting them up". She said she needed to get down "there".

27. In the ERISP she was asked whether it was only herself and the two officers in the room and she said "in human form yes".

28. Also from the ERISP, at A69 the accused again refers to her three children being kidnapped and taken down over a lake to a community where they torture rape and molest children and her children. She says she needed to protect her children. She frankly conceded that the knife she used was the bigger one of the two in the package. At A178 she was asked what she was thinking at a point when she was demanding the keys and she replied "it's do or die. I'm not, I'm their mother" and "I'm having to protect them". At A193 she answered that the complainant was an evil person. The accused also described how she sought to avoid detection by stripping naked and putting mud in her vagina and bum to make sure the scent went away. At A329 she talks of the spirit grabbing her hand as she was being shown the image referred to above from the CCTV of her with a raised arm with the knife in it. At question 361 she answered that she was going to bring the car back to the police station when she had brought the kids back up and that she needed the car to transport the kids. At A387 she said she had been using meth for about 15 years and smoked it on the morning of the 18th September.

29. The evidence just summarised shows that the physical elements of counts 1 and 2 are made out. It is therefore necessary to consider the evidence supporting the defence of mental health impairment that is raised by the accused.

Defence of mental health impairment

30. Section 28 is in Part 3 of the Act. By section 27 of the Act that part applies to criminal proceedings in the Supreme Court and the District Court. Section 28 is in the following terms:

28 Defence of mental health impairment or cognitive impairment

A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person--

(a) did not know the nature and quality of the act, or

(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4) In this Part,

"act" includes--

(a) an omission, and

(b) a series of acts or omissions.

31. The parties agree that section 28(1) has been satisfied by reason of the opinions expressed by Dr. Furst and Dr. Eagle (exhibits 1 and C respectively). Notably subsection (2) provides the question of whether there is the necessary mental health impairment or cognitive impairment is a question of fact to be determined by the jury (and in the present case therefore, the judge) on the balance of probabilities, so that it is not enough to make out the defence that the defendant and prosecutor agree that it is made out. By subsection 3 until proof to the contrary the presumption is the defendant did not have the cognitive impairment at the time of carrying out the acts constituting the offence.

32. Section 31 was set out in the passage of Jackson, cited above, but it is convenient to set it out again here:

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.

33. The requirements of section 31(a) and (b) are made out; the parties have expressed the necessary agreement in their submissions to the court, and the accused is represented by Ms Meech of the ALS. What remains, consistent with s28 itself, is to determine if the court is satisfied the defence is made out, which as already noted is a matter which needs to be determined on the balance of probabilities.

34. The evidence relied on in this regard by the accused was a report of Dr Furst dated 23 October 2024. The Crown relied on a report of Dr Eagle dated 4 July 2025. It was accepted by both parties that both these psychiatrists possess the necessary expertise to express opinions in relation to the matters asked of them.

35. I note the following from the report of Dr. Furst:

36. Dr. Furst was aware of the charges now contained in the indictment. He was asked to assess the accused in relation to her background history, diagnosis and other relevant issues including the availability of the defence of not criminally responsible due to mental health or cognitive impairment pursuant to section 28.

37. The material Dr. Furst had available to him included an assessment carried out on the accused at the Wayback centre, (a facility that the accused was bailed to in 2024), the police facts, the ERISP and BWV footage and reports of a psychiatrist named Dr. Rae, and the psychological report of Dr. Perkins.

38. At the time of her arrest the accused was 41 years old and homeless living in a tent in Tweed Heads. She has two daughters and a son aged 20, 12 and 17 years respectively.

39. There is no history of childhood psychiatric problems. She worked in the retail sector and in a hotel commencing in her teenage years. She was married for seven years to the father of the first two children and then five years to the father of the third. There was no indication of postnatal depression.

40. When aged 33 she was admitted to the Richmond clinic in Lismore. She was hearing voices at the time and was treated with antipsychotic medication. She was admitted on four subsequent occasions. The pattern of her psychotic illness is recurrent episodes in which she loses touch with reality and believes her children are being raped and tortured. She says she hears voices and sexual sounds as if the children are being raped and believes the children are passing messages to her. She feels overwhelmed and hopeless and feels the need to protect and rescue the children.

41. She has symptoms of experiencing foul smells when there is nothing offensive or odorous and of delusions of reference from the television. She believes people in the community are involved in a conspiracy to rape her children and that there is a pedophile ring that includes her family. She refers to shape shifters in the spiritual world replacing people that she then thought were her children. These various symptoms were described as auditory hallucinations, olfactory hallucinations and delusions of Frigoli.

42. Her drug history was of no drug use in her teenage years, adolescence or 20s but that she was using methyl amphetamines and some cannabis in her early 30s when working as a bar attendant. Initially she used small amounts of ice but over time used more, including after being evicted from her house and having lost custody of her children in her mid-30s. She cannot pay the rent because she was spending too much money on ice and became homeless.

43. Dr. Furst states she never really achieved stability, using drugs, being mentally ill and being incarcerated at various times from 2019. There was a period of abstinence following a period of rehabilitation in 2019 with no ice being used for three years.

44. The accused experienced similar symptoms of psychosis to her previous episodes at the time of the alleged offending including her belief that her children were being raped and hearing them being raped. She said voices told her her children are going to be sacrificed. She stole the knife and took the car in an attempt to save her children, not thinking about the consequences at the time. She was not taking any psychotropic medications at the time leading up to that incident. She had been using about .3 g of ice every second day, 1g of cannabis every 3 days and drinking about six premixed cans of rum and cola a day.

45. Once remanded in custody she received treatment at Silverwater correctional centre. She continued to experience hallucinations and paranoia over the initial months of incarceration. She was treated with Invega Sustenna.

46. In about June 2024 she was bailed to Wayback, a drug and alcohol rehabilitation centre. At the time of the report she was still there with five months to go on that program. The program to that time had been positive. She had been abstinent from drugs since her arrest so by then 13 months.

47. On examination she did not exhibit any signs of delusional thinking or hallucinations.

48. Reference was made to an earlier psychiatric report of Dr. Rae. That report notes reports of distressing auditory hallucinations in November 2023. In January 2024 there were reports of the accused screaming and crying in her cell and reporting she had been possessed by an evil spirit. On assessment in January 2024 she said she was hearing voices and her kids being raped. She said it's fine and that she knows it's not them.

49. A consultant psychiatrist Dr. Dorney in February 2024 noted bizarre psychotic symptoms involving beliefs about the sexual assault of the accused children. By the following week she was seen by Dr. Ho another psychiatrist who noted the psychotic symptoms had largely resolved.

50. The observations of Dr. Rae who assessed the accused on March 2024 included reports of symptoms leading up to her arrest which included hearing voices including all of her children requesting help because of being sexually assaulted; visual hallucinations of her children in sexual acts; believing that aboriginal spirits were telling her about her children's plight and believing that spirits could jump into her body; being desperate to return to Lismore to save her children; and stealing the motor vehicle in an attempt to drive to her children and Lismore.

51. There was reference to childhood adversity including abuse and neglect without details being given.

52. There are various references to different medications used to manage the accused.

53. At page 6 the doctor states that the accused was noted to have developed a severe and enduring psychotic illness precipitated by her methyl amphetamine and cannabis use/abuse. He says her symptom pattern is indicative of schizophrenia. Dr. Furst is of the view that Dr. Rae was mistaken to attribute psychotic symptoms to drug induced psychosis particularly as there had not been drug use in the five months preceding that opinion and she was still hearing voices

54. A 2019 psychological report of Dr. Perkins noted a history given including sexual abuse at the age of 13 and 14, exposure to domestic violence and alcohol abuse in the home. The accused engaged in binge drinking from about the age of 16 or 17. She suffered a serious sexual assault in 2012 at the age of 29. She said she heard voices when she was young well before drug use and this is said to support a diagnosis of schizophrenia.

55. Based on that information Dr. Furst makes the diagnosis of schizophrenia, substance use disorder (cannabis methamphetamines and alcohol) and borderline personality traits. The schizophrenia diagnosis is based on the persistent and recurrent nature of the psychotic symptoms both when using drugs in the community and without drugs when in custody. The symptoms are the delusions and hallucinations centring on the themes of her three children being raped and tortured.

56. Dr Furst then gives a description of what schizophrenia is, including that it is a chronic and severe mental disorder characterised by distortions in thinking, perception, emotions, language, sense of self and behaviour. Hallucinations and delusions and thought disturbance are common symptoms.

57. In answer to some specific questions the doctor expressed the following opinions:

58. That the accused was acutely psychotic at the time of the alleged offending and continued to exhibit signs of symptoms of psychosis after her arrest which he says is indicative of an exacerbation of her long-standing/chronic schizophrenic illness. That is a mental health impairment within the meaning of section 4(2)(c) of the Act (which I note provides that a mental health impairment may arise from a psychotic disorder).

59. With reference to section 28 and in particular subsections (1)(a) and (b) the view is expressed that the accused was aware of the nature and quality of her actions; subsection (1)(a). Dr Furst goes on to say that the accused "had impairment in her ability to reason about the wrongfulness of her alleged actions with a moderate degree of sense and composure because of her acute psychosis; ie about whether her alleged act, as perceived by reasonable people, was wrong because she was psychotic and delusional in her thinking." If that is accepted then the defence under section 28 would be satisfied as subsection 1(b) would be met.

60. There are then recommendations concerning the future treatment which are matters that should be addressed following the determination of the section 28 issue and when considering the appropriate orders to make including consideration of section 33.

61. The report of Dr. Eagle was dated 4 July 2025. Dr. Eagle carried out a psychiatric assessment of the accused on 25 June 2025. She had available to her the materials set out at paragraph 7 of the report including the Crown case statement and brief of evidence and the reports of Dr. Furst, Dr. Perkins, and Dr. Rae and medical records.

62. I note the following from the report:

63. The accused confirmed she was 41 years old, not in a relationship and living in South Lismore in a temporary private rental. She had three children living in Lismore and Ipswich the youngest being 13. She described her mood as down and depressed. She said the injection makes her tired which I infer is a reference to her current medication. She does spend time with her children in person or on the phone frequently.

64. The accused said previously she had been in a "total different reality". She believed a paedophile ring was responsible for raping her children and her family were part of it. She said she did not believe this anymore. She no longer heard voices informing her of this or messages to that effect. She denied delusions. She says she feels better now compared to when these things were happening. Previously she said "every second of the day I was hearing voices and they were replicating my children getting raped and stuff".

65. She confirmed she had been completely abstinent since her arrest. She no longer consumes alcohol. She attended Wayback when released from custody and learned coping mechanisms and a lot about addiction.

66. The accused described her way of life before the offending as a horror story. She said she would hear a voice by way of example that would say "smell that? That's us fucking your daughter up the arse". She said when she heard that there was a smell like faeces. She said she knew she needed to get down to her children and there was no planning involved.

67. At the time of the offending she had been off medication for about 9 to 10 months. She realises now she needs treatment for the rest of her life. She had lost her accommodation during the 2022 floods and was homeless. She gives a similar history to that given to Dr. Furst as to her drug use.

68. The symptoms such as voices started after using methamphetamine. She then thought the drugs would drown out the voices. She said she still believed the voices were of living beings and were to taunt her. She said messages were received by radio and television. She also believed there was a pedophile ring. She thought they were mimicking her children getting raped to taunt her and in time she came to believe they were not mimicking her and that her children were being raped and she snapped.

69. She had used methamphetamine for about 12 months before she started to experience symptoms such as the voices. The voices were always about her children being raped. She could not say when she was first admitted to a mental health unit but said she had about four admissions in the past. She said she stopped her medication due to an adverse effect.

70. There was an occasion of self-harm involving her cutting her throat when depressed. This was when she was in custody and she said she could not take the voices anymore.

71. She now sees a psychiatrist every two weeks and is treated by an injectable antipsychotic medication. The accused volunteered that none of this would have happened if she had not taken drugs and had taken medication. She said "I didn't know what was right".

72. Based on a discharge summary from 2024 diagnoses of PTSD and DIP (presumably drug-induced psychosis) and MDD were made, which had been reformulated to schizophrenia, treatment resistant. There is a diagnosis of borderline personality disorder. A significant history of trauma was noted.

73. It was in September 2024 that the accused self presented with a support worker to Westmead hospital. She reported worsening constant auditory hallucinations over three weeks and associated olfactory and gustatory hallucinations. She reported persecutory thoughts that her children were raped in the spiritual world by everyone in the world. She was thus seeking help with good insight into her illness and she was admitted as a voluntary patient for treatment.

74. She told Dr. Eagle that she started using cannabis in her late 20s and it would seem not long after was introduced to methyl amphetamine. She had consumed alcohol since 18 and would binge drink on weekends. She said she had been abstinent since attending the Wayback program for nine months. That this is somewhat different to what she told Dr. Furst and earlier told Dr Eagle, namely she said she had been abstinent since arrest. No point was made of this in submissions, and in my view nothing turns on it. If the later date was used, the period of abstinence would be about 12 months.

75. Her brother has a history of schizophrenia.

76. As to her account of the events in September 2023 the version given is consistent with what she told Dr. Furst. Namely, she had no plan and was experiencing intense voices and symptoms making her believe her children were being raped and tortured. She could hear the screams and smells and associated sounds (presumably odours is meant). She said she needed to get down to her children and see what was going on and that she planned to protect them and take them to safety. She had smoked methyl amphetamine that morning as well as cannabis and had bought a six pack of Jim Beam cans. She said she didn't know what she was doing. She said she got the vehicle and drove somewhere to a native forest reserve because she thought that's where they were being held captive. She did not know why she returned to Kmart the following day. She said she was experiencing symptoms during the arrest with police which is consistent with her remark about "in human form".

77. Dr. Eagle then considers the Crown case statement and recorded interviews. She notes the criminal history commencing in November 2016. The accused says that these problems, that is committing offences, started after she began hearing the voices.

78. In terms of her childhood development there were no reported problems with developmental milestones. Yet her mother had an alcohol abuse problem, and smoked cannabis and the accused had been exposed to sexual assault perpetrated by her stepfather.

79. The education, employment and relationship history are in line with what is set out by Dr. Furst.

80. The accused describes some attenuated delusional beliefs for example that the voices were real beings who prey on the vulnerable but otherwise she did not display ongoing delusions or other signs of psychosis. She denied hallucinations. She accepted the need for treatment over the longer-term and showed some insight into her psychotic illness.

81. Dr Eagle then considers various other reports. I note that Dr. Perkins had scored the accused 9/10 on the adverse childhood experiences scale and stated she felt she met the criteria for PTSD, depression, substance use and drug induced psychosis. That was a report of 2019.

82. Dr. Eagle states that the accused has an established diagnosis of schizophrenia. She notes documented relapses of psychosis with the first episode occurring about 2017. The relapses of psychosis are characterized by bizarre persecutory delusions as described concerning her children. She states the relapses of psychosis have been precipitated by substance use, medication discontinuation and psychosocial stressors. Importantly she adds that episodes of psychosis have continued for several months following abstinence from substances including during the period following the alleged offending. Her level of functioning since adolescence has significantly deteriorated. That is she was employed from 14 years to 20 years but after using illicit substances in her 20s developed psychotic symptoms and then during that time lost the care of the children, could not gain employment and became homeless. She continues to present as a person requiring psychosocial support and being socially isolated and cannot maintain stable employment; on the other hand she appears to have had a significant clinical improvement in symptoms on the injectable antipsychotic medication in the absence of substance use.

83. A diagnosis is made of substance use disorder in sustained remission. It is said the use of cannabis, methyl amphetamine and alcohol exacerbated psychological vulnerabilities and contributed to the offending behaviors. The view is that the serious mental illness has been exacerbated by the abuse of substances.

84. Dr Eagle is not confident in a diagnosis of borderline personality disorder but says the accused has a chronic psychotic illness that has been exacerbated by substance use.

85. The conclusions reached by Dr. Eagle were as follows:

86. At the time of the alleged offending the accused suffered from and continues to suffer from a mental health impairment within the meaning of section 4 of the Act, specifically schizophrenia. That illness results in relapses of psychosis giving rise to hallucinations of the type described by the accused.

87. This illness causes recurrent relapsing disturbances in thought mood and perception.

88. The illness has been exacerbated by the use of illicit substances such as methyl amphetamine but it is not the temporary effect of ingesting a substance.

89. Dr. Eagle then refers to the provisions of section 28 of the Act and states that the accused appeared aware of the physical nature and quality of her actions at the time.

90. She also expresses the view that the accused could not reason with a moderate degree of sense and composure about whether the acts giving rise to the alleged offences as perceived by reasonable people was wrong within the meaning of section 28(1)(b) of the Act. This is then explained by reference to the accused being acutely psychotic at the time of the alleged offences due to a relapse of schizophrenia. She was experiencing hallucinations as described above. Based on those delusions and hallucinations she formed the view she needed to go to help her children.

91. The accused continued to present as acutely unwell with psychotic symptoms for several months after being taken into custody.

92. The accused has displayed signs of psychosis since about 2017. These commenced in the context of substance use but have continued for several months including during periods of abstinence.

93. She has improved on antipsychotic medication since going into custody. She did have a relapse about one year after the alleged offences including suffering the delusion at that time that her children were being harmed.

94. Her conduct at the time of the alleged offences appears to be motivated by her psychotic belief that her children were being sexually assaulted and tortured and she needed to go to them. Dr. Eagle states it is apparent from a psychiatric perspective that her reasoning was significantly impaired by these psychotic symptoms. Such symptoms prevent an individual from distinguishing reality from non-reality. They can also cause a heightened emotional response that can further impair capacity to reason and judgment.

95. In the opinion of Dr. Eagle the accused is not capable of reasoning with composure, due to the symptoms of her mental health impairment, as to the moral wrongfulness of her actions at the time of the alleged offences. She felt under an imperative to reach her children and save them and was not capable of considering other options and could not recognise a distorted reasoning. She could not recognise she was potentially harming the complainant. She notes in support of this the accused's description of the complainant in the ERISP as an evil person despite the fact he was a stranger to her which is consistent with impairments of reasoning arising from her psychotic state.

96. In addition to the psychiatric evidence of Drs Furst and Eagle, I would note in relation to the s28 defence the following from the above summary of the facts:

97. The accused explained to the police that somebody was raping her children and she needed to get down "there". There are at least three references in the interviews with police to matters that the psychiatric evidence shows, and I accept, are the product of psychosis, and thus her mental impairment.

98. Similarly, she refers to the complainant, whom she has never met, as an evil person, as noted by Dr Eagle.

99. In her ERISP when asked if she agreed if it was only her and the two officers in the room, the accused replied "in human form yes".

100. The accused stated the spirit grabbed her hand when she had the knife.

101. There is thus good evidence from the interviews of the day of and the day immediately after the alleged offending consistent with the accused suffering psychosis at the time of the alleged offending.

102. The reports of both Dr. Furst and Dr. Eagle are very similar and reach the same conclusion. Each has considered not only their own examination and history taken from the accused but also the medical records and opinions of earlier psychiatrists. Whilst there has been a variation between Drs Furst and Eagle on the one hand and a view expressed by Dr. Rae who attributed the accused's enduring psychotic symptoms to drug induced psychosis (see eg Dr Furst's report at page 6), there is an overall consistency in the assessment of the mental state of the accused since 2017, namely, she suffers from schizophrenia, and periodically suffers delusions and hallucinations of the type described involving her children. Whilst the earlier records are largely based on the self reporting of the accused there has been no challenge to the factual basis of the opinions being expressed by Dr. Furst and Dr. Eagle. Nor frankly is there any reasonable basis to doubt the history given by the accused over the past 10 years.

103. I accept the factual basis of the reports and the conclusions reached and opinions expressed. The conclusions reached by both Dr. Furst and Dr. Eagle are that at the time of carrying out the act constituting the offences the accused had a mental health impairment that had the effect that she did not know that the acts were wrong, that is that she could not reason with a moderate degree of sense and composure about whether her acts as perceived by reasonable people were wrong. As stated by Dr Eagle and set out at [45.5] above this is because the accused at that time was acutely psychotic due to a relapse of schizophrenia. The diagnosis of schizophrenia is based on, inter alia, the various psychotic episodes experienced by the accused since 2017. A consistent feature of the accused's psychotic episodes are the hallucinations and delusions of the accused's children being raped and tortured and her delusional belief that she must act to save them. That was her state at the time of her conduct constituting the physical elements of counts 1 and 2, and as explained above, also count 3, though the s28 defence need not be considered in relation to count 3 if there is the special verdict for count 2.

104. It follows therefore that I am satisfied on the balance of probabilities that the accused had a mental health impairment that had the effect as set out in section 28(1)(b). The requirements of s31 of the Act are made out, and the special verdict may be entered.

Consequences of finding special verdict established

51. Section 33 of the Act provides for the orders that may be made when the special verdict is returned. Such orders include whether the accused be remanded in custody, or released on a conditional or unconditional basis. Section 33(2) provides that the court "may" request a report of a forensic psychiatrist who is not currently treating the accused as to the condition of the accused and "whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public". Section 33(3) provides an order for release of the accused "must" not be made unless the court 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".

52. These reasons will be delivered on 30 October 2025. Also on that day, Dr Eagle will provide evidence going to the issue of what orders are appropriate to make under section 33. The parties also propose leading some further evidence on this issue. Both parties have requested that the formal return of the verdict of the special verdict be deferred until the question of what orders to make under section 33 is determined. That request is a reasonable one in all the circumstances, and the court will accede to it.

53. Accordingly no formal orders will be made upon the publication of these reasons on 30 October 2025. On that day, the court will hear the evidence and submissions of the parties concerning the appropriate orders to make upon the return of the special verdict, and will then on either that day or an adjourned day, return the special verdict and at that time make such other orders as are found to be appropriate.

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