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File Number(s): 2024/00455700

JUDGMENT

1. The Accused, Michael Donald Webster, was charged by indictment, dated 21 April 2026, with the following offences:

2. on 7 December 2024, in Iluka in the State of New South Wales, did murder Daryl Keith Driscoll (the Deceased) (Count 1);

3. on 7 December 2024, in Coraki and elsewhere in the State of New South Wales, did, while being the driver of a vehicle, namely a Nissan Patrol with NSW registration BR00WH, travelling near another vehicle, namely a Holden Calais with NSW registration CQ23DQ, engage in a course of conduct that threatens to cause an impact involving the other vehicle and did through that course of conduct intend to cause a person in that other vehicle actual bodily harm (Count 2); and

4. on 7 December 2024, in South Gundurimba and other places in the State of New South Wales, did drive a vehicle, namely a Nissan Patrol with NSW registration BR00WH, knowing that police officers were in pursuit of that vehicle and that he was required to stop, did not stop the vehicle and drove the vehicle recklessly, and at a speed and in a manner dangerous to others (Count 3).

5. The Accused pleaded not guilty on 7 April 2026 in the Local Court and was committed for trial in the Supreme Court.

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

7. On 5 June 2026, the Accused was arraigned before Hamill J and pleaded not guilty to each of the three counts on the indictment. He advised the Court that the sole issue would be whether he could establish a defence of mental health impairment.

8. On 17 June 2026, the parties advised the Court that they had agreed, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), that the evidence established that the defence of mental health impairment.

9. The matter proceeded before me by way of hearing under s 31 of the Act. As the Accused had been arraigned on 5 June 2026, it was not necessary to re-arraign him at the commencement of the hearing.

10. Following the hearing I returned a verdict of act proven but not criminally responsible, pursuant to s 31 of the Act for each of the Counts.

Victim impact statements

8. Following the return of the special verdict, but before the making of orders and directions, I received three victim impact statements pursuant to Subdiv 5 of Div 2 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA).

9. Pursuant to s 30L(1) of the CSPA, the Court may only accept victim impact statements after a special verdict of act proven but not criminally responsible has been returned. The Court must acknowledge receipt of the victim impact statements: s 30L(2) of the CSPA.

10. Further, the Court is required to provide a copy of the victim impact statements to the Mental Health Review Tribunal as soon as practicable after making a decision that results in the accused becoming a “forensic patient” within the meaning of the Act: s 30N(4) of the CSPA.

11. I begin by acknowledging the deep distress and grief suffered by Mr Driscoll’s family members.

12. The victim impact statements were each gut-wrenchingly sad. There is not merely a profound sense of loss, there is also bewilderment as to why a beloved son, a brother, a father, and a grandfather was so suddenly, inexplicably and brutally ripped away from the bosom of his family.

13. The Deceased’s mother, June Driscoll, is 80 years of age. The brevity of her statement is itself poignant. It shows a mother who struggles to commit to words the loss of a child. It is often said that no parent should ever have to bury a child, and this echoes from her words.

14. The Deceased’s brother, Wayne Driscoll, expresses his anger, his refusal to forgive and a cauldron of overwhelming emotions in losing not so much a brother, but a best friend, a father figure, and a centrepiece of the Driscoll family. His statement speaks of a brother whose life’s journey was unfairly and abruptly stolen. While the Deceased had suffered some personal setbacks, he also took steps to re-align his life. He had spent $5,000 fixing his teeth, an investment in himself and in a future that he and his loved ones will never have. The heaviness of Wayne’s devastation, torment, heartbreak and trauma is deeply apparent.

15. Then there is the statement of one of the Deceased’s children, Jason Driscoll, whose statement has been read to the Court by Detective Sergeant Rynehart. I will not attempt to repeat or summarise Jason’s sentiments as that would do a disservice to his own words. They have been read onto the record and speak for themselves.

16. The Court acknowledges the loss and grief that Mr Driscoll’s family continues to experience and extends its condolences to them.

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

The evidence

18. A bundle of material tendered by the Crown was marked Exhibit A. That bundle contained the following material:

19. an indictment dated 21 April 2026;

20. a statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW) dated 19 June 2026 with annexures being:

(a) four captioned photographs; (b) an annotated location map of Ballanda Crescent, Iluka; and (c) a marked route map.

3. a NSW criminal history report of the Accused dated 25 May 2026;

4. a Queensland court outcomes report dated 22 May 2026;

5. a psychiatric report prepared by Professor David Greenberg OAM, forensic psychiatrist, dated 5 November 2025; and

6. a supplementary psychiatric report prepared by Professor Greenberg, dated 28 November 2025.

7. The Crown also handed up an enlarged copy of the marked route map, which was added to Exhibit A.

8. The Accused handed up a report of Dr Richard Furst dated 4 July 2025, which was marked Exhibit 1, and a handwritten apology of the Accused, which was marked Exhibit 2.

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

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

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

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

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

31 Special verdict where defendant and prosecutor agree on impairment

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

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

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

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

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

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

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

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

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

Mental health impairment

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

4 Mental health impairment

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

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

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

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

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

(a) an anxiety disorder,

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

(c) a psychotic disorder,

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

(3) A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—

(a) the temporary effect of ingesting a substance, or

(b) a substance use disorder.

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

The defence of mental health impairment

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

31 Section 3(1) provides that phrase is as defined by s 28(1) of the Act, which relevantly is in these terms:

28 Defence of mental health impairment or cognitive impairment

(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment … that had the effect that the person—

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

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

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

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

(4) In this Part, act includes —

(a) an omission, and

(b) a series of acts or omissions.

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

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

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

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

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

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

25. As to the third requirement, contained in s 31(c) of the Act, it is necessary for the Court, after considering the evidence, to be satisfied that the defence is so established. I have received the evidence set forth in paragraphs [18]–[20] above and will address this evidence in detail to explain why I am satisfied that the defence is established.

The facts

26. The agreed facts can be summarised as follows.

27. The Accused was born on 14 April 1983 and was 41 years old on the date of the offences. He lived with his mother, Gaye Webster, at 36 Young Street, Iluka. That address is a four-minute walk from the Deceased’s unit.

28. The Deceased was Daryl Driscoll, who was born on 22 May 1966. He lived at unit 2/32 Ballanda Crescent in Iluka, a small town on the northern side of the mouth of the Clarence River. Ballanda Crescent is a loop, beginning and ending at Young Street. The Deceased’s unit was in the middle of a single-storey block of three units. The block of units has a driveway on the left-hand side of the units a door providing access to each unit on that side. Unit 1/32 Ballanda Crescent, which is at the front of the block of three units, is occupied by Nikki Sauer. A side gate off the back courtyard of unit 1 provides rear access to the units.

29. 30 Ballanda Crescent, a house occupied by Michael Marriott, sits on one side of the block of units. Mr Marriott was known to the Deceased. On the other side of 32 Ballanda Crescent is another block of units at 34 Ballanda Crescent. Unit 1/34 Ballanda Crescent is occupied by Jeremy Hockey and Kelli Cristini.

Count 1: Murder

30. The events which led to Mr Driscoll’s death occurred on the afternoon of 7 December 2024. At that time, Ms Sauer, Mr Marriott, Mr Hockey and Ms Cristini were at home.

31. At around 4:30 pm, a neighbour in Young Street saw the Accused pushing a lawnmower along Ballanda Crescent. Garden tools, including a mattock, were on top of the mower and the Accused was wearing a backpack. He appeared to be agitated and was irritated by the “stuff falling off” the lawnmower. Soon thereafter, the Deceased’s neighbours, especially Ms Sauer and Mr Marriott, observed the Accused walking down the driveway to the Deceased’s unit. The Accused approached the screen door and banged on it. He yelled, “I’m going to fucking kill you” and “I live here, let me in”. The Deceased yelled, “go away”. There was more yelling.

32. Ms Sauer saw the Accused throwing himself against the Deceased’s door. The Accused then ran past Ms Sauer’s front window carrying a large knife. He went into her rear yard, and from there accessed the rear yard of the Deceased’s unit. He then entered the Deceased’s unit through the rear laundry door.

33. There was yelling inside the unit, including the Deceased saying, “get out of my house”. Ms Sauer called “000”.

34. Inside the unit, the Accused stabbed the Deceased multiple times.

35. Mr Marriott heard voices which he believed were inside the Deceased’s unit. He then saw the Accused walk out of the laundry door. The Accused was extremely agitated, sweating profusely, raving incoherently and yelling (apparently at the Deceased). He was holding a large knife in his right hand and had blood on his right arm. Mr Marriott saw the Accused walk toward a small bush near the Deceased’s front door, then bend down and poke the knife into the ground near the base of the bush. A yellow-handled knife was subsequently located under the bush.

36. The Deceased exited his unit and ran to 34 Ballanda Crescent yelling, “he’s stabbing me, he’s stabbing me”. He was pursued by the Accused, who continued to try to stab the Deceased with a long butcher-style knife. Mr Hockey and Ms Cristini opened their screen door and pulled the Deceased inside. They were able to close and lock their door. The Accused remained outside yelling, “I want to kill him. I want to finish him off”. The Deceased was bleeding heavily. Ms Cristini observed that the Deceased had suffered multiple stab wounds. She attempted to stop the bleeding from the wounds to his neck and chest.

37. The Accused ran between Nos 32 and 34 a number of times and was heard to yell, “I’m going to kill him”. When he approached the door of No 34, he was still holding the knife and passed it from one hand to the other.

38. The Accused ran back to where he had left his lawnmower near the Deceased’s front door. He put a bag on his shoulder. He was observed to be “ranting and yelling”. He picked up some tools and ran onto Ballanda Crescent. He returned to his home in Young Street and was observed by the same neighbour who had earlier observed him pushing the lawnmower. At that time, the Accused was running, carrying a knife and mumbling. He appeared agitated. The neighbour estimated there were about 15 to 20 minutes between seeing the Accused pushing the lawnmower and seeing him return home.

39. The Accused then reversed very quickly out of his driveway in his car. I pause to note that, although the Accused’s car is described in the indictment and parts of the statement of agreed facts as a Nissan Patrol, it is elsewhere described as a Toyota Prado. Although the model of car is not a material particular, after examining the evidence, I consider that the car is a Toyota Prado and I will describe it as such.

40. Inside No 34 Ballanda Crescent, the Deceased was asked if he knew the person outside and said, “no, he kicked the back door of my house in”. The Deceased then lost consciousness. Although Mr Hockey and Ms Cristini continued their attempts to assist the Deceased, he did not regain consciousness. Police and paramedics attempted to resuscitate him, but the Deceased was confirmed to be dead at 4:58 pm. The ambulance notes record multiple stab wounds.

41. At 4:39 pm that afternoon, the Accused stopped at a nearby service station, filled his Toyota Prado and left without paying or returning the hose to the petrol bowser. The station attendant noted blood on the ground between the bowsers. Police were contacted. CCTV footage from the petrol station shows the Accused in and outside of the Toyota Prado. In frame, a white-handled knife can be seen protruding from the top of the dashboard. A swab of blood on the petrol bowser nozzle matched the DNA of the Accused.

Count 2: Predatory driving in New Italy

42. At around 5:10 pm, Michael Cole, his wife Alanna Cole, and their two children were travelling north on the Pacific Highway near New Italy. The Accused, driving his Toyota Prado, came from the southbound lane, crossed the steep grass dividing strip, did a U-turn, and entered the northbound lane in front of Mr Cole’s Holden Calais, initially driving at around 60km/h. Mr Cole overtook him before returning to the left lane, after which the Accused was very close behind them.

43. I again pause, this time to note that the description of the Accused’s driving route described in the agreed facts is not entirely congruent with the route map provided. It is of little consequence and my description of the route is largely drawn from the statement of agreed facts.

44. Mr Cole took the exit from the highway onto Tuckombil Road. The Accused followed him. Mr Cole was driving about 80km/h when the Accused, driving on the wrong side of the road, matched Mr Cole’s speed and pulled up beside him. Mr Cole observed the Accused to be slightly hunched over and staring at him. The Accused continued driving in this way for some 120–150 metres before slowing down and pulling in behind Mr Cole. The Accused drifted left and right while only one or two car lengths behind Mr Cole’s vehicle.

45. Mr Cole turned onto Wagner Street. The Accused attempted to follow but lost control when turning and went off the left-hand embankment. About a minute later, as Mr Cole approached the intersection of Fletts Lane and the Woodburn-Coraki Road, the Accused sped up behind them. Near the Swan Bay-New Italy Road, the Accused’s Toyota Prado came within what Mr Cole believed to be a metre of their vehicle.

46. At this point, Ms Cole contacted “000” and remained on the line with an operator.

47. Mr Cole sped up to avoid the Accused, to no avail. The Accused caught up and tried to drive alongside him, at one point swerving back in behind Mr Cole to avoid an oncoming car.

48. Mr Cole was very fearful and sped up to around 130km/h. The Accused continued to tailgate and swerved left and right behind him.

49. Near the Myall Creek intersection, Mr Cole slowed to around 20km/h due to other vehicles. The Accused continued past him towards oncoming traffic. The Accused swerved onto the grass verge and the drivers of several other vehicles had to take evasive action to avoid colliding with his car. The Accused braked suddenly and went down a driveway for around 50 metres before doing a U-turn in a paddock and returning to the road behind Mr Cole.

50. Mr Cole continued on the Woodburn-Coraki Road for around 2km, again travelling at speed as he attempted to avoid the Toyota Prado. The Accused once again approached from behind, crossed onto the wrong side of the road and attempted to drive alongside Mr Cole before swerving back in behind Mr Cole to avoid an oncoming car. The Accused continued to tailgate Mr Cole and to swerve from side to side behind him.

51. As they entered Coraki township and the Woodburn-Coraki Road became Queen Elizabeth Drive, Mr Cole slowed to about 60km/h. The Accused continued behind them, swerving onto the wrong side of the road and back.

52. At the Union Street intersection, the Accused moved onto the wrong side of the road, pulled up alongside Mr Cole’s car and repeatedly veered towards him. This continued for around 650 metres until they were just beyond the intersection with Allwood Street. Mr Cole, fearing that the Accused was trying to push his car off the road, braked suddenly. The Accused swerved and stopped across the road in front of Mr Cole. Mr Cole moved onto the grass verge, drove around the Accused and accelerated back onto Queen Elizabeth Drive. The Accused again caught up with Mr Cole, who turned right onto Dawson Street. The Accused followed.

53. Oncoming traffic forced Mr Cole to stop at the Glebe Bridge. The Accused locked the brakes of his car and stopped within a metre of Mr Cole’s car. The Accused opened the Toyota Prado’s driver’s door and partially stepped out but then reached back into the lower part of the car. Mr Cole was in fear for his family and accelerated over the bridge. The Accused again approached them from behind at speed. When Mr Cole moved onto the grass verge to go around a sugar cane buggy, he lost sight of the Accused and did not see him again.

54. Mr Cole then drove on to Lismore Police Station. Ms Cole had remained on the “000” line with an operator the entire time.

Count 3: Continued dangerous driving

55. At around 5:50 pm, Senior Constable Cameron was advised by Senior Constable Currie that he believed he had seen the Accused’s vehicle on Coraki Road. Both officers, having been authorised to pursue the Accused, followed him east from Coraki to Wyrallah.

56. From Wyrallah, the Accused drove south through Tuckurimba and continued along Broadwater Road from East Coraki to Broadwater, where he turned onto Baraang Drive. Road spikes were authorised at 5:55 pm and were laid out on Baraang Drive at 6:09 pm. When the Accused drove across the spikes, his front driver’s side tyre deflated. He eventually came to a stop outside a public toilet in the township of Woodburn.

57. The distance travelled by the Accused from his home in Iluka through to the location of his arrest at Woodburn is approximately 78 kilometres.

Arrest

58. Senior Constable Borghouts pulled across in front of the Accused’s vehicle. The Accused raised his hands but then grabbed for the knife which was stuck into the dashboard. He opened the driver’s door and held both hands outside before pulling them back into the car and locking the door. Senior Constable Cameron approached the driver’s door and discovered that it was locked. The Accused was holding a chef’s knife which had a blade of around 30cm long. Senior Constable Cameron used his baton to break the glass on the driver’s side window. The Accused raised his hands to the window. Senior Constable Hughes saw the Accused holding a knife in his right hand and moving it in a stabbing motion out through the broken window towards police. The Accused cut his own left wrist with the knife.

59. He got out of the Toyota Prado with his hands up and was directed to the ground. He was handcuffed and placed under arrest.

60. A white-handled knife with what appeared to be dried blood on it was found in the front passenger seat. A second, longer black-handled knife was found in the left-hand side of the driver’s footwell.

The ERISP

61. At 12:46 am the next day, 8 December 2024, Detective Senior Constables Robertson and Dews escorted the Accused to an interview room and conducted an Electronic Record of Interview with Suspected Person (ERISP). In the ERISP, the Accused:

62. admitted going to the Deceased’s unit and to stabbing him numerous times with a knife the Accused used for work and which he brought to the Deceased’s apartment; and

63. stated that he had been to hospital seven times that year because he was hearing voices. He also gave a delusional account of the necessity of killing the Deceased and of other behaviour.

64. On entering into custody, the Accused was assessed as psychotic by doctors and nurses from Justice Health. They further assessed as him exhibiting delusional beliefs regarding Chinese spies invading Australia and infiltrating various authorities, including the police.

65. An autopsy of the Deceased conducted on 27 December 2024 found that the cause of death was multiple stab wounds. Those wounds were to the upper torso, including the upper lobe of the left lung, with partial transection of the left subclavian vein, and approximately 500ml of blood was found in the left pleural cavity.

Section 31(c) of the Act

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

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

66. The Crown submits that it is appropriate for the Court to proceed to consider the matter on the basis of the facts set forth in the statement of agreed facts. Those facts satisfy me beyond a reasonable doubt that the Accused’s physical acts killed the Deceased, and that the Accused also drove his vehicle in the manner which forms the second and third charges. I also note, pursuant to the agreed facts, the Accused’s admission during the ERISP. No submission was made that I should disregard that interview on the basis that the admissions were tainted, having regard to the assessment that the Accused was psychotic and exhibiting delusional beliefs. I also rely upon the concession at [5] of the Accused’s written submissions, which states:

“A statement of agreed facts has been signed by the accused and the Crown and the accused concedes that those facts establish beyond reasonable doubt that he has committed the physical elements of each of the three offences, i.e., the accused concedes that he: (1) caused the death of the deceased by stabbing him multiple times; (2) drove his vehicle near the vehicle driven by Mr Cole in a manner that threatened to cause an impact with that vehicle; and (3) drove his vehicle at a speed and in a manner dangerous to others while engaged in a police pursuit.”

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

The mental health impairment defence

68. The Crown and the Accused each engaged a consultant forensic psychiatrist to assess the Accused’s fitness to be tried as well as to address the mental health impairment defence. The Crown retained Professor Greenberg, whose reports I have mentioned above, and the Accused retained Dr Furst.

Dr Furst’s report

69. Dr Furst was retained by Legal Aid NSW to provide a psychiatric report in relation to the three charges against the Accused. He undertook an assessment of the Accused via audio-visual link (AVL) on 20 May 2025, for approximately 70 minutes, whilst the Accused was at the Clarence Correctional Centre. Dr Furst was also given a considerable range of other material (far more extensive than what the Court has received), including witness statements from 19 individuals; assessment and treatment notes of a Dr Julius Petroff, psychiatrist; medical records from Grafton, Lismore and Maclean hospitals; and the court attendance notice. The Accused’s written submissions refer to various parts of Dr Furst’s report and extract several passages from it.

70. Dr Furst’s key findings are that the Accused suffered a mental health impairment, namely schizophrenia, and that a substantial impairment defence pursuant to s 23A of the Crimes Act 1900 (NSW) may be available. I will not, for present purposes, discuss whether a substantial impairment defence is open to the Accused.

71. Dr Furst noted the Accused’s background and demographic details. The Accused has a significant and complex psychiatric history spanning multiple years. He reported experiencing symptoms consistent with Attention Deficit Hyperactivity Disorder (ADHD) from childhood but was only diagnosed with ADHD in September 2024, when Dr Petroff prescribed dexamphetamine at 15mg daily. This diagnosis and subsequent stimulant medication prescription occurred only three months before the offences.

72. Dr Furst noted that the Accused reported first hearing “voices” (apparently auditory hallucinations) in 2019. Whilst initially occasional and faint, they gradually increased in frequency and intensity, becoming “constant” by 2022 and persisting through 2024. He also reported a long-standing history of depression and suicidal ideation.

73. His history, sadly, involves sexual abuse at the age of 12 or 14. He has a substantial history of substance abuse, commencing in his adolescence, including alcohol abuse which began when he was 16 and worsened over time. He started using cannabis at age 20, becoming a daily user by age 30. His use of methamphetamine began around age 30 and is characterised by periodic binges.

74. At the time of the offences on 7 December 2024, Dr Furst opined that the Accused was acutely psychotic and suffering from complex, interconnected delusional beliefs. He believed that World War Three had commenced secretly, and that China was invading Australia through the Clarence River area near his town of Iluka. He believed that Chinese military forces and intelligence operatives had infiltrated the community and that satellites, drones and advanced technology were being used to control people and extract information.

75. The auditory hallucinations he experienced, described as “voices”, were “command” in nature, reinforcing his delusional beliefs and confirming, in his mind, the reality of the invasion and impending danger to himself, his family and Australia. He believed that the Deceased was complicit in this conspiracy, that the Deceased was “paid by China” to operate technology and control satellites. He says he was guided to the Deceased’s unit and that he interpreted the Deceased’s body language as confirmation of guilt. In his mind, at the time he considered his stabbing of the Deceased to be a patriotic act to protect his country and family.

76. Dr Furst diagnosed the Accused with two primary mental disorders according to DSM-5-TR criteria:

77. schizophrenia, based on persistent and recurrent psychotic symptoms characterised by paranoid delusions, command auditory hallucinations and cognitive impairment; and

78. substance use disorder, involving heavy use of alcohol, cannabis and methamphetamine with psychological dependence and harmful consequences.

79. Dr Furst also found that the Accused exhibits emotional instability, depressive tendencies, anxiety, and difficulties consistent with chronic effects of childhood sexual trauma.

80. Mr Watts, in his written submissions, emphasised Dr Furst’s investigations as to when the Accused was diagnosed with mental illness. This involved Dr Furst reviewing the records from Lismore Base Hospital, which referred to the Accused’s presentation on 7 August 2024 with delusions and paranoia after a methamphetamine binge. The Accused was sedated and admitted to the acute mental health unit under the care of Dr Catts, senior psychiatrist, whom Dr Furst described as a highly experienced psychiatrist. Dr Furst observed that hospital staff spoke to the Accused’s mother, “who described his delusions and hallucinations making him fearful as the voices were telling him that his family and himself may be killed.” A diagnosis of schizophrenia was discussed with the Accused’s mother, as was the need for assertive psychiatric care. Dr Catts was of the opinion that a diagnosis of schizophrenia was “long overdue” and that the Accused had no insight into his illness, making it challenging to manage him.

81. Dr Furst also noted other clinical entries and notes from the Accused’s admission to the Tallwood Mental Health Unit where, amongst other things, the Accused revealed his belief that he had a “chip implanted in his head” and thought there was “something wrong with his brain”.

82. Dr Catts told the Accused that he had schizophrenia and required ongoing treatment. He was discharged on 14 August 2024 and went home but presented again on 7 November 2024, when police had been called by the Accused’s brother in relation to apparent delusional thinking, agitation, aggression and paranoia.

Professor Greenberg’s reports

81. Professor Greenberg, forensic psychiatrist, was retained by the Office of the Director of Public Prosecutions and undertook psychiatric assessments of the Accused via AVL on 22 and 23 October 2025 whilst the Accused was housed at the Clarence Correctional Centre. He noted the “inherent clinical limitations” to undertaking assessments via AVL but was nevertheless satisfied that those limitations did not compromise his conclusions.

82. Professor Greenberg’s initial report, dated 5 November 2025, runs to 44 pages. His opinions are framed by reference to ss 4, 28, 30 and 31 of the Act.

83. In his initial report, Professor Greenberg was instructed to address four matters:

84. whether the Accused has any mental health impairment or cognitive impairment;

85. if so, whether it was operative at the time of the offending;

86. whether this gives rise to a defence under s 28 of the Act so as to permit a special verdict of “act proven but not criminally responsible” under s 30 (which was the relevant provision before the parties agreed that the defence of mental health impairment was established); and

87. whether, at the time, the Accused’s capacity to understand events, to judge whether his actions were right or wrong, or to control himself, was substantially impaired.

88. The Accused gave Professor Greenberg a detailed account of his psychotic experiences similar to that he gave Dr Furst. This involved a Chinese invasion, corrupt police acting as Chinese spies, the Deceased’s body language indicating that he was “quite bad”. He advised Professor Greenberg that he had never harmed anyone in his life and that he was “consumed with these voices”.

89. Professor Greenberg considered the Accused’s seven hospital admissions during 2024, the diagnosis of drug-induced psychosis with persistent persecutory delusions and auditory hallucinations.

90. The report draws together a substantial chronology of mental health contacts in the two years before the offence. Professor Greenberg treated that chronology as central to distinguishing schizophrenia from a purely drug-induced psychosis. He took into consideration the Accused’s admission to the Tallwood Unit at Lismore Base Hospital in January 2023; his multiple presentations across Maclean, Grafton and Lismore with auditory hallucinations and paranoia in the context of heavy methamphetamine and cannabis use; his admission in July 2024 under s 20 of the Mental Health Act 2007 (NSW) after calling police fearing his parents would be killed; his further admission following a methamphetamine binge in August 2024 under the care of Dr Catts; and, in November-December 2024, his continued presentations, weapons stockpiling and non-compliance with antipsychotic medication.

91. Professor Greenberg placed weight on the 10 December 2024 statement of the Accused’s mother. She describes a deterioration which began around April 2024 and escalated in the weeks before the offences. She stated that he slept with weapons to “protect” his mother and would shout back at, and run outside to confront, the voices he heard. She attended Maclean Police Station some three weeks before the offence to raise her concerns but did not seek an AVO because she did not fear him and he had nowhere else to live. On the morning of 7 December 2024, she heard him talking to the voices in the garage and, before leaving to visit his father (who was in hospital), understood he intended to shower and meet her there.

92. Professor Greenberg treated this account as collateral evidence of a sustained psychotic process independent of any single episode of intoxication.

93. Professor Greenberg reached two primary diagnoses: first, a substance use disorder; and secondly, a chronic schizophrenic disorder, being a mental illness with active psychotic symptoms.

94. In reaching this schizophrenia diagnosis, Professor Greenberg weighed the competing possibility of a substance-induced psychotic disorder. After considering several factors, he concluded that a substance-induced disorder “cannot be 100% discounted” and that an absolute diagnosis would require greater longitudinal follow-up.

95. Professor Greenberg opined that the Accused qualified for mental health impairment as defined in s 4 of the Act and, further, that the impairment was operative at the time of the offending. Whilst the Accused did know the nature and quality of his act, that he had stabbed a man and might face a long period in gaol, on balance he did not know that the act was wrong. Professor Greenberg found that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. Rather, he acted on the delusional belief that the Deceased was, variously, a bad person, spy or gang member identified to him by the voices. His capacity to understand events, judge right from wrong and to control himself was substantially impaired by his mental health impairment.

96. In Professor Greenberg’s view, the Accused was “out of touch with reality” at the time, and he concluded that, on balance, the Accused’s capacity to judge whether his actions were right or wrong, or to control himself, was substantially impaired by his mental health impairment.

97. Professor Greenberg’s supplementary report, dated 28 November 2025, addresses the driving charges. The diagnostic conclusions remain unchanged. Professor Greenberg expressed the opinion that, in relation to the driving, the Accused was likely psychotic with active auditory hallucinations and paranoid or grandiose delusions. Applying the same analysis he used for the first charge, he concluded that, in relation to Counts 2 and 3, the Accused knew the nature and quality of his acts but, on balance, did not know that the acts were wrong and that his capacity to judge right from wrong and to control himself was substantially impaired by his mental health impairment.

Consideration

94. I have considered all three expert reports. From those reports, I accept the experts’ joint conclusion that the Accused has a mental health impairment, namely, a schizophrenic disorder.

95. Addressing the first limb contained in s 28 of the Act, I am satisfied, and find that, at the time of carrying out the killing, the Accused had a mental health impairment. Each expert has, in detailed reports, carefully analysed an array of documents. Dr Furst has arrived at his conclusions after conferring with the Accused in a lengthy AVL interview and after considering the Accused’s psychiatric history, substance abuse history, mental state at the time of the offences, the police interview admissions, his hospital admissions and treatment, his post-arrest mental state.

96. Professor Greenberg also considered a vast body of similar information, including Dr Furst’s report. He also placed some weight on the statement of the Accused’s mother and took into consideration the deterioration of the Accused’s condition that, according to his mother, commenced more than six months prior to the killing. Professor Greenberg undertook a careful weighing of the competing possibilities of a substance-induced psychotic disorder versus schizophrenia in arriving at his conclusion.

97. Professor Greenberg opined that the Accused did know the nature and quality of the acts but, pursuant to s 28(1)(b) of the Act, did not know that the act was wrong because, as I have set forth above, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

98. That evidence satisfies me, on the balance of probabilities, that the second limb of s 28 of the Act is made out. The Accused’s mental health impairment had the effect that he did not know that the act was wrong.

Conclusion and verdict

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

33 Effect of special verdict

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

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

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

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

(d) other orders that the court thinks appropriate.

100. Mr Watts, in his written submissions, stated that it was appropriate to make the following orders:

“1. Pursuant to s 33(1)(b) of the [Act] the accused is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

2. Pursuant to s 34 of the [Act] the accused is referred to the Mental Health Review Tribunal.

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

4. The Registrar is to notify the Mental Health Review Tribunal as soon as practicable of the verdicts and the making of these orders and to provide the Tribunal with the following documentation:

(a) a copy of the Court’s reasons for verdict and orders; and

(b) copies of the exhibits in the proceedings including the reports of Professor Greenberg and Dr Furst.

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

(a) a copy of the Court’s reasons for verdict and orders; and

(b) copies of the exhibits in the proceedings including the reports of Professor Greenberg and Dr Furst.”

101. The Crown does not oppose those orders. I will make them, with minor amendments. I will also make orders reflecting that I have returned the verdict of act proven but not criminally responsible for each of the acts with which the Accused has been charged.

Orders

102. I make the following orders in relation to each of the offences charged against the accused by the indictment dated 21 April 2026:

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

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

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

106. Pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the victim impact statements of Jason Driscoll, June Driscoll and Wayne Driscoll are to be provided to the Mental Health Review Tribunal.

107. I make the following directions:

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

109. The Registrar is to notify the Mental Health Review Tribunal as soon as practicable of the verdicts and the making of these orders and to provide the Tribunal with the following documentation:

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

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

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

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