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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.

5. The matter proceeded by way of a s 31 hearing because:

6. The parties agreed that the proposed evidence in the proceedings establishes the defence of mental health impairment; and

7. The accused is represented by an Australian legal practitioner.

8. Both parties thus accept and ask the Court to enter a special verdict of act proven but not criminally responsible.

9. However, as set out at s 31(c) of the Act, even though the parties agree, such a verdict may only be entered if the Court, after considering the evidence, is satisfied that the defence is so established.

10. When the matter was first listed for hearing before me on 2 June 2026, the Crown agreed with the accused that, subject to my satisfaction in accordance with s 31, the defence under s 28 would be available. However, I raised a concern about aspects of the psychiatric evidence. The matter was then listed for further hearing before me on a further two occasions.

11. On the third occasion, each of the three psychiatrists who had offered an opinion in this matter gave oral evidence concurrently.

12. Having received the further evidence and having considered all of the other evidence relied upon by the parties, I am satisfied that a special verdict of act proven but not criminally responsible should be entered pursuant to s 31 of the Act, for the reasons set out herein.

The defence of mental health impairment

11. Part 3 of the Act governs the defences of mental health impairment and cognitive impairment.

12. As set out in s 27, the 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

(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 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.

13. The defence operates if at the time of the carrying out of the act constituting the offence, the person had a mental health or cognitive impairment that had the effect of either subs (1)(a) or (1)(b), that is, it is not necessary that the person’s mental health or cognitive impairment had the effect of both (a) and (b) (although it may be in many cases that it does). “Or” is used in the disjunctive sense.

14. That is important in this matter, as the parties accept that the accused did know the nature and quality of her act, but agree that she did not know that the act was wrong, having regard to s 28(1)(b).

15. The s 31 application is thus being jointly pursued on the basis that the accused did not know at the time of killing her two children that her acts in doing so were wrong (as that term is understood in s 28).

16. The satisfaction of the Court is an important requirement of the legislative scheme which provides that, in some cases, persons who commit acts constituting criminal offences may not be held criminally responsible for their conduct. Even though the parties agree, which is of itself a prerequisite for the entering of a special verdict under s 31, such a verdict may only be entered if the Court is satisfied that the defence is established. This is not a mere given, or something that will be accepted without close scrutiny of the proposed evidence.

17. Appropriately, a person who is found to have committed the acts constituting a criminal offence, but is also found to be not criminally responsible, may be treated differently from a person who is found guilty of the offence charged. Yet, it will be a rare case that a person who committed the act, but is found not to be criminally responsible, will simply be discharged into the community.

18. Rather, depending on the evidence, the Court has the power to order that that person be detained in a place and manner that the Court thinks fit and to be released by due process of law (s 33(b) of the Act). Such a person will not be released into the community unless the Court is satisfied of the person’s safety and that the safety of any member of the public will not be seriously endangered by their release (s 33(3) of the Act). Indeed, a person for whom a special verdict of act proven but not criminally responsible is entered remains a forensic patient until conditionally released.

19. The aim of the Act is not only to ensure that persons are not held criminally responsible when they either do not know the nature and quality of the act which they have committed, or did not know that the act was wrong, but also to ensure the safety of the person and the safety of the community by providing for the ongoing detention and treatment of that person, should that be necessary.

20. It is also important to observe that a s 31 hearing is not like a trial. It is in the nature of a joint application being made to the Court, which requires consideration by the Court and, if satisfied, the making of the orders sought.

21. This is a particularly tragic case. It seems to me that the community has an interest in understanding the circumstances in which a mother killed her two children and understanding that any decision to hold her not criminally responsible is one that is properly made and may withstand close scrutiny.

The acts giving rise to the indictment

22. The accused was born on 8 January 1982 and was thus aged 42 at the time of the events giving rise to these proceedings.

23. In 2008, she married her children’s father. They had two children, being A and G.

24. In 2020, the accused and the children’s father separated. They remained in contact and had an amicable relationship, continuing to share the upbringing of their children. The children remained generally in the home where the accused lived, in a suburb of New South Wales. However, at the time of separation or thereafter, the children’s father entered into a new relationship. In August 2024, he told the accused that his new partner was pregnant.

25. From about 9 August 2024 until 9 September 2024, the accused carried out internet searches (on her mobile phone) relating to topics such as murder, suicide, anatomy, affairs, divorce, shame, embarrassment, mental health and pregnancy. During this period, the accused also carried out a number of internet searches relating to other examples of suicide and the killing of children. She carried out internet searches of how suicide could be undertaken and how other persons might be killed.

26. At the same time, the accused was undergoing workplace issues, which were causing her stress and anxiety. On 5 September 2024, she wrote to the Premier of New South Wales seeking resolution of her ongoing workplace issues and emailed another member of Parliament in the same way.

27. On 7 September 2024, the accused travelled to the Central Coast with the children and attended a family function. She dropped them off at their father’s residence on the way home.

28. Later that evening, she attended a local hospital, seeking help for insomnia, anxiety and a background of recurrent thoughts triggered by a car accident some years earlier. She was prescribed Temazepam. The next day, both the accused and the children’s father attended the children’s sport and community activities.

29. On 9 September 2024, the accused made a number of further internet searches on the same topics to which I have referred. The children’s father picked up the children from school and along with the accused, then went to purchase shoes for the children. Even whilst the children were inside the shop purchasing the shoes, the accused was carrying out further searches on the same topics.

30. At some time after arriving home at 7:55pm, the two children went to their bedrooms and went to bed. At some stage thereafter, the accused armed herself with a knife and went to each of her children’s bedrooms. She stabbed A multiple times as he lay in bed. The accused also stabbed G multiple times, including slashing his throat. There were superficial wounds to both of A’s hands, which it is agreed would be consistent with defence wounds.

31. There is no agreement as to the precise time of death, but at 11:54pm, audio from a nearby CCTV system reveals a noise consistent with a young person screaming.

32. At some unknown time during that night, the accused took a knife and entered the bathroom of the premises and filled the bath with water. She made numerous lacerations to herself, including cuts to her left wrist and arm and at least two lacerations to the right side of her neck. She remained in the bathtub for an unknown period of time.

33. Between 6:40am and 9:03am, the accused made numerous internet searches on her phone relating to artery cuts and bleeding out. It must be that the accused, having cut herself numerous times, was doing research as to why she was not bleeding out.

34. During the course of the morning of 10 September, the children’s father could not contact the accused and became aware that the children were not at school. He drove to the accused’s premises, arriving at around 12:33pm. He discovered the accused semi-conscious in the bathtub. He said to her, “What have you done? What’s wrong? Where are the [children]?” The accused replied, “I killed them. They are in [A]’s room”.

35. The children’s father went into A’s room and found both A and G deceased on the floor, lying in close proximity to each other. He called Triple 0. The accused left the bath and went to lie on the bed, in a semi-conscious state. Emergency services arrived. The accused was treated and taken to hospital and subsequently placed under arrest.

36. Police discovered notes handwritten by the accused. It is not necessary to set out those notes in detail. It is only necessary to say that the accused identified a number of reasons why she felt as she did. She said she felt overwhelmed and sad. The accused said she was committed to repairing the marriage and family but was simply too tired and anxious. She was tired of hurting and was ready for some peace. The accused said she loved so much about her life and did not want to leave, but just needed a break, and said, “I can’t leave my [children] alone in such a bad world without my support”.

37. The accused declined to be interviewed by the police, albeit she consented to a number of forensic procedures.

38. It is plain that the accused formed a view that she wanted to kill herself and decided that she would take her two children with her. She thus stabbed her two children, before attempting to kill herself. It is also plain that the accused had been thinking about this for a number of days and had been researching ways to do it, the significance of it and the consequences thereof. Yet, at the same time as having these thoughts, the accused had been looking after her children and attending to everyday activities with the children’s father and the children.

The s 28 defence

39. The accused caused the death of her children by stabbing them. It follows that the acts which give rise to the charges of murder against her have been proven.

40. Whether the accused should be found not to be criminally responsible for those acts depends on whether the defence available under s 28 of the Act is satisfied. The parties adopt a joint position, submitting that I would be so satisfied of the availability of the defence under s 28.

41. Whether I am so satisfied necessarily depends upon a satisfaction that either s 28(1)(a) or s 28(1)(b) is established. These are matters of fact. That is, did the accused not know the nature and quality of the acts or did she not know that the acts were wrong, as that term is understood in s 28(1)(b).

42. Again, I emphasise that I am not undertaking a trial and I am not required to deliver a judgment as if I were undertaking a judge-alone trial, but it is still necessary for the Court to explain why it is satisfied, if it is so satisfied.

43. Satisfaction must depend upon a consideration of all of the evidence relied upon by the parties on the application. Having said that, the psychiatric evidence is particularly significant, as it is only through the expert evidence provided by psychiatrists that the Court could possibly gain some understanding of what happened and what the accused knew or did not know at the relevant time.

44. The Court is not bound to accept expert evidence, but like in many cases, expert psychiatrists provide valuable evidence to assist the Court in the process.

45. It is also important to observe that I must not place myself in the position of an expert. My task is to determine the application on the evidence before me, rather than assume the role of an expert. I must look critically and analytically at the expert evidence, but in circumstances in which there is a degree of unanimity as to the expert psychiatric opinion, there would need to be good reason for me to reject it.

The expert evidence

46. When the matter was first listed for hearing, I received psychiatric reports from the following:

47. Dr Andrew Ellis, forensic psychiatrist, dated 24 September 2025;

48. Dr Olav Nielssen, psychiatrist, dated 26 September 2025; and

49. Dr Adam Martin, forensic psychiatrist, dated 2 March 2026.

50. Subsequent to some discussion on that day, the parties provided additional reports, as follows:

51. Dr Ellis provided a supplementary report dated 9 June 2026;

52. Dr Martin provided a supplementary report dated 19 June 2026; and

53. Dr Nielssen provided a supplementary report dated 25 June 2026.

54. On the third occasion the matter was listed, I heard concurrent evidence from each of Drs Martin, Ellis and Nielssen.

55. There is a degree of similarity, if not unanimity, in their evidence. None of the doctors treated or saw the accused at any time prior to the killing of the children. They each examined the accused by audio-visual link, while she remained in Silverwater Women’s Correctional Centre, with Dr Martin examining her on 17 February 2026, as appointed by the Crown. Dr Nielssen examined the accused on two occasions, by audio-visual link on 11 February 2025 and 22 July 2025, appointed on behalf of the accused. Dr Ellis, also engaged on behalf of the accused, examined her in the same way, by audio-visual link while she remained at Silverwater, on 22 July 2025.

56. Each had the relevant material, including medical records, witness statements, prior psychological records, and all evidence relevant to the matters with which the accused has been charged and her mental state at the time.

57. The accused obtained and served the reports of Drs Ellis and Nielssen. The Crown obtained the report of Dr Martin.

Dr Ellis

52. Dr Ellis interviewed the accused by audio-visual link to the Silverwater Correctional Centre on 22 July 2025 for two hours. He was provided with all the relevant background material, included the draft Crown case statement, transcripts from police interviews and medical reports, except, of course, that Dr Ellis did not at the time have the reports of Dr Nielssen and Dr Martin. Dr Ellis obtained a history that at the time of the death of her children, the accused was living at her home with her two children. She worked in ecological education, up to four days per week, albeit she had not been working for the two weeks prior to 9 September 2024. The accused was not taking any regular prescription medication. The accused had been seeing a psychologist on a fortnightly basis for approximately three years, but had stopped regular consultations, other than one session shortly in the year prior to her arrest.

53. The accused explained to Dr Ellis at the time of his initial review that she felt quite unwell in her mental state on most days. She reported witnessing distressing interactions between Corrective Services and other inmates and other events in prison. Her sleep was variable, albeit she was getting a maximum of 6-7 hours per night. She said she had nightmares and experienced panic attacks, which appeared to have been prompted by her own thoughts or witnessing stressful events in prison. The accused explained to Dr Ellis that she had always been anxious and that something inside her wanted to “give up” and that she was hurting inside. She wanted her home comforts and felt that the only way to go home was to die in order to get some peace.

54. The accused provided a history to Dr Ellis of pre-existing mental health issues, for which she sought clinical care in 2017. She had begun to experience suicidal ideas but had never acted on these. She reported symptoms of being depressed and thought that the triggering episode was a near-miss car accident in 2017. She began to experience significant anxiety when she heard the sound of a car horn.

55. The accused had four psychiatric admissions to different units, with the longest being for five to six weeks. From 2017, her medical records show a history of anxiety and involvement with WorkCover. She had been referred to a psychologist and was taking medication. Symptoms of anxiety, panic, low mood, insomnia, restricted eating and stress were noted.

56. On 7/8 September 2024, the accused presented to a local hospital emergency department with insomnia and recurrence of thoughts about the 2017 car accident. She was discharged to follow up with a psychologist. Immediately following her arrest, she was seen in hospital by Dr White, a psychiatrist. She gave a history of disassociation (that is, out of body and unreal experiences) low mood and suicidal ideas for ten days prior to her arrest.

57. At one time whilst in custody, the accused had tied plastic bags around her neck. Another time, a noose was found in her cell. She had been attempting to obtain medication on which to overdose. The accused reported to Dr Ellis an essentially normal background, having done well in the HSC and completing a university course in environmental science. She had travelled and worked. Her difficulties commenced in 2017, when she said she was bullied at work and was eventually medically retired. It seems that the accused fell into dispute with WorkCover in relation to this. She separated from her husband in 2020, but remained hopeful they would reunite. The accused described their separation as “always amicable”.

58. The accused explained to Dr Ellis that until six weeks prior to the offences, she had been in a positive mental state. She was not seeking any mental health treatment, she was not taking any medication and she was getting on well with her husband.

59. However, that appears to have all changed when the children’s father told her that his then-girlfriend was pregnant. The accused began to worry and felt that she could not cope. She identified other stress sources, such as that she was between jobs and that her husband had been made redundant. She said she began to feel really depressed. She would not want to do anything. She turned down a job offer and did not attend a friend’s 40th birthday.

60. The accused commenced to have difficulties sleeping and she felt that issues faced by her children would become overwhelming and not worth dealing with. She had been thinking about ending her life for approximately 10 days before the offences. She said she felt it was the right thing to do. She then began thinking about what she needed to do to end her children’s lives as well. She thought that if her children died then, “nothing could go wrong for them”. She wanted all her bizarre thoughts to stop and this motivated her to harm her children and herself.

61. Dr Ellis considered that the accused met the criteria for the diagnosis of major depressive disorder, both currently and at the time of the offences. He noted that a diagnosis of depression had previously been made by the accused’s general practitioner and psychologist, but not by a psychiatrist who had examined her. The psychiatrist tended to support only an adjustment disorder. Yet Dr Ellis accepted that having regard to her own self-reporting and observations of others, she presented with the symptoms of major depression.

62. Dr Ellis explained that major depressive disorder can be considered a mental health impairment. It impaired the accused’s well-being, judgment and behaviour. It is likely that she was suffering from the disorder at the time of the events of 9/10 September 2024. Dr Ellis then opined to the following effect:

“[The accused] likely knew the nature and quality of her actions in that she was using lethal means of stabbing her children and herself in order to kill. She had searched methods. She knew, and knows at a moral and legal level that killing was wrong. In knowing that her actions were wrong, at the time of September 2024 she was however not likely able to reason with a moderate sense and degree of composure about her actions. She was experiencing repeated suicidal ideas, and irrational thoughts that her children would be better off dead that would have impaired her ability to reason with composure about the situation. She was not able to communicate her distress effectively to others, although others observed her to change. Her perfectionist tendencies and shame about her husband’s new child with another woman likely combined with morbid ideas to internalise her problems and not see help. She has some awareness now that her ideas were irrational, and not perceived as rational by reasonable people. Her own very serious attempt at suicide immediately after killing her children without altering [sic] others is indicative of inability to reason with composure.”

63. Dr Ellis considered that the defence of substantial impairment could apply, as the accused had reduced capacity to understand events, and was likely to have had a distorted view of suicide and killing her children as a response to her mood state and fears for her children on the basis of her major depression.

64. Dr Ellis also considered that the accused remained significantly impaired by the symptoms of her depression, which were compounded by her current placement in custody, alongside feelings of guilt and grief about her actions. Dr Ellis expressed the view that the accused requires ongoing treatment and stabilisation of her condition. Dr Ellis considered that if the accused received ongoing specialised mental health care, then her prognosis would likely be good.

Dr Nielssen

65. Dr Nielssen interviewed the accused on both 11 February 2025 and again on 22 July 2025, by audio visual link. He had access to the same material as Dr Ellis. The accused provided a similar history to Dr Nielssen as to Dr Ellis and it is not necessary that I repeat it. However, the accused also explained to Dr Nielssen that in the week prior to the events of 9/10 September 2024, she had been drinking more regularly, from a glass of wine with meals on the weekend to a glass of wine every night and six glasses of wine on the night of the offending. The accused had been given Temazepam when she had attended a local hospital and she took one tablet on the Saturday night and one on the Sunday night.

66. When asked about her plan to raise her mental illness in her defence, the accused said “There was not a lot of logic to it … I did not want this to happen”. When asked by Dr Nielssen about the suggestion the offences were committed as a form of retaliation against her husband after he formed a new relationship, the accused explained there was no argument with her husband, she was getting what she wanted and there was nothing wrong, it was just her.

67. On examination, Dr Nielssen observed that the accused was quite agitated in her manner and anguished in her emotional responses. Her mood was obviously depressed and she cried for most of the interviews. She expressed what seemed to be the unrealistic belief that she and her husband were due to be reconciled, but other than that, she expressed no clearly delusional beliefs. Dr Nielssen observed no apparent impairment in cognitive function. The accused’s pre-morbid intelligence was assessed to be around the top of the normal range. By the time of the second interview, she had commenced treatment with antidepressant medication, which had a numbing effect.

68. Dr Nielssen diagnosed a major depressive illness with melancholic features and an anxiety disorder. Dr Nielssen explained that melancholic depression refers to a more severe form of major depressive illness. In his report, Dr Nielssen provided answers to a number of questions asked of him by the accused’s solicitor, including whether at the time of the deaths of her children, the accused had a mental health impairment as defined in s 4 of the Act. Dr Nielssen accepted that she did, describing a severe depressive illness with melancholic features.

69. Dr Nielssen explained that he believed that the accused was deprived of the ability to recognise that her actions in killing her two children and attempting to kill herself were wrong. The suicide note indicates that the accused was not aware that her actions were wrong, as viewed by reasonable persons. She was in a depressed state in which she believed that suicide was a reasonable course of action. The accused was deprived of the ability to reason with sense or composure about the fate of her two children, blaming herself for passing on the trauma she experienced at work to them. Dr Nielssen also opined that despite the effect of the quantity of alcohol consumed on the night, the accused would also have the defence of substantial impairment by abnormality of mind open to her. At the time of his last interview with the accused, Dr Nielssen concluded that the accused remained severely depressed and in need of further intensive treatment and her prognosis was guarded. Like Dr Ellis, Dr Nielssen expressed the view the accused required long term psychiatric and psychological care.

70. In his supplementary report, Dr Nielssen was asked to explain what it was about the accused’s major depressive illness that had the effect that she did not know her actions in killing her children were wrong. Dr Nielsen explained that people who are very severely depressed view themselves, their circumstances and their future to be far worse than is really the case. Further, he said that their beliefs can be of delusional intensity. People in severely depressed states often view suicide to be a reasonable course of action, even if they have previously recovered from depression and realised that their earlier thinking was due to that illness. He confirmed his view that the accused was unable to reason with a moderate degree of sense or composure as to whether her actions, as perceived by reasonable people, were wrong.

71. Further, Dr Nielssen maintained that there was a link between the accused’s major depressive illness and her actions in killing the children and that emerged from her suicide note, when she said, “I can’t leave my [children] alone in such a bad world”. Dr Nielssen also explained that he considered the accused’s internet research and handwritten notes merely confirmed that her condition was pervasive and that she remained in an abnormal state of mind.

Dr Martin

72. Dr Martin examined the accused, also by audio visual link, on 17 February 2026, for 90 minutes. It is not necessary that I repeat the history provided. It is consistent with that which was provided to Dr Ellis and Dr Nielssen. At the time of Dr Martin’s examination, the accused presented in a frequently distraught state, weeping, with poor eye contact, consistent with severe depressive phenomena and distress. She reported feeling extremely anxious and alone. She said she had recently ceased taking her antidepressant medication.

73. Dr Martin obtained a similar history of the accused’s prior psychological state, including her inpatient treatment. Dr Martin said the accused reported to him that at the time of the events, she had not been taking antidepressant medication, because she believed she was doing much better. She described to Dr Martin that in the time leading up to the events she had been drinking alcohol in a moderate manner, up until the last week, when she drank more and on the night of the events, had drunk six or seven glasses of wine.

74. Dr Martin described the accused’s mental state at the time of the events having regard to the reporting of the accused. The accused told Dr Martin that in the first six months of 2024, her mental state was stable and she was in a good self-care routine. However, by May 2024, the accused stopped enjoying activities and by June she was frequently teary. She was not seeking treatment. Dr Martin said that on direct questioning, the accused did not describe frank psychotic experiences, such as auditory hallucinations or other bizarre delusions, but had a general sense of nihilism and hopelessness. She said she felt totally separate and disconnected from others. She said she was unable to recall the actual alleged violence, but vaguely recalled being in a bath. She said she had written suicide notes.

75. Dr Martin’s diagnosis of the accused was similar to that of Dr Ellis and Dr Nielssen, as was his review of the history and medical records. Dr Martin also concluded that the accused presented with a major depressive disorder in the time leading up to and following the events. He said the alleged offending occurred in direct nexus with this mental illness. Dr Martin said that diagnostically, the accused was quite complex, but the weight of material pointed to her having long-standing problems with anxiety, with a background of trauma.

76. Dr Martin opined:

“My formulation is that on a background of longstanding psychological vulnerability manifesting with anxiety and mood disturbance, with a background of prior trauma, that her mental state severely decompensated in association with marriage problems, her husband’s infidelity and the affair partner being pregnant. In my view, it is likely that her capacity to cope became severely compromised as she developed an agitated and anxious mental state with severely depressed mood and associated nihilism. I suspect she projected feelings of hopelessness in the context of extreme distress and rage upon her children and herself. In my view, this in itself represents a severely distorted mental state, which in my view, can be reasonably framed as a product of mental illness.”

77. Dr Martin also opined that the accused fulfilled the definition of having a mental health impairment at the time of the alleged offending. This arose from an affective disorder (that is, major depressive disorder), rather than the ingestion of any substance. In terms of the accused’s defence of mental health impairment, Dr Martin concluded that it was likely the Court would find that the accused knew the nature and quality of the act, but it could reasonably be argued that she did not know the act was wrong in that she was unable to reason with a moderate degree of sense and composure about whether it would be perceived by reasonable persons as wrong.

78. Dr Martin’s supplementary report was broadly consistent with his first report. In the supplementary report, Dr Martin identified that a common feature of major depressive disorder is a preoccupation with death and suicidal ideation and it is a disorder which carries a high risk of suicide. Dr Martin explained that in some cases, parents incorporate their children into their highly distorted thinking and can act on these beliefs in a way in which they at that time would conceive as “altruistic”, that is believing that they are somehow acting in the best interests of their children.

Concurrent evidence

79. As I have indicated, on 12 August 2026, all three expert psychiatrists gave oral evidence concurrently. In my view, their evidence was particularly significant in explaining why the very severe form of major depression from which the accused was suffering at the time of the killing of her children was such that she did not know that what she was doing was wrong. Dr Nielssen described her state of mind as being in a “very severe melancholic depression”. He described this as:

“… a kind of a psychosis, even if there’s no specific clear delusion, view of the world in that state of delusional where you see that you’ve got no future and your children have no future …”

80. Dr Martin agreed with that observation, suggesting that there was a “direct nexus” between the accused being completely overwhelmed by major mental illness and her offending, which Dr Martin also suggested might be viewed as essentially psychotic. Dr Martin went on to say that, in his opinion, the accused was experiencing a level of nihilism which completely distorted her judgment about the future.

81. Dr Ellis observed that the accused’s reasoning about whether the accused’s conduct was wrong was “significantly impaired because of the mental disorder”. Dr Ellis acknowledged that, in some cases, it is very clear that a person does not know that their conduct is wrong because they have some “fanciful bizarre delusion”, but in this case, whilst it may look on the surface that the person knows, the reasoning has become distorted and there is no composure in the reasoning, so that it is far from the thinking of ordinary or reasonable people.

82. Dr Ellis explained that the accused’s statement in her note that she could not leave her children alone in such a bad world might not, of itself, indicate a form of delusion, but when looking at the entire circumstances, it generally reflected her nihilistic view of the world. Dr Ellis explained that nihilistic meant generally that the world was going to end or some terrible catastrophe was going to eventuate, such that death was the appropriate outcome.

83. Dr Martin explained that the accused was at the “very extreme end” of a major depressive order, and he thought there was essentially a psychotic element to the accused’s level of nihilism, such that her sense of complete and utter hopelessness was her being out of touch with reality, which Dr Martin explained was the definition of psychosis. Dr Martin further explained that the accused’s thought process was not like that of a schizophrenic person, but she had such distorted beliefs that they were essentially synonymous with psychosis. Dr Martin said that he had not expressed that adequately in his report. Dr Ellis also explained that the accused had specific types of symptoms of major depression which most people with major depression do not have. Some may have thoughts of suicide, but the accused had persistent thoughts of suicide. She had nihilistic thoughts even about her children. Dr Ellis did not consider that was the same as having delusions, but the accused’s thought processes were of a similar severity.

84. Dr Nielssen described the accused’s condition as a form of psychotic depression, normally described as “melancholic depression”. Dr Martin explained that “psychosis”:

“… is a broad description of severe disturbance of mind, where a person is out of touch with reality manifested by delusions.”

85. Dr Martin said that not all depressed people suffer from such symptoms, but that a person in the very extreme end of the spectrum of depression could suffer from such symptoms. He explained that a person in that condition would lose a sense of perspective, such that they could not appreciate wrongfulness.

Determination

86. Whilst the Act commenced operation in 2021, the principles which apply to the defence under s 28 are well established. They are explained in Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 as follows:

“[9] Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. To establish the defence of mental illness, formerly known as insanity, it must be proved on the balance of probabilities that when committing the acts alleged to constitute the offence, the accused was labouring under such a defect of reason, as a result of a disease of the mind, as not to know the nature and quality of his acts or, if he did know it, that he did not know that what he was doing was wrong. A person does not know that what he is doing is wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some modest degree of calmness in relation to the moral quality of what he is doing (R v Porter [1933] HCA 1; 55 CLR 182 at 189-190).

[10] The law requires that, at the relevant time, the state of mind of an accused must have been one of disease, disorder, or disturbance arising from some medical condition. That condition must result in the function of the reason, memory or understanding of the accused being thrown into a state of derangement or disorder of the capacity to reason such as would prevent the accused from knowing what he was doing, in that he did not know the physical nature or quality of his acts, or from knowing that those acts were wrong according to the ordinary standards of reasonable people in the community (R v Pratt [2009] NSWSC 1108 at [19]-[21]).”

87. Having regard to the updated reports of the psychiatric experts and to their oral evidence, I am satisfied that at the time of killing her two children, the accused did not know that the act of stabbing them was wrong, in that she could not reason with a moderate degree of sense and composure as to whether those acts, as perceived by reasonable people, were wrong.

88. This view is supported by the opinions of three expert and eminent psychiatrists. They considered that at the time of the acts, the accused was suffering from such a severe case of major depression that her thought processes were psychotic. They also considered that the accused was nihilistic in her thinking and was unable to reason other than that her children would be better off dead, in such a bad world.

89. They did not consider that the level of planning that went into the accused’s actions, including things such as the internet searches of the kind to which I have referred, was such as to detract from that view. Rather, as explained, the feelings and thoughts were pervasive.

90. As I said at the outset of this judgment, the determination of whether a person did not know that the act was wrong is a matter for the Court, but the Court must rely on expert psychiatric opinion informing that view.

91. In this case, as explained during the oral concurrent evidence, the expert psychiatric evidence is overwhelmingly to the effect that the accused did not know that her actions in killing her children were wrong, even though she knew the nature and quality of the acts that she was undertaking.

92. In the circumstances, I am satisfied of the joint position adopted by the Crown and the accused, that I should return a special verdict of act proven but not criminally responsible. I am also satisfied that the accused should be detained at a location determined by the Mental Health Review Tribunal, until released by due process of law.

93. The orders I make thus result in the accused remaining detained in custody but becoming a forensic patient under the supervision of the Mental Health Review Tribunal. The Tribunal will review and supervise the accused as well as ensure that she is provided with appropriate care and treatment. The accused may not be released until the Tribunal is satisfied that the safety of the accused or any member of the public will not be seriously endangered by the accused’s release and even then not until the Attorney General and Minister for Health have been given an opportunity to be heard on the issue.

Orders

94. I thus make the following orders:

95. In respect of the charge that the accused, on 9 September 2024 or 10 September 2024, in the State of New South Wales did murder A, I enter a special verdict pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the act is proven but the accused is not criminally responsible.

96. In respect of the charge that the accused, on 9 September 2024 or 10 September 2024, in the State of New South Wales did murder G, I enter a special verdict pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the act is proven but the accused is not criminally responsible.

97. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the accused is to be detained at a location to be determined by the Mental Health Review Tribunal until released by due process of law.

98. 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.

99. The Registrar is to notify the Minister for Health, as soon as is reasonably practicable, of the verdict and these orders.

100. The Registrar is to notify the Mental Health Review Tribunal, as soon as is reasonably practicable, of the verdict and these orders and is to provide the following documentation:

(a) A copy of my reasons for verdict and the making of these orders; and (b) Copies of the exhibits in these proceedings, including the agreed facts and the reports of Dr Martin, Dr Ellis and Dr Nielssen.

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

(a) A copy of my reasons for verdict and the making of these orders; and (b) Copies of the exhibits in these proceedings, including the agreed facts and the reports of Dr Martin, Dr Ellis and Dr Nielssen.

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