Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

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 I note that that last charge has now been withdrawn by the Crown and it will be formally dismissed by me when I make my final orders.

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

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

Legal Principles

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

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

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

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

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.

8. Section 28 of the Act provides:

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

a) Did not know the nature and quality of the act. Or,

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

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

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f1ad9f0d8cf897c7c8532)

Disclaimer: Curated by HT Syndication.