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District Court 20 October 2022

R v Boujandy

[2022] NSWDC 496

Assault & violenceFirearms & weaponsDomestic & family violence
CRIME SPECIAL HEARING LIMITED EVIDENCE, OFFENCE COMMITTED DETERMINATION BY JUDGE ALONE

Citation: R v Boujandy [2022] NSWDC 496
Court: District Court of New South Wales
Date: 20 October 2022
Judge: Montgomery DCJ

Background

The defendant faced 28 counts on indictment and 20 additional charges brought under s 166 of the Criminal Procedure Act 1986 (NSW), comprising 48 charges in total. The charges arose from alleged conduct spanning almost 30 years of marriage: repeated assaults and intimidation of the defendant's wife, each of their five children, and his son-in-law, as well as the unlawful possession of a prohibited firearm, ammunition, and several prohibited weapons.

A determination had previously been made that the defendant was unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act). Expert medical opinion established that his mental health issues arose after the alleged offending. Because a "special verdict" of act proven but not criminally responsible was unavailable in those circumstances, the proceeding took the form of a special hearing before a judge alone.

The prosecution's case was that the defendant systematically assaulted and intimidated his family over nearly three decades, including incidents involving weapons such as a screwdriver, a butcher's knife, and an electric razor. Police searching the family home found a loaded, prohibited semi-automatic rifle stored in a wardrobe, together with three loaded ammunition magazines, a mobile-phone taser, and nunchaku.

Legal Issues

  • Whether the special hearing procedure under the MHCIFP Act was correctly applied, including the standard of proof and available verdicts.
  • Whether, on the limited evidence available, the defendant committed each of the 48 charges beyond reasonable doubt, consistent with s 54 of the MHCIFP Act.
  • Whether the context (fear) evidence was admissible and for what purpose it could be used.
  • Whether complaint evidence was admissible under s 66(2) of the Evidence Act 1995 (NSW).
  • Whether the prosecution's failure to call certain witnesses, as considered in Mahmood v Western Australia (2008) 232 CLR 397, should raise a reasonable doubt about guilt.
  • Whether delay in reporting to police was adequately explained.
  • Whether the defendant was in "possession" of the nunchaku for the purposes of the Weapons Prohibition Act 1998 (NSW), having originally purchased them as a gift for his son.

Decision

Special Hearing Procedure

The court directed itself in accordance with the rules that apply at a jury trial: the prosecution bore the burden of proof beyond reasonable doubt on each element of every charge, the defendant carried no onus, and the court was required to act only on evidence rather than suspicion or probability (at [71]). A finding that the defendant "committed" an offence constitutes a qualified finding of guilt under s 62(a) of the MHCIFP Act and does not amount to a conviction (at [69]).

Credibility of Prosecution Witnesses

The court found all seven prosecution witnesses (the defendant's wife, five children, and son-in-law) to be witnesses of truth doing their best to give reliable evidence from recollection (at [79]). The defence expressly declined to challenge the credibility of any witness in closing submissions (at [88]). The court observed that minor inconsistencies between witnesses were consistent with independent, genuine recollection rather than fabrication, and that delay in reporting to police was comprehensively explained by the complainants' fear of reprisal (at [80]).

Failure to Call Witnesses

Applying Mahmood v Western Australia, the court held that the police officer's evidence satisfactorily explained why certain potential witnesses (including the defendant's sister, his nephew, and Michael's parents) did not provide statements, and that no specific prejudice to the defendant was identified by the defence (at [88]). The court was not persuaded that the prosecution's presentation of its case was unfair.

Domestic Violence Charges: Findings of Guilt

The court made qualified findings of guilt on 42 of the 48 charges. Key findings included: the defendant punched Sally multiple times and slammed her head into a shower wall while threatening to kill her (at [336]-[339]); he struck Sally across the face repeatedly over an extended period while she was seated in a car, having threatened consequences if she moved (at [343]-[345]); he held a butcher's knife to Pauline's throat on 16 August 2016 (at [410]-[415]); he intimidated family members by threatening to shoot them on multiple occasions (at [431]-[432], [435]-[436]); and on 29 July 2019, he trapped Pauline in a bedroom, grabbed her arms, shoved her head into a wall, and later threatened to use scissors against her throat (at [457]-[460]).

Not Guilty Findings

The court entered not guilty findings on four charges. On Count 14, the court was not satisfied beyond reasonable doubt that the defendant spoke an intimidating threat to Pauline on 19 August 2015, given that the only witness (Peter) conceded uncertainty as to the precise words used (at [406]-[407]). On Count 16, no witness gave evidence of the defendant speaking a specific threat to kill Pauline while holding the knife in the kitchen (at [413]). On Count 21 (indictment), the court was not satisfied beyond reasonable doubt of the specific intimidating act charged, and a not guilty verdict was entered (at [449]). The Crown separately conceded that Sequence 21 (s 166 matter) could not be established, and a verdict of not guilty was directed (at [471]).

Prohibited Weapons and Firearms

The court made qualified findings of guilt on all weapons and firearms charges that were contested. The defendant's possession of the Ruger semi-automatic rifle (a prohibited firearm), the three loaded magazines, and the ammunition was established by uncontested expert evidence and the defendant's own admissions to police (at [463]-[466]). The mobile-phone taser and nunchaku were each established as prohibited weapons in the defendant's possession without permit (at [468]-[469]). The court found the defendant was in "possession" of the nunchaku notwithstanding that he had originally purchased them as a gift for his young son, because as the adult occupier of the premises and a user of them, he knowingly had custody within the statutory definition (at [321]). The laser pointer charge (Sequence 13) was abandoned by the Crown due to the absence of expert certification, and a not guilty verdict was directed (at [317]-[318]).

Orders Made

Qualified findings of guilt (on the limited evidence available, the defendant committed the offence) were entered on the following charges:

  • Sequence 21 (assault of Sally at the Blue Mountains, 2006)
  • Counts 1, 2, 3, 4, 5, 6, 7, 8, 9 (assaults and intimidation of Sally and others, 2008 and 2010)
  • Sequence 45 (assault of Sara by slamming her head into a window)
  • Count 10 (intimidation of Sara, 2013-2015)
  • Sequences 1, 2, 3 (assault of Pauline and Sara, and intimidation of Sara, January 2013)
  • Counts 11, 12, 13 (use of screwdriver, assault occasioning actual bodily harm, and intimidation of Pauline, 27 July 2014)
  • Counts 15 and 17 (use of knife and assault of Pauline, 16 August 2016)
  • Sequences 10 and 11 (intimidation of Michael and assault of Sally, April-May 2017)
  • Count 18 (assault occasioning actual bodily harm of Pauline, 27 October 2017)
  • Counts 19 and 20 (intimidation of Pauline and Peter, 2017-2019)
  • Sequences 17 and 18 (intimidation and assault of Sara, 27 March 2019)
  • Counts 22, 23 and 24 (intimidation of Pauline, assault of Pauline, and intimidation of Mary, 29 July 2019)
  • Counts 25 and 26 (assault and intimidation of Pauline, 15 August 2019)
  • Counts 27 and 28, Sequences 7, 8, 9, 10, 11 (prohibited firearm and ammunition offences)
  • Sequences 12 and 14 (possession of prohibited weapons: taser and nunchaku)
  • Sequences 19 and 20 (intimidation and assault of Pauline, 15 August 2019)

Not guilty verdicts were entered on: Count 14, Count 16, Count 21, Sequence 13 (laser pointer), and Sequence 21 (s 166 matter).

Key Takeaways

  • Under the MHCIFP Act, where a defendant's mental health condition arose after the alleged offending rather than at the time of it, the special verdict of "act proven but not criminally responsible" is unavailable; the only available verdicts are a qualified finding that the defendant committed the offence, or not guilty (at [64], [68]).

  • A qualified finding of guilt under s 62(a) of the MHCIFP Act that the defendant "committed" an offence does not constitute a conviction; it is a distinct forensic outcome with separate downstream consequences under ss 63-68 of that Act (at [69]-[70]).

  • The District Court confirmed that the criminal standard of proof (beyond reasonable doubt) applies fully in a special hearing under s 54 of the MHCIFP Act, and that the prosecution's failure to call witnesses does not automatically raise a reasonable doubt where there is a satisfactory explanation for their absence and no specific prejudice to the defendant is identified, applying Mahmood v Western Australia (at [88]).

  • Where a complainant does not give direct evidence of a specific charged act, a conviction-equivalent finding may still be made on the evidence of other witnesses, provided the court applies appropriate caution and carefully weighs that absence against the totality of the evidence (at [330]).

  • "Possession" of a prohibited weapon under the Weapons Prohibition Act 1998 (NSW) may be established where a person originally acquired the weapon as a gift for a child but remained the adult occupier of the premises, controlled access to the relevant area, and personally used the item; the statutory definition of possession encompasses knowing custody in those circumstances (at [321]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW) ss 166, 133(2), 167
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 36, 56(1), 59(1), 54, 62, 63 - 68
- Crimes act 1900 (NSW) ss 61, 33B(1)(a), 59
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
- Firearms Act 1996 (NSW) ss 39(1)(a), 65(3)
- Weapons Prohibition Act 1998 (NSW) s 7(1)
- Evidence Act 1995 (NSW) ss 66(2), 136

Cases
- Mahmood v Western Australia (2008) 232 CLR 397