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District Court 26 October 2022

R v Boujandy (No. 2)

[2022] NSWDC 517

Domestic & family violence
CRIME BAIL

Citation: R v Boujandy (No. 2) [2022] NSWDC 517
Court: District Court of New South Wales
Date: 26 October 2022
Judge: Montgomery DCJ

Background

The defendant stood for a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), having been found unfit to be tried. He faced 48 counts, predominantly involving long-term domestic violence against his wife and family.

At the conclusion of the special hearing on 20 October 2022, the court returned a limited number of not guilty verdicts and numerous verdicts that the defendant had committed the offences charged, in the qualified terms prescribed by section 59 of the MHCIFP Act. The defendant remained on bail.

Before the court could conduct a penalty hearing to determine whether to nominate a limiting term under section 63 of the MHCIFP Act, the Crown applied for the defendant to be detained. The court had to resolve whether any statutory power existed to detain him in that intervening period.

Legal Issues

  • Whether section 22B of the Bail Act 2013 (NSW), which applies following conviction and before sentencing, applies to the period between a special hearing verdict and the nomination of a limiting term.
  • Whether a verdict under section 59 of the MHCIFP Act constitutes a "conviction" within the meaning of the Bail Act.
  • Whether section 65(2) of the MHCIFP Act empowers the court to order interim detention before a limiting term is nominated.
  • Whether the court retained any power to vary the existing bail order under section 15(2) of the Bail Act.

Decision

Issue 1: Whether s 22B of the Bail Act applies

Section 22B applies to the period "following conviction and before sentencing." The court held that this language does not capture the position of a defendant following a special hearing verdict. A verdict under section 59 of the MHCIFP Act constitutes a qualified finding of guilt and, by operation of section 62(a) of the MHCIFP Act, expressly does not constitute a conviction for the offence. Section 4(1) of the Bail Act defines "conviction" to include a finding of guilt, but section 62(a) of the MHCIFP Act makes clear that a special hearing verdict does not meet that standard (at [13]-[15]).

The court noted that this reading was internally consistent. Section 62(c) of the MHCIFP Act deems a special hearing verdict a "conviction" only for the narrow purpose of enabling victims to claim compensation, which itself confirms that Parliament drew a deliberate distinction between such a verdict and a conviction arising from an ordinary trial (at [16]). Because a defendant at a special hearing cannot plead and is found unfit, the language of section 22B, including its reference to pleas of guilty in section 22B(5), is simply incompatible with the special hearing regime (at [17]-[18]).

Issue 2: Whether s 65(2) of the MHCIFP Act provides an interim detention power

Section 65(2) empowers the court to order detention in a mental health facility, correctional centre, or other place pending Tribunal review. However, the obligation under section 65 arises only after the court has nominated a limiting term. The court found that section 65(2) does not provide any power to order interim detention before a limiting term is nominated (at [7]).

Issue 3: Remaining bail power under s 15(2) of the Bail Act

Although section 22B did not apply and there appeared to be no fresh power to grant bail following the special hearing verdicts (because no "conviction" existed), the court found that section 15(2) of the Bail Act preserved the court's continuing power to vary an existing bail order. A court order for bail remained in force, and section 15(2) contemplated that bail decisions could be affirmed or varied (at [25]-[26]). In the event, following the court's ruling that section 22B did not apply, the Crown did not press a detention application, and the existing bail was continued (at [27]).

Orders Made

  • The matter listed for a penalty hearing on Wednesday 30 November 2022 (estimated two days).
  • Written submissions to be served by both parties by 28 November 2022 at 5:00 pm.
  • Bail to continue.

Key Takeaways

  • A verdict at a special hearing under section 59 of the MHCIFP Act constitutes a qualified finding of guilt only. By operation of section 62(a) of the MHCIFP Act, it does not constitute a "conviction" for the purposes of section 22B of the Bail Act, meaning the Crown's power to seek detention pending sentencing under that section is unavailable in the post-special-hearing period (at [12]-[15]).

  • Section 65(2) of the MHCIFP Act, which permits detention pending Tribunal review, is triggered only after a limiting term has been nominated. It cannot be used to fill the procedural gap between the return of special hearing verdicts and the penalty hearing (at [7]).

  • The District Court identified what it described as a gap in the legislative scheme: no express statutory power addresses the detention of a defendant between special hearing verdicts and the nomination of a limiting term, a period that may raise serious community safety considerations (at [4]-[9]).

  • Under section 15(2) of the Bail Act, a court retains a continuing power to vary an existing bail order even where no fresh bail decision can be initiated, because the provision applies to affirming or varying earlier decisions as well as making new ones (at [25]-[26]).

  • Section 62(c) of the MHCIFP Act, which treats a special hearing verdict as a conviction solely for victim compensation purposes, reflects a deliberate Parliamentary distinction between such verdicts and convictions arising from ordinary criminal trials. That specific carve-out reinforces rather than undermines the general rule in section 62(a) (at [16]).

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Provisions Act 2020 (NSW) ss 59, 62, 63, 64, 65
- Bail Act 2013 (NSW) ss 4, 8, 11, 15, 22B

Cases
- DPP v Van Gestel [2022] NSWCCA 171