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District Court 1 December 2022

R v Boujandy (No. 3)

[2022] NSWDC 604

Other
CRIME SPECIAL HEARING S 166 CPA EVIDENCE IN PENALTY HEARING ADJOURNMENT.

Citation: R v Boujandy (No. 3) [2022] NSWDC 604
Court: District Court of New South Wales
Date: 1 December 2022
Judge(s): Montgomery DCJ

Background

The defendant had previously been found unfit to be tried. A special hearing was conducted before the judge alone, and on 20 October 2022 the Court delivered its principal judgment, finding beyond reasonable doubt that the defendant had committed a large number of offences. Those findings encompassed 20 charges brought before the Court pursuant to s 166 of the Criminal Procedure Act 1986 and 28 counts in an indictment, a total of 48 alleged offences.

The penalty hearing was listed to commence on 30 November 2022. The Crown's written submissions, received on 23 November 2022, proposed that an order be made under s 14(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the MHCIFP Act) to dismiss the s 166 charges unconditionally.

At the commencement of the penalty hearing, however, the Crown retreated from the unconditional dismissal position. This triggered debate about which legislation governed the Court's power to dismiss the s 166 charges and on what conditions, and the parties ultimately joined in seeking an adjournment to obtain updated expert medical evidence.

Legal Issues

  • Whether the MHCIFP Act or the Mental Health (Forensic Provisions) Act 1990 governed the Court's power to dismiss the 20 charges brought pursuant to s 166 of the Criminal Procedure Act 1986
  • Whether the District Court, exercising the functions of a Magistrate under s 168(3) of the Criminal Procedure Act, had jurisdiction to proceed under s 32 of the Mental Health (Forensic Provisions) Act 1990 in relation to those charges
  • Whether the penalty hearing could properly be adjourned to obtain updated expert medical opinion before any order quashing the s 166 verdicts was made

Decision

Issue 1: Applicable legislation for the s 166 charges

The Court identified that all s 166 matters had been brought by court attendance notices issued in 2019. As a consequence, the MHCIFP Act and its s 14(1)(c) did not apply to those charges. The applicable legislation was the Mental Health (Forensic Provisions) Act 1990, and the relevant provision was s 32 of that Act (at [4]).

Issue 2: Jurisdiction to proceed under s 32

Section 168(3) of the Criminal Procedure Act 1986 confers on the District Court the same functions as the Local Court when sentencing or otherwise dealing with a person for a backup or related offence. The Court accepted that this extended to the s 166 charges via s 132 of the Mental Health (Forensic Provisions) Act 1990 (at [4]). Both parties confirmed that it is not uncommon for a court to proceed under s 32 after a verdict of guilty and at the sentencing stage, and the Court noted that s 32's reference to "at any time during the course of the hearing of proceedings" may contemplate the proceedings as a whole rather than the verdict phase alone (at [6]-[7]).

Issue 3: Whether adjournment was appropriate

The Court expressed reservations about whether proceeding to a s 32 application after verdicts had been ordered was strictly correct in law, but found no practical prejudice to the community or the defendant in following the course the parties jointly proposed (at [7]-[8]). The inevitable outcome, the Court noted, would be that the s 166 verdicts are quashed, either unconditionally or subject to conditions under s 32(3)(b), making it significant that this be properly recorded (at [11]). Updated expert medical evidence was needed before any conditions could be properly identified, and the Crown had not had adequate opportunity to respond to the defendant's psychologist's report or to obtain its own further psychiatric opinion (at [10], [12]).

Orders Made

  • Defendant to serve any further expert medical evidence on the Crown by 1 February 2023
  • Crown to serve any further expert medical evidence on the defendant by 15 March 2023
  • Experts of like speciality to conclave and provide a joint report identifying areas of agreement and disagreement by 27 March 2023
  • Parties to agree a list of questions for expert medical opinion witnesses by 13 December 2022
  • Forensic psychiatrist to provide a report under s 66(1) of the MHCIFP Act on the defendant's condition and whether his release would seriously endanger the safety of himself or any member of the public
  • Penalty hearing listed for 28 and 29 March 2023
  • Defendant's application for variation of bail reporting conditions refused

Key Takeaways

  • The District Court confirmed that the Mental Health (Forensic Provisions) Act 1990, not the MHCIFP Act 2020, governs charges initiated by court attendance notices issued before the MHCIFP Act commenced (at [4]).
  • Under s 168(3) of the Criminal Procedure Act 1986, the District Court exercises the same functions as a Magistrate in relation to backup and related offences, including the power to proceed under s 32 of the Mental Health (Forensic Provisions) Act 1990 via s 132 of that Act (at [4]).
  • A real question remained as to whether s 32 of the Mental Health (Forensic Provisions) Act 1990 can properly be engaged after verdicts have already been recorded at a special hearing, though the Court noted the words "at any time during the course of the hearing of proceedings" may be broad enough to permit it (at [7]).
  • The inevitable order quashing the s 166 verdicts, the Court observed, is a matter of significance for the State of New South Wales and must be recorded properly, either unconditionally or subject to conditions identified with the benefit of current expert medical evidence (at [11]).
  • Where expert medical opinion has been delivered very close to the hearing date and opposing parties have not had adequate time to respond, adjournment to allow proper preparation can be appropriate, particularly where no practical prejudice results (at [10], [12]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW) ss 166; 169(3)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 14(1)(c); 59; 63 – 68;
- Mental Health (Forensic Provisions) Act 1990 (NSW) ss 31; 32; 132

Cases
- Not stated