Citation: R v Bouggas [2023] NSWSC 352
Court: Supreme Court of New South Wales
Date: 6 April 2023
Judge: N Adams J
Background
The accused faced two counts of murder arising from events at a Redfern boarding house on 29 January 2022, when two residents were found dead from multiple stab wounds. The Crown case relied on forensic evidence, including a fingerprint in blood and DNA on two knives found at the scene, as well as statements the accused had made expressing hostility towards the two victims.
The accused had a pre-existing history of mental illness. A prior fitness inquiry had been conducted in 2015. By the time of the present hearing, both the Crown and the defence agreed that his mental state had deteriorated significantly, with both experts describing delusional and paranoid beliefs.
The matter came before Adams J on an urgent basis before arraignment. The central question was not merely whether the accused was unfit to stand trial, but whether he might become fit within the following twelve months.
Legal Issues
- Whether the accused was unfit to be tried within the meaning of s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Whether, on the balance of probabilities, the accused may become fit to be tried within the next twelve months under s 47(1)(a) of the Act, or will not become fit within that period under s 47(1)(b)
Decision
Adams J found, on the basis of expert psychiatric evidence, that the accused was unfit to stand trial. The fitness test under s 36 of the Act mirrors the criteria established in the Victorian decision of R v Presser (1958), requiring an accused to understand the offence, follow proceedings, understand evidence given against them, give instructions to their legal representative, and make decisions about their defence. The accused could not meet these requirements due to his current mental state.
The court received a written report from Dr Olav Nielssen dated October 2022 and heard short oral evidence from Professor David Greenberg, a forensic psychiatrist who had spoken with the accused at court that day. Both experts expressed the opinion that, with proper treatment, the accused was likely to become fit. Professor Greenberg could not rule out recovery if appropriate treatment was provided, noting that the accused was plainly not receiving adequate treatment at the time.
Adams J noted that the accused's mental health history indicated his condition tended to improve with proper medication and in the absence of illicit drug use. The court also observed, based on judicial experience, that people with mental illness who are non-compliant in the community often stabilise in a custodial environment once properly treated.
Under s 47 of the Act, the court faces a binary choice: it must find either that the accused may become fit within twelve months, or that he will not. Adams J was satisfied on the balance of probabilities that the accused fell within s 47(1)(a), namely that he may become fit within the next twelve months, and made orders accordingly.
Orders Made
- The accused found unfit to be tried pursuant to s 36 of the Act
- Finding that the accused may become fit to be tried within the next 12 months pursuant to s 47(1)(a) of the Act
- Referral to the Mental Health Tribunal pursuant to s 49(1) of the Act
- Accused remanded in custody pursuant to s 47(2)(b) of the Act
- Registrar directed to provide exhibits, transcript, and judgment to the Mental Health Tribunal as a matter of urgency
- Copy of orders forwarded to the Commissioner for Corrective Services NSW as a matter of urgency
- Recommendation that the accused be transferred from Parklea to Long Bay Hospital as a matter of urgency
Key Takeaways
- Section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) codifies the fitness test drawn from R v Presser, requiring an accused to meet a range of cognitive and participatory criteria before a trial can proceed.
- Under s 47 of the Act, once an accused is found unfit, the court must make a binary determination: either the accused may become fit within twelve months, or will not. There is no intermediate position of uncertainty available.
- Expert psychiatric evidence that a person is "likely to become fit with proper treatment" can satisfy the s 47(1)(a) threshold, even where current treatment is inadequate, particularly when the accused's history shows improvement with medication.
- An inquiry into fitness is not conducted adversarially, and the burden of proof does not rest on any particular party; the standard is the balance of probabilities.
- In making the s 47(1)(a) finding, the Supreme Court took into account the accused's prior history of mental health improvement in structured environments, reinforcing that past treatment response is a relevant consideration in assessing future fitness prospects.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 37, 38, 39, 40, 44, 47, 48, 49
- Bail Act 2013 (NSW)
Cases
- R v Bouggas [2015] NSWSC 914
- R v Lailna [2021] NSWSC 1205
- R v Presser (1958) VR 45
- R v Risi [2021] NSWSC 769
- R v Woodham [2022] NSWSC 1154