AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 28 February 2025

R v Bouggas

[2025] NSWSC 122

Homicide
CRIME MURDER SPECIAL HEARING CIRCUMSTANTIAL CASE NO POINT OF PRINCIPLE MENTAL HEALTH CRIMINAL PROCEEDINGS

Citation: R v Bouggas [2025] NSWSC 122
Court: Supreme Court of New South Wales
Date: 28 February 2025
Judge: Wright J

Background

The accused was charged with two counts of murder arising from the deaths of two men at a boarding house in Redfern on or about 29 January 2022. The Crown alleged that the accused, who lived in an adjoining section of the same premises, entered the deceased's room and fatally stabbed them both. The accused was arrested two days later and has remained in custody since.

In April 2023, the accused was found unfit to stand trial under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). The Mental Health Review Tribunal subsequently determined in January 2024 that he would not become fit to be tried within 12 months. Because the Director of Public Prosecutions did not advise that proceedings would be discontinued, the matter proceeded to a special hearing before Wright J, sitting alone, commencing 11 November 2024.

A special hearing under the MHCIFP Act is designed to ensure that, despite an accused's unfitness for trial, the person is acquitted unless it can be proved to the criminal standard that, on the limited evidence available, they committed the charged offence or an available alternative. The accused was taken to have pleaded not guilty to both counts.

  • Whether the accused carried out the acts causing the deaths of the two deceased, given the circumstantial and forensic nature of the Crown case and the defence's alternative theories.
  • Whether the defence of mental health impairment was made out under ss 28(1) and (2) of the MHCIFP Act, meaning the accused did not know the nature and quality of his acts, or did not know that his acts were wrong, by reason of a mental health impairment at the time.
  • Whether certain out-of-court representations were admissible as hearsay exceptions under s 65(1) and (2)(c) of the Evidence Act 1995 (NSW).
  • Whether proposed tendency and coincidence evidence met the threshold of significant probative value under ss 97 and 98 of the Evidence Act 1995 (NSW).

Decision

Causation: the accused's acts caused the deaths

Wright J found, on the evidence available, that the accused was the person who stabbed and killed both men. The Crown relied on fingerprint and DNA evidence, the accused's prior statements disparaging the deceased as "sexual pests" or "paedophiles," at least one prior incident in which the accused had threatened them with a knife, and post-offence conduct. The defence's alternative theories, including that the deceased may have killed each other or that unknown third parties were responsible, were considered but did not raise a reasonable doubt on the evidence.

Mental health impairment defence

Both psychiatrists who gave evidence agreed that the mental health impairment defence was available. The Crown expressly accepted that position. Wright J was satisfied that the requirements of ss 28(1) and (2) of the MHCIFP Act were met: at the time of carrying out the acts, the accused had a mental health impairment, and that impairment had the effect that he either did not know the nature and quality of his acts or did not know that his acts were wrong. Accordingly, the special verdict of act proven but not criminally responsible was entered on both counts.

Hearsay evidence

Certain out-of-court representations were tendered under s 65(2)(c) of the Evidence Act, which requires that representations be made in circumstances that make it highly probable they are reliable. The Court was not satisfied that threshold was established, and the representations were rejected for the purpose of the identity issue. Notably, there was no objection to the same representations being admitted for the purpose of the mental health impairment defence.

Tendency and coincidence evidence

The Crown sought to rely on evidence concerning the accused's prior violence against two other persons he allegedly believed to be paedophiles or homosexuals, and an alleged threatening incident involving the deceased on 6 January 2022. The Court found that this evidence went to the accused's state of mind rather than establishing a relevant tendency, and did not have the significant probative value required under ss 97 and 98 of the Evidence Act. It was also insufficient to establish that it was improbable the events occurred coincidentally. The evidence was rejected as tendency and coincidence evidence, though again there was no objection to its admission for the mental health impairment issue and, in some cases, as to state of mind.

Orders Made

  • The accused is to be detained in his present place of custody, or such other place as is lawfully determined, until released by due process of law (pursuant to ss 61(2) and 33(1)(b) of the MHCIFP Act).
  • The accused is referred to the Mental Health Review Tribunal (pursuant to s 67 of the MHCIFP Act).
  • The Registrar is to notify the Minister for Health and the Mental Health Review Tribunal of the verdicts and orders within 7 days, and provide the Tribunal with a copy of the judgment and orders, the psychiatric reports of Dr Martin and Dr Nielssen, and the victim impact statements.
  • The Registrar is to notify Justice Health of the verdicts and orders, and provide a copy of the judgment, orders, and psychiatric reports within 7 days.

Key Takeaways

  • Under the MHCIFP Act, a special verdict of "act proven but not criminally responsible" is available where the court is satisfied that the accused had a mental health impairment at the time of the acts, and that impairment meant they did not know the nature and quality of the acts or that they were wrong. Both conditions were met here on unanimous expert evidence.

  • A circumstantial Crown case, supported by DNA, fingerprint evidence, and prior conduct, was sufficient to establish at a special hearing that the accused's acts caused the deaths, notwithstanding defence arguments about alternative perpetrators and evidentiary gaps.

  • Evidence tendered as tendency or coincidence evidence under ss 97 and 98 of the Evidence Act was rejected where it went to the accused's state of mind rather than disclosing a relevant tendency, and did not meet the significant probative value threshold. The same evidence was nonetheless admitted for distinct purposes, including the mental health impairment defence, where no objection was raised.

  • Hearsay representations under s 65(2)(c) of the Evidence Act were rejected for the identity issue because the Court was not satisfied they were made in circumstances making it highly probable they were reliable. This finding did not affect their admissibility for the mental health impairment defence.

  • Following a special verdict under the MHCIFP Act, the court is required to refer the accused to the Mental Health Review Tribunal, which will determine the appropriate ongoing management and detention arrangements.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 33, 36, 38, 53-56, 58-59, 61, 67
- Evidence Act 1995 (NSW), ss 59, 65, 67, 94, 97-98, 101

Cases
- R v Bouggas [2023] NSWSC 352
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- Elomar v R [2014] NSWCCA 303; 316 ALR 206
- Harris v R [2005] NSWCCA 432; 158 A Crim R 454
- Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
- R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487
- R v Huynh [2023] NSWSC 920
- R v Minani (2005) 63 NSW