AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 13 February 2026

R v Bugmy (No 2)

[2026] NSWSC 70

Homicide

Citation: R v Bugmy (No 2) [2026] NSWSC 70
Court: Supreme Court of New South Wales — Common Law (Criminal)
Date: 13 February 2026
Judge(s): R A Hulme AJ

Background

The accused is charged with the murder of a man at Newtown on 21 July 2023. In May 2025, Cavanagh J found pursuant to s 47 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") that the accused was not fit to be tried and would not become fit within the ensuing 12 months: R v Bugmy [2025] NSWSC 497. The Director of Public Prosecutions subsequently advised that it was proposed to proceed with the matter, and it was listed for a special hearing under Part 4 Division 3 of the Act.

When the matter came before the Court for the special hearing, defence counsel indicated that both parties were in substantial agreement that the proposed expert psychiatric evidence established a defence of mental health impairment under Part 3 of the Act. Defence counsel sought to invoke s 31, which allows the court to enter a special verdict of "act proven but not criminally responsible" where the defendant and prosecutor agree that the proposed evidence establishes the defence, without the need for a full hearing. However, the Crown took the position that s 31 was unavailable because the accused had been found unfit to be tried, and that the matter must proceed to a special hearing.

The core dispute was therefore a procedural one: whether s 31 of the Act — which permits an agreed special verdict — is available in circumstances where the accused has been found unfit to be tried, or whether the legislation requires that the matter proceed through the special hearing process prescribed in Part 4 Division 3.

  • Whether s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which allows the court to enter a special verdict where the defendant and prosecutor agree that the proposed evidence establishes a defence of mental health impairment, is available in matters where the accused has been found unfit to be tried.
  • Whether an accused person who has been found unfit to be tried is capable of "agreeing" for the purposes of s 31(a), or whether unfitness precludes meaningful agreement.
  • Whether the legislative structure of the Act — in particular, the direction in s 48(1) that an unfit defendant "is to be dealt with under Division 3" — forecloses the use of s 31 in such circumstances.

Decision

The Court rejected the Crown's submission that s 31 is unavailable where the accused is unfit to be tried. Hulme AJ engaged in a detailed analysis of the legislative structure, examining the relationship between Part 3 (the defence of mental health impairment) and Part 4 (fitness to stand trial and special hearings).

The Crown's principal arguments were twofold. First, the Crown pointed to s 48(1), which states that where an accused will not become fit within 12 months, "the defendant is to be dealt with under Division 3" (special hearings). The Crown argued this prescribed the exclusive procedural pathway. Second, the Crown contended that an unfit accused cannot meaningfully "agree" with the prosecutor for the purposes of s 31(a), drawing an analogy with the inability of an unfit person to enter a plea.

Hulme AJ found these arguments unpersuasive. His Honour noted that s 31 provides it may be invoked "at any time in the proceedings (including before the jury is empanelled)," suggesting broad temporal application. The Court observed that the Act expressly requires an unfit accused to be legally represented at both fitness inquiries (s 44(2)) and special hearings (s 56(3)), and that s 56(4) provides that unfitness "is to be presumed not to be an impediment to the person's representation." It followed that the accused's legal representative could engage in the s 31 process on the accused's behalf. The Court also noted that s 56(6) expressly permits any defence that could be raised at an ordinary trial to be raised at a special hearing — including the Part 3 defence of mental health impairment. Given this, there was no logical reason why the agreed procedure in s 31 should be unavailable simply because the accused is unfit.

The Court further noted that the Crown's own position was internally inconsistent: the Crown conceded that the proposed expert evidence could establish the defence on the balance of probabilities, yet refused to "agree" under s 31(a) on the basis that agreement with an unfit accused was impossible. The practical distinction drawn by the Crown — between conceding a defence would be upheld and agreeing to the evidence establishing it — was characterised as one without meaningful difference. Ultimately, the Court concluded that s 31 was available in principle, but since the Crown maintained its refusal to agree, the statutory precondition in s 31(a) — agreement between the defendant and the prosecutor — was not satisfied. The matter was therefore required to proceed to a special hearing.

Orders Made

  • The matter was ordered to proceed to a special hearing pursuant to Part 4 Division 3 of the Act, given the Crown's refusal to agree under s 31(a).

Key Takeaways

  • Section 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 remains available in principle for unfit accused persons. The Supreme Court held that the direction in s 48(1) that an unfit defendant "is to be dealt with under Division 3" does not foreclose other procedures available under the Act, including the s 31 process under Part 3.

  • Where an accused is unfit to be tried, legal representatives can engage in the s 31 process on that person's behalf. The Act's express requirement that unfit persons be represented, combined with the statutory presumption in s 56(4) that unfitness is not an impediment to representation, supports the proposition that counsel can agree on the accused's behalf for the purposes of s 31(a).

  • Under s 31(a), the Crown retains an effective veto over the process. The Supreme Court confirmed that the provision requires agreement from both the defendant and the prosecutor. Because the Crown refused to agree in this case, the matter was required to proceed to a special hearing.

  • A Crown concession that expert evidence establishes a defence does not satisfy the formal agreement requirement in s 31(a). Hulme AJ recognised a practical distinction between the Crown conceding that evidence establishes a defence of mental health impairment and the "agreement" contemplated by the provision; the former does not automatically equate to the latter.

  • In clarifying the interplay between Parts 3 and 4 of the Act, the judgment provides early guidance on relatively new legislation. The analysis addressed how the defence of mental health impairment under Part 3 and the fitness and special hearing provisions under Part 4 interact procedurally, a question not previously resolved.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 1–6, 7–26, 21(1), 27–34, 28, 30, 31, 35–39, 40–53, 44(2), 47, 48, 53(2), 53(3), 54–68, 55, 56(3), 56(4), 56(6), 59, 61, 67
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 21A
- Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW)

Cases:
- R v Batey [2025] NSWSC 1585
- R v Bugmy [2025] NSWSC 497
- R v Jackson [2021] NSWSC 1404
- R v Mifsud (Court of Criminal Appeal (NSW), 8 November 1995, unrep)
- R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
- R v Smith [1999] NSWCCA 126
- R v Trinne (No 2) [2024] NSWSC 1457
- R v Woodham (No 2) [2023] NSWSC 1345
- R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505

*Source