R v Bouggas - [2025] NSWSC 122

Supreme Court

New South Wales

Medium Neutral Citation: R v Bouggas [2025] NSWSC 122
Hearing dates: 11 – 15, 18 – 21, 25 November and 5 December 2024
Date of orders: 28 February 2025
Decision date: 28 February 2025
Jurisdiction: Common Law - Criminal
Before: Wright J
Decision:
(1)   In respect of count 1, a special verdict of act proven but not criminally responsible is to be entered.
(2)   In respect of count 2, a special verdict of act proven but not criminally responsible is to be entered.
(3) Pursuant to s 61(2) and s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Christopher Bouggas is to be detained in his present place of custody, or at such other place as is lawfully determined, until such time as he is released by due process of law.
(4) Pursuant to s 67 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Christopher Bouggas is referred to the Mental Health Review Tribunal.
Directions:
(1)   The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders within 7 days and is to provide to the Tribunal:
(a)   a copy of the judgment and orders;
(b)   copies of exhibits including the reports of Dr Martin and Dr Nielssen and copies of the victim impact statements of Shawn Finlay, Shauna Watson, and Brett Hall and Brett Walton.
(2)   The Registrar of the Court is to notify Justice Health of these verdicts and orders and provide a copy of the judgment and orders together with each of the reports of Dr Martin and Dr Nielssen to Justice Health within 7 days.

Catchwords:
CRIME – murder – special hearing – whether acts causing death were the acts of the accused – circumstantial case – accused’s acts caused the deaths of the two deceased – no point of principle
MENTAL HEALTH – criminal proceedings –accused unfit to stand trial – defence of mental health impairment – whether accused had a mental health impairment at time of carrying out the acts – whether the mental health impairment had the effect that accused did not know the nature and quality of the act and that the act was wrong – requirements of s 28(1) and (2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) met – defence of mental health impairment made out
CRIME – murder – defences – mental health impairment – where unanimous expert evidence established defence of mental health impairment available – verdict of act proven but not criminally responsible – no point of principle
EVIDENCE – hearsay – exceptions – criminal proceedings – Evidence Act section 65(1) and (2)(c) – where maker of representations not available to give evidence – whether representation made in circumstances that make it highly probable that the representations reliable – not established that representations made in such circumstances – no objection to admission of representations for purpose of mental health impairment defence
EVIDENCE – tendency and coincidence evidence – criminal proceedings – whether evidence has significant probative value – evidence established state of mind rather than tendency and thus did not have significant probative value in establishing the asserted tendency – evidence did not have significant probative value in establishing that improbable that the events occurred coincidentally – evidence rejected as tendency and coincidence evidence - no objection to admission of the evidence for purpose of mental health impairment defence and, in some cases, as to the accused’s state of mind

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

Cases Cited:
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 Bouggas [2023] NSWSC 352
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 NSWLR 490; [2005] NSWCCA 226
R v Siemek (No. 1) [2021] NSWSC 1292
R v Singh (No 4) [2021] NSWSC 75
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32

Category: Principal judgment
Parties: Rex (Crown)
Christopher Bouggas (Accused)
Representation:
Counsel:
P Hogan / S Gul (Crown)
T Quilter (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Alexanders Lawyers (Accused)

File Number(s): 2022/0028868
Publication restriction: An order, subject to specified limitations, prohibiting disclosure of any information that reveals, or tends to reveal the true identity of Witness X, including the name of Witness X, any visual or other description of the physical appearance of Witness X or the place of residence or work of Witness X, which order applies throughout the Commonwealth of Australia for a period of 50 years.
Ancillary orders in relation to the application for the non-disclosure order.

Judgment

Introduction

The accused, Mr Christopher Bouggas, has been charged on indictment with two counts of murder. Count 1 is that on or about 29 January 2022, the accused murdered Steven Glen Finlay at Redfern in New South Wales. Count 2 is that on or about 29 January 2022, the accused murdered Mitchell Watson at Redfern in New South Wales.
In this judgment, the Court is required to deal with a significant human tragedy involving the deaths of two men in heart breaking circumstances. In carrying out the Court’s functions, attention must be focused on aspects of the deceased’s lives which may be distressing and unsettling. The Court intends no disrespect by doing so. Nor does it wish to downplay the significance of Mr Finlay’s and Mr Watson’s lives for their family, loved ones and friends.
Furthermore, however, fairness requires that the Court focus on the circumstances of the accused in this judgment, but by doing so, the Court should not be assumed to have lost sight of the suffering of the two deceased.

Background to the Special Hearing

After being arrested on 31 January 2022, the accused has been and remains in custody.
On 6 April 2023, after a hearing before N Adams J, the accused was found unfit to be tried, under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act).^[1] He was referred to the Mental Health Review Tribunal (MHRT) which determined on 16 January of 2024 that he would not become fit to be tried for 12 months.
1. R v Bouggas [2023] NSWSC 352
The Director of Public Prosecutions did not advise that further proceedings would not be taken in respect of the murder offence.^[2] Accordingly, the matter was listed for a special hearing.^[3]
2. Under s 53 of the MHCIFP Act.
3. In accordance with s 55 of the MHCIFP Act.

The Special Hearing

The special hearing took place before me commencing on 11 November 2024.
The purpose of a special hearing is to ensure that, despite the unfitness of the person to be tried in accordance with the normal procedures, the person is acquitted, unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.^[4]
4. Section 54 of the MHCIFP Act.
A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings,^[5] and the accused must generally be legally represented.^[6] In this case, the accused was represented by Mr Quilter of counsel.
5. Section 56(1) of the MHCIFP Act.
6. Section 56(3) of the MHCIFP Act.
Although at a special hearing an accused cannot, on his or her own account, enter a plea, the accused is taken to have pleaded not guilty in respect of the offence charged.^[7] Consequently, a plea of not guilty was entered by the Court on the accused’s behalf in respect of both counts of murder when he was arraigned on 11 November 2024.
7. Section 56(5) of the MHCIFP Act.
The matter proceeded to as a special hearing before a judge sitting alone, as there was no election made to have the special hearing determined by a jury.^[8]
8. Section 58(1) of the MHCIFP Act.
The verdicts available at a special hearing include, as set out in s 59(1) of the MHCIFP Act:

“(a) not guilty of the offence charged,
(b) a special verdict of act proven but not criminally responsible,
(c) that on the limited evidence available, the defendant committed the offence charged,
(d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.”

A special verdict of act proven but not criminally responsible may only be entered under s 59(1) if the judge is satisfied that the requirements of s 28(1) and (2) of the MHCIFP Act are met.^[9]
9. Section 59(3) of the MHCIFP Act.
My reasons for determination in this special hearing must include the principles of law I have applied and the findings of fact on which I have relied.^[10]
10. Section 59(2) of the MHCIFP Act.

The Crown case in outline

In brief outline, the Crown case was that the accused and the two deceased lived in a boarding house which consisted of adjoining terraced houses, being 259 and 261 Cleveland Street Redfern, which had a shared back courtyard from which access could be gained to both the accused’s room in number 259 and the deceased’s room in number 261. It was alleged that the accused had previously spoken disparagingly of the deceased as “sexual pests” or “paedophiles” and intimated that killing such “pests” was in effect acceptable and, on at least one occasion and possibly two occasions, he had gone to the deceased’s room and threatened them with a knife.
On the Crown case, late on 29 January 2022, the accused went to the deceased’s room, violently stabbed them both and they died in their room immediately before, or within a short time of, Mr Finlay’s making two 000 calls for help and before help could arrive. The Crown relied on the accused’s previous conduct and statements concerning the deceased as establishing his motive for the offending and relied on fingerprint and DNA evidence to support the contention that it was the accused who entered the deceased’s room and wielded the knife or knives with which the deceased were killed.
The Crown also relied on certain tendency and co-incidence evidence in support of its case. In general terms, that evidence concerned:

previous violence against two other persons, Christian Smeda and Ryan Dewhurst, whom the accused allegedly thought were or might be paedophiles or homosexuals and whom he alleged had stolen from him or his friends; and

an incident on 6 January 2022, when it was alleged that the accused had gone to the deceased’s room, accused them of stealing his telephone and threatened to kill them with a knife but left after they called the police.

I shall consider the tendency and co-incidence evidence more fully later.

The defence case in outline

The defence case was that the Crown had not eliminated the reasonable possibility that the stabbings were carried out by a person or persons unknown and not the accused. In particular, the accused relied on the evidence that other persons could have had ready access to the boarding house and could have left or remained in the building without being apprehended by police and that other persons might have a motive for stabbing the deceased because of their drug use, theft and history of violence. Shortcomings in the evidence of the incident on 6 January 2022 and the earlier incident related by Mrs Finlay were also identified. It was also noted that there was no “dying declaration” by Mr Finlay in his 000 call. In addition, shortcomings in the forensic evidence and absence of evidence more generally were also identified. The accused’s post-offence conduct was said, in effect, to be insignificant or equivocal.
In addition, the defence case included that the Crown had not eliminated the reasonable possibility that the deceased killed each other, having regard to the history of acrimonious relations between them, Mr Watson’s history of domestic violence, the door of their room being barricaded and the wounds inflicted.
In the alternative, if it were found that the accused had caused the death of the two deceased by his deliberate acts, it was the defence case that the accused had established the defence of mental health impairment and there should be a special verdict of act proven but not criminally responsible.
In that latter regard, the Crown expressly accepted that, if the acts were proven, the mental health impairment defence was available on the evidence, especially the evidence of the two psychiatrists who were in agreement on that issue from a psychiatric point of view.

Principal Issues

There are two principal issues in these proceedings:

Whether the accused carried out the acts alleged in the two counts, or in other words, was it the accused who stabbed the deceased; and

If so, whether the accused was not criminally responsible because he established the defence of mental health impairment.

Evidentiary matters

The evidence

The evidence in this matter included oral evidence from:

The officer in charge, Detective Sergeant Pincham;

Mrs Nola Finlay, mother of the deceased Steven Finlay;

Ms Megan Clarke, social worker at St Vincent’s Hospital Mental Health Team and case manager of the accused’s Community Treatment Order (CTO) in later 2021 and early 2022;

Mr Mark Thompson, a resident of 261 Cleveland St, in January 2022;

Mr Andrew Chandler, a resident of 257 Cleveland St, in 2021 and 2022;

Mr Andrew Dixon, who let the second bedroom of his unit in Chippendale on Airbnb to the accused in July 2021;

By audio-visual link, Mr Basil Kaadi, a friend of Deborah Howlett, who visited the accused in early 2022;

By audio-visual link, Mr Christian Smeda, whom the accused had assaulted in September 2012, threatening to kill him if he did not pay the money he said Mr Smeda owed;

Mr Barry Murphy, a friend of the accused since 2002, who visited the accused at 259 Cleveland St on occasions including with Jedda Higley;

Mr Paul Highland, a good friend of Mr Watson and Mr Finlay who visited them at 261 Cleveland St including in the month prior to their deaths;

Mr Daniel Eyles, a Community Corrections Officer, who took over supervision of the accused’s parole after he moved to the Chippendale address;

Ms Jedda Higley, a friend of Mr Murphy who met the accused around October 2021, who visited 259 Cleveland Street;

Senior Sergeant Lansley, from Sydney Crime Scene;

Crime Scene Officer Carlon;

Dr Szentmariay, forensic pathologist;

Senior Crime Scene Officer Leechburch-Auwers, fingerprint expert;

Ms Wedervang, Senior Forensic Biologist, DNA expert; and

Witness X, [REDACTED].

Other evidence was adduced without objection by way of the tender of statements from:

Constable Reardon;

Constable Forsberg;

Sergeant Thomas (together with relevant notebook pages);

Detective Senior Constable Pantos;

Constable Fuller;

Detective Sergeant Sheldon;

Leading Senior Constable Lowe;

Crime Scene Officer Thebridge;

Senior Constable Cregan;

Constable Gherbranious;

Monita de Varge, sister of Mr Finlay;

Darrell Cook, a resident of 263 Cleveland Street;

Brian Gallego, landlord of inter alia 259 and 261 Cleveland St;

Garry Moosman, a friend of Mr Finlay and Mr Watson;

Crime Scene Officer Cassar;

Darren Woodcock, a paramedic who attended the scene on 29 December 2022;

Mitchell Burke, a paramedic who attended the scene on 29 December 2022;

John Happ, who had contact with Mr Finlay on a dating and hookup website on the night of 29 January 2022 but did not agree to meet;

Lance Kerslake, who had previously been in a domestic relationship with Mr Watson between 2010 and 2013 and at whose house Mr Watson had lived from 2013 to 2018;

Senior Constable Grzegorz Sadowski;

Detective Senior Constable Katie Burnell;

Adrienne Ellison, who observed one man, at about 10:00 to 10:15 pm, and the same man and another man, at about 10:45 pm, walking in and near James Street, Redfern;

Michael Hannan, a resident of 259 Cleveland Street for approximately two years at 2022; and

Hugh Stewart, a resident of Great Buckingham Street, who observed from his balcony two men at about 3:30 to 4:00 pm on 29 January 2022 shouting in the street.

Video, audio and other evidence included:

The Interactive Scene Recording and Presentation System (ISRAPS) record of 259-261 Cleveland St, Redfern;

The audio recordings of the two 000 calls made by Mr Finlay on 29 January 2022;

The audio recording of the 000 call made by Mr Cook on 29 January 2022;

The video recording from the body worn video (BWV) of Constable Reardon;

Photographs of 261 Cleveland Street;

The video recording from the BWV of the arrest of the accused on 31 January 2022;

The electronically recorded interview with suspected person (ERISP) of the accused on 31 January 2022;

The electronically recorded forensic procedure on the accused on 1 February 2022;

The video recording from the BWV of the search of the accused’s unit and four still images taken from that recording;

Photographs of accused’s unit, aspects of the boarding house and items taken from the unit;

The electronically recorded forensic procedure on the accused on 8 March 2022;

The audio recording of the 000 call made by Mr Finlay on 7 January 2022;

The video recording from the BWV of Senior Constable Cregan and Mr Finlay on 7 January 2022;

The ERISP of the accused on 30 September 2013 in relation to the death of Ryan Dewhurst;

Photographs of messages and information passing between Mrs Finlay and Steven Finlay and others;

Photographs of messages passing between Mr Chandler and others;

Photographs of messages passing between Mr Murphy and the accused;

Photographs of messages passing between Mr Highland and Mr Finlay;

Photographs of messages passing between Mr Gallego and the accused;

Photographs of a cut and paste version of a message originally sent by Mr Moosman to Dan, a friend of Mr Finlay and Mr Watson;

The video recording from the BWV of Senior Constable Vo and Mr Milton Miles on 17 Feb 2022;

Photographs of 259 and 261 Cleveland Street and related items and areas taken by Senior Sergeant Lansley’s Crime Scene team;

Photographs of 3/261 Cleveland Street, taken by Crime Scene Officer Scott;

The video recording from the BWV of Sergeant Thomas taken on 30 January 2022 of the scene outside and in the deceased’s room;

Photographs of the scene taken by Crime Scene Officer Cassar;

Photographs of the scene taken by Crime Scene Officer Carlon;

The “inspire” knife and the “mint” knife found in the accused’s room;

Dr Szentmariay’s autopsy reports and sketches of the injuries for each deceased;

The scissors found near the deceased’s bodies at the scene;

Documents relating to the accused seeking social housing in November and December 2021;

The community treatment order (CTO) made by the MHRT in respect of the accused on 22 September 2021;

Photographs of the accused’s watch;

Maps of the streets surrounding 259 and 261 Cleveland Street;

Photographs of the accused taken at Mascot Police Station on 1 February 2022 by Crime Scene Officer Thebridge;

A bundle of exhibit forms and property seizure records relating to items taken from 3/261 Cleveland St and the deceased; and

A bundle of exhibit forms and property seizure records relating to items taken from 3/259 Cleveland Street.

In addition, there was a statement of agreed facts in relation to the death of Ryan Dewhurst.
A site inspection of 259 and 261 Cleveland Street and immediately surrounding areas was conducted on 15 November 2024.

As to the accused’s mental health at about 29 January 2022, the expert evidence consisted of the following:

The report of Dr Adam Martin, forensic psychiatrist, of 27 September 2024; and

The report of Dr Olav Nielssen, psychiatrist, of 8 October 2024.

Ms Howlett’s statement- hearsay ruling

On 21 and 25 November 2024, the Crown sought to tender the statement of Ms Deborah Howlett dated 1 March 2022 under s 65 of the Evidence Act on the basis that she was unavailable to give evidence at that time. Mr Quilter objected to the admission of this statement in respect of the issue of whether the acts alleged in the two counts had been proved. He did not object to its admission in respect of the second issue of whether, if the acts were proven, the accused was criminally responsible because of the defence of mental health impairment. The parties agreed that I should rule on this tender as part of my final judgment.
On this application, evidence was given by audio-visual or audio link by Dr Jones and Dr Goriparti, who were Ms Howlett’s treating psychiatrists at Northern Beaches Hospital where Ms Howlett was an inpatient at the relevant times. They gave evidence, which I accept, that on 21 and 25 November 2024, Ms Howlett was showing signs of psychosis when they each assessed her. Dr Goriparti’s evidence was that, on 25 November 2024, she was exhibiting at that time thought disorder and disorganisation which are symptoms of psychosis. In summary, both doctors were of the view that at the times they each assessed her, she was mentally unable to give evidence.
In addition, I accept Dr Jones’s evidence that Ms Howlett:

had suffered drug induced psychosis in the past;

has bilateral hearing problems or impairment but the impact was minimal as long as she is wearing hearing aids; and

is not a good reader and had received lessons in the past but had not understood what was in them.

The form of Ms Howlett’s statement indicates that it was taken on 1 March 2022 by Plain Clothes Senior Constable Vo, whose BWV recording of the interview with Mr Miles was also in evidence. There was, however, no evidence from Senior Constable Vo as to the circumstances in which the representations in Ms Howlett’s statement were made, including whether she was exhibiting symptoms of psychosis, was wearing her hearing aids and was able to read and understand the statement that she signed.
There was no dispute that notice had been given under s 67 of the Evidence Act and Mr Quilter did not make any substantial submissions in effect challenging that Ms Howlett was “not available to give evidence” or that it was not reasonably practicable to overcome that inability, within s 65(1) of the Evidence Act and cl 4(1)(c) of the Act’s Dictionary. In light of the evidence of Dr Jones and Dr Goriparti, I was satisfied that Ms Howlett was mentally unable to give evidence at the relevant times and there was no reasonably practicable way to overcome that inability.
It was not in dispute that the admissibility of Ms Howlett’s evidence turned on whether the previous representations in Ms Howlett’s statement were made in circumstances that make it highly probable that the representations were reliable, within s 65(2)(c) of the Evidence Act.
Hearsay evidence is generally excluded as a means of proving a fact in issue by s 59(1) of the Evidence Act which establishes the “hearsay rule” in the following terms:

“Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.”

Section 65(1) and (2)(c) of the Evidence Act establish an exception to the hearsay rule which may be applicable in a case such as the present. Those provisions relevantly provide as follows:

“(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(c) was made in circumstances that make it highly probable that the representation is reliable,
…”.

In Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 (Sio), the High Court considered the application of s 65(2) of the Evidence Act. While that case focused on s 65(2)(d), the principles are the same for other provisions of s 65(2). The proper approach was set out at [57]-[58] (French CJ, Bell, Gageler, Keane and Gordon JJ)) as follows:

“[57] It can be seen that the application of s 65(2) proceeds upon the assumption that a party is seeking to prove a particular fact relevant to an issue in the case. It then requires the identification of the particular representation to be adduced in evidence as proof of that fact. The circumstances in which that representation was made may then be considered in order to determine whether the conditions of admissibility are met. This process must be observed in relation to each relevant fact sought to be proved by tendering evidence under s 65.
[58] It is apparent in the present case that neither the trial judge nor the Court of Criminal Appeal considered any particular representation upon which the Crown sought to rely in this way; rather, the application of the provision was approached on a compendious basis whereby an overall impression was formed of the general reliability of the statements made by Mr Filihia and then all his statements were held to be admissible against Mr Sio. That compendious approach does not conform to the requirements of the Act.”

The facts in issue in these proceedings included the accused’s mental state in December 2021 and January 2022, his attitude towards and responses to the deceased, his possession of knives and whether he had a motive for attacking the deceased on 29 January 2022.
The Crown identified two types of representations in Ms Howlett’s evidence relevant to these facts in issue, namely representations as to what she observed concerning the accused and representations as to things said by the accused. In particular, her evidence went to:

the accused’s mental state when he came out of a mental hospital in 2021 and his being aggressive if he had a mental health episode;

the accused yelling and being upset when there was a lot of noise coming from the direction of two male neighbours, whom the accused called “two pooftahs next door” and the accused’s becoming aggressive in those circumstances;

from 3 to 5 December 2021 while Ms Howlett was staying with the accused, on one occasion, the accused walking down the stairs and saying “Shut the fuck up or I’m going to kill yous” and on another occasion saying “Fuck him I know one of those maggots from jail”;

the accused saying that in early January 2022 he told the police that "someone needs to sort them out or he'd kill them”;

on 20 or 21 January 2022, when the accused had said that he had not had his “shot”, Ms Howlett observed that he was angry and rambling about bad vibes;

on 28 January 2022, the accused being in a similar state and becoming aggressive to Mr Murphy (who was with Ms Howlett), and saying that he felt fucked up and wanted to kill himself and was paranoid saying that he was being followed and his room was bugged, as well as saying “They’d want to calm down or else I’m going to kill them” although Ms Howlett never believed he would carry out the threat; and

On 28 January 2022, the accused showing her two knives on his bed and, when asked what he was doing, saying “it’s getting full on”.

Section 65(2)(c) is concerned with whether each of those representations "was made in circumstances that make it highly probable that the representation is reliable". Thus, the focus of attention must be upon the circumstances of the making of the representations to determine the likelihood of their reliability, but evidence of events other than those of the making of the previous representation can throw light upon the circumstances of the making of that representation and its reliability: Sio at [69]-[70] citing R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at [28]-[29] (Mason P, with Hulme and Simpson JJ agreeing). In assessing the circumstances in which the representation was made, the Court is not to undertake a general assessment of whether the representor is a reliable witness: Sio at [72].
As to the circumstances in which the representations were made, the Crown relied on the fact that the representations were made in an official statement to police containing a statement as to the truth of what was said and that Ms Howlett would be prepared to give this evidence in court as well as her acknowledgement that if the evidence was wilfully false she would be liable to prosecution. This aspect of the circumstances in which the statement was made has been held to favour a finding of reliability: R v Singh (No 4) [2021] NSWSC 75 at [35] and [43(1)] (N Adams J); Harris v R [2005] NSWCCA 432 at [44]-[46] (Studdert J, with Grove and Whealy JJ agreeing).
The Crown also relied on the fact that Ms Howlett made her statement in respect of a very serious matter, namely two murders being investigated by police, the representations were adverse to the interests of someone Ms Howlett thought of as a close friend and were also contrary to her own interests in the sense that she heard the threats and did nothing about them. It may be accepted that to an extent these circumstances also favour a finding of reliability.
Mr Quilter submitted that since Ms Howlett had a history of drug induced psychosis on and off for a number of years it would be relevant to the circumstances in which the representations were made whether or not she was suffering from such psychosis at the time of making the statement and thus the reliability of the representations made. Similarly, it was submitted that the evidence concerning Ms Howlett’s hearing and reading difficulties meant that those matters could have been circumstances when the statement was made and signed by Ms Howlett which adversely affect the reliability of the representations.
While there are circumstances in which the statement was made identified by the Crown which tend towards a finding that the representations in Ms Howlett’s statement are reliable, I am required to be satisfied that it is “highly probable” that the representations are reliable. Apart from the fact that Ms Howlett’s statement included in par 29 that she went to Dee Why Police Station on 1 March 2022 and gave the statement, there was no direct evidence as to the circumstances in which the statement was taken and the representations were made. That evidence could have come from Senior Constable Vo but he was not called to give evidence by the Crown.
The absence of such evidence from Senior Constable Vo is particularly significant in the present case in light of the potential for Ms Howlett to have been suffering some form of psychosis at the time, to have been unable to hear properly if she was not wearing her hearing aids and to have been unable to understand fully what was in her written statement because of her reading difficulty.
It is a finely balanced question but, given the high standard of satisfaction required under s 65(2)(c), namely “highly probable”, the absence of any direct evidence concerning her mental state at the time of making her statement, whether she was wearing her hearing aids and whether the statement was read to her before she signed it, I am not satisfied that the representations referred to above were made in circumstances that made it highly probable that they were reliable.
No other basis for admission of Ms Howlett’s evidence was relied on by the Crown.
Accordingly, I reject the tender of the statement Ms Howlett dated 1 March 2022 in respect of the issue of whether the acts alleged in the two counts of murder were proved. Nonetheless, in light of the limited objection taken by Mr Quilter, I admit the statement in respect of the second issue of whether the applicant has established the defence of mental health impairment.

Tendency and coincidence evidence

The Crown also sought to rely on some of the evidence identified above as tendency evidence and coincidence evidence under ss 97 and 98 of the Evidence Act respectively. In that regard, there was no dispute that the notice requirements of both of those sections had been complied with.
Given the fact that the special hearing in this matter was conducted by a judge alone, both parties sought that the evidence relied on as tendency and coincidence evidence should be identified after the close of the evidence and the issue of whether that evidence was admissible as tendency or coincidence evidence should be considered in the final judgment rather than there being an earlier ruling in that regard. In light of the parties’ preference for this approach, I agreed to that course.
The position of the defence in respect of the evidence relied on by the Crown as tendency and coincidence evidence was as follows:

In relation to the evidence arising from the incident on 6 January 2022 relied on as tendency evidence by the Crown, the defence accepted that this evidence was relevant and admissible for a non-tendency purpose, namely, as evidence of the accused’s animosity towards the deceased. The defence objected, however, to its use for a tendency purpose.

In relation to the evidence concerning the killing of Ryan Dewhurst and the assault of Christian Smeda, relied on as coincidence evidence by the Crown, the defence accepted that it was relevant to the second issue of whether the accused was criminally responsible for his acts but objected to it being admitted as co-incidence evidence in relation to the issue of whether the accused did the acts in question.

Tendency evidence ruling

On 27 August 2024 the Crown served a Tendency Notice on the solicitors for the accused. The accused’s tendency asserted in that notice was “his tendency to act in a particular way, namely to threaten the use of a knife (or bladed weapons), and actually use a knife (or bladed weapons) against the deceased Steven Finlay and Mitchell Watson”. The substance of the tendency evidence set out in the notice was not only the evidence in respect of an incident on 6 January 2022 when the accused is said to have gone to the deceased’s room and threatened Mr Finlay with a knife but also the evidence of what occurred on the night when the deceased were killed.
In the Crown’s eventual submissions in relation to the admissibility of the tendency evidence, the asserted tendency was modified to:

“a tendency to act in a particular way, namely to threaten the use of a knife (or bladed weapons) against the deceased Steven Finlay and Mitchell Watson”

In addition, the Crown’s submissions no longer contended that the tendency evidence included the evidence of what occurred on 29 January 2022, the night the deceased were killed.
The substance of the tendency evidence was eventually identified as being as follows:

Mrs Finlay’s oral evidence of Mr Finlay telling her about a person who lived upstairs and called them names out of his window such as “faggots” coming to his flat with a knife screaming and shouting;

Mr Moosman’s statement pars 5, 6 and 7, that Mr Finlay and Mr Watson told him of another tenant who was standing over them and trying to intimidate them by brushing past them and snarling and that Mr Finlay said that the tenant was a guy named “Booga” and every time he came near he scowled.

Mr Thompson’s oral evidence that the accused would yell comments as Mr Finlay and Mr Watson walked past so they could hear and called them “poofters, cunts, filthy cunts” and said “someone should run a blade through ‘em”.

Mr Finlay’s 000 call on 6 January 2022 in which he said:

“My neighbour’s having some sort of psychotic break and just came bashing at my door with a knife threatening to kill me saying, I, I stole his phone or something. Um, and I’m, I’m scared, and I’m really scared. … I think his name is Drew. He, he lives, um, upstairs in the building. … “I opened the door up and he was swinging a knife at me it was a big kitchen knife, bladed one”.

Mrs Finlay’s oral evidence and Mr Finlay’s sister, Ms De Varge’s statement where they included Mr Finlay speaking to them about the male living upstairs who had come to his home with a knife and telling Ms De Varge that the man had threatened to kill him.

The admission of tendency evidence in a criminal matter such as the present is governed principally by ss 97 and 101 of the Evidence Act which relevantly provide:

“97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

…
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
…”.

The Dictionary to the Evidence Act defines "probative value" as meaning:

"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

Finally, it can be noted that s 94(5) of the Evidence Act provides:

"In determining the probative value of tendency evidence or coincidence evidence for the purposes of section 97(1)(b), 97A(4), 98(1)(b) or 101(2), it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination."

As noted above, the fact in issue in relation to which it is sought to adduce the evidence as tendency is whether it was the accused who stabbed the deceased on 29 January 2022.
Since there was no dispute that the requisite notice had been given, the matter to be considered under s 97(1)(b) is whether the tendency evidence will, either by itself or having regard to other evidence adduced or to be adduced by the Crown, have significant probative value.
For the purpose of making that assessment of probative value, it must be assumed that the evidence is accepted at its highest, but the circumstances surrounding the evidence may indicate that its highest level is not very high: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (IMM) at [49], [50] (French CJ, Kiefel, Bell and Keane JJ). In addition, in order for the probative value to be “significant” the capacity of the evidence to contribute to the proof of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable. To be “significant”, the capacity of the evidence to contribute to the proof of the fact in issue does not need to be “substantial” but does need to be “important” or “of consequence” and the evidence must be influential in the context of fact-finding: IMM at [46] and [103] (Gageler J).
In determining whether the tendency evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have "significant probative value", there are two matters that must be considered. First, the extent to which the evidence establishes the tendency, in conjunction with other evidence: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [61], [64] (Kiefel CJ, Bell, Keane and Edelman JJ); and, secondly, the extent to which the tendency makes more likely the relevant fact or facts in issue: Hughes at [64].

The consideration of these issues in the present case involves a certain degree of artificiality or pointlessness since it is not in issue that the evidence identified as tendency evidence by the Crown was expressly accepted by the defence as being admissible as relevant to establishing the accused’s state of mind, namely his animosity towards the deceased at about the relevant time.
In my view, the evidence identified by the Crown as tendency evidence in its submissions is not evidence which has significant probative value in relation to establishing that the accused had the tendency asserted. Rather, it was evidence of the accused’s particular state of mind. Accepted at its highest, that evidence might establish that the accused had considerable animosity towards the deceased to the extent that he would threaten them with a knife but leave when they said they would call or were calling the police. It does not go further and establish a tendency to threaten the deceased with a knife so as to engage the syllogistic mode of reasoning identified by the Court in Elomar v R [2014] NSWCCA 303 at [360]; 316 ALR 206. In Elomar at [367], it was held:

“Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference).”

The situation in the present case is, in my view, similar to that described in Elomar at [369]:

“If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning.”

In the circumstances, I do not accept that the evidence identified by the Crown has "significant probative value", in conjunction with other evidence, in relation to establishing the tendency for which the Crown contends.
Accordingly, I reject that evidence as tendency evidence but note that it is admitted for other purposes, in particular in order to establish the accused’s state of mind at about the relevant time and in relation to the defence of mental health impairment.

Coincidence evidence

On 14 October 2024 the Crown served an updated Coincidence Notice on the solicitors for the accused. The Crown identified the two incidents said to attract coincidence reasoning as being:

The accused’s unlawful killing of Ryan Dewhurst on 29 September 2013; and

The murder of Mr Finlay and Mr Watson on 29 January 2022.

The Crown also referred to two other events:

The threat made on 6 January 2022 by the accused to kill the deceased; and

The common assault on Mr Smeda in September 2012 for which the accused was sentenced on 25 June 2013.

The incident on 6 January 2022 was relied on only as being relevant to identifying the accused as the person who killed the two deceased on 29 January 2022.
Despite the terms of the notice, it appears that the Crown relied upon the evidence of the event relating to Mr Smeda as also being coincidence evidence given the asserted similarity of circumstances.
The evidence which was sought to be adduced only as coincidence evidence in relation to the issue of whether the accused committed the relevant acts was the evidence concerning the killing of Mr Dewhurst on 29 September 2013 and the assault of Mr Smeda in September 2012. The relevant portions of this evidence were identified in par 17 of the Revised Crown Submissions dated 29 November 2024.
The accused did not object to this evidence being admitted on the issue of whether he had established the defence of mental health impairment but objected to it being admitted as coincidence evidence in respect of the issue of whether he committed the relevant acts charged.
Section 98 of the Evidence Act relevantly provides:

“98 The coincidence rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

…
(1A) To avoid doubt, subsection (1) includes the use of evidence from 2 or more witnesses claiming they are victims of offences committed by a person who is a defendant in a criminal proceeding to prove, on the basis of similarities in the claimed acts or the circumstances in which they occurred, that the defendant did an act in issue in the proceeding.
…”.

The additional requirement in relation to coincidence evidence in criminal proceedings set out in s 101 of the Evidence Act and other applicable provisions such as s 94(5) and the definition of “probative value” in the Dictionary to the Evidence Act have been referred to in the context of tendency evidence and are not repeated here, although they remain applicable.
Since there was no dispute that the requisite notice had been given, the matter to be considered under s 98(1)(b) is whether the coincidence evidence would, either by itself or having regard to other evidence adduced or to be adduced by the Crown, have significant probative value. In this regard, relevant principles set out above in relation to tendency evidence are also applicable to coincidence evidence.
In R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 Simpson J (with McClennan CJ at CL and Fullerton J agreeing) set out the steps involved in the assessment of admissibility of coincidence evidence. It can be noted that the sixth step requires modification because s 101(2) has been amended so that it now refers to probative value outweighing the danger of unfair prejudice. Her Honour held at [31] (with the sixth step amended to reflect the current wording of s 101(2)):

“● the first step is to identify the ‘particular act of a person’ or the ‘particular state of mind of a person’ that the party tendering the evidence seeks to prove;
● the second step is to identify the ‘two or more events’ from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the ‘particular act’ or had the ‘particular state of mind’;
● the third step is to identify the ‘similarities in the events’ and/or the ‘similarities in the circumstances in which the events occurred’ by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
● the fourth step is to determine whether ‘reasonable notice’ has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
● the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, ‘have significant probative value’;
● in a criminal proceeding, if it is determined that the evidence would have ‘significant probative value’, the sixth step is the determination whether the probative value of the evidence ‘[…] outweighs’ [the danger of unfair prejudice to] the defendant (s 101(2)).
● the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.”

In the present case, the relevant fact in issue is whether it was the accused who killed the deceased on 29 January 2022. The Crown seeks to prove that the acts involved in the stabbing of the two deceased were the acts of the accused by relying on, inter alia, the coincidence evidence.
The “two or more events” are the stabbing of Mr Finaly and Mr Watson, the killing of Mr Dewhurst and the assaulting of Mr Smeda.
The similarities in the events were identified by the Crown as being as follows:

The events occurred in socially disadvantaged housing;

Each deceased (Mr Finlay, Mr Watson or Mr Dewhurst) and Mr Smeda shared mutual acquaintances with the accused but were not personal friends;

At about the time of the killings, the accused had instigated conflict towards the deceased or Mr Smeda;

At about the time of the killings, the accused asserted that the deceased and Mr Smeda had stolen from him;

At about the time of the killings, the assertions of stealing were followed by the infliction or the attempted infliction of violence against the deceased and Mr Smeda;

Each deceased and Mr Smeda were believed by the accused to be paedophiles or homosexuals.

As noted above, it was accepted that the relevant notice had been given.
In determining whether the evidence has significant probative value, it is to be accepted as credible and reliable, and the issue is in essence whether or not the similarities in events and circumstances can be accounted for by way of coincidence. If not, then the evidence is capable of being regarded as having significant probative value in establishing that it was the accused who stabbed the two deceased on 29 January 2022.
As the accused submitted, one aspect of the present case which raises significant difficulties when addressing the issue of significant probative value is the fact that there is little evidence as to the circumstances of the stabbing of Mr Finlay and Mr Watson on 29 January 2022. In particular, there is no evidence of: the accused’s involvement on that day in what preceded the deceased being stabbed; who instigated the conflict which led to the stabbing; and, whether any allegations of stealing were made by the accused in connection with the stabbing. Accordingly, the third, fourth and fifth asserted similarities are deprived, to a significant extent, of their force as elements which might negative coincidence in the present case.
In addition, the extreme violence apparently involved in the stabbing of Mr Finlay and Mr Watson is in marked contrast to the limited violence involved in the killing of Mr Dewhurst and the assault on Mr Smeda. While dissimilarities do not necessarily undermine a conclusion that the events were not coincidental, the difference in the level of violence between the various events in the present case militates against a finding that the events were not coincidental.
Finally, the circumstances of the events occurring in socially disadvantaged housing, between persons who were known to one another but not personal friends, where the victims were believed to be paedophiles or homosexuals are not, unfortunately, unusually or uncommonly associated with violence of the nature involved in the present case. This consideration tends to support the conclusion that it is not improbable that the occurrence of the events involving the accused and Mr Dewhurst and Mr Smeda and the stabbing of Mr Finlay and Mr Watson were a coincidence.
There are no other considerations which provide substantial support for the conclusion that the events relating to Mr Dewhurst’s death, Mr Smeda’s assault and the killing of Mr Finlay and Mr Watson could not have been or were not coincidental.
Weighing all of these considerations in light of the asserted similarities and the evidence, I am not satisfied that the coincidence evidence sought to be adduced by the Crown, by itself or taken together with other evidence, has significant probative value in the circumstances of the present case in establishing that it was the accused who stabbed the deceased on 29 January 2022.
Consequently, the requirement in s 98(1)(b) has not been met and it is not necessary to consider whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused under s 101.
For these reasons, the evidence relating to the killing of Mr Dewhurst and the assault on Mr Smeda^[11] is not admissible as coincidence evidence in relation to the issue of whether the accused did the acts by which Mr Finlay and Mr Watson were killed. As there was no objection to that evidence being adduced in relation to the defence of mental health impairment, it is admitted with its use being restricted to that defence.
11. This coincidence evidence included Ex P, the portions of Ex A and the evidence of Witness X, Mr Smeda, Mr Eyles, Mr Dixon and Mr Chandler relating to the killing of Mr Dewhurst or the assault of Mr Smeda,

Legal Principles and directions

In reaching my verdicts in these proceedings, I have applied the following legal principles and have taken into account the following directions.

Presumption of Innocence

The accused is not required to prove his innocence. He is presumed to be innocent unless and until the prosecution proves beyond reasonable doubt that the offences charged were committed.

Onus and Standard of Proof

The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. Putting to one side for the moment the defence of mental health impairment, in relation to the offences charged, the onus remains on the Crown from beginning to end and that burden never shifts to the accused and it is not for him to prove his innocence but for the Crown to prove his guilt.
The standard of proof is beyond reasonable doubt. Those words and that phrase have their ordinary English meaning. The Crown is not required to prove the truth and reliability of every disputed fact, or to establish everything that its witnesses said in evidence was true. The matters that the Crown needs to establish beyond reasonable doubt are the essential legal ingredients or elements of each of the offences charged.
When, as in this case, an accused relies on the defence of mental health impairment,^[12] there is an onus on the accused to prove that he is not criminally responsible for his acts because of his mental health impairment. To this limited extent, there is an onus on the accused in this matter, but the standard of proof is the lesser civil standard, on the balance of probabilities.^[13] I shall discuss the defence of mental health impairment in more detail later.
12. Section 28(1) of the MHCIFP Act.
13. Section 28(2) of the MHCIFP Act.

Witnesses and Fact Finding

As to the witnesses who gave evidence, I must determine whether I accept that a witness is being truthful when giving evidence and whether the evidence is reliable. Evidence may be truthful but unreliable. I am entitled to accept part of a witness’ evidence and reject other parts.

The accused did not give evidence

That the accused did not give evidence before this Court is a matter of no significance. He was not obliged to do so. No conclusion adverse to him can be drawn from this feature of the matter.

Right to silence

The accused chose not to give an account of what occurred on 6 January 2022 when spoken to by police at about that time. He also chose not to give an account of what he had done on 29 January 2022 at the time of his arrest on 31 January 2022. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. Any exceptions to that right did not apply in the present case.
I must not use the fact that the accused exercised his right to silence in these ways adversely to him. I bear in mind that the accused’s silence on those occasions cannot be used against him in any way at all and I have not done so.

Liberato direction

Although the accused did not give evidence, he did give an account in which he in effect denied being involved in the stabbing of Mr Finlay and Mr Watson to Andrew Chandler, Dr Martin and Dr Nielssen and during his ERISP. The fact the accused relies on those denials does not alter the burden of proof. The accused does not have to prove that his version is true. The Crown has to satisfy me that the account given by the accused should not be accepted as a version of events that could reasonably be true.
Mr Bouggas effectively denied that he stabbed the deceased. He must be found not guilty if his guilt has not been proved beyond reasonable doubt and he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. A number of things follow from this.
First, if I believe the accused’s account and denials, I must acquit.
Secondly, if I find difficulty in accepting that account or denials, but think one or more might be true, then I must acquit.
Thirdly, if I do not believe the accused’s account or denials and do not think they might reasonably be true, then I am to put them to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

Bad character direction

The evidence has included information indicating that the accused has previously been in custody for other offences, has been involved with prohibited drugs and has behaved aggressively or offensively towards police and others. This evidence has been given because it was relevant to the accused’s circumstances, state of mind and actions in the present case.
I have taken into account that, although the evidence shows the accused to be a person of bad character in those regards, I must not reason that since crimes are more often committed by the bad than the good, therefore the accused is likely to be guilty of the crimes with which he has been charged.
I am not permitted to use the evidence of the accused’s bad character for the purpose of concluding that the accused is guilty of the crimes with which he is charged simply because he is the sort of person who would be likely to commit such crimes.

Inferences and circumstantial evidence

As the tribunal of fact, I may draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then I might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
Drawing inferences involves a number of steps. The first step is determining the primary facts upon which any inference is based. Those primary facts do not have to be proved beyond reasonable doubt.
The next step is to consider what inferences are logically and reasonably available based on those primary facts I have found. Drawing an inference from a set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. It is important not just to consider one obvious inference but also to consider whether alternative inferences may be available.
In a special hearing such as the present, I must relevantly be satisfied of the accused’s guilt or that the accused committed the acts in question beyond reasonable doubt for the Crown to establish its case. Amongst other things, that means that I should be extremely careful about drawing any inference and I should examine any possible inference to ensure that it is a justifiable inference. When I am considering whether to draw the ultimate inference that the accused committed the acts, or an inference that one of the elements of the offence has been proved beyond reasonable doubt, I must be satisfied that the inference I draw is the only reasonable inference available on all the evidence. If there is another inference reasonably available which is inconsistent with the accused’s guilt, I must find him not guilty.

In the present matter, the prosecution case in relation to the murder charges is a circumstantial one. In this situation, I may draw reasonable inferences from the facts established on the evidence. However, in doing so, I must first be satisfied of those primary facts. As I have already noted, I need not be satisfied of the primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole rather than individually or in isolation. It also depends on whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused or that he committed the relevant acts.
I am to approach the circumstantial case in the present matter by considering as a whole, and weighing, all the facts I have found established by the evidence. Considering all the facts I have found together as a whole, I am to determine whether I can conclude from those facts that the accused committed the acts in question beyond reasonable doubt, by a logical and rational process of reasoning and not mere speculation, conjecture or supposition.
When it comes to drawing the ultimate inference of guilt or that the accused committed the relevant acts, I must be satisfied that this inference is a reasonable one to draw from the facts found and that it is the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts on the evidence viewed as a whole. If there is any other reasonable conclusion that is open and is inconsistent with the accused’s having committed the acts in question, then the Crown’s circumstantial case will have failed and the accused must be found not guilty.

Lies as consciousness of guilt

The Crown relies on evidence of things said by the accused after the stabbing of the two deceased as evidence of consciousness of guilt. Although the Crown drew attention to what were said to be unusual aspects of the accused’s conduct in the days after the stabbing of the two deceased, it was not submitted that this conduct demonstrated a consciousness of guilt on the accused’s part. Rather, it was said that the conduct was consistent with the accused experiencing an unusual event around the time of the death of the deceased. In addition, the Crown referred to the accused’s highly aggressive behaviour during one of the forensic procedures and submitted that this was indicative of his mental state at about the time of the killings.
As to lies as consciousness of guilt, the Crown relies on the evidence that the accused:

said when he was arrested for the murder of Mitchell Watson and Steven Finlay “I don’t even know who they are”;

denied during his ERISP on 31 January 2022 that he had ever spoken to the two deceased; and

said during the ERISP that although he had seen the two deceased walking in and out of the building, he had not seen them for two weeks.

The Crown contends that these were lies because there was evidence that the accused was aware of who the deceased were, had spoken to them before in the shared back courtyard and during the incident on 6 January 2022 and had seen them in the preceding two weeks when he had been at the boarding house with various friends, who gave evidence.
Before I can accept that the accused told lies and that they demonstrate a consciousness of guilt, I must be clear about what a lie is. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what they said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused made any of the three statements I have identified, and I find it was a lie, then I must exercise care in deciding what significance, if any, it has. I may take this lie into account as evidence of the accused’s guilt in the sense that it can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. The Crown does not suggest that if I found the accused told a lie that this finding can prove, by itself, the guilt of the accused or that he committed the acts in question. I can take any such lie into account in the way I have explained, however, only if I find two further things.
First, I must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offences the Crown alleges that the accused committed. It must relate to some significant circumstance or event connected with that alleged offence. In this case, the Crown says the lies it relies on are relevant because they relate to the accused’s knowledge of, and attitude towards, the deceased.
Secondly, I must find that the reason the accused told the lie is because he feared that telling the truth might reveal his guilt in respect of the charges he now faces. In other words, he feared that telling the truth would implicate him in the commission of the offences in question.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence.
If I think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offences with which the accused is now charged, then it cannot be used as evidence of the accused’s guilt. If that is the case, I should put it to one side and focus my deliberations upon the other evidence in the case.
In summary, before I can use what the accused said as something which points towards his guilt, I must be satisfied that he lied deliberately. I must find that the lie related to some significant circumstance or event connected with the alleged offence. I must find that the reason the accused told this lie was because he feared that the truth would implicate him in relation to the commission of the offences with which he is charged.
The defence case in relation to this issue is in effect that the things said by the accused were either not untrue, for example because he did not know the deceased in the sense of knowing them by name, were not deliberate lies or were said out of panic or to avoid an unjust accusation. As a result, it was said that I would not put any weight on this aspect of the Crown case.

Hearsay, identification and potentially unreliable evidence

The evidence included hearsay evidence from various witnesses about what Mr Finlay or Mr Watson had told them concerning the events of 6 January 2022 and other events and matters relating to the accused and the boarding house in Cleveland Street or Mr Finlay and Mr Watson’s relationship and activities. I take into account that hearsay evidence of this nature may be unreliable, even though it is not necessarily so, and care must be taken when assessing that evidence for a number of reasons. These include that the information given to the witness was not given on oath, publicly and for the purposes of a formal court hearing. In addition, there may have been weaknesses, or inconsistencies, or problems in the information provided to the witness that could have been revealed in cross-examination, or even perhaps in evidence in chief, which were not able to be revealed because of the way in which the information was given as hearsay evidence. I also note that because the Crown bears the onus of proof, it is not up to the accused to prove that the information given by way of such hearsay evidence was unreliable or false.
The hearsay evidence in the present case included, in particular, evidence from Mr Finlay and Mr Watson which identified or tended to identify the accused as the person who went to the door of the deceased’s room on 6 January 2022 and threatened them with a knife. I take into account that, in addition to the care which must be taken in relation to hearsay evidence, special caution must be exercised before I accept the identification evidence as reliable. This relates only to the reliability of the identification evidence given, not to the honesty of the witness or the honesty of the persons who provided the information to the witness. A person who gives evidence or information of identification may honestly and sincerely believe that their identification is correct, and that evidence or information may be quite impressive, even persuasive. So here, even if I thought Mr Finlay and Mr Watson and the witnesses who gave evidence as to what they said were entirely honest in that evidence and information, I must still approach the task of assessing the reliability of the identification with special caution.
This is because experience of the criminal courts demonstrates that it is possible that a person may be mistaken in their identification of a person accused of a crime. I must carefully consider the circumstances in which Mr Finlay or Mr Watson made their observation of the person. The circumstances in which the witness made their observation of the person can affect the reliability of identification evidence. Those circumstances include how well the witnesses knew the person, what opportunity they had to observe the person, was their attention focused on the person, in what light was the observation made, was there any reason to remember the person, were they under stress or pressure at the time, and was the identification given at a time when the incident was fresh in their memory. Even if a witness knows a person the possibility of mistake remains and even if more than one person identifies a person, they can be mistaken.
In the present case, there is additional need for caution since on Mr Finlay’s account he identified that the person involved in the incident on 6 January 2022 was named “Drew” and he lived upstairs with his girlfriend when this was not the accused’s name and there was no evidence that the accused lived with his girlfriend in the boarding house at about this time. On the BWV of Senior Constable Cregan, Mr Finlay and Mr Watson appeared to be unable to give a detailed description of the person or his clothing. In addition, Mr Finlay said to Senor Constable Cregan, “It was dark, maybe it was somebody else … It might have been somebody else”.
As to other evidence that may be unreliable including that of Witness X, I have taken into account that he gained a benefit by undertaking to give and giving evidence in these proceedings. The benefit was that his assistance to authorities in this matter was taken into account in his favour when Witness X was sentenced for unrelated offending concerning stealing from a dwelling house.
Witness X’s evidence was that he requested police to provide evidence concerning his assistance in this matter to a court in the unrelated proceedings, to help him avoid going to gaol and he did avoid going to goal for the offence of stealing from a dwelling house. I have taken into account that a witness seeking to obtain such a benefit in this way may be motivated to provide evidence which the witness perceives may assist police to obtain a conviction rather than the truth and that the experience of the courts has shown that once such a witness has given a version to the police which incriminates an accused, the witness may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.
I note that there may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. I have proceeded on the basis that the Crown has to prove the essential elements of its case beyond reasonable doubt and the accused does not have to prove anything.

AVL Evidence

The law provides that evidence may be given by audio-visual link (AVL), as occurred with a number of witnesses in the present case. I am to assess this evidence in the same way as I would evidence given in court and I should not give it more or less weight because of the way in which the evidence was given. Where, however, the credit of a witness who gave evidence by AVL is a crucial issue in the resolution of any charge against the accused, any difficulty I might encounter in assessing the credibility of the witness by reason of the evidence being given by AVL should be resolved in favour of the accused.

Expert Evidence

In the present case, a number of expert witnesses have given evidence. This expert evidence most relevantly included:

evidence from the forensic pathologist, Dr Szentmariay, concerning the autopsies conducted on the deceased’s bodies;

evidence from Senior Crime Scene Officer Leechburch-Auwers, a fingerprint expert, concerning the fingerprints found at the scene;

evidence from Ms Wedervang, Senior Forensic Biologist, a DNA expert, as to the results of DNA testing of samples taken from relevant persons and items; and

expert evidence of the psychiatrists, Dr Adam Martin and Dr Olav Nielssen, in relation to the accused’s mental state at and around the time of the stabbing and the defence of mental health impairment.

In addition, a number of Crime Scene Officers with expert qualifications gave evidence which included opinions within their areas of expertise concerning what was observed and done by them at the scene and as part of their investigations.
In relation to all of the expert evidence, if it is not inherently unbelievable, I would need to have a good reason to reject it. I would do so, for example, if it were based on facts that did not accord with what I have found to have been proved on the evidence, if the experts were not briefed with all relevant material, if their conclusions were not adequately explained in the reasoning in their reports or if there were some reason to doubt that a witness had relevant expertise.
In the present case, however, the experts’ opinions were based on material which was supported by the evidence. There was no suggestion that any expert did not have access to the necessary information when forming their opinions. The reasoning of the experts by which they reached their conclusions was adequately exposed in their evidence and there was no issue that they possessed the relevant expertise. I also take into account that the defence did not take issue with the evidence of the state of the crime scene or the results of the forensic testing.
More specifically in relation to the psychiatric evidence in the reports of Dr Martin and Dr Nielssen, it is well established that if medical evidence relating to the issue of mental health impairment is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt on it.^[14] In the present case, the opinions of Dr Martin and Dr Nielssen were in substance unanimous and there was no material which cast doubt on any aspect of their opinions.
14. Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337] (R A Hulme and Bellew JJ) and the cases there cited.

Elements of the offences and defence

The essential elements of the murder charges, each of which the Crown must prove beyond reasonable doubt, are as set out below.

Elements of murder – Steven Glen Finlay

Steven Glen Finaly died on or about 29 January 2022 at Redfern in New South Wales;
his death was caused by a deliberate act or acts of the accused; and
the act or acts were done with an intention to kill or to cause grievous bodily harm.

Elements of murder – Mitchell Watson

Mitchell Watson died on or about 29 January 2022 at Redfern in New South Wales;
his death was caused by a deliberate act or acts of the accused; and
the act or acts were done with an intention to kill or to cause grievous bodily harm.

In this context, “caused” means “substantially contributed to”. Deliberate acts are one which result from a willed movement of the muscles. They can be thought of as conscious or voluntary acts. Examples of actions that are not voluntary include those which occur because of an epileptic fit, sneezing and sleepwalking.
“Intention” has its ordinary English meaning. “Grievous bodily harm” is really serious bodily injury and thus is not like a cut, a bruise or a broken finger where, although it may be an injury, it is not really serious. In order to be really serious bodily injury, however, it does not have to be permanent injury and it does not have to be life-threatening.
If the Crown has not proved each of the elements of each relevant charge beyond reasonable doubt, the verdict is to be that the accused is not guilty of that charge.
However, before it can be found on the limited evidence available that the accused in this case committed the offences charged, it is necessary to consider whether the defence of mental health impairment has been established.
Where the defence of mental health impairment is raised, as in the present case, it is necessary first to consider whether the Crown has proved to the requisite standard that the deceased died as a result of the accused’s deliberate, or voluntary acts as charged. If it is concluded that he did, it is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for those act or acts. In the case of these murder charges, it is only when those basic questions are answered adversely to an accused that the issue of the necessary intent for murder can be addressed.^[15]
15. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28, R v Huynh [2023] NSWSC 920 at [44].

Elements of defence of mental health impairment

The accused is to be found not criminally responsible by reason of a mental health impairment if:

The accused proves on the balance of probabilities that, at the time of the acts causing the death of Mr Finlay or Mr Watson (as appropriate), the accused had a mental health impairment in that:

he had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

the disturbance would be regarded as significant for clinical diagnostic purposes, and

the disturbance impaired his emotional wellbeing, judgment or behaviour;

and

The Crown fails to prove on the balance of probabilities that that impairment was caused solely:

by the temporary effect of ingesting a substance, or

a substance use disorder (which is not the same thing as substance induced mental disorder);

and

The accused proves on the balance of probabilities that his mental health impairment had the effect that:

the accused did not know the nature or quality of his acts; or

he did not know that the acts were wrong, that is he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong.

Summary of elements

If the Crown proves beyond reasonable doubt that the accused caused the death of the deceased by his deliberate act or acts, but each of the elements of the defence of mental health impairment is made out, then the verdict should be a special verdict of act proven but not criminally responsible in each case. In such a case, it is not necessary to consider whether the intention element of murder has been established.

the accused’s DNA, together with that of Mr Finlay and Mr Watson, was recovered from a fingernail clipping from Mr Watson’s left hand; and

the accused’s left palm print in the blood of both deceased was found on the internal doorknob of the door to their room.

I shall consider each of these matters in turn.
In relation to the deceased’s blood said to have been found on the inspire knife, the defence submitted that caution should be exercised in concluding that the this blood was the blood of the deceased, since the process of swabbing can lead to the presence of other biological material forming part of what is tested. While I accept that it is a possibility that the DNA was from biological material other than blood, in the present case the swab was taken from the area where there was bloodstaining on the knife and there is nothing in the evidence to indicate that the DNA might actually have been from biological material other than blood. In these circumstances and in light of the evidence as a whole, in my view, the possibility propounded by the defence does not rise above a theoretical possibility. Further and in any event, the DNA of both deceased was found on the accused’s knife and this is a matter that I can take into account in considering whether there is an inference that the inspire knife was used in stabbing the deceased because of the presence of either the blood, or the non-blood DNA, of both the deceased on the knife.
The defence also submitted that the presence of the deceased’s blood or non-blood DNA on the inspire knife had to be considered in the light of the fact that there were communal kitchens in both 259 and 261 Cleveland Street and these may have been used by both the accused and the deceased. Thus, it was said that there was a reasonable possibility that the DNA, whether from blood or other material, found its way onto the inspire knife by a process of secondary or more remote transfer.
In relation to this submission, the deceased had a kitchenette and a small ensuite bathroom in their room and the evidence which I accept did not include any significant indication that instead of using their kitchenette the deceased engaged in meal preparation in the communal kitchen in 261 Cleveland Street or that they prepared meals in the communal kitchen in the other building at 259 Cleveland Street. Indeed, there was no significant evidence about meal preparation by the deceased and, at about the time of the killing, Mrs Finlay was organising pizza deliveries for Mr Finlay and Mr Watson.
The accused had a small ensuite bathroom in his room and appeared to use it for cleaning food utensils given the scourers in the sink. In addition, the photographs of his room indicated that he prepared meals in his room using the microwave oven, the electric kettle and the refrigerator. The evidence did not include any significant indication that the accused used the communal kitchen in 259 Cleveland Street or the communal kitchen in number 261.
Furthermore, no blood was detected in any of the communal kitchens, bathrooms or other areas that were tested and the blood or DNA on the inspire knife was not located in an area where transference of DNA was likely to have occurred in ordinary use of the knife in food preparation.
In those circumstances and having regard to the evidence as a whole, I do not accept that there is an inference available that it is a reasonable possibility that the deceased’s DNA on the inspire knife was deposited as a result of secondary or more remote transfer occurring in a communal kitchen used by both deceased and the accused or as a result of both deceased cutting themselves in one of the communal kitchens and both their blood finding its way onto the accused’s knife as a result of being in the same communal kitchen.
As to the DNA of both deceased being found on the accused’s watch band, the defence submitted that the presence of the deceased’s DNA on the band could be explained by transference in a context in which the three relevant persons co-resided in a boarding house with common areas. I do not accept that that is a reasonably available inference in the circumstances. The evidence did not establish or even suggest that the deceased used the communal rooms in their respective buildings let alone that the deceased used the communal facilities in 259 Cleveland Street or that the accused used the communal rooms in number 261. Even though both the deceased and the accused used the entry from James Street and the shared rear courtyard and the accused may have brushed past them on occasion, that does not in my view establish a realistic possibility for transference to occur of both deceased’s DNA onto the accused’s watch band as a result of such use or interaction, having regard to the evidence as a whole and my findings.
As to the DNA of the accused on Mr Watson’s fingernail clipping and the DNA of Mr Watson and Mr Finlay under the accused’s left little fingernail, there was no evidence that the accused had physical contact with the deceased on any occasion other than the night of 29 January 2022, apart perhaps from brushing past them on occasion which would not have involved contact with fingernails. The incident on 6 January 2022 was not said by Mr Finlay, Mr Watson or any witness to involve anything more than the accused threatening the deceased and there was no suggestion of physical contact on that occasion. In addition, the scratches to the accused shown in the forensic photographs and the injuries to the deceased were such as to provide substantial support for an inference that DNA could have been deposited under the fingernails of those involved in inflicting those scratches and injuries.
The defence contention was once again that this DNA could have been deposited by transference among these co-residents of the boarding house. For essentially the same reasons as those in relation to the DNA on the watch band and given that the DNA was under the fingernails and not on parts of the body which might be likely to come into contact with surfaces which had other persons’ DNA on them, I do not accept the submission that transference in the way suggested was a reasonably possible explanation for the DNA under the fingernails.
The final key piece of forensic evidence relied on by the Crown was the accused’s left palm print in the blood of both deceased on the internal doorknob of the door to their room.
The defence submitted that there was no evidence as to the state of the doorknob immediately prior to the killings or how long a blood print may remain on a surface. In addition, it was said that it could be inferred that the deceased were not diligent in cleaning up stains and, in substance, the accused could have been in their room earlier for other reasons, in light of the evidence of Witness X.
For the reasons already given, I do not accept or give any weight to the evidence of Witness X where it was not supported by other evidence. There was no evidence that any person had been told by Mr Finlay or Mr Watson that the accused went into the deceased’s room on any occasion other than the 6 January incident, in which no blood was shed. Nor was there evidence from any [REDACTED] resident of the boarding house, or from visitors to the boarding house, that the accused went into the deceased’s room in January 2022 other than on 6 January 2022. There was no evidence as to the blue Jetty lighter being found in the deceased’s room other than from Witness X and he conceded that he could not produce the lighter when requested to do so by police. As I explained above, I did not accept Witness X’s evidence. I found the evidence concerning the lighter unconvincing and it was not supported in any way, even by production of the lighter.
Furthermore, in light of the evidence of the fingerprint expert, Mr Leechburch-Auwers, which I accept, I find that the palm print was deposited on the internal doorknob when a significant amount of wet blood of both deceased was on the accused’s hand when he touched the knob. Since there was no suggestion in the evidence that there was any occasion, other than on 29 January 2022, when the accused might have been present in the deceased’s room when a significant amount of both deceased’s wet blood was available to be touched by the accused shortly before he touched the internal doorknob of the door to their room, I reject the defence submissions in this regard.
Accordingly, in all the circumstances, I do not accept, based on the evidence as a whole and my findings, that there was any reasonably possibility that the accused’s left palm print was deposited on the internal doorknob of the deceased’s room other than at about the time when the deceased had been stabbed and their blood was on the accused’s left hand as he used it to open the door.

Other defence submissions

In addition to the submission, which I accept, that there was the opportunity for another person to enter 261 Cleveland Street, stab the deceased and depart via the gate from the shared rear courtyard on to James Street without being detected, the defence submitted in effect that:

the absence of a “dying declaration” by Mr Finlay during his 000 calls as to who the killer was, even though he knew that the accused’s nickname, “contributed” to there being a reasonable doubt as to the identity of the killer;

there was a telling absence of evidence in that:

the accused’s DNA was not linked to any item found in or near the deceased’s unit, apart from Mr Watson’s fingernail;

no blood was ever found near the accused’s unit including on the staircase, handrail or vine growing nearby;

apart from the blood on the inspire knife, no blood of the deceased was found in the accused’s room, around the sink in his bathroom or on his footwear;

there was limited cleaning of the accused’s bathroom; and

the Crown’s ability to eliminate the possibility that the deceased killed each other was undermined by:

the history of animosity between the deceased, Mr Watson’s history of domestic violence and the bad state of their relationship as at 29 January 2022;

the Crown’s failure to explain satisfactorily how an external killer exited the door and barricaded it closed in the way found by police;

Mr Finlay had deep wounds but Mr Watson’s wounds were much shallower which was said to be consistent with the two deceased fighting one another with different weapons, and the absence of bloodstained weapons near the deceased’s bodies was of less significance because the sequence of events was unknown.

The absence of a dying declaration by Mr Finlay as to the identity of the killer during his 000 calls is deprived of some of its force by the fact that it was apparent that Mr Finlay was gasping, struggling to answer the 000 operator’s questions and was most concerned to obtain medical assistance rather than to describe what occurred, before he died prior to help arriving. Nonetheless, the absence of such a dying declaration is something that I take into account along with all of my other findings and inferences, in light of the evidence as a whole.
What was said to be the telling absence of various types of evidence is also a matter I take into account. Nonetheless, I have been cautious not to commit the fallacy of inferring from an absence of evidence of that X occurred, that X did not occur. Furthermore, the absence of evidence to which the defence drew attention must be assessed in light of the presence of the deceased’s blood (or other DNA) on the inspire knife, the accused’s bloodied left palm print on the internal doorknob, the DNA under the fingernails of both Mr Watson and the accused, and both deceased’s DNA on the accused’s watch band, in circumstances where the evidence established no other relevant physical contact between the accused and the deceased and no other realistic opportunity for transfer of the relevant DNA.
As to whether the Crown had eliminated the reasonable possibility that the deceased killed one another, my findings as to the state of the relationship between Mr Finlay and Mr Watson as at late January 2022 have been set out above. I accept, however, that even though I am not satisfied that there was any physical altercation between Mr Watson and Mr Finlay on the night of 29 January 2022, in light of Mr Watson’s previous history of domestic violence and the strains in the relationship at the time, there is a reasonable possibility that there was some physical altercation between Mr Watson and Mr Finlay on that night. Nonetheless, it does not follow from that reasonable possibility, alone or in combination with other factors identified by the defence, that there must be a reasonable doubt as to whether the accused killed the deceased. The reasonable possibility of a physical altercation must be considered in light of the evidence as a whole and the findings based on the evidence accepted. In that regard, the defence submitted that the Crown had failed to explain satisfactorily “how an external killer exited the deceased’s unit and barricaded the door closed in the way it was found by police” and noted the different depths of the injuries to each deceased which were said to indicate the use of two different weapons.
The deceased together with a number of large items were barricaded against the door of their room which prevented police from entering until the door was removed from its hinges. Understandably, there was no direct evidence of when or why the deceased apparently barricaded themselves in in this way. Nonetheless, two observations may be made. First, if the deceased did deliberately barricade themselves in, it indicates that they were concerned that there was a threat from a person outside trying to enter or re-enter the room, which is consistent with there being an “external killer” (to use the defence’s expression) rather than the deceased having killed each other.
Secondly, the inference is reasonably available that after the deceased were attacked and stabbed, the killer left the room and one or both deceased, while still alive, then barricaded themselves in in an attempt to prevent the killer re-entering. In other words, the defence submission proceeds on the false basis that the deceased must have barricaded themselves in before any third person left the room.
For these reasons, I do not accept that the fact that the deceased appeared to have barricaded themselves in supports the possibility that they killed each other and not the possibility of there being an “external killer”.
The differences in the depth of the wounds is also equivocal. While it might be consistent with the use of blades of different lengths, it is also consistent with less force being used against the victim with the shallower wounds and more force being applied when the other victim was stabbed. This might well occur If one victim succumbed easily to being stabbed but the other struggled and it took more force to subdue him.
Furthermore, Mr Finlay’s blood was detected on a piece of board found outside the deceased’s room when police arrived and before they had gained access to the room. Mr Watson’s blood was found on the external doorknob of the deceased door. This was significant evidence indicating that someone must have left that room after the Mr Finlay and Mr Watson had been stabbed with their blood on or about their person.
The Crown also submitted that the defensive wounds suffered by both deceased and the extreme level of violence involved in their stabbing indicated that they were killed by a third person such as the accused. It was said that the previous nature of any violence between the two deceased was of a relatively low level, and the extraordinary level of violence involved in their stabbing was commensurate with the specific threats made by the accused. In my opinion, the defensive wounds present on both deceased and the level of violence are equivocal. Those matters do not establish one way or the other whether the deceased killed one another or were killed by a third person.
Bearing in mind that it is important when drawing inferences for the purposes of considering a circumstantial case not to consider the evidence piecemeal, I find the absence of two blood stained weapons with which the deceased might have stabbed one another in the deceased’s room, as well as the blood, DNA and fingerprint evidence consistent with the involvement of the accused in the killing, and the presence of each deceased’s blood outside their room before police arrived are powerful considerations which, together with all my other findings and inferences viewed in light of the evidence as a whole, lead me to the conclusion that there was no reasonable possibility that the deceased killed one another or that no third party was involved.

The accused’s denials

In accordance with the direction set out above concerning the accused’s denials of having stabbed and killed the deceased, I have considered the accused’s statements which I understand the defence relied upon as denials of any involvement in the killings, namely:

The text messages from Andrew Chandler to the accused on 30 January 2022 at 10:30 am “Yo, someone got murdered at 261 last night. Lots of cops around ok” to which the accused responded at 10:49 am “cool bro, didn’t know, asleep, what are you doin,” and a short telephone conversation between them at about 3:43 pm on that day in which the accused said he was either asleep or out at the time.

The information provided by the accused to Dr Martin recorded in Ex BH par 22:

“[The accused] denied having engaged in the physical act of the alleged offending. He denied having previously made threats with a knife and said ‘it was a set up, the victims didn’t like me’. He said ‘I don’t want to speak about my case too much’ stating that he had been advised this by his lawyer. However, he said that he was asleep at the time of the alleged offending. At interview, he talked coherently about potential evidence, stating that various false statements had been made by witnesses, and he described anxiety in anticipation of having to listen to this in court. He said that he trusts his defence lawyer and said ‘I don’t want to talk too much about [the alleged offending]. I expect to get acquitted’. He did not give details about his perceived mental state around the time of the alleged offending.”;

The information provided by the accused to Dr Nielssen Ex 1 pp 2 and 13 which included:

“[h]e said that he believed he would be able to establish he did not commit the offences. …
[The accused] said ‘I am very confident I will be acquitted of this…’
…
… he denies committing the offences.”

I consider first whether I believe the accused’s account of being asleep and his denials. Given my findings and inferences assessed in light of the evidence as a whole including observing the accused during his ERISP and forensic procedure which were video recorded I do not accept the statements by the accused to Mr Chandler, Dr Nielssen and Dr Martin and do not believe them to be true. Accordingly, I am not required to find the accused not guilty on the basis of his statements and denials.
Secondly, although I find difficulty in accepting the accused’s statements and denials, I next consider whether they might be true. Once again, my findings and inferences, taking into account the evidence as a whole, lead me to the conclusion that there is no reasonable possibility that his statements and denials are true.
In those circumstances, I put the accused’s statements and denials to one side. Nevertheless, the question remains: has the Crown, upon the basis of evidence that I do accept, proved that the accused attacked and stabbed the deceased on 29 January 2022 beyond reasonable doubt?

Bad character

To the extent that the evidence has shown that the accused is a person of bad character because of his previous offences and time in custody and involvement with prohibited drugs or similar matters, I have not relied on that evidence to reason that the accused stabbed each deceased because he is the sort of person who would be likely to commit such crimes.

Has the Crown proved beyond reasonable doubt that the acts which caused the deaths of the deceased were those of the accused?

The Crown’s case is circumstantial depending on the various circumstances referred to above which I have considered in light of the evidence, my findings and the inferences available from my findings. There was no one circumstance which was essential to a finding that the accused carried out the relevant acts.
I have exercised care in drawing inferences in this case based on my findings having regard to the evidence, as a whole and not considered piecemeal. After considering the possible inference that may be justified, I am satisfied that I can conclude from the relevant factual findings by a logical and rational process of reasoning and not mere speculation, conjecture or supposition that it is a reasonable inference that the accused committed the acts by which the deceased were killed on 29 January 2022.
I then have considered whether this inference is the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts on the evidence viewed as a whole. Based on my reasons set out above, neither the matters raised by the defence nor the evidence or my findings satisfy me that there is any other reasonable conclusion open that is inconsistent with the accused’s having committed the acts in question. In particular, having regard to the evidence as a whole and to my findings, especially those based on the forensic evidence, I do not accept that there was a reasonable possibility that some unknown person entered 261 Cleveland Street, stabbed the deceased and left the building without being detected or that there was a reasonable possibility that the deceased killed themselves without the involvement of any third person.
In these circumstances, I am satisfied beyond reasonable doubt that the accused committed the deliberate acts which caused the death of the two deceased. Therefore, the second element of murder has been made out in respect of each count.

Conclusion on elements 1 and 2 of murder

Thus, the Crown has discharged its onus of proof in respect of the physical elements, elements (1) and (2), of the offence of murder.
It is necessary now to consider the question of whether the accused was criminally responsible for doing the acts which I have found occurred in relation to each of the offences charged, before dealing with the question of any specific intention required for those offences, should that be necessary.^[16]
16. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28, R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32]; R v Siemek (No. 1) [2021] NSWSC 1292 at [16].

Defence of mental health impairment

The defence of mental health impairment relied on by the accused raises the question whether the accused can be held criminally responsible for his acts in stabbing the deceased, having regard to the evidence before the Court of the accused’s mental condition at the time of those acts on 29 January 2022.
In this regard, the relevant evidence was from the psychiatrists, Dr Martin, who was called by the Crown, and Dr Nielssen, who gave evidence on behalf of the accused. Their evidence is in substance unanimous. Their opinions were well supported by the evidence relating the accused’s conduct and mental state including the evidence of Ms Howlett and of Mr Smeda and the evidence concerning the death of Mr Dewhurst, admitted in relation to this issue. The Crown did not contend that the psychiatrists’ evidence should not be accepted and there is no material which casts doubt on any aspect of their opinions. Accordingly, I accept their expert opinions.

Dr Martin

Dr Andrew Martin, forensic psychiatrist, provided a report dated 27 September 2024. Dr Martin interviewed the accused by audiovisual link on 19 September 2024 when he was accommodated in the Long Bay Hospital Mental Health Unit, an area of the correctional system reserved for involuntary treatment of inmates while mentally ill. Dr Martin reported on the accused’s then current presentation, progress and treatment as well as his psychiatric history, drug and alcohol history and medical and personal history.
The account which the accused gave to Dr Martin of the offending is set out in par 22, which has been quoted in full above. Dr Martin also carried out a mental state examination and reviewed information in other material which had been provided to him, which largely corresponded with my findings.
Dr Martin’s opinions included the following:

“Diagnosis
44. In my view, [the accused’s] primary clinical problem is schizoaffective disorder, complicated by substance use disorder. …. He apparently remains an involuntary psychiatric patient as an inmate, being managed on the sub- acute award at the Long Bay Hospital Mental Health Unit and is prescribed anti-psychotic and mood stabilising medication. The fact that he had a lengthy admission approximately six months prior to the alleged offending and was subsequently treated on a community treatment order is strong evidence of an enduring major mental illness [as opposed to a transient drug-induced disorder], even while accepting that his condition is likely to have had significant association with substance use. His narrative account at interview of perception of events while at Parklea following his incarceration is certainly consistent with enduring psychosis that seems to have led to him being scheduled as an involuntary psychiatric patient while an inmate leading to his current situation.
45. Schizo-affective disorder is considered a variant of schizophrenia and combines features of schizophrenia and bipolar disorder, in that it represents an enduring vulnerability to experience of psychosis] being out-of-touch with reality, as manifested by delusional thinking, disordered thought, disorganised behaviour and perceptual abnormalities] and sustained mood disturbance [manic or depressive episodes]. Such conditions are frequently associated with poor insight or self-awareness for one’s condition and the need for treatment, and therefore frequently associated with poor adherence to recommended anti-psychotic/mood stabilising treatment and exacerbated by substance use, which can act as a triggering or perpetuating factor, worsening a person’s mental state and subsequent impairment/disability. This certainly appears to be the case with [the accused], based on his history and the collateral material referred to above. Substance use disorder is essentially a description of sustained and harmful use of substances, which in [the accused] case appear to have been a variety of drugs including but not limited to amphetamines and opioids. Substance use is frequently associated with mental illness, for complicated reasons, including as a form of ‘self-medication’ with the unfortunate effect of worsening the person’s mental state.
46. …My view is that, while he may have anti-social tendencies, the most critical aspect of his presentation is the mental illness [schizo-affective disorder], where he has a long-standing tendency to paranoia, probable hallucinations [noting his description in various circumstances of believing people are annoying him by making noise], thought disorder and mood disturbance.
Mental Health Impairment
47. In my opinion, at the time of the alleged offending, [the accused] would have fulfilled the definition of having mental health impairment, as stipulated in the Mental Health Cognitive Impairment (Forensic Provision) Act 2020. That is, in my view, he had an ongoing disturbance of thought, mood and perception, that will be regarded as significant for clinical diagnostic purposes and that impaired his emotional well-being, judgment and behaviour. The mental health impairment arose from a psychotic disorder [schizoaffective disorder]. In my opinion, the mental health impairment was not caused solely by the temporary effect of ingesting a substance or substance use disorder, even if he had recently used drugs prior to the alleged offending [which would seem likely]. … the fact that he has clearly demonstrated sustained major mental health impairment following the alleged offending, while being in a relatively controlled environment, is strong evidence that his condition would not have been caused solely by ingesting a substance.”

In relation to the specific issue of mental health impairment defence, on the assumption that the accused stabbed the two deceased, Dr Martin was of the view that:

“49. It is highly likely that he would have known the nature and quality of the acts, which would seem to have occurred deliberately and in clear consciousness, on a background of prior threats and subsequent comments condoning violence.”

Notwithstanding that view, Dr Martin’s opinion was, on balance, that:

50. … it is plausible and probable [more likely than not] that the alleged offending occurred in direct connection with persecutory beliefs involving paedophiles and homosexuals, and where he was significantly disinhibited as a manifestation of uncontrolled mental illness. … the alleged offending occurred out of fear or sense of threat associated with paranoia, and manifesting in sustained rage and violent thoughts towards others. … it is highly likely that he was grossly mentally ill at the time of the alleged offending and that the alleged offending occurred in direct nexus with his highly disturbed mental state.”

As to the availability of the defence of mental health impairment, from a psychiatric perspective, Dr Martin continued in par 50 of his report:

“he has the mental health impairment defence available to him, because, in my view, the court is likely to find that he did not know that the act was wrong [that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong] as a direct consequence of his uncontrolled mental illness and highly disturbed mental state.”

Dr Nielssen

Dr Nielssen provided a report dated October 2024 noting that he had interviewed the accused by telephone from Parklea Correctional Centre on 15 June 2022 and again by audiovisual link on 10 August 2022 and again by audiovisual link to Long Bay Correctional Centre on 3 October 2024. The doctor also spoke to the accused’s father and had read the various documents referred to in his report and viewed relevant video recordings of the ERISP and the forensic procedure, which was in substance the evidence which I have accepted.
After summarising his interviews with the accused and his medical and other histories, as well as information provided by the accused’s father, the document review and mental state examinations, Dr Nielssen gave his opinion as to the accused’s psychiatric diagnoses as:

“1. Persistent psychotic illness (schizoaffective disorder)
2. Substance use disorder.”

After setting out the bases for his diagnoses, Dr Nielssen expressed the following views:

“from the information that is available, including the witness statements, medical records, the recordings of [the accused] behaviour soon after his arrest and the observations made during two interviews conducted prior to treatment for psychosis, I believe [the accused] was acutely mentally ill at the time of the offences, and that his alleged behaviour was directly related to the effect of symptoms of his psychotic illness. He was reported to have expressed delusional beliefs regarding the victims, and has a history of threats of violence arising from persecutory beliefs. Moreover, he did not recognise that he was mentally ill, or that his experiences might have been due to mental illness.”

Dr Nielssen then expressly stated that he agreed with the opinion of Dr Martin regarding the availability of the defence of mental health impairment from a psychiatric point of view. Dr Nielssen continued:

“[The accused] has a severe and enduring mental illness, and at the time of the offences was affected by an acute exacerbation of that illness as a result of non-adherence to antipsychotic medication and possibly the abuse of substances.”

Dr Nielssen also agreed that the accused was “probably aware of the nature and quality of his actions, although he denies committing the offences.” The doctor went on:

“I believe he was deprived of the ability to recognise that his actions were morally wrong because of the effect of delusional beliefs arising from an acute and untreated psychotic illness. His illness is also likely to have deprived him of the ability to reflect on the wrongfulness of his actions with any measure of sense or composure.”

Has the defence of mental health impairment been established?

The expert psychiatrists’ opinions were based on their observations and other factual material consistent with my findings. Their unanimous and unchallenged opinions should therefore be accepted. Accordingly, I am satisfied on the balance of probabilities that, at the time of the acts causing the death of Mr Finlay and Mr Watson, the accused had a mental health impairment that arose from schizoaffective disorder and as a result of that disorder:

the accused had a temporary or ongoing disturbance of thought, mood, and perception or memory, and

the disturbance would be regarded as significant for clinical diagnostic purposes, and

the disturbance impaired his emotional wellbeing, judgment and behaviour.

The evidence as a whole did not establish that the accused’s impairment was caused solely by the temporary effect of ingesting a substance, or a substance use disorder. Indeed, the evidence established the contrary. As Dr Martin said (in a passage from his report quoted above):

“the mental health impairment was not caused solely by the temporary effect of ingesting a substance or substance use disorder, even if he had recently used drugs prior to the alleged offending [which would seem likely]. … the fact that he has clearly demonstrated sustained major mental health impairment following the alleged offending, while being in a relatively controlled environment, is strong evidence that his condition would not have been caused solely by ingesting a substance”.

Finally, I am satisfied on the balance of probabilities that the accused’s mental health impairment had the effect that, at the time he stabbed the two deceased, the accused did not know that his acts were wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong.

Conclusion on the defence of mental health impairment

For these reasons, having regard to the evidence as a whole and, in particular, the unchallenged, well founded and consistent opinions of the psychiatrists, I am satisfied to the requisite standard that each of the elements of the defence of mental health impairment in respect of each of the counts of murder has been made out and also that the requirements of s 28(1) and (2) of the MHCIFP Act have been met.

Conclusion

In circumstances where the defence of mental health impairment has been made out in respect of each offence, it is not necessary to consider further whether the requisite intent has been established for any of the offences charged.
The appropriate verdict is, therefore, in respect of each of counts 1 and 2, a special verdict of act proven but not criminally responsible.

Verdicts

Accordingly, the Court orders:

In respect of count 1, a special verdict of act proven but not criminally responsible is to be entered.

In respect of count 2, a special verdict of act proven but not criminally responsible is to be entered.

Victim Impact Statements

These verdicts having been entered, the Court has received victim impact statements under s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court acknowledges that victim impacts statements were received from:

Mr Shawn Finlay, Mr Finlay’s brother, which was read by Mr Glen Finlay, Mr Finlay’s father;

Ms Shauna Watson, Mr Watson’s sister, which was read by her by audio-visual link; and

Mr Brett Hall and Mr Brett Walton, which was read by Mr Hall.

The victim impact statements speak eloquently of the great loss to the families and loved ones of Steven Finlay and Mitchell Watson.
Before announcing the further orders of the Court, it is appropriate to acknowledge that the deaths of Steven Finlay and Mitchell Watson are a human tragedy, rather than allowing what tragically occurred to be treated only as the subject of a criminal proceeding by way of a special hearing. The deaths of these two men in such horrifying circumstances has been devastating for those who loved or knew each of Mr Finlay and Mr Watson.
To Mr Finlay’s and Mr Watson’s families, loved ones and friends, the Court extends its condolences and sympathy for this great loss.
Furthermore, under s 30N(4) of the Crimes (Sentencing Procedure) Act, the Court is required to give a copy of the victim impact statement to the MHRT so that what has been said today will not be lost.

Further Orders and directions

Accordingly, in addition to the entry of the verdicts of act proven but not criminally responsible, Court orders:

Pursuant to s 61(2) and s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Christopher Bouggas is to be detained in his present place of custody, or at such other place as is lawfully determined, until such time as he is released by due process of law.

Pursuant to s 67 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Christopher Bouggas is referred to the Mental Health Review Tribunal.

The Court directs that:

The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders within 7 days and is to provide to the Tribunal:

a copy of the judgment and orders;

copies of exhibits including the reports of Dr Martin and Dr Nielssen and copies of the victim impact statements of Shawn Finlay, Shauna Watson, and Brett Hall and Brett Walton.

The Registrar of the Court is to notify Justice Health of these verdicts and orders and provide a copy of the judgment and orders together with each of the reports of Dr Martin and Dr Nielssen to Justice Health within 7 days.

**********

Endnotes

Decision last updated: 07 March 2025

Medium Neutral Citation:	R v Bouggas [2025] NSWSC 122
Hearing dates:	11 – 15, 18 – 21, 25 November and 5 December 2024
Date of orders:	28 February 2025
Decision date:	28 February 2025
Jurisdiction:	Common Law - Criminal
Before:	Wright J
Decision:	(1) In respect of count 1, a special verdict of act proven but not criminally responsible is to be entered. (2) In respect of count 2, a special verdict of act proven but not criminally responsible is to be entered. (3) Pursuant to s 61(2) and s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Christopher Bouggas is to be detained in his present place of custody, or at such other place as is lawfully determined, until such time as he is released by due process of law. (4) Pursuant to s 67 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Christopher Bouggas is referred to the Mental Health Review Tribunal. Directions: (1) The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders within 7 days and is to provide to the Tribunal: (a) a copy of the judgment and orders; (b) copies of exhibits including the reports of Dr Martin and Dr Nielssen and copies of the victim impact statements of Shawn Finlay, Shauna Watson, and Brett Hall and Brett Walton. (2) The Registrar of the Court is to notify Justice Health of these verdicts and orders and provide a copy of the judgment and orders together with each of the reports of Dr Martin and Dr Nielssen to Justice Health within 7 days.
Catchwords:	CRIME – murder – special hearing – whether acts causing death were the acts of the accused – circumstantial case – accused’s acts caused the deaths of the two deceased – no point of principle MENTAL HEALTH – criminal proceedings –accused unfit to stand trial – defence of mental health impairment – whether accused had a mental health impairment at time of carrying out the acts – whether the mental health impairment had the effect that accused did not know the nature and quality of the act and that the act was wrong – requirements of s 28(1) and (2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) met – defence of mental health impairment made out CRIME – murder – defences – mental health impairment – where unanimous expert evidence established defence of mental health impairment available – verdict of act proven but not criminally responsible – no point of principle EVIDENCE – hearsay – exceptions – criminal proceedings – Evidence Act section 65(1) and (2)(c) – where maker of representations not available to give evidence – whether representation made in circumstances that make it highly probable that the representations reliable – not established that representations made in such circumstances – no objection to admission of representations for purpose of mental health impairment defence EVIDENCE – tendency and coincidence evidence – criminal proceedings – whether evidence has significant probative value – evidence established state of mind rather than tendency and thus did not have significant probative value in establishing the asserted tendency – evidence did not have significant probative value in establishing that improbable that the events occurred coincidentally – evidence rejected as tendency and coincidence evidence - no objection to admission of the evidence for purpose of mental health impairment defence and, in some cases, as to the accused’s state of mind
Legislation Cited:	Evidence Act 1995 (NSW) ss 59, 65, 67, 94, 97-98, 101 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 28, 33, 36, 38, 53- 56, 58-59, 61, 67
Cases Cited:	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 Bouggas [2023] NSWSC 352 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 NSWLR 490; [2005] NSWCCA 226 R v Siemek (No. 1) [2021] NSWSC 1292 R v Singh (No 4) [2021] NSWSC 75 Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Category:	Principal judgment
Parties:	Rex (Crown) Christopher Bouggas (Accused)
Representation:	Counsel: P Hogan / S Gul (Crown) T Quilter (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Alexanders Lawyers (Accused)
File Number(s):	2022/0028868
Publication restriction:	An order, subject to specified limitations, prohibiting disclosure of any information that reveals, or tends to reveal the true identity of Witness X, including the name of Witness X, any visual or other description of the physical appearance of Witness X or the place of residence or work of Witness X, which order applies throughout the Commonwealth of Australia for a period of 50 years. Ancillary orders in relation to the application for the non-disclosure order.