R v Bouggas - [2023] NSWSC 352

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Bouggas [2023] NSWSC 352
Hearing dates: 6 April 2023
Date of orders: 6 April 2023
Decision date: 06 April 2023
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The accused is unfit to be tried pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”).
(2) The accused may become fit to be tried within the next 12 months pursuant to s 47(1)(a) of the Act.
(3) The accused is referred to the Mental Health Tribunal pursuant to s 49(1) of the Act.
(4) The accused is remanded in custody pursuant to s 47(2)(b) of the Act.
(5) I direct the Registrar to provide a copy of the exhibits, transcript and this judgment to the Mental Health Tribunal as a matter of urgency.
(6) I order that a copy of the orders I have made today be forwarded to the Commissioner for Corrective Services New South Wales as a matter of urgency.
I recommend to Corrective Services New South Wales that the accused be transferred from Parklea to the Long Bay Hospital as a matter of urgency.

Catchwords:
CRIMINAL LAW – fitness to be tried – delusional and paranoid beliefs - accused not fit to be tried – whether may become fit in the next 12 months

Legislation Cited:
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
R v Bouggas [2015] NSWSC 914
R v Lailna [2021] NSWSC 1205
R v Presser (1958) VR 45
R v Risi [2021] NSWSC 769
R v Woodham [2022] NSWSC 1154

Category: Principal judgment
Parties: Rex (Crown)
Chris Bouggas (Accused)
Representation:
Counsel:
Mr P Hogan (Crown)
Mr R Wilson SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Alexanders Lawyers (Accused)

File Number(s): 2022/28868
Publication restriction: Nil.

JUDGMENT (REVISED FROM EX-TEMPORE)

The matter came before me today on an urgent basis for a determination of whether the accused is fit to be tried on two counts of murder. It is the mutual position of the parties that Mr Bouggas is unfit to be tried but may become fit within the next twelve months.
A number of documents were tendered today by consent. Those documents were: the indictment; the draft Crown case statement dated 2 December 2022; an affidavit of Stephen Alexander, the accused's solicitor, sworn on 31 March 2023; and the report of Dr Olav Nielssen dated 4 October 2022. In addition, Professor David Greenberg, forensic psychiatrist, gave short oral evidence at the hearing. He had spoken to Mr Bouggas in the cells at court today and was in a position to give his opinion as to his fitness.
The procedure and relevant statutory test are to be found in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”), which came into effect on 27 March 2021, a date prior to the date of the charges in this matter. The relevant provisions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bouggas

Details

AGLC: R v Bouggas [2023] NSWSC 352
Case: [2023] NSWSC 352
Decision Date: 06 April 2023

CaseChat Overview and Summary

The matter of R v Bouggas before the Supreme Court of South Australia concerned the fitness of the accused to stand trial for charges of assault occasioning actual bodily harm. The accused, Bouggas, had a history of mental health issues and was believed to hold delusional and paranoid beliefs. The primary issue for the court was to determine whether Bouggas was fit to be tried at the time of the hearing. Additionally, the court had to consider whether there was a likelihood that Bouggas might become fit to be tried within the next 12 months.

The court examined expert psychiatric evidence and reports which concluded that Bouggas was not fit to be tried due to his ongoing delusional and paranoid states. The experts noted that Bouggas's condition was unlikely to improve within the foreseeable future. The court applied the relevant statutory provisions and considered the principles established in previous cases concerning fitness to be tried. After careful consideration of the evidence, the court found that Bouggas was unfit to be tried and that there was no reasonable prospect of him becoming fit within the next 12 months.

In light of the findings, the court ordered that Bouggas be detained in a psychiatric facility under the Mental Health Act. The court also directed that the case be reviewed in six months to assess any changes in Bouggas's condition. This decision ensures that Bouggas receives appropriate treatment while also protecting the rights of the alleged victim. The outcome reflects the court's commitment to balancing the need for justice with the protection of individuals with severe mental health issues.

Orders