R v Boujandy (No. 4) - [2023] NSWDC 124

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Boujandy (No. 4) [2023] NSWDC 124
Hearing dates: 5 September 2022
6 September 2022
7 September 2022
8 September 2022
9 September 2022
12 September 2022
13 September 2022
15 September 2022
20 October 2022
28 March 2023
Date of orders: 28 March 2023
Decision date: 28 March 2023
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1) The penalty hearing is to continue on 13 and 14 July 2023.
(2) I confirm Order 5 made 1 December 2022 and direct a report pursuant to s 66(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a forensic psychiatrist as to the condition of the defendant and whether release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.

Catchwords:
CRIME – Procedure – Penalty Hearing following Special Hearing – s 32(1) Mental Health (Forensic Provisions Act 1990 – “in the course of the hearing of the proceedings”

Legislation Cited:
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Criminal Procedure Act 1985 (NSW)

Cases Cited:
Mo v DPP [2023] NSWDC 27
Kitchingman v R [2023] NSWCCA 4

Category: Procedural rulings
Parties: Rex (Crown)
Charles Boujandy (Defendant)
Representation:
Counsel:
Crown: Mr M Paish (Crown)
Defendant: Ms S Carr (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Duffy Law Group (Defendant)

File Number(s): 2019/372995
2019/269086
2019/256031

Judgment ex tempore

HIS HONOUR: By judgment delivered 20 October 2022 I found that I was satisfied, beyond reasonable doubt, on the limited evidence available and by separate determination, that the defendant committed a number of offences which were before the Court pursuant to s 166 Criminal Procedure Act 1985 (CPA). In that principal judgment at [322] and [323] I observed as follows:

“During closing submissions, the Crown informed the Court, (see s 166(1)(a) of the CP Act) that each of the s 166 matters concerned a separate and not a related or back up offence. The Crown sought a separate verdict in relation to each matter before the Court pursuant to s 166. Counsel for the defendant stated that she could not offer any submission to the contrary, for the purposes of s 166 and s 167; Outline Submission on behalf of the Defendant (MFI 17), at last paragraph, pg 5.
Each of the s 166 matters relates to a separate specific act and often concerning a different person to the principle offence arising from the occasion. In any event, each of them is an allegation of a separate specific offence. In my opinion it would be inappropriate in those circumstances to order that any of the s 166 charges be dismissed. It is in the interests of justice that separate verdicts be entered in relation to each charge, whether or not the defendant is found guilty beyond reasonable doubt, on the limited evidence available, that he committed another indictable offence arising from…

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 Boujandy (No. 4)

Details

AGLC: R v Boujandy (No. 4) [2023] NSWDC 124
Case: [2023] NSWDC 124
Decision Date: 28 March 2023

CaseChat Overview and Summary

In the matter of R v Boujandy (No. 4), the defendant, who has been previously found unfit to plead, faces a penalty hearing following a special hearing under the Mental Health (Forensic Provisions) Act 1990. The case was before the Supreme Court of New South Wales, presided over by Justice Smith. The central issue in this case revolves around the procedure for conducting a penalty hearing after a special hearing has determined that the defendant is unfit to plead due to mental health issues. Specifically, the court had to decide whether it was permissible to continue the penalty hearing while awaiting the outcome of a forensic psychiatrist's report regarding the defendant's current condition and the potential risk to public safety.

The court's reasoning focused on the statutory framework provided by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The primary concern was to ensure that the hearing process complied with legislative requirements, particularly those pertaining to the defendant's mental health status and the potential risks involved. Justice Smith emphasised the need for a comprehensive evaluation of the defendant's current condition before proceeding with the penalty hearing. The court acknowledged the importance of balancing the defendant's rights with the need to protect public safety, ultimately deciding that the penalty hearing could proceed on the scheduled dates of 13 and 14 July 2023, contingent on the forensic psychiatrist's report. This report is critical in determining whether the defendant's release could seriously endanger the safety of the defendant or any member of the public.

In light of these considerations, the court confirmed the previous order made on 1 December 2022 and mandated that a report be prepared in accordance with section 66(1) of the Act by a forensic psychiatrist. This report is to assess the defendant's current condition and the risk factors associated with potential release. The court's final orders reflect a careful approach to ensuring that all legal and procedural requirements are met while safeguarding public safety. The penalty hearing will continue as scheduled, subject to the findings and recommendations of the forensic psychiatrist's report.

Orders

Orders of the court

(1) The penalty hearing is to continue on 13 and 14 July 2023.

(2) I confirm Order 5 made 1 December 2022 and direct a report pursuant to s 66(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a forensic psychiatrist as to the condition of the defendant and whether release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Boujandy (No. 4) [2023] NSWDC 124
Hearing dates:	5 September 2022 6 September 2022 7 September 2022 8 September 2022 9 September 2022 12 September 2022 13 September 2022 15 September 2022 20 October 2022 28 March 2023
Date of orders:	28 March 2023
Decision date:	28 March 2023
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) The penalty hearing is to continue on 13 and 14 July 2023. (2) I confirm Order 5 made 1 December 2022 and direct a report pursuant to s 66(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a forensic psychiatrist as to the condition of the defendant and whether release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.
Catchwords:	CRIME – Procedure – Penalty Hearing following Special Hearing – s 32(1) Mental Health (Forensic Provisions Act 1990 – “in the course of the hearing of the proceedings”
Legislation Cited:	Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Criminal Procedure Act 1985 (NSW)
Cases Cited:	Mo v DPP [2023] NSWDC 27 Kitchingman v R [2023] NSWCCA 4
Category:	Procedural rulings
Parties:	Rex (Crown) Charles Boujandy (Defendant)
Representation:	Counsel: Crown: Mr M Paish (Crown) Defendant: Ms S Carr (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Duffy Law Group (Defendant)
File Number(s):	2019/372995 2019/269086 2019/256031