R v Bugmy

[2010] NSWSC 1473

CITATION:	R v Bugmy [2010] NSWSC 1473
HEARING DATE(S):	16.12.10
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
EX TEMPORE JUDGMENT DATE:	16 December 2010
DECISION:	1. That the matter be listed before the Arraignment Judge on 4 February 2011. 2. That Mr Bugmy be remanded in custody in the meantime.
CATCHWORDS:	CRIMINAL LAW - Fitness to Plead - charge of murder - previous fitness hearing and determined to be unfit - referred to Mental Health Review Tribunal - further review - found fit - second fitness hearing - found fit for trial.
LEGISLATION CITED:	Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Procedural and other rulings
CASES CITED:	R v Bugmy [2009] NSWSC 1215 R v Presser (1958) VR 45
PARTIES:	Regina (Crown) Damien Charles Bugmy (Accused)
FILE NUMBER(S):	SC 2009/5918
COUNSEL:	P Barnett SC (Crown) J Manuell SC (Accused)
SOLICITORS:	S Kavanagh - Sol DPP (Crown) S O'Connor - LAC (Accused)

Extempore - Revised

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

KIRBY J

Friday 16 December 2010

2009/5918 REGINA v Damien Charles BUGMY

JUDGMENT – Fitness to Plead

1 KIRBY J: The accused Damien Charles Bugmy has been committed to the Supreme Court for trial for the murder of his de facto partner Anita Rose Williams. The offence is said to have occurred at Ivanhoe on 14 June 2008. The question comes before me of his fitness to stand trial in respect of that charge, that issue arising under section 11 of the Mental Health (Forensic Provisions) Act 1990.

2 Mr Bugmy was arrested on 14 June 2008, that is, the day of the alleged offence.

3 There was a previous fitness hearing conducted before Hidden J (R v Bugmy [2009] NSWSC 1215) which began on 27 October 2009. His Honour described the Crown case in these terms: ( at [2])

“2. Put shortly, it is the Crown case that the accused fatally stabbed Ms Williams at the house where they were staying in the afternoon of 14 June 2008. Their relationship had not been without its difficulties. He had been drinking during the day of the killing and was well affected. There was no eyewitness to the killing, but the accused went to a nearby house and raised the alarm, asking the occupants of that house to ‘come and check’ Ms Williams because ‘there is something wrong with her’. Ambulance officers and police arrived, and the accused said to the police, ‘She’s dead. I can’t believe I killed her.’”

4 Having received medical evidence, and having heard evidence from Professor Hayes and the then solicitor for Mr Bugmy, that is, Ms Emma Manea, Hidden J, on 13 November 2009, made a determination that, as a matter of probability, Mr Bugmy was unfit to be tried. He then referred the matter to the Mental Health Tribunal.

5 On 21 June 2010, the Mental Health Review Tribunal conducted a determination of fitness and published reasons on that day for its view that Mr Bugmy was fit it be tried. The decision of the Tribunal referred to the medical evidence placed before Hidden J, that included a report from Dr Furst (forensic psychiatrist) and Professor Greenberg (forensic psychiatrist). Both Dr Furst and Professor Greenberg found that Mr Bugmy had sufficient capacity to meet the requirements of what has become known as the Presser Test (Smith J in R v Presser (1958) VR 45 at 48).

6 However, at approximately the same time as the review undertaken by each of these doctors, there was an examination by Professor Hayes. She found, having conducted certain tests concerning the mental capacity of Mr Bugmy, that there were significant deficits and, in her opinion, also deficits in his understanding of the complete range of issues required by the Presser Test. Professor Hayes expanded in these views in her evidence before Hidden J.

7 In her evidence before Hidden J, the then solicitor for Mr Bugmy, Ms Manea, reported her perception of Mr Bugmy’s difficulties in comprehending matters important to his ability to give instructions during the trial that had been foreshadowed.

8 The Review Tribunal also examined material which had become available since Justice Hidden's determination. It included nursing reports that made detailed observations of Mr Bugmy whilst in gaol and his progress. It included a report from Dr Stephen Woods, whose views were set out in the Tribunal's findings. He found that, given time to process information, an appropriate explanation and assistance, Mr Bugmy was fit to stand trial.

9 There was a further report from Dr White before the Tribunal. Dr White had the opportunity of treating Mr Bugmy and had observed him after he entered custody. He found that he had a rudimentary understanding of the Presser criteria and was fit for trial.

10 The Tribunal, in these circumstances, said this:

“The Tribunal has also had regard to the original material before the trial judge and to Mr Bugmy's oral evidence before the Tribunal. On that material, supplemented by the material before the Tribunal, Mr Bugmy appears to be fit for trial. Having regard to issues of culture, educational background and the necessity for fairness in the procedure, it appeared clear that Mr Bugmy was able to sufficiently to instruct his counsel. The Tribunal therefore concluded that for the purposes of section 16 and section 47(4), Mr Bugmy had become fit for trial."

11 The Tribunal's conclusion was, therefore, as follows:

“Having regard to:
The expert oral and written evidence presented by Dr Andrew White, Dr Stephen Woods, Dr Richard Furst, Professor Greenberg, Professor Susan Hayes and Ms Barbara Wojtkowiak; and
The fitness criteria referred to in the decisions of Smith J in Regina v Presser [1958] VR 45 at 48, and Mason CJ, Toohey and Gaudron JJ in Kesavarajah v The Queen (1994) 181 CLR 230 at 245, 246:"

12 In the hearing before me, Ms Kerry Robinson (solicitor), who now acts for Mr Bugmy, was called to give evidence. She was assigned the file on 1 February 2010. The file reached her a matter of weeks after that date.

13 Since that time she has conferred with Mr Bugmy at length on six occasions and had other conversations from time to time, including today. She has discussed with him the trial process and the various options available to him, as well as defences that may be available to him.

14 She has the impression that, over the ten months that she had been seeing him, he has an understanding of the system and the choices available to him. He has been attentive and has exhibited concentration during their conferences. She is satisfied that he understands the defences available and that he is able to give rational and reasonable instructions.

15 Ms Robinson indicated, when cross-examined by the Crown, that, when she inherited the file, she reviewed the material in the file and was aware of the evidence given by Ms Manea and the determination of Hidden J. She was conscious of that material when she conducted her conferences with the accused. She approached the matter cautiously and found him, as I have stated, to be attentive and to exhibit concentration. He was not, to use an expression which appears in the material, "a blank wall". She regarded him as having the requisite capacity according to the Presser criteria.

16 Both the Crown and Ms Manuell SC, who appears for Mr Bugmy, have urged a finding, as a matter of probability, that Mr Bugmy is fit for trial. I am persuaded upon this material that he is fit and I so find.

Orders.

17 This being my determination, I order:

1. That the matter be listed before the Arraignment Judge on 4 February 2011.

2. That Mr Bugmy be remanded in custody in the meantime.

**********