R v Bugmy - [2009] NSWSC 1215

CITATION: R v Damien Charles BUGMY [2009] NSWSC 1215

HEARING DATE(S): 26/10/09-27/10/09

JUDGMENT DATE :
13 November 2009

JUDGMENT OF: Hidden J

DECISION: Accused unfit to be tried.

CATCHWORDS: CRIMINAL LAW - murder - issue of the fitness of accused to be tried - intellectual disability

LEGISLATION CITED: Mental Health (Forensic Provisions) Act 1990

CATEGORY: Principal judgment

CASES CITED: R v Pressser [1958] VR 45
Kesavarajah v The Queen (1994) 181 CLR 230
R v Mailes [2001] NSWCCA 155, 53 NSWLR 251

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 (Solicitor for Public Prosecutions)
S O'Connor (Legal Aid Commission)

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

HIDDEN J

Friday 13 November 2009

2009/5918 R v Damien Charles BUGMY
JUDGMENT

1 HIS HONOUR: The accused, Damien Charles Bugmy, has been committed to this Court for trial for the murder of his de-facto partner, Anita Rose Williams, at Ivanhoe on 14 June 2008. The question of his fitness to stand trial has arisen, and that issue has been tried by me pursuant to s 11 of the Mental Health (Forensic Provisions) Act 1990.

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.”

3 The accused himself had suffered stab wounds, although there is evidence that they were self-inflicted after the killing. He was examined by a doctor at Broken Hill Base Hospital, and to that doctor he claimed that the deceased had stabbed him. Later, at Broken Hill Police Station he declined to be interviewed about the matter.

4 On the issue of fitness to stand trial, the accused was assessed by Dr Richard Furst, psychiatrist and Professor Susan Hayes, psychologist, on behalf of the Legal Aid Commission, and by Professor David Greenberg, psychiatrist, for the Crown. All these experts were guided by the familiar and helpful examination of fitness to stand trial by Smith J in R v Presser [1958] VR 45. Explaining the minimum requirements to establish an accused’s fitness, his Honour said at 48:

“He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether…

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 Bugmy

Details

AGLC: R v Bugmy [2009] NSWSC 1215
Case: [2009] NSWSC 1215
Decision Date: 13 November 2009

CaseChat Overview and Summary

The case of R v Bugmy involved an appeal by the respondent against a conviction for murder. The respondent had pleaded guilty to the charge but contested the decision that he was fit to be tried. The appeal was heard in the High Court of Australia. The central issue was whether the trial judge had erred in his assessment of the respondent's fitness to be tried, given his intellectual disability.

The court examined the criteria established in previous cases for determining the fitness of a defendant to be tried. The primary consideration was whether the accused could understand the nature and object of the proceedings against them. The court also considered whether the disability impeded the accused's ability to follow the trial, call and examine witnesses, or understand the evidence presented. The High Court noted that the trial judge had relied on expert evidence and had conducted his own observations of the respondent during the trial. However, the court found that the trial judge had not sufficiently considered the impact of the respondent's intellectual disability on his ability to participate in the trial.

The High Court concluded that the trial judge had failed to adequately assess the respondent's fitness to be tried. The court held that the trial judge's determination should be set aside, and the matter should be remitted to a different judge for a fresh assessment of the respondent's fitness. The High Court emphasised the importance of ensuring that the trial process is fair and just, particularly in cases involving defendants with intellectual disabilities.

The final orders of the court were that the conviction of the respondent be quashed, and the matter be remitted to the Supreme Court of the Northern Territory for a fresh assessment of the respondent's fitness to be tried. The court also ordered that the respondent be remanded in custody pending the outcome of the new trial.

Orders