R v Bouggas

Supreme Court of NSW|2023-04-06|Before: Adams J, Mr P, Beech-Jones J, Hamill J

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 the Act were considered by Beech-Jones J (as his Honour then was) in R v Risi [2021] NSWSC 769 and by Hamill J in R v Lailna [2021] NSWSC 1205. The Crown also relied upon the decision of Hamill J in R v Woodham [2022] NSWSC 1154.
I propose to briefly outline the Crown case against Mr Bouggas before turning to consider the evidence relevant to his mental state and the relevant test for determination as to whether he is fit to stand trial. I consider it appropriate to set out the Crown case, given that one of the matters I must have regard to in s 36(5) of the Act is the likely length and complexity of the trial.

The Act

The question of an accused person's fitness to stand trial is to be found in Part 4 of the Act. Division 1 (ss 35-39) sets out preliminary matters.
The test for unfitness is found in s 36 of the Act, which provides as follows: 36 Fitness test (1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following - (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. (2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.
As Beech-Jones J observed in R v Risi at [9], s 36 appears to reflect the test stated in R v Presser (1958) VR 45.
Section 37 provides for when the question of fitness may be raised.
Section 38 of the Act provides that the question of a person's fitness is to be determined on the balance of probabilities.
Section 39 provides that either the court or any other party may raise an issue as to fitness.
Division 2 of Part 4 provides for the procedure to be applied when the question of unfitness at trial is raised.
Section 40(1) of the Act provides that when, as occurred here, the question of the accused's fitness is raised before he is arraigned, the Court must hold the inquiry.
Section 44(3) provides that an inquiry is not to be conducted in an adversarial manner.
Section 44 of the Act sets out the procedures to be followed and is in these terms: 44 Inquiry procedures (1) The question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone. (2) At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows. (3) An inquiry is not to be conducted in an adversarial manner. (4) The onus of proof of the question of a defendant's unfitness to be tried for an offence does not rest on any particular party to the proceedings. (5) In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following - (a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, (b) the likely length and complexity of the trial, (c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner. Note - The test for determining whether or not a person is unfit to be tried for an offence is set out in section 36. (6) A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.
Sections 47 to 53 deal with the consequences of a finding that a person is unfit. Significantly, s 47 is in these terms: 47 Finding after inquiry that defendant is unfit to be tried (1) If a defendant is found unfit to be tried for an offence following an inquiry, the court must also determine whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness, the defendant - (a) may become fit to be tried for the offence, or (b) will not become fit to be tried for the offence. (2) The court may do one or more of the following after a finding that a defendant is unfit to be tried for an offence - (a) make an order discharging a jury constituted for the purpose of the proceedings, (b) adjourn the proceedings, (c) grant the defendant bail in accordance with the Bail Act 2013, (d) make an order remanding the defendant in custody, (e) make other orders that the court thinks appropriate.
Section 48 provides that, if a finding is made in accordance with s 47(1)(b), then the court is to deal with the matter in accordance with Division 3 of Part 4 of the Act and conduct a special hearing.
Section 49(1) provides that, if a finding is made in accordance with section 47(1)(a), then the court must refer the relevant accused to the Mental Health Review Tribunal for review. Sections 50 and 51 of the Act deal with that review.

The accused's background

The accused was born in January 1981. He comes from a supportive family who were involved in the printing business. He worked for his family on and off for some time. He is the youngest of three children. Both of his parents are now retired. He attended school until Year 10. When he finished school, he completed a printing apprenticeship, and worked as an apprentice carpenter and construction labourer. He was granted the Disability Support Pension around the age of 24. He has resided in Department of Housing tenancies on several occasions. He explained to Dr Nielssen that he has never had any long or de facto relationships because "I was always on drugs". He has no children.
Regrettably, Mr Bouggas has a lengthy history of alcohol abuse and excessive consumption of prohibited drugs. He started binge drinking and taking cannabis at the age of 15. He was using amphetamine and cocaine by the age of 18 and began to experience intense paranoia as a result of his use of prohibited drugs. He was using ice intravenously by the age of 22.
He has a criminal history and has previously been imprisoned for killing a man. He pleaded guilty to manslaughter and was sentenced by McCallum J, as her Honour then was, on 10 July 2015 to a non-parole period of 5 years imprisonment with the balance of terms of 3 years: R v Bouggas [2015] NSWSC 914. The only mental health problem raised at those proceedings on sentence was his substance abuse disorder.
The remarks on sentence of McCallum J suggest that when the accused is drug free his family observed improvements in his outlook.
The accused's father told Dr Nielssen that the accused went off the rails when he was 18 and was admitted to Rozelle Hospital at the age of 19. He became increasingly delusional and drifted away from them as he got older. When he was in custody serving his sentence for the manslaughter offence, he went off his medication and was able to source illicit drugs in gaol. Mr Bouggas senior said he came out of custody worse than when he entered. He is not in constant contact with his family because they want him to stay on his medication, but he voluntarily keeps stopping it. Mr Bouggas senior also described his son as being very religious, having read the bible and some of the Koran. He told Dr Nielssen: "I will tell you now … he is not well … if he is not on his medication he is not with this world."

Evidence of the accused's mental state

Dr Nielssen spoke with Mr Bouggas on 15 June 2022 and again by audio-visual link on 10 August 2022. A significant portion of that report concerns what Mr Bouggas told Dr Nielssen. Although those answers are relevant to the accused's understanding of the legal process, in the absence of other material it was not always clear to me how much of that personal history related to Dr Nielssen was accurate.
In his report, Dr Nielssen summarised the answers given by the accused during his interviews with him about the legal proceedings. The accused told him that "it is wiser to sit back and wait for the brief to be served. There is another suspect." When Dr Nielssen took him to the brief, the accused understood that a brief of evidence had been served on his lawyer, but he had not yet seen the evidence in the case against him. He told Dr Nielssen that "10 pages into the brief I can prove I was not guilty" and that "there is a lot of strange things going on in the world these days". He also told Dr Nielssen: "If it is a forensic case, that is all I have to say. If I have to go to trial and tear the brief apart, I will."
When Dr Nielssen asked him about the trial procedure, Mr Bouggas told him that he had been to court before on a number of occasions but that he had never been required to give evidence on his own behalf. He told Dr Nielssen that although he did not always follow what was said in court, he generally was able to understand what his lawyers told him afterwards.
Dr Nielssen also asked him about his mental state at the time of the deaths. He confirmed that in the months before the offence he had been taken by police to hospital and detained under the Mental Health Act. When Dr Nielssen asked him about his mental state at the time of that admission, he said to him: "I saw a Court Attendance Notice that said child pornography … we were talking about a few things … things got a little heated … and they called the police to get me out of the house." He told Dr Nielssen that his stay at Concord Hospital was extended because of "temper problems towards the nurses". He also told him that he was not sure about the label of schizophrenia but that he agreed to a community treatment order ("CTO") that required him to accept injections of Clopixol in order to be released from Concord Hospital.
Dr Nielssen set out a number of other answers provided by the accused which suggest a significant thought disorder. For example, when Dr Nielssen asked him about a witness statement in the brief, Mr Bouggas responded as follows: "… there is such a thing as ESP and telepathy … I have read the whole Bible and it explains the thing. … when someone is above you and talking in a language that is definitely demonic … it has different levels to it … there's demonic and then there is chanting … it sounds horrible … what am I supposed to do … report it? … everyone basically knows that worshipping demons is wrong."
Mr Bouggas also described his situation in custody as being "kind of a blessing in disguise because I wanted out of the house. It has worked in my favour. I am good with it."
Dr Nielssen also examined other documentation. Contrary to the facts of the manslaughter charge as set out in McCallum J's judgment, Mr Bouggas told his parole officer that that deceased deserved to die because he was a paedophile.
Dr Nielssen had regard to the Justice Health records and noted that when he entered custody in 2012 Mr Bouggas reported that he was receiving treatment for schizophrenia. The records note a history of drug-induced psychosis and a diagnosis of bipolar disorder. An assessment by a psychiatrist upon reception to the Mental Health Screening Unit noted that the accused threatens to harm any inmate who has been charged with paedophilia.
It was noted that Mr Bouggas also has a history of anxiety. An entry in 2016 noted no evidence of psychosis at that time. A subsequent entry in 2017 noted he had ceased his medication. Although on 8 February 2017 it was noted that he had "erratic thoughts", a psychiatrist on 22 February 2017 found no evidence of psychosis.
The Concord Hospital records show that Mr Bouggas was brought to hospital on 28 July 2021 after threatening his flatmate with a knife. He reported to have expressed persecutory beliefs about Muslims, paedophiles, the need to protect babies and government tracking his movements. A urine drug screen on admission was negative.
After being discharged on a CTO, his parole expired on 29 September 2021 and his parole officer expressed concern about that.
A mental health assessment on 6 October 2021 noted that he had ceased taking his medication in tablet form. His depot injections do not appear to have been regular after that.
Dr Nielssen concluded the following: "Mr Bouggas was assessed to be unfit for trial in accordance with the criteria set out in Section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act, because of the effects of untreated psychotic illness on his ability to make a defence to his charges and provide reliable instructions to his legal representatives. He understands the charges he faces and indicated that he intended to plead not guilty on the grounds that he did not commit the offences, and not because he was in an abnormal state of mind that affected his behaviour. He is aware of the procedure followed in an adversarial trial, and that he would be able to understand legal advice. However, he has active psychotic symptoms and evolving persecutory beliefs that would be likely to affect his perception of the fairness of the proceedings, his ability to respond to the evidence against him in a rational way, and his ability to form a trusting relationship with a legal representative and to consider legal advice in a rational way. Mr Bouggas has previously made a reasonable response to psychiatric treatment, and is likely to become fit for trial after a period of consistent treatment with an adequate dose of antipsychotic medication. A referral was made to the mental health team at Parklea Correctional Centre recommending they initiate treatment."
Mr Alexander's affidavit deposes that, regrettably, since the date of Dr Nielssen's report, Mr Bouggas' condition appears to have worsened. On 14 February 2023, when he told Mr Bouggas that he would be examined by Professor Greenberg, Mr Bouggas told him that he would see him in his underwear. When Mr Alexander spoke with the accused on 27 March 2023 for over an hour with senior counsel, Mr Wilson SC, he described what the accused told him as "an unstoppable fountain of nonsense." The two men were unable to obtain any instructions from him. During that time, Mr Bouggas paced up and down the cell, without any eye contact. Mr Alexander provided examples of the sorts of things that Mr Bouggas said to him. They included comments such as: "I see snakes in my eyes"; "My snot is poison"; "I don't sleep on the bed, there are snakes in the mattress and your soul falls through the mattress, so I sleep on the ground"; "My arse is sodomised by the stuff they put in the food"; "Witchcraft, it actually works"; "Woop is poo backwards"; and "They're all gay".
Mr Alexander is of the opinion that Mr Bouggas' mental health appears to be getting worse over time and is now so bad that it is virtually impossible to have any meaningful communication with him.
At the arraignment process before Wilson J on 9 December 2022, when the matter was listed for this fitness inquiry, Mr Bouggas interrupted her Honour to query that a trial date had been set for 12 December. When her Honour informed him that that was not the case, he replied as follows: "There was, I was in Court last time. It was listed for Supreme Court trial on the 12th, which is Monday. This is ridiculous. It is a demonic gaol, or the people that work here are demonic. I am telling you now this is not correct. I am not standing for this. There was a trial date on Monday and I said I wanted to get out of this prison on that date. I wanted a change of circumstance. I want a change of atmosphere. This is insane."
Professor Greenberg was able to interview the accused in the cells at court today, and he gave short evidence at the hearing of this matter. He described Mr Bouggas as being floridly psychotic and out of touch with reality. He described him as being thought disordered and his language to be tangential and circumstantial. He described him as being deluded regarding the bible, the Koran and sexual matters, including paedophilia and homosexuality. He observed that Mr Bouggas believes that people can read his thoughts, and that he believes that paedophiles are breaking into his cell at night and raping him.
Significantly, Professor Greenberg described the accused as having no insight into his current mental health illness.
Professor Greenberg further observed that Mr Bouggas cannot keep on a topic. When he asked him about his fitness, Mr Bouggas initially exhibited some understanding of the charges but the longer he spoke the less he was able to answer responsively. To his observation, Mr Bouggas knows that he has been charged with two murders, but he is unable to understand the nature of the charges. When any question is asked of him, he digresses. He is unable to provide instructions, in Professor Greenberg's opinion, because he is too distracted by his own thoughts. He could not follow proceedings or give instructions on that basis.
Despite this, Professor Greenberg was of the view that it is likely he may become fit. He indicated he could not rule that out, but it is too early to say. That question could not be determined until he is medicated properly.
He described Mr Bouggas as telling him that he was refusing medication in custody, and he was being held in segregation. It emerged that Mr Bouggas is currently at Parklea Correctional Centre and not at Long Bay Hospital. Professor Greenberg was of the opinion that he needs to be trialled on medication, that it is more likely than not he would become fit given his past history, but from a treatment point of view he really should be in the Long Bay Hospital as a matter of urgency.

Consideration

Having regard to the material before me, but in particular the expert evidence of Dr Nielssen and Professor Greenberg, I am satisfied on the balance of probabilities that the accused is currently unfit to stand trial. I am satisfied that he has a mental health impairment in that he suffers from a persistent psychotic illness.
Although s 36 of the Act only requires a person to not be able to do one or more of the matters in s 36(1), I am satisfied on the balance of probabilities that he is not able to understand the offence the subject of the proceedings, plea to the charge, exercise his right to challenge jurors, understand generally the nature of the proceedings as an inquiry into whether he committed the offence with which he is charged, follow the course of the proceedings so as to understand what is going on in a general sense, understand the substantial effect of any evidence given against him, make a defence or answer to the charges, instruct his lawyers so as to mount a defence and provide his version of the facts to his lawyers and to the court if necessary, and to decide what defence he will rely on and make that decision known to his lawyers and the court.
Consistent with Professor Greenberg's observation that he has no insight into his illness, Mr Bouggas sought to be heard during the evidence of Professor Greenberg. When his lawyers spoke to him, Mr Wilson conveyed to the court that it is the position of Mr Bouggas that he does not accept Professor Greenberg's evidence and does not believe himself to be psychotic.
Having come to the conclusion that I am satisfied that Mr Bouggas is unfit to stand trial, I turn next to consider s 47(1) of the Act. The question is whether I am satisfied on the balance of probabilities that during the next 12 months he may become fit to be tried for the offence or he will not become fit to be tried.
As Beech-Jones J pointed out in R v Risi, s 47 of the Act presents the court with a binary choice and the subsection does not contemplate the possibility that the court may be in a state of uncertainty about whether one or the other is the correct position.
Dr Nielssen was of the opinion on 4 October 2022 that with proper treatment Mr Bouggas is likely to become fit. The evidence of Professor Greenberg was the same. To put that another way, Professor Greenberg could not rule out that he might become fit if he was properly treated, which he clearly currently is not.
The accused's mental health history does suggest that if he is being properly medicated and not taking illicit drugs his condition does tend to improve. It is most unfortunate that his condition has been allowed to deteriorate to the extent it has while he is in custody. My experience is that often persons with mental illnesses who are not compliant in the community do stabilise when in the custodial environment.
For those reasons, I am satisfied pursuant to s 47(1)(a) of the Act that Mr Bouggas may become fit to be tried for these offences during the next 12 months.
Having regard to ss 47 to 49 of the Act, the parties were in agreement as to the appropriate orders that follow from that finding.
Accordingly, I make the following orders: 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.

Amendments 11 April 2023 - Coversheet correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2023

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