R v Bugmy

Catchwords: MENTAL HEALTH – criminal proceedings – fitness to be tried – where defendant suffering from severe chronic and treatment resistant mental health and cognitive impairments – where experts agree that the defendant is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the defendant is not fit to be tried and will not become fit to be tried within 12 months

Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 44

Cases Cited: Bugmy v The Queen (2013) 249 CLR 531; [2013] HCA 37
R v Risi [2021] NSWSC 769
R v Woodham [2022] NSWSC 1154

Category: Procedural rulings

Parties: Rex (Crown)
William David Bugmy (Defendant)

Representation: Counsel:
C Taylor (Crown)
R Khalilizadeh (Defendant)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Defendant)

File Number(s): 2023/00233561

Publication restriction: Nil

JUDGMENT

1. As set out in the Indictment made on 21 February 2025, the defendant, William David Bugmy, is charged with the murder of Talbot Ward at Newtown on 21 July 2023.

2. The defendant raises his fitness to stand trial as an issue. The matter thus came before me on 7 May 2025 for the purpose of an inquiry into the defendant’s fitness to stand trial. The procedure for such an inquiry is set out in Division 2 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”).

3. As set out in s 44, the question of a defendant’s unfitness to be tried is to be determined by judge alone. The defendant must be represented by an Australian legal practitioner and an inquiry is not to be conducted in an adversarial manner.

4. Further, the onus of proof as to a defendant’s unfitness to be tried does not rest on any particular party in the proceedings.

5. In addition to considering any other matter the Court thinks fit, the Court is to consider a number of mandatory matters including:

(a) whether the trial process can be modified or assistance can be provided to facilitate the defendant’s understanding and effective participation in the trial; (b) the likely length and complexity of the trial; and (c) whether the defendant is represented by an Australian legal practitioner or can obtain representation by an Australian legal practitioner.

6. I have regard to these principles and procedures in coming to my decision.

7. Section 36 of the Act specifies what is described as “the fitness test” 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.

8. As set out in s 36, for the purposes of the proceedings, the defendant is taken to be unfit to be tried if, because he has a mental health impairment or cognitive impairment, or both, or for another reason, he cannot do one or more of the matters set out in paragraph 36(1)(a) to (i).

9. In determining whether an accused person may be unable to do one or more of the matters referred to therein, it is necessary to have regard to all of the available evidence and specifically any expert medical evidence relevant to the determination.

10. Although these proceedings are at an early stage, both the Crown and the defendant have obtained independent psychiatric reports as to the defendant's fitness to stand trial. In addition, the Crown relies on the Crown Case Statement which sets out the circumstances of the offending from the Crown’s perspective.

11. The Crown relies on a report from Dr Adam Martin dated 22 November 2024. The defendant relies on a report from Dr Sathish Daylan dated 12 August 2024.

12. The opinions of both doctors are similar and are to the effect that the defendant is not fit to stand trial.

13. In the circumstances, the Crown and the defendant adopt a similar approach to the issue, but it still remains necessary for me to be satisfied that the defendant is unfit to stand trial. As set out in s 44(6), my determination must include the principles of law applied and the findings of fact relied upon. This judgment contains those principles and findings.

Background

14. The defendant is currently 43 years of age. He is incarcerated.

15. Prior to the death of Mr Ward, he shared accommodation with two other persons who were also friends with the deceased. The defendant and the deceased knew each other. They lived in adjacent unit blocks.

16. The defendant had previously been diagnosed with a number of relevant medical conditions including schizophrenia, psychosis, cognitive learning difficulties, anxiety, depression and addiction to methylamphetamine. He received a monthly Suboxone injection and received assistance through NDIS and had a support worker. His support worker used to visit him every day.

17. Both the defendant and the deceased appear to have been long-term users of drugs. It may be that, at the time of his death, the deceased was supplying drugs to the defendant.

18. The defendant has a criminal history (see Bugmy v The Queen (2013) 249 CLR 531; [2013] HCA 37). As will be apparent from that judgment, the defendant is a person who was subject to significant trauma and violence and issues which have impacted upon him on a long-term basis. At the time of the events leading to these proceedings the defendant was living independently in the community (having been released from prison), albeit he received considerable support from his support worker.

19. On the Crown case, a conflict developed between the defendant and the deceased some weeks before the deceased’s death. The defendant had been observed bashing on the door of the deceased’s apartment with an axe and threatening the deceased. The Crown says that the deceased had informed the defendant’s support worker that the defendant had threatened to cut him from ear to ear.

20. 21 July 2023 was the deceased’s birthday. The defendant received a visit from his support worker that day who noted that he appeared to be in a frenzy and he was talking and mumbling to himself. He said: “leave me alone, I’m fucked in the head”. He told his support worker to leave.

21. During the course of the afternoon and evening a number of persons visited the deceased at his home for his birthday. Around 7:00pm, the defendant told one of his flatmates he was going to visit the deceased. Another person, Julian Gold, also decided to visit the deceased. Mr Gold arrived after the defendant and was greeted by the defendant who asked him to sit next to him on the couch. Mr Gold was reluctant to do so as he did not trust him and was aware that the defendant had previously threatened a person with an axe.

22. On the Crown case, a “fit” of methylamphetamine was on the coffee table in front of the defendant. There was some conversation as to what was in the fit. The defendant continued to ask Mr Gold to sit next to him and Mr Gold ultimately did so, moving to sit on the lounge.

23. Shortly thereafter the deceased asked the defendant to get something for him. The defendant said he would. He stood up and walked towards the deceased. He appeared to trip over, landing on the deceased, at which time he started attacking him. Initially Mr Gold thought that he was punching him, but he then realised that the defendant was holding a knife. As he stabbed the deceased the defendant shouted: “where is the money, where is the money” repeatedly.

24. There was then some shouting about an ambulance and the deceased asking Mr Gold not to leave him. Mr Gold punched the defendant in the back of the head and tried to restrain him, but the defendant escaped from his grip. He then observed the deceased was lying on his back on the floor with his head towards the lounge and his feet towards his kitchen. Although he did not recall seeing any blood, the deceased was asking him to call an ambulance, which he did.

25. Mr Gold called 000 at about 7:01pm and then left the scene. He went to a friend’s house and told his friend a version of what had occurred and then went back to his girlfriend’s house, although he did not tell her what occurred.

26. The defendant returned home around 8:00pm and insisted to his flatmate that she should turn the lights off as there were police outside.

27. Police attended the deceased’s home around 8:12pm. Despite attempts to revive him, he was declared dead at the scene.

28. During the night the defendant’s flatmate, Jodie Robinson, observed the defendant behaving strangely, including coming into her bedroom and whispering things. He was sitting on his bed with his pants down. He suggested she was perving on him. The other flatmate, Vanessa Gow, returned home around 11:30pm. She also thought that the defendant was acting strangely and was huddled on the ground saying: “help me, I’m sick, help me”.

29. Meanwhile, police were investigating what had occurred. The defendant became a person of interest. He was observed riding his red bicycle towards police officers at around 9:15am the next day. When he stopped, he threw his bicycle to the ground and ran. He was shouting: “I’m not a paedophile, I didn’t rape my daughter”. He went towards his door and started banging on it and shouting: “Jodie, Jodie, open the door!” He then yelled at Ms Robinson: “The police are charging me with rape. They’re saying I raped my kids”. He then grabbed some knives from the kitchen, walked to the front door and opened it. He was yelling: “I’m not a rapist”. The police drew their weapons and after several minutes he put the knives down and was arrested.

30. He was taken outside and, whilst he was sitting on the steps outside, he continued to protest that he was not a rapist. When informed that he was under arrest in connection with murder, he protested that he was not a murderer. He was taken to Newtown Police Station but did not participate in an interview.

31. Whilst in the police station with the support worker, he appeared to be shocked and asked how the deceased died, questioning why it would be thought that he did it.

32. Excerpts of the police body worn video on 22 July 2023 were shown as part of the fitness hearing. The defendant was presenting in both a distressed and confused state. He continued to deny that he was a rapist or paedophile and seemed surprised when the suggestion of killing someone was mentioned to him. There is no reason to think that this was some sort of feigned response.

33. Having regard to the Crown Case Statement, the evidence obtained by the Crown and images shown on the body worn video, it appears that:

(i) the attack on the deceased was spontaneous and savage. It appears not to have been brought upon by any particular conversation or event which happened in the deceased’s unit immediately before the attack. (ii) the defendant’s behaviour the next day was erratic and delusional. He presented as being distressed and shocked at the suggestion to him that he had been involved in a murder.

Expert evidence

34. The question of fitness having been raised, both the Crown and the defence obtained independent medical reports. The experts were not cross-examined on the hearing. Indeed, there is really no dispute between the parties as to the content and opinions of the experts and the opinions expressed in the expert reports.

Dr Martin

35. Dr Martin examined the defendant in person at Long Bay Correctional Centre on 4 November 2024. He also had available to him documents and information provided by the Crown, as well as a letter of instructions.

36. Dr Martin noted that the defendant was a 44-year-old Aboriginal man (albeit, he would have been aged 42 at the time of the examination). He had been in and out of custody since the age of 12. Prior to his arrest he had been in a relationship and had become a grandfather. He remained in contact with his 24-year-old daughter but had no contact with his 13-year-old son.

37. According to Dr Martin, he presented as polite but reticent, giving brief and sometimes vague responses to questions. A detailed history was not forthcoming. He lacked spontaneity. The defendant described his own mental state as “struggling” and “trying to make sense of everything”. He was taking Zyprexa (a commonly prescribed anti-psychotic). He had been taking that medication for 13 years. On being asked why he takes Zyprexa, he said he hears voices and struggles.

38. The defendant had a history of admissions to mental health units. He thought he had been diagnosed with schizophrenia at the age of 14 or 15. He admitted to a prior use of heroin, Ice and pills as well as substances similar to Benzodiazepine sedatives. He first used cannabis and heroin at the age of 13. He had previously been in drug and alcohol rehabilitation. He admitted to drinking heavily. The defendant disclosed his troubled and difficult childhood. He had seen a lot of violence, including his cousin kill someone and stabbings as a child. He left school at 14 or 15 and was frequently in trouble. He grew up in foster families.

39. On examination, Dr Martin found the defendant outwardly calm and coherent but he referred to paranoia and hearing voices. He was hypervigilant. He denied that he had recently experienced auditory hallucinations, although he had heard voices the night before.

40. Dr Martin undertook an assessment with reference to s 36 of the Act. He considered that the defendant was aware that he had been charged with murder and knew the victim was somebody he got drugs off. He was not sure of the date this had occurred. He said that: “if I done it, I’m guilty” but also mentioned manslaughter. He had a generally poor understanding of the jury system and no understanding of the issue of challenge. He understood that the role of the lawyer was to help him and some understanding of the adversarial nature of the Court process. He thought the judge was in charge.

41. Dr Martin reviewed the documents relating to these proceedings and also the defendant’s extensive criminal history and notes relating to his earlier Extended Supervision Order. He reviewed the Justice Health records and the voluminous records relating to earlier psychiatric treatment. Dr Martin also had available the report of Dr Dayalan which had been obtained by the defendant’s solicitors.

42. Dr Martin observed that the defendant has a complex presentation and multiple psychiatric diagnoses which have been considered over many years. He referred to his background, extensive trauma and the use of drugs. He accepted there may be some debate about the actual psychiatric diagnosis but offered a diagnosis of schizophrenia closely associated with the effects of long-term methamphetamine use on the background of personality disorder and complex post-traumatic stress disorder. He also had problems with emotional dysregulation and the effects of psychological deprivation. He accepted that the defendant also suffers from a substance use disorder.

43. Dr Martin considered it likely that the defendant was unfit to plead and stand trial. He was only able to give a very limited account of his understanding of evidentiary issues and was not likely to be capable of exercising his right of challenge. He might have had an adequate understanding of the Court processes but would not be able to properly instruct his legal representatives or file a defence. He has significant problems with literacy; he is inarticulate and would have significant difficulty in being able to provide an adequate version of facts to his legal representatives. His mental state was fragile, and he would likely remain emotionally unstable.

44. Further, Dr Martin considered the defendant likely to remain unfit to plead and stand trial over the next 12 months. His disturbed mental state, poor coping skills and tendency to emotional dysregulation are chronic. It is unlikely that making special provisions such as having a support person or having reduced sitting hours would overcome those barriers.

45. Dr Martin then went on to comment on the defendant’s likely mental state at the time of the alleged offending. It is not necessary that I consider that further at this time. Suffice to say that Dr Martin observed that the defendant presents as cognitively impoverished and emotionally flat, reporting ongoing experiences of paranoia and hearing voices.

Dr Dayalan

46. Dr Dayalan assessed the defendant at Long Bay Correctional Centre on 24 June 2024 accompanied by the Psychiatric Registrar. He was provided with extensive material including records relating to the defendant’s early criminal history, documentation relating to the alleged offending, Justice Health records and substantial earlier psychological material.

47. Dr Dayalan’s approach to his assessment was similar to that of Dr Martin. Dr Dayalan summarised the defendant’s criminal history, again referring to his long-term exposure to trauma and violence, difficult childhood and long-term drug use.

48. Dr Dayalan noted that immediately prior to the death of the deceased, the defendant had been smoking cannabis and injecting heroin every second day. He was injecting crystal methamphetamine daily and had been abusing anti-anxiety medication and painkiller medication. The defendant said he had not been taking anti-psychotic medication. The defendant complained that living in Sydney and away from his family had been stressful, but he was required to stay in Sydney due to a legal order.

49. The defendant knew that he had been buying illicit drugs from the deceased. He said he respected the deceased. He said he did not recall the details of the event, suggesting that he did not know how it happened or how it started, and he could not believe it. He denied having a knife on him at the time of the alleged offending, although he admitted that he usually carried knives. He denied ever previously threatening the deceased.

50. The defendant told Dr Dayalan that his symptoms of paranoia and auditory hallucinations were present all the time. He said that the deceased had said a few things to him and that he snapped. When asked to repeat the comments, he became distressed and restless. When asked about the comments he had been making at the time of his arrest, he said he could not remember making comments that he was not a paedophile and had not raped his daughter. He accused the police of making up such allegations. He said he could not be sure whether the voices he was hearing were calling him a paedophile, although he did not think that it happened.

51. Dr Dayalan noted that the defendant received treatment in prison with anti-psychotic medication, Olanzapine and opiate agonist treatment. The defendant thought that the paranoid auditory hallucinations had reduced in intensity due to the medication but that he continued to feel anxious and apprehensive.

52. When the question about the charges against him was raised, the defendant said he was unsure if he was charged with murder or manslaughter. He said he had not decided on his plea – he would first want to know what happened at the time of the offending. He said he did not know his plea options.

53. He became suspicious of Dr Dayalan and asked him why he was testing him. He could not explain what would happen in court if he maintained that he did not commit the crime. He said he did not know the purpose of going to court but on prompting he accepted that if a person is charged with an offence, he must go to court. Initially he said he did not know the role of the judge but then said that the judge will sentence him.

54. Dr Dayalan considered that the defendant presented as difficult to engage and provided vague responses. He was suggestible; he was reluctant to talk about his childhood trauma; he started to shake when certain topics were raised. Although his cognition was not formally tested, Dr Dayalan said that it was evident that he had significant difficulties registering information. He got distracted. Although he is aware that he suffers from schizophrenia, he did not fully understand the nature of the condition.

55. Dr Dayalan undertook an extensive review of the earlier medical evidence and the evidence relating to the offence with which he has been charged. In particular, Dr Dayalan had regard to the Justice Health records. Like Dr Martin, Dr Dayalan considered that the defendant has a complex psychiatric presentation which is influenced by multiple factors including exposure to alcohol as a foetus, extreme trauma in childhood, history of multiple head injuries, intellectual impairment, and excessive use of substances from an early age. There were difficulties in assessment and challenges to clinical evaluation due to the difficulties in engaging him in part of the process.

56. Dr Dayalan came to the same conclusion as to the nature of his illnesses as Dr Martin being schizophrenia, complex post-traumatic stress disorder, substance use disorder and mild intellectual disability. Based on his presentation at the time of assessment, Dr Dayalan did not consider that the defendant had the ability to enter a plea. He had a very superficial understanding of the nature of the proceedings and would require a lot of guidance. He suffered from mild intellectual disability. Despite questions being put in a simplified manner, he required repetition of the questions, presumably due to inattention. He struggled to retain information. Whilst there was no overt disorder in his thought form, his responses were brief and vague.

57. Dr Dayalan opined that the defendant was unfit to stand trial. It was quite likely that his presentation would fluctuate, and his cognitive capacity may improve or deteriorate. However, given the stress of the trial and his psychiatric vulnerability, Dr Dayalan anticipated that his functional ability to stand trial would be further impaired at the time. Although he could become fit to stand trial in the next 12 months if he received effective treatment, Dr Dayalan ultimately concluded that, given the chronic nature of the conditions and history of suboptimal response to treatment for several years, he is unlikely to become fit to stand trial within the next 12 months.

Determination

58. Both expert psychiatrists offer similar opinions in terms of diagnosis and prognosis, and fitness to stand trial. Their findings as to the defendant’s mental state are also very similar.

59. Both experts consider the defendant unfit to stand trial. Having regard to their opinions and all of the evidence I am satisfied that, because of both a mental health impairment and a cognitive impairment, the defendant:

60. cannot plead to the charge against him;

61. is not able to exercise the right to challenge jurors;

62. could not follow the course of proceedings so as to understand what is going on in a general sense; and

63. could not properly instruct his legal representatives to mount a defence and provide his version of events to his legal representatives.

64. Further, I am satisfied to a very high standard of satisfaction (see R v Risi [2021] NSWSC 769 at [55]; R v Woodham [2022] NSWSC 1154 at [23]) that the defendant would likely remain unfit to plead and stand trial over the next 12 months. I accept the opinions of Dr Dayalan and Dr Martin in that regard.

65. Although the defendant is represented by a legal practitioner, I do not consider that the trial processes could be modified to reduce or diminish the level of incapacity from which the defendant suffers. The defendant has been charged with murder. At least on the Crown case, the trial may be of some complexity and length. The defendant’s inability to plead and provide instructions cannot be overcome by modifying the trial processes.

66. I thus find that the defendant is unfit to stand trial and will be for the next 12 months.

67. In the circumstances I make the following orders:

68. Pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) the defendant, William David Bugmy, is unfit to be tried for the murder of Talbot Ward.

69. The defendant will not become fit to be tried for the offence during the period of 12 months after this finding of unfitness pursuant to s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

70. Order the defendant be remanded in custody.

71. List the matter in the arraignments list on 4 July 2025.

72. Direct that the Director of Public Prosecutions advise as to whether further proceedings (being a special hearing) will be taken against the defendant for the murder of Talbot Ward.

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Amendments

22 May 2025

Typographical error within Cover Sheet.