District Court New South Wales Medium Neutral Citation: R v Boujandy (No. 3) [2022] NSWDC 604 Hearing dates: 01 December 2022 Date of orders: 01 December 2022 Decision date: 01 December 2022 Jurisdiction: Criminal Before: Montgomery DCJ Decision: See paragraph 13 Catchwords: Crime – Special Hearing S 166 CPA – EVIDENCE in Penalty Hearing – Adjournment. Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 166; 169(3) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 14(1)(c); 59; 63 – 68; Mental Health (Forensic Provisions) Act 1990 (NSW) ss 31; 32; 132 Category: Consequential orders Parties: Regina (Crown) Charles Boujandy (Defendant) Representation: Counsel: Crown: Ms Fleeton (Crown) Defendant: Ms 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 1. HIS HONOUR: I delivered my principle judgement on 20 October 2022 following a special hearing by Judge alone. The Court found itself satisfied beyond reasonable doubt on the limited evidence available that the defendant committed a large number of offences amongst which were a large number of charges before the Court and on which the Crown proceeded pursuant to s 166 of the Criminal Procedure Act. They were not back-up charges. 2. Prior to the special hearing, the Court, differently constituted, had found that the defendant was not fit to be tried. The special hearing tried 20 charges before the Court pursuant to s 166 and 28 counts in the indictment, making a total of 48 alleged offences. The evidence proceeded on the bases of each of the charges before the Court under s 166 separately and at the same time as for each count in the indictment. 3. On 23 November 2022 the Court and the defendant received MFI 1, being the Crown's written submission for the penalty hearing, which was to commence yesterday and was listed for two days, contemplating orders pursuant to ss 63 to 68 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (I will refer to that act as the MHCIFP Act). Para 4 of MFI 1 read, "The Crown submits an appropriate order could be made under s 14(1)(c) of the Act to dismiss these charges unconditionally." The Act referred to was the MHCIFP Act. 4. On my inquiry, the parties confirmed that all section 166 matters were before the Court pursuant to court attendance notices issued in 2019. In that consequence, the MHCIFP Act and therefore s 14(1)(c) is inapplicable to the Crown's application to dismiss the 20 charges before the Court pursuant to s 166 at the special hearing. The relevant Act is the Mental Health (Forensic Provisions) Act 1990. The relevant section is s 32 of that Act. Section 32 refers to action that may be taken by a Magistrate. Pursuant to s 166 of the District Court Act 1973, this Court has the criminal jurisdiction conferred or imposed on it under the Criminal Procedure Act 1986. Section 168(3) of the Criminal Procedure Act 1986 relevantly provides as follows: "In sentencing or otherwise dealing with a person for a backup offence or related offence, the Court has the same functions, and is subject to the same restrictions and procedures as the Local Court." Accordingly, this Court had jurisdiction to deal with the charges which were before it at the special hearing pursuant to s 132 of the Mental Health (Forensic Provisions) Act 1990. 5. The Crown informed the Court yesterday, at the commencement of the present hearing on 30 November 2022, and confirmed today that it seeks to - and adopting the terminology used - backtrack from the position stated at para 4 of its written submission, but only to the extent that the Crown maintains the position that the charges be dismissed. However, no longer that the dismissal be unconditional. Section 132 provides that: "Whether at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is cognitively impaired or suffering from mental illness or suffering from a mental condition for which treatment is available in a mental facility, but is not a mentally ill person, and it would be more appropriate to deal with the defendant in accordance with the provisions of pt 3 of that Act than otherwise in accordance with law, the Magistrate may take the action set out in subss (2) or (3)". 1. The section refers to "hearing" and s 132(3) specifically to "an order dismissing the charge". Part 3 of the 1990 Act applied to offences triable summarily: s 31. Presently the Court is in a sentencing hearing in contemplation of penalty under the MHCIFP Act. The charges it would seem to me, have been consumed in the verdicts of 20 October 2022, ordered under s 59 of the MHCIFP Act. On that basis, I expressed to the parties my concern that contemplation of what this Court exercising the powers of a Magistrate under s 168(3) might do, was a retrospective exercise properly conducted as if at any time between the finding that the defendant was not fit to be tried and before verdicts were ordered. The combined response, helpfully explained by counsel for the defendant, and with which the Crown did not disagree, was that it is not uncommon in the procedures and practices of the Local Court after verdicts of guilty and at a sentencing hearing, for the Local Court to then proceed under s 32. 2. The parties join in asking that this matter go over with no further order other than adjournment and therefore bail to continue, until a date in 2023, when updated expert medical opinion for the purposes of alternatives available under s 32(3) might be made in relation to the charges which came to the special hearing verdicts of offence committed by way of s 166 certificates. I am not convinced that this is a correct approach according to law, albeit without investigating the point it may be that s 32 by use of the words, "at any time during the course of the hearing of proceedings" contemplates as the subject, the proceedings, and the hearing as the activity within the proceedings. If that be the meaning of s 32, then it is sound that the proceedings continue even though a judgment of verdict is a separate and final judgment to a judgment of sentence. 3. In addition, I see no practical detriment. I see no prejudice to the community or to the offender in following the course encouraged by the parties. Section 32(3) of the Mental Health (Forensic Provisions) Act 1990 provides the Court with the discretion, when making an order dismissing the charges and ordering discharge of the defendant (which in this case would be quashing verdicts and ordering the discharge of the defendant); to order that the defendant: a) enter into the care of a responsible person, unconditionally or subject to conditions, or b) on the condition that the defendant attend on a person or at a place specified by the Magistrate; (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment; or (ii) to enable the provision of support in relation to the defendant's cognitive impairment; or to dismiss the charge, or c) unconditionally. 1. It is in relation to the options for order within section 32(3)(b) that the Crown seeks time for the obtaining of expert medical opinion. When the Crown withdrew its position of unconditional dismissal and chose to differently proceed, it decided to seek the opportunity of that medical evidence in order to determine whether it would pursue either unconditional dismissal or dismissal subject to those s 32(3)(b) conditions. I understand that neither party expects to make a submission that the verdicts on the charges which were before the Court pursuant to s 166 are quashed on the condition that the defendant be placed in the care of a responsible person unconditionally or subject to conditions. However, I suspect that pending the obtaining of further medical evidence that door is not formally closed. 2. During the course of debate, it became apparent that the defence wish to obtain more specific answers from the defendant's treating clinical psychologist, Professor Woods. In relation to selection of placement, pursuant to s 65(2) MHCIFP Act, today the Crown provided the defence with an affidavit which apparently explains procedures of NSW Corrective Services and Justice Health toward assessing opportunities of placement. It is expected this information will avail what is hoped to be a more helpful consideration by Professor Woods, for the purposes of this sentencing process. Despite the best efforts of lawyers for the defendant, and no doubt due to his heavy workload, Professor Woods provided his report very close to this hearing and the Crown have not had an opportunity to deal with it, including by the obtaining of further expert medical opinion from Dr Samuels, forensic psychiatrist. 3. I consider this judgement necessary because the inevitable order will be that the verdict of offence committed in relation to each of the matters before the Court at the special hearing pursuant to s 166, will be quashed. That order will be made either with or without conditions. It is a significant matter for the State of NSW that on the record it be so noted. That those verdicts do not stand, and that at the hearing to follow the formal order will be made quashing them, either on a condition or unconditional basis. 4. For the reasons stated, a formal order cannot be made today. It is conceivable that the formal order quashing the convictions could be entered, but the process under s 32 invites the Court properly to identify conditions, if any, at the time of such an order. For all of these reasons I accede to the party's joint application for adjournment. ORDERS: 1. I make the following orders: 1. Direct the Defendant to serve any further expert medical opinion evidence upon which he would seek to rely on the Crown on or before 1 February 2023 2. Direct the Crown to serve any further expert medical opinion evidence upon which it would seek to rely on the defendant on or before 15 March 2023 3. Direct that experts of like speciality to conclave by whichever means is most convenient to them on or before 21 March 2023 and to provide a joint report identifying the questions on which they agree and those on which they disagree including reasons for the basis of their disagreement on or before 27 March 2023 4. Direct the parties on or before 13 December 2022 to agree a list of questions for referral to expert medical opinion witnesses 5. Direct a report pursuant to section 66(1) Mental Health Cognitive Impairment Forensic Provision 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 6. List the matter for hearing on penalty on 28 and 29 March 2023 7. Reject the Defendant application for variation of conditions for reporting under Bail ********** Amendments 05 December 2022 - Grammatical Amendments 05 June 2023 - Amended to reflect correct numbering. 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: 05 June 2023