New South Wales Supreme Court 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 R v Pressser [1958] VR 45 CASES CITED : 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 he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 5 Dr Furst, Professor Greenberg and Professor Hayes provided reports, and Dr Greenberg and Professor Hayes gave oral evidence. Given the way the evidence unfolded, it is unnecessary to go to the detail of the reports and that oral evidence. 6 In his accounts to the three experts, the accused appeared to have at best a patchy recollection of the day of the offence, and he said that he had no memory at all of the killing or the circumstances of it. He is an Aboriginal man, with a troubled background and limited education, and a long history of abuse of alcohol and illicit drugs. He gave a history of psychotic symptoms, in particular the experience of hearing voices, including on the day of the offence. Both Dr Furst and Professor Greenberg diagnosed him as suffering from alcohol dependence disorder and Dr Furst believed him to have developed a syndrome called alcoholic hallucinosis, which he explained in his report as "the occurrence of auditory hallucinations, often of a persecutory nature, seen in acute intoxication, acute withdrawal states, and in a chronic, residual form." Professor Greenberg also considered him to suffer mild mental retardation. It is that retardation or disability which I find decisive of the question I must decide. 7 In answer to questions from the three experts, he appeared to have a rudimentary understanding, consistent with his background and limited education, of the trial process: the fact that the trial was an inquiry into whether he was guilty of the murder, the role of the prosecutor and of his own legal representatives, the role of the jury and (more vaguely) that of the judge. Dr Furst and Professor Greenberg saw that understanding as adequate, but Professor Hayes was more guarded about the matter. 8 Dr Furst and Professor Greenberg were also of the view that he had sufficient capacity to meet the other important aspect of the Presser requirements: the ability to make his defence to the charge, including understanding the evidence against him and explaining his version of events to his legal representatives and, if necessary, to the court. It is on this crucial aspect that Professor Hayes does not agree, and I find her evidence more persuasive than that of the two psychiatrists. Her view is also consistent with the evidence of the accused's solicitor, Ms Emma Manea. 9 Professor Hayes had the advantage of assessing the accused's intellectual capacity through psychological testing. She reported that the test results placed him "in the category of moderate intellectual disability at a level lower than 99.9 percent of the population". In oral evidence, she said that effectively he was functioning at the level of a primary school child. In the light of the test results and her assessment of him after interview, she questioned his capacity to process and retain information. She expressed the view that he would "not be able to sustain attention throughout the length of the trial and … not be able to inform his legal team about important matters relevant to his defence," citing Kesavarajah v The Queen (1994) 181 CLR 230. 10 She concluded her report in this way: "In my opinion, he is unfit to be tried because although he understands some (but not all) of the Presser criteria, he will have great difficulty in sustaining his attention throughout the course of the proceedings, being able to follow the evidence and being able to instruct his legal representatives. … it seems unlikely that the client would be able to follow the course of proceedings and understand any complex issues arising out of the proceedings. Indeed, I would go further and say that even regarding some quite simple issues, it would be difficult for him to understand, respond to and to give instructions to his legal representatives." 11 An important question also arises about the reliability of any information he might supply to his legal representatives. This was fleshed out in the course of cross-examination of Professor Hayes. Asked whether he would be able to follow aspects of the evidence against him, she replied that he would be "able to follow that evidence as a story". Arising from his asserted lack of memory of the killing, the following exchange occurred: "Q. He would be able to, in relation to people giving their evidence as he heard it, be able to be approached and asked is there anything that he's remembered because of what he's heard? A. Yes. Q. And if he gave a positive answer you would be able to ask what is it that you have remembered? A. Well, yes, he would be able to say what he thought he remembered. The accuracy of it would be not ascertainable." 12 This led to the following exchange: "… The information he gives as to what he remembers, what would you say to a proposition that what he may be then repeating is not what his actual memory was but that which he believes to be his memory as a result of suggestions from what he's been hearing? A. That's one possibility, that he has suggested memories. The other possibility is that he's remembering something which didn't occur on that particular date, so that he's transposed an incident on to a different date. Q. Or the third is that he's got it right? A. Or the third is that he has remembered something accurately. Q. The crunch question comes, is there any way a tribunal of fact, being warned about these three possibilities, would be able to discern as between which of those possibilities it is? A. Well, some things that he claimed to remember might be patently absurd, for example, or there might be some other evidence from someone else which says, no, that didn't occur on that day. That in fact occurred a week before, or two months before, or even a year before, so there could be other evidence which could be tested, but if you only had Mr Bugmy saying this is what occurred, I've remembered something, and there was no other way of testing it, it would be almost impossible to work out whether it was accurate or whether it was suggested or whether it was a memory from a different time. Q. So you wouldn't be able to discern between A, B and C? A. That's right." 13 An affidavit of Ms Manea was read and she also gave oral evidence. She is a solicitor of ten years experience, for most of that time in the employment of the Legal Aid Commission. She also could obtain no account from him of the killing and the circumstances surrounding it, although she was aware that that of itself did not necessarily mean that her client was unfit to stand trial. She had been involved in other cases where, even though a client professed no memory of the events giving rise to the charge, she was able to obtain other relevant information from the client and instruct counsel. With the accused, however, she said in answer to questions by the Crown prosecutor that she was not in a position to properly represent his interests, that she did not think "he really grasps what's going on" and that he would not be able to give proper instructions to defend himself. She added, "I don't think he would; I think it's beyond him." 14 She recounted her efforts in conference with him to explain the defences which might be available to him, including mental illness and substantial impairment. She told him that substantial impairment would reduce murder to manslaughter, but she did not go to the detail of what it entailed. However, she did explain the defence of mental illness in simple terms. It was obvious to her that he had difficulty understanding what she was saying. Generally, in answer to a question from me, she agreed that her impression was that "nothing sinks in". She said that on occasions she asked him to repeat things that she had told him to see if he had absorbed them. He had limited success in doing so but, insofar as he did, she believed that it was "really just regurgitating, as opposed to having a deeper understanding". 15 This is vital evidence, as the evidence of the solicitor for an accused usually is in fitness trials. The Crown prosecutor and Ms Manuell SC, for the accused, have presented the case in a responsible manner, consistently with the non-adversarial approach required by s 12(2) of the Mental Health (Forensic Provisions) Act. In the light of the evidence of Professor Hayes and Ms Manea, they were in agreement that the accused is not fit to stand trial and that is the view which I take. It is recognised that unfitness can be the product of intellectual disability: cf. R v Mailes [2001] NSWCCA 155, 53 NSWLR 251, particularly per Wood CJ at CL at [212] – [213]. This is such a case. 16 Accordingly, I find that the accused is unfit to be tried for the offence of murder with which he is charged. In accordance with s 14 of the Mental Health (Forensic Provisions) Act, I refer the accused to the Mental Health Review Tribunal. I adjourn the proceedings before this Court and remand the accused in custody until effect has been given to the determination of the Tribunal under s 16 of the Act, or until further order of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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