R v Bugmy (No 2)

1. [1]

   The accused, William David Bugmy, is charged with the murder of Talbot Ward at Newtown on 21 July 2023.

2. [2]

   On 21 May 2025, Cavanagh J found pursuant to s 47 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) [1] that Mr Bugmy was not fit to be tried and would not become fit within the ensuing 12 months: R v Bugmy [2025] NSWSC 497.

3. [3]

   The Director of Public Prosecutions advised pursuant to s 53 that it was proposed to proceed with the matter, and so it was listed for special hearing pursuant to Pt 4 Div 3 on 2 February 2026.

4. [4]

   At the outset on 2 February 2026, Ms Khalilizadeh, counsel for the accused, sought an adjournment until the following day to allow her to attend to two matters. One matter was inconsequential but as to the other, she informed the Court that she and the Crown had discussed the potential for the matter to be dealt with under s 31, given the parties had reached an agreement as to the availability to the accused of a defence of mental health impairment under Pt 3. Counsel needed time to discuss this with her client and “to obtain, to the best I can, instructions for the purposes of agreement”. [2]

5. [5]

   The Crown acquiesced in relation to the adjournment, adding that in the light of a further psychiatric report which was provided by the defence the previous week:

6. [6]

   At the time, I took this to mean that the Crown agreed that the proposed evidence established the defence.

7. [7]

   When the matter resumed on 3 February 2026, Ms Khalilizadeh indicated that from the defence perspective, there was agreement with the matter proceeding under s 31. However, the Crown had indicated to her that s 31 was not available and the matter must proceed to a special hearing. [4] The Crown Prosecutor confirmed that was the case: [5]

Legislative framework

1. [8]

   Section 31 appears within the following legislative framework.

2. [9]

   Part 1 (ss 1-6) is largely concerned with definitions, including the meanings of “mental health impairment” and “cognitive impairment”.

3. [10]

   Part 2 (ss 7-26) is not presently relevant as it only applies to certain criminal proceedings before a Magistrate: s 8.

4. [11]

   Part 3 (ss 27-34) applies to criminal proceedings in the Supreme Court and the District Court: s 27.

5. [12]

   Section 28 provides for a defence of mental health impairment or cognitive impairment (or both):

6. [13]

   If the defence is established, the jury (or, per s 6, a judge in judge-alone proceedings) must return “a special verdict of act proven but not criminally responsible”: s 30.

7. [14]

   Section 31 is in the following terms:

8. [15]

   Section 33 sets out the effect of a special verdict.

9. [16]

   Section 34 provides for referral to the Mental Health Review Tribunal where a special verdict is returned and the defendant is not released unconditionally.

10. [17]

    Part 4 has three Divisions.

11. [18]

    Division 1 (ss 35-39) is generally concerned with what constitutes unfitness to be tried and how it may be raised.

12. [19]

    Division 2 (ss 40-53) is as the title indicates. Where an accused is found unfit to be tried and will not become fit within the ensuing 12 months, the Director of Public Prosecutions is required to advise whether further proceedings will be taken by the Director in respect of the offence: s 53(2). If no further proceedings are to be taken, the court must order that the defendant be released: s 53(3).

13. [20]

    Section 48 seems important to the Crown’s contention that the s 31 procedure is unavailable when the accused is found unfit to be tried.

14. [21]

    Division 3 (ss 54-68) is concerned with the conduct of special hearings.

15. [22]

    Section 54 explains the concept of a “special hearing”:

16. [23]

    A special hearing must be held as soon as practicable unless the Director has advised pursuant to s 53(2) that no further proceedings will be taken:

17. [24]

    Section 56 sets out certain aspects of the procedure for special hearings which include:

18. [25]

    There are four verdicts available at a special hearing which include the special verdict of act proven but not criminally responsible: s 59(1).

19. [26]

    Sections 61 to 68 are explanatory of some of the possible verdicts that can be returned and set out consequential actions which may or must be taken. They include in s 67, mirroring s 34, that where a special verdict is returned, a court must refer the defendant to the Tribunal unless there is an order for unconditional release.

Crown submissions as to the unavailability of s 31 where an accused is unfit

1. [27]

   The Crown Prosecutor explained that the contention s 31 cannot apply is because the accused is unfit to be tried. [6] The Crown conceded that the proposed expert evidence may establish, on the balance of probabilities, that the accused was suffering from a mental health impairment at the relevant time and had the effect that he did not know that the act (of killing the deceased) was wrong: s 28(1)(b). It was further conceded that if the Court was satisfied of that fact, it would then return the special verdict of act proven but not criminally responsible under s 61. [7] (It is in fact s 30 which requires the special verdict returned when a defence of mental health or cognitive impairment is established.)

2. [28]

   The Crown Prosecutor pointed out that “section 59 does not refer to section 31 being available”. [8] However, there is also no express reference in s 59, or elsewhere in the Act, to s 31 not being available. In any event, s 59 provides there are four possible verdicts that are available at a special hearing, one of which is the special verdict. The fact it makes no reference to an alternative means by which a special verdict can be entered, namely under s 31, is of no significance.

3. [29]

   While the court had not yet commenced a special hearing, the Crown maintained that this was the way the matter must proceed, “because that is the formula that is prescribed within the legislation … where an accused or a defendant is unfit”. [9]

4. [30]

   The Crown acknowledged that s 31(b) requires that the unfit accused person be represented. It is also notable in my view that the Act requires the accused to be represented at a fitness inquiry (s 44(2)) and at a special hearing (s 56(3)), in either case, “unless the court otherwise allows”. Notwithstanding this requirement, it was submitted that “the Crown cannot agree under section 31(a) where a defendant is unfit for that very reason because the defendant is unfit to enter an agreement; how can the defendant agree where he is unfit, your Honour?” [10]

5. [31]

   The submissions then qualified the concession earlier stated that the proposed expert evidence established the defence of mental health impairment. When asked whether that concession amounted to an agreement that the evidence established the defence, the Crown Prosecutor responded: [11]

6. [32]

   The Crown Prosecutor further explained that just as an accused person who is unfit cannot enter a plea, the same applies to agreeing pursuant to s 31(a) that the proposed evidence establishes the defence of mental health impairment. She reiterated, the only way the matter could proceed was by way of special hearing with the Crown conceding that the defence be upheld. [12] She further indicated that this was a position endorsed by the Director and she was acting on those instructions. [13]

7. [33]

   At the urging of counsel for the accused, I indicated my view that the procedure under s 31 is available in respect of an accused who is unfit to be tried. The Crown then sought time to further consider the matter.

8. [34]

   Upon resumption, the Crown’s position had not altered. It was reiterated that following the finding of unfitness and the Director’s advice that further proceedings were to be pursued, according to s 48, the matter can only proceed by way of special hearing under Pt 4 Div 3. [14]

9. [35]

   There was then a discussion about three known cases in which the Crown had either agreed, or at least acquiesced, in s 31 being applied in respect of an accused who had been found unfit to be tried: R v Woodham (No 2) [2023] NSWSC 1345; R v Trinne (No 2) [2024] NSWSC 1457; and R v Batey [2025] NSWSC 1585. The Crown Prosecutor responded: [15]

10. [36]

    One observation about that response (and the similar response earlier: see above at [31]) is that the issue in s 31(a) is not whether the Crown agrees “with the accused”. What the Crown must agree is that “the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment”.

11. [37]

    If the Crown had been prepared to commit itself to agreeing that this was the case, rather than using alternative descriptions of its position such as it “concedes” the special verdict is available, or that “it is open and appropriate in the circumstances”, I would have been inclined to accept that as fulfilling the requirement in s 31(a) on its part. With the clear agreement by the defence that the special verdict is established by the proposed evidence, I would have proceeded under s 31. However, the Crown was not prepared to state in unequivocal terms that it agreed, and so the precondition in s 31(a) could not be satisfied.

12. [38]

    Submissions on the second day of the hearing concluded as follows: [16]

13. [39]

    The Crown sought and obtained an adjournment overnight to further consider the matter. The following morning, it adhered to the position as previously submitted. [17] A special hearing then commenced.

Determination

1. [40]

   The utility of the procedure provided by s 31 was explained by Johnson J in R v Jackson [2021] NSWSC 1404:

2. [41]

   The “extra safeguards” referred to by the Attorney General in the second reading speech (the accused being represented and the court also being satisfied the special verdict should be entered) are important.

3. [42]

   A key feature of the Crown’s contention that s 31 cannot be applied in the case of an accused person who is unfit to be tried and is scheduled to undergo a special hearing is that such accused persons lack the ability to agree that the proposed evidence establishes a defence that would result in entry of the special verdict.

4. [43]

   In the present case it may be assumed that, unaided by a lawyer, the accused was probably not equipped with the knowledge, skill, intellect and capacity for rational assessment of an important legal question to enable him to decide whether to agree that the proposed evidence established the defence of mental health impairment. However, he was aided by a lawyer.

5. [44]

   The possible invocation of the s 31 procedure was raised by Ms Khalilizadeh, counsel for the accused, when she sought a short adjournment at the outset on Monday 2 February 2026: [18]

6. [45]

   The following was said the next morning when the Court resumed: [19]

7. [46]

   Two things are clear from this. First, counsel for the accused obtained instructions that her client agreed that the proposed evidence established the defence of mental health impairment and the matter should proceed under s 31. Second, the Crown seemingly changed its position from one of acquiescence to one of opposition to the matter proceeding in that way. This was despite the fact the Crown conceded that the defence was made out by the proposed evidence.

8. [47]

   There are, to my knowledge, few appellate cases which include discussion of the degree to which, if at all, an accused who is unfit to be tried may participate in decisions as to how their case should be conducted in a special hearing. In R v Smith [1999] NSWCCA 126, the appellant contended (unsuccessfully) as follows:

9. [48]

   James J referred to the provision in s 21(1) of what was then the Mental Health (Criminal Procedure) Act 1990 (NSW) (subsequently renamed the Mental Health (Forensic Provisions) Act [20] but later repealed and replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act) which, like s 56(1) of the current Act, provided that a special hearing is to be conducted “as nearly as possible as if it were a trial of criminal proceedings”. He continued:

10. [49]

    In R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 the Court was concerned with the same legislation as in R v Smith in its application to a special hearing conducted in the District Court. A number of issues were raised on appeal in relation to how the proceeding was conducted, which prompted Spigelman CJ to say (at [3]) there had been a “degree of informality”, including that the indictment was simply handed up without the charge being read aloud. Adams J found that there was error in the fact that the prosecution case comprised unsworn witness statements that had been tendered with the consent of the defence. However, Spigelman CJ and Sully J did not agree. Relevantly for the present issue, the Chief Justice observed:

11. [50]

    Given the current Act is based upon the former legislation, these cases have continued relevance.

12. [51]

    It was appropriate for counsel to consult her client in relation to the s 31 issue. How it came about that “agreement” for the purposes of s 31(a) was arrived at is not known and, having regard to client legal privilege, is a matter between the accused and his lawyers.

13. [52]

    The extent by which the accused understands a question such as this is different to the level of understanding required in relation to other issues that have arisen under the former mental health forensic provisions legislation. The ability of an accused to understand what is involved in making an election for a special hearing to be heard by a judge alone, and not a jury, used to be governed by s 21A of the Mental Health (Criminal Procedure) Act. It required the accused to make the election and the judge to be satisfied that before making the election the accused had sought and received advice from a barrister or solicitor. In R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226, reference was made by Hunt AJA (at [14]) to Gleeson CJ having said in R v Mifsud (Court of Criminal Appeal (NSW), 8 November 1995, unrep):

14. [53]

    Hunt AJA said (at [16]) that the obligation placed on the judge was not to satisfy him or herself that the accused properly understood the nature of the election being made. It was an obligation to be satisfied that the barrister or solicitor was satisfied that the accused properly understood the nature of the election being made.

15. [54]

    It is noted that under the present legislation the default position for special hearings is provided in s 56. It reverses the previous position and specifically allows for an election to be made by the accused’s lawyer:

16. [55]

    In relation to s 31 of the present legislation, there is no statutory requirement for the accused to have received advice, nor for the presiding judge to be satisfied in relation to this.

17. [56]

    The question is concerned with how the proceedings will be conducted procedurally. If an accused is advised by their lawyers that the proposed evidence establishes a defence under s 28, there is no reason why it should be presumed by a court that the accused is incapable of accepting such advice. The fact the accused is unfit to be tried is presumed not to be an impediment to their representation: s 56(4). Further, as Spigelman CJ observed in R v Zvonaric (see above at [47]), courts can and should rely on the professionalism of that legal representation. Even in a normal criminal trial, it is likely that many accused would not have the capacity to determine for themselves whether the proposed evidence established a s 28 defence and instead would rely upon the advice of their lawyers.

18. [57]

    Additionally, there is nothing in, or relating to, s 31 that confines its application to normal criminal trials. In its terms, the procedure is available “at any time in the proceedings”. The “proceedings” for which s 31 applies are those for which Pt 3 is concerned: “criminal proceedings in the Supreme Court … and the District Court”: s 27. Pt 4 has the same breadth of application: s 35. There is nothing in the Act that excludes s 31 from applying because the accused is unfit or because a special hearing has been ordered. There is nothing in the second reading speech of the Attorney General that evinces an intention that s 31 would not apply to persons found unfit to be tried.

19. [58]

    The Crown likened an agreement under s 31(a) to the non-entry by an accused of a plea at a special hearing. As previously noted (at [23]), the question of whether to plead guilty or not guilty is taken out of the accused’s hands as they are taken to have pleaded not guilty. The comparison is, with respect, inapt. The question whether to plead guilty or not guilty is fundamentally one for an accused person and cannot be decided for them. Decisions as to procedural matters are of a different character and are made in the context of the requirement for legal representation. Moreover, whilst the legislation explicitly takes the entry of a plea out of the accused’s hands, it does not do the same in respect of s 31.

Conclusion

1. [59]

   For the reasons above, I was not persuaded that the procedure under s 31 is not available in these proceedings because the accused was unfit to be tried.