Director of Public Prosecutions (NSW) v Sheen and The Local Court of NSW

By a summons filed on 19 September 2016 the New South Wales Director of Public Prosecutions (“the Director”) seeks judicial review of the decision made by Magistrate Stafford in the Local Court on 10 August 2016 that, on a proper construction of the Mental Health (Forensic Provisions) Act 1990 (“the MHFPA”), the Court had no jurisdiction to hear and determine charges which had been brought against the first defendant. The orders sought by the Director are as follows:

The summons is supported by the following affidavits:

Both of those affidavits were read without objection.

The first defendant read an affidavit of Paul Johnson of 15 March 2017 without objection.

The facts giving rise to the proceedings brought by the Director are not in dispute and may be summarised as follows.

On 13 July 2016 the first defendant was charged with the following offences:

It is not necessary for present purposes to canvass the factual basis of the charges brought against the first defendant. It is sufficient to note that they arose out of an incident on 13 July 2016 in which the first defendant is alleged to have intimidated his mother, and damaged property located within the home in which they both resided.

Following his arrest on 13 July 2016, the first defendant was taken before Magistrate Clisdell at the Penrith Local Court, at which time his Honour was asked to release the first defendant on bail. His Honour had before him a report of Pamela Allen, a Clinical Nurse Consultant (Mental Health). Ms Allen recorded that her clinical impression was that at the time of the alleged offending, the first defendant was suffering from a psychotic episode which had possibly been drug induced. She concluded that there were reasonable grounds to believe that the first defendant would be found to be a “mentally ill person” or a “mentally disordered person” within the Mental Health Act 2007 (NSW) (“the MHA”) and that for that reason, he required care, treatment and control.

In terms of the ongoing management of the first defendant, Ms Allen’s report stated the following:

The reference to “a Section 33(1)(b)” was a reference to an order pursuant to s. 33(1)(b) of the MHFPA. As discussed further below, the proper construction of that section is the primary issue in the present proceedings.

After hearing argument his Honour made an order under s. 33(1)(b) of the MHFPA. In doing so, he said (commencing at T4 L33):

Annexed to the affidavit of Mr Johnson which was read in the first defendant’s case before this Court were two documents, the first of which is headed “Summary of reasons for bail decision of Court”. At the bottom of the page there is provision in the following form for the presiding Magistrate to indicate the decision reached regarding bail:

Both of the boxes were checked. The italicised portion next to the first box was accepted by the parties to be in the handwriting of Magistrate Clisdell.

The second document annexed to Mr Johnson’s affidavit is headed “Order for assessment”. It states (inter alia) the following:

This document was signed by Magistrate Clisdell.

Pursuant to the orders made by Magistrate Clisdell, the first defendant was taken to Nepean Hospital on 13 July 2016 where he was seen by Olav D’Souza. Dr D’Souza furnished a report which stated (inter alia) as follows:

Dr D’Souza expressed the opinion that the first defendant was, at the time of the examination, a mentally ill person. Having noted the first defendant’s reported behaviour, and his own observations of the first defendant on examination, Dr D’Souza stated the following under the heading “Conclusion”:

The first defendant was detained at Nepean Hospital until 21 July 2016. On that day, he was examined by Dr Burley, a Psychiatric Registrar, who provided a report in the following terms:

Following the report of Dr Burley, the first defendant was released into police custody. Notwithstanding the bail determination of Magistrate Clisdell, the first defendant was apparently detained in custody on the night of 21 July before being taken back before the Local Court on the following day, 22 July 2016, at which time he appeared before Magistrate McGlynn. An application for his release was made, which was opposed by the prosecution. The application was refused by Magistrate McGlynn and the proceedings were adjourned until 10 August 2016.

The first defendant appeared before Magistrate Stafford on 10 August 2016, at which time a further application was made for his release. Having acquainted herself with the history of the proceedings, her Honour said (at T2 L6 and following):

Lengthy debate followed between her Honour, the prosecutor, and the first defendant’s solicitor, at the conclusion of which her Honour found that the Court did not have jurisdiction to deal with the first defendant in respect of any of the charges laid against him on 13 July 2016.

The Magistrate’s reasons commence at T9 L21 of the transcript of the proceedings on 10 August 2016. Her Honour said the following:

Having quoted from Dr Burley’s report which is set out at [18] above, her Honour continued:

Annexed to the affidavit of Ms Kelly is correspondence which passed between the Director and the Registrar of the Mental Health Review Tribunal following Magistrate Stafford’s determination. On 12 January 2017, the Director wrote to the Registrar and, having set out the background to the first defendant’s appearances before the Local Court, stated the following:

By letter of 13 January 2017 the Registrar responded as follows:

At issue in the present proceedings is the proper construction of s. 33(1)(b) of the MHFPA. The Director contends that the Magistrate erred in concluding that in the circumstances I have outlined, the Local Court did not have jurisdiction to deal with the charges against the first defendant.

There are various provisions of the MHFPA and the MHA which have some bearing upon the resolution of the present issue, and which should be set out in full.

Section 3(1) of the MHFPA contains the following relevant definitions:

Section 31(1) of the MHFPA provides that Part 3 (ss. 31-36), which is entitled “Summary Proceedings before a Magistrate relating to persons affected by mental disorders”:

Section 33 of the MHFPA provides as follows:

Section 36 of the MHFPA provides as follows:

Section 4(1) of the MHA contains the following relevant definitions:

Chapter 3 of the MHA is entitled “Involuntary admission and treatment in and outside facilities”. Part 1 of Chapter 3 (ss. 12-16) is entitled “Requirements for involuntary admission, detention and treatment. Section 12 is in the following terms:

Section 14 is in the following terms:

Section 17 provides that in Part 2 of the MHA (ss. 17-49), which is entitled “Involuntary detention and treatment in mental health facilities”, an “assessable person” means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part.

Section 18(1) of the MHA is in the following terms:

Section 24 of the MHA is in the following terms:

Section 27 of the MHA is in the following terms:

Section 32 of the MHA is in the following terms:

Division 3 of Part 2 of the MHA (ss. 33-45) is entitled “Continuing detention in mental health facilities”. Section 34(1) provides that the Mental Health Review Tribunal must hold an inquiry about an assessable person under step 4 in s. 27(d). Section 35 provides as follows:

It was submitted on behalf of the Director that any task of statutory construction must necessarily begin with a consideration of the text of the provision itself. The meaning of the text may, in turn, require consideration of the context in which it is used: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. It was further submitted on behalf of the Director that in construing the provisions of s. 33(1)(b) of the MHFPA, it is necessary to have regard to relevant provisions of the MHA, because the two enactments formed part of the one legislative scheme, which was to be applied in a consistent and co-ordinated fashion: Director of Public Prosecutions v Wallman [2017] NSWSC 40 at [39]; State of NSW v Roberson (by his tutor Roberson) (2016) 338 ALR 166; [2016] NSWCA 151 at [17].

It was submitted that her Honour had erred in concluding that the assessment process in s. 33(1)(b) of the MHFPA may take hours, days, weeks or even months. It was submitted that such a conclusion was erroneous in light of the particular steps prescribed in s. 27 of the MHA, and that it was evident that such a conclusion had played a significant part in her Honour’s reasoning process.

It was further submitted that her Honour’s conclusion that the first defendant “was not being continuously detained for the purposes of making an assessment” was erroneous. It was submitted that the order made by Magistrate Clisdell pursuant to s. 33(1)(b) of the MHFPA provided the necessary legal authority for the first defendant to be taken to, and detained, in a mental health facility, not only for the purposes of an assessment under s. 27 of the MHA but also for the purpose of any necessary mental health inquiry by the Mental Health Review Tribunal (“the Tribunal”) pursuant to s. 34 of the MHA. It was submitted that the order made in the present case authorised the first defendant’s detention until 21 July 2016, at which time he was assessed as no longer being mentally ill. It was further submitted that, had it been necessary, Magistrate Clisdell’s order would have provided the requisite authority to detain the first defendant until any inquiry had been completed by the Tribunal.

It was further submitted that, fundamentally, her Honour’s construction of s. 33(1)(b) of the MHFPA was at odds with the text of the provision. It was pointed out, in particular, that under s. 33(3) of the MHFPA a Magistrate is required, in dealing with a charge in circumstances such as the present, to take account of any period during which a defendant has been in a mental health facility as a consequence of an order made under that section. It was submitted that such a provision was inconsistent with the proposition that the Local Court did not have jurisdiction to deal with the charges against the first defendant and that properly read, s. 33(1)(b) did not limit, or affect in any way, such jurisdiction.

It was also pointed out that the threshold for making an order under s. 33(1)(b), the effect of which was to divert a defendant from the criminal justice system, was that he or she “appeared” to be a mentally ill person. It was submitted that as a matter of practicality, when a Magistrate is asked to make an order under s. 33(1)(b) of the MHFPA, he or she is likely to have had only a limited opportunity to observe the defendant, perhaps without the benefit of any documentary evidence at all. It was submitted that it would be surprising, in those circumstances, if a final order could be made which may be based (even in part) on little more than an assessment of a defendant’s appearance.

Finally, it was submitted that the construction adopted by the Magistrate would have the obviously unintended consequence that criminal charges could be finalised on the basis of a decision of someone other than a Magistrate. That, it was submitted, was highly unlikely to have been the Parliament’s intention, and was a factor which tended wholly against the construction adopted by the Magistrate.

In all of these circumstances, it was submitted that at all times her Honour remained seized of jurisdiction, and that her Honour fell into error by denying the existence of that jurisdiction.

Senior counsel for the first defendant submitted that the provisions of s. 32 of the MHA lent no support to the construction advanced by the Director. It was submitted, in particular, that there was no power in s. 32 of the MHA to detain, and return to court, a person who was found to be mentally ill person. It was submitted that an order under s. 33(1)(b) of the MHFPA which resulted in a finding that a person was a mentally ill person did not have the effect of ordering that the person be returned to court, such that the powers in s. 32 of the MHA were not enlivened. These circumstances, it was submitted, were strongly suggestive of a conclusion that the Parliament did not intend that such a person be so returned. It was submitted that this important limitation in s. 32 of the MHA had been obscured as a result of the position taken by the Director.

Senior counsel further submitted that, contrary to the position advanced by the Director, s. 32(4) of the MHA did not provide a police officer with a statutory authorisation to detain a discharged person and return them to court. It was submitted that the “apprehension” which was referred to in s. 32(4) was that which was referable to person covered by s. 32(1)(b) of the MHA, that is, a person taken to a facility by police under s. 22. It was submitted that if such a person was to be apprehended it would be pursuant to the powers contained in s. 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and that no such power existed in respect of a person ordered to be taken to a facility under s. 33(1)(b) of the MHFPA and found to be a mentally ill person. This analysis, it was submitted, revealed a fundamental error in the Director’s reasoning.

In broader terms, it was submitted on behalf of the first defendant that when an order is made under s. 33(1)(b) of the MHFPA, and the person is found to be a mentally ill person upon assessment and admitted for treatment, the return of that person to court in custody is unlawful. This, it was submitted, was because the original order requiring detention for assessment was either still operative or, in circumstances where a discharge had occurred, was spent and, in becoming spent, had operated to finally determine the proceedings.

It was submitted that s. 33(1)(b) was enacted to facilitate the diversion, from the criminal justice system, of certain defendants, in circumstances where a Local Court was conditionally of the view that diversion was appropriate, and where it was confirmed on medical assessment that the person was a mentally ill person. It was submitted that this explained the difference in the terms of s. 33(1)(a) on the one hand, and s. 33(1)(b) on the other, and that the latter existed for the purposes of ensuring that there was an immediate (and more summary) mechanism for the speedy diversion of such persons in circumstances where it was considered appropriate. It was further submitted that the construction of s. 33(1)(b) which was consistent with both its wording and its underlying legislative purpose, was one which recognised that the section created a power complementary to that created by s. 32 of the MHFPA, to be exercised where appropriate and necessary, in a summary and expeditious manner, and in order to minimise the involvement, within the criminal justice system, of persons unsuited for that involvement.

In Favetti Bricklaying Pty Limited v Benedek & Anor [2017] NSWSC 417 I summarised (at [74]) the principles to be applied to the task of statutory construction:

In the present case, her Honour essentially concluded that:

As set out above, the process of statutory construction must necessarily begin with a consideration of the text of the provision. This is for the simple reason that the language employed in the text is the surest guide to legislative intention: Alcan (NT) Alumina at [47]. Bearing this in mind, I have come to the view that for a number of reasons the determination made by the Magistrate is reflective of error.

To begin with, there is nothing within the text of s. 33 of the MHFPA which has the effect of limiting, let alone extinguishing, the powers of a Local Court in proceedings in which an order under that section is made. In fact, there are number of factors which point in the opposite direction.

The terms of s. 33(1)(b) confer a power to make an order “without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 2013 or otherwise”. In Roberson Basten JA said (at [29]):

The fact that the power to make the order is conferred in terms which do not derogate from the power to make any other order is at odds with the proposition that the jurisdiction of the Court is extinguished in circumstances such as the present.

Further, s. 33(1)(b) of the MHFPA expressly contemplates that if a person is found not be a mentally ill person - which is what ultimately happened in the present case - he or she may be “brought back before a Magistrate or authorised officer”. Similarly, s. 33(2) of the MHFPA expressly provides that if a person is dealt with under the section, the charge(s) which gave rise to the proceedings will be taken to have been dismissed at the expiration of a period of six months “unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge”. Provisions which expressly facilitate a person being brought back before a Court to be dealt with after the making of an order under s. 33(1)(b) are, in my view, fundamentally at odds with a conclusion that, once an order is made and the person is diverted and assessed, the Local Court is no longer seized of jurisdiction. In these circumstances, the fact that s. 32 of the MHA makes no reference to a person being returned to Court is of little or no consequence.

Moreover, the practical effect of the Magistrate’s determination is that the charges against the first defendant are to be regarded as somehow being dismissed. The provisions of s. 33(2) specifically address the question of when a charge or charges are to taken to have been dismissed following the making of an order under s. 33(1)(b). There is nothing in the text of s. 33 which suggests that charges will be regarded as being dismissed in circumstances other than those contemplated by s. 33(2). Even if it is accepted that the purpose of s. 33 of the MHFPA is a diversionary one, the submissions advanced on behalf of the first defendant do not explain how, in the circumstances of the present case, the original order becomes “spent” and operates to somehow bring the proceedings to an end.

Quite apart from the fact that the plain meaning of the text of s. 33(1)(b) is at odds with the Magistrate’s conclusion, her Honour’s construction of the section would, if adopted, bring about results which, in my view, could not have been intended by the Parliament. In this regard, there are two matters of particular importance.

Firstly, even if an order is made under s. 33(1)(b) of the MHFPA, s. 18(1)(e) of the MHA provides that a person may be detained in a declared mental health facility. There is no basis upon which to read the word “may” as conferring a power, coupled with a duty to detain: Roberson at [43]. Accordingly, it is possible that a person who is the subject of an order under s. 33(1)(b) of the MHFPA will not be detained. On the Magistrate’s construction, the Local Court would have no jurisdiction to further deal with the charges in those circumstances. That, in my view, could not have been the intention of the Parliament.

Secondly, the power to make an order under s. 33(1)(b) of the MHFPA is enlivened when it “appears to the Magistrate that the defendant is a mentally ill person”. The reality is such that it is not uncommon for a Magistrate to be required to make an assessment as to whether a person so appears in the absence of any formal medical evidence, and perhaps even in the absence of a diagnosis. In Police v Pines [2013] NSWLC 3, Magistrate Buscombe (as his Honour then was) observed (at [35]) that it would be “surprising if a final order could be made on the basis of simply how an accused appeared”. I respectfully agree with his Honour’s observation. It could not have been Parliament’s intention for a final order to be made, based upon an assessment which is likely to be largely, if not wholly, impressionistic.

Further in my view, her Honour’s conclusion that the first defendant “was not being continuously detained for the purpose of making an assessment” was reflective of error. The order made under s. 33(1)(b) by Magistrate Clisdell constituted the necessary authority for the first defendant to be taken to, and detained at the Nepean Hospital:

That this is so is confirmed by the judgment of Macfarlan JA in Roberson (a decision to which her Honour was apparently not referred in argument) at [92]:

For all of these reasons, I am satisfied that her Honour erred in her construction of s. 33(1)(b). I am fortified in that view by the judgment of Fagan J in Wallman (a judgment which was handed down after her Honour dealt with the present matter) at [39]-[41]:

True it is that his Honour was dealing with an order which had been made pursuant to s. 33(1)(a) of the MHFPA, and not s. 33(1)(b). However for present purposes, there is no relevant distinction between the two provisions.

The Director should be granted the relief sought. Accordingly, I make the following orders:

Consistent with the agreement which has been reached between the parties, I make no order as to costs.