Chang v Turner
[2005] WASC 246
CHANG -v- TURNER [2005] WASC 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 246 | |
| Case No: | SJA:1068/2005 | 20 OCTOBER 2005 | |
| Coram: | HASLUCK J | 15/11/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | YAO NAN CHANG CHRISTOPHER GRAEME TURNER |
Catchwords: | Criminal law Defendant mentally unfit to stand trial Criteria for making a custody order Whether Magistrate gave adequate weight to the precept that a custody order must not be made unless it is appropriate Whether sufficient consideration given to statutory criteria The making of a custody order upheld |
Legislation: | Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 16 |
Case References: | Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 Garrett v Nicholson (1999) 21 WAR 226 GFS v The Queen [2001] WASCA 219 Lloyd v Faraone [1989] WAR 154 Lowndes v The Queen (1999) 195 CLR 665 Betts v Hardcastle (2001) 23 WAR 559 Dicks v Farrell [2001] WASCA 124 Nevermann (1989) 43 A Crim R 347 O'Sullivan v Farrer (1989) 168 CLR 210 R v Gardiner (No 3) (2000) 24 SR (WA) 136 R v Garlett [2002] WADC 87 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CHRISTOPHER GRAEME TURNER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MRS J G MUSK SM
File No : FR 2198 of 2005
Catchwords:
Criminal law - Defendant mentally unfit to stand trial - Criteria for making a custody order - Whether Magistrate gave adequate weight to the precept that a custody order must not be made unless it is appropriate - Whether sufficient consideration given to statutory criteria - The making of a custody order upheld
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Legislation:
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 16
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : Mr P D Yovich
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93
Garrett v Nicholson (1999) 21 WAR 226
GFS v The Queen [2001] WASCA 219
Lloyd v Faraone [1989] WAR 154
Lowndes v The Queen (1999) 195 CLR 665
Case(s) also cited:
Betts v Hardcastle (2001) 23 WAR 559
Dicks v Farrell [2001] WASCA 124
Nevermann (1989) 43 A Crim R 347
O'Sullivan v Farrer (1989) 168 CLR 210
R v Gardiner (No 3) (2000) 24 SR (WA) 136
R v Garlett [2002] WADC 87
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1 HASLUCK J: This is an appeal against a custody order made pursuant to s 16 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The appellant, Yao Nan Chang, contends that the learned Magistrate erred in the exercise of her discretionary power to make such an order. I will turn to the grounds of appeal later.
2 A complaint was laid against the appellant pursuant to provisions of the Justices Act 1902 (WA), namely, that on 15 February 2005 at Leeming he was armed with a dangerous or offensive instrument, being a 12 inch long meat cleaver, in circumstances that were likely to cause fear to any person contrary to s 68(1) of the Criminal Code.
3 I note in passing that by s 68(1) a person who is or pretends to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person is guilty of a crime and is liable to imprisonment for 7 years. The penalty for a summary conviction is imprisonment for 3 years and a fine of $36,000.
4 A statement of material facts establishes that the appellant attended at a pharmacy with the intention of buying heroin, marijuana and ecstasy from the pharmacist. Due to previous instances of rejection of his requests by the pharmacist, the appellant took with him a 12 inch long stainless steel meat cleaver.
5 The appellant banged the meat cleaver on the counter in an intimidating manner before having a brief verbal altercation with the complainant. The appellant was then given his prescription medication and left the shop with no further incident. However, one of the female staff members and a female customer were visibly distressed by the incident and the female customer felt physically ill as a result of the appellant's action.
6 The appellant was located a short time later at his home address and the meat cleaver was seized at that location. He was conveyed to Murdoch Police Station where he took part in a video record of interview in which admissions were made.
7 It emerges from the evidentiary materials before me that the appellant was diagnosed with chronic paranoid schizophrenia in 1991. Since then he has been admitted to psychiatric units in Western Australia for treatment. Most of his admissions were as an involuntary patient pursuant to provisions of the Mental Health Act 1996 (WA). Not surprisingly, arrangements were made for a psychiatric report to be
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- prepared bearing upon the question of whether the appellant was fit to stand trial.
8 I pause to note that by s 10 of the Criminal Law (Mentally Impaired Accused) Act an accused is presumed to be mentally fit to stand trial until the contrary is found. The criteria bearing upon whether an accused is not mentally fit to stand trial are set out in s 9 of the Act.
9 Dr Mircea Schineanu submitted a report dated 16 March 2005 to the presiding Magistrate at the Fremantle Court of Petty Sessions in which the opinion was expressed that the appellant was not fit to stand trial and had a mental illness as defined in s 4 of the Mental Health Act. It was said that the appellant might require a lengthy period of in-patient supervised treatment in hospital before he was fit to plead.
10 In a further report dated 16 May 2005 Dr Schineanu, by way of an addendum to his previous report, addressed the applicable criteria and concluded that the appellant was not fit to stand trial in that he was incompetent as to the three main areas of fitness namely, he did not have the ability to understand the nature of the Court proceedings, he did not have the ability to understand the nature of the charges and the possible consequences of the proceedings and he did not have the ability to communicate adequately with counsel and to participate in the defence.
11 The learned Magistrate took account of Dr Schineanu's expertise in this field of learning and held that the appellant was unfit to stand trial. This brought into play s 16(2) of the Criminal Law (Mentally Impaired Accused) Act. According to that provision, in respect of offences triable summarily, if the Court decides that the accused is not mentally fit to stand trial and is satisfied that he will not become mentally fit to stand trial within 6 months, the Court must make an order under s 16(5) of the Act. By this further provision an order is to be made dismissing the charge without deciding the guilt or otherwise of the accused. The order is to provide for the release of the accused or, subject to s 16(6), the making of a custody order in respect of the accused.
12 By s 3 of the subject Act a custody order means an order that an accused be kept in custody in accordance with Pt 5. The relevant provisions allow for a mentally impaired accused to be detained in an authorised hospital or a declared place. Section 16(6) provides that a custody order must not be made unless the statutory penalty for the alleged offence includes imprisonment and the Court is satisfied that a custody order is appropriate having regard to (a) the strength of the
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- evidence against the accused; (b) the nature of the alleged offence and the alleged circumstances of its commission; (c) the accused's character, antecedents, age, health and mental condition and (d) the public interest. By s 16(8) if a custody order is made the accused cannot again be charged with or tried for the offence.
13 At a hearing before the learned Magistrate in the Magistrates Court at Fremantle on 9 June 2005 consideration was given to the question of whether a custody order should be made. The appellant was represented at the hearing by counsel from the Legal Aid Commission.
14 It is apparent from the transcript that the Schineanu's reports dated 16 March and 16 May 2005 were before the Court. After hearing various submissions from the prosecutor and defence counsel bearing upon the statement of material facts and the antecedents of the appellant the learned Magistrate proceeded to address the question of whether the appellant should be detained pursuant to a custody order bearing in mind that he had been characterised as an involuntary patient since shortly after the alleged offence occurred.
15 The learned Magistrate gave brief verbal reasons in support of her ruling that a custody order should be made. She noted that the matter before her was "a very serious charge". She accepted that there was a strong case against the accused, he was mentally unfit to stand trial because of his psychiatric illness, his history included some offences involving violence, the public interest was a major consideration. She then proceeded to hold that a custody order should be made.
16 Counsel for the appellant obtained leave to appeal on 12 August 2005. The materials lodged in support of the appeal include the Schineanu's reports and the transcript of the hearings in the Magistrates Court at Fremantle.
17 Section 7 of the Criminal Appeals Act 2004 (WA) provides that a person who is aggrieved by decision of a court of summary jurisdiction may appeal to the Supreme Court. By s 8 an appeal may be made on various grounds including that the Court below made an error of law or fact or that there has been a miscarriage of justice. By s 14 the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the
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- appellant. By s 39 the practice is for the Court to determine the appeal on the materials before the Court below.
18 A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226. However, it is not necessary for full and detailed reasons to be given in every case, particularly in the Magistrates Court: Lloyd v Faraone [1989] WAR 154 at 163.
19 There is authority to the effect that the making of a custody order involves the exercise of a discretionary judgment: GFS v The Queen [2001] WASCA 219 at [25]. The general rule is that an appellate court may not substitute its own opinion for that of the primary Judge merely because the appellate court would have exercised the discretion differently: Lowndes v The Queen (1999) 195 CLR 665 at 671.
20 It is clear from the provisions I mentioned in earlier discussion that the decision to make a custody order pursuant to s 16 of the subject Act is governed by the criteria set out in that provision. Thus, questions arise in the present case as to whether the learned Magistrate exercised her discretion after taking account of and giving appropriate weight to the relevant considerations.
21 The first ground of appeal is that the learned Magistrate erred in characterising the alleged offence and the alleged circumstances of the offence as "very serious" when deciding to make a custody order.
22 Counsel for the appellant submitted that the alleged offence did not involve actual violence, the weapon used was not waved about or pointed at any person and the alleged offence involved a brief incident rather than a prolonged incident.
23 As to this ground of appeal, I am of the view that the learned Magistrate was justified in characterising the charge as "very serious". The conduct of the appellant was unusual and obviously struck those present as extreme and threatening.
24 It must be kept in mind also that the seriousness of the offence had to be weighed up in conjunction with the other considerations mentioned in the statutory provision including the public interest. The judgment involved in assessing whether a decision is or is not in the public interest will essentially be one of fact and degree, and by its very nature it will be
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- something that is not easily susceptible to judicial review: Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 124.
25 I am not persuaded that the appeal should succeed on this ground.
26 The second ground of appeal is that the learned Magistrate failed to consider or give adequate consideration to the personal circumstances of the appellant and the suggested management plan contained in the psychiatrist's report dated 16 May 2005 in deciding to make a custody order.
27 As to this ground, it was said that Dr Schineanu set out a management plan concerning the appellant which involved the dismissal of the complaint, the return of the appellant to the Frankland Centre to continue treatment as an involuntary patient. Upon discharge to the community, the appellant would be on a community treatment order under s 65 of the Mental Health Act. The option of a custody order was not raised.
28 Further, it was said that there was no explicit reference to the subject report in the learned Magistrate's reasons for decision and there was no indication as to what consideration was given to the report in deciding to make a custody order.
29 On the other hand, counsel for the respondent submitted that the appellant's personal circumstances were extensively canvassed before the learned Magistrate and it was clear that the Magistrate had given consideration to the Schineanu report of 16 May 2005 and to the management plan. Counsel acknowledged that the management plan was predicated on the release of the appellant, but the plan did not expressly argue against the making of a custody order or speak in favour of release. It placed certain considerations before the Court. Moreover, the plan and the assumption behind it could not bind the learned Magistrate in any way. When these matters were drawn together, counsel submitted, it could not be suggested that the learned Magistrate failed to take account of any relevant consideration.
30 As to this ground of appeal, I have to say that I am persuaded by the respondent's submissions. The learned Magistrate clearly had the subject report and management plan before her. The documents provided by the expert were bound to be influential but they cannot be treated as decisive. In the end, it was for the learned Magistrate to determine whether a custody order should be made having regard to the statutory criteria (and
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- to matters of the kind raised by the third ground of appeal) and not simply to the expert opinion. I am not persuaded that the Magistrate failed to give adequate consideration to the personal circumstances of the appellant.
31 The third ground of appeal is that the learned Magistrate erred by failing to consider or give adequate consideration to the interests of the appellant when considering the factors contained in s 16(6) of the subject Act.
32 Counsel for the appellant submitted that a consideration of the relevant factors necessarily involves a weighing up of the public interest and the interests of the appellant. A relevant consideration is that a person should not normally be held in custody without trial unless the public interest demands it. Further, the learned Magistrate made no mention of having given consideration to the interests of the appellant in not being subject to a custody order or to the possibility that the place of custody could be a prison, although the current place of custody for the appellant is Graylands Hospital. Counsel noted that by s 26 of the subject Act the Review Board may at any time amend the place of custody.
33 Counsel for the respondent submitted that the learned Magistrate's reasons, albeit brief, identified the basis for her decision and appeared to advert to the various factors she was required to take into account. The notion that the appellant might serve part of his custody order in prison was speculative on the evidence. The learned Magistrate was entitled to place an emphasis upon the nature and circumstances of the offence and the requirements of public interest. It was said that no error in the exercise of her discretion had been demonstrated.
34 As to this ground of appeal I must begin by noting that proper weight must be given to the precept which serves to introduce the statutory criteria set out in s 16(6) of the Act; that is, a custody order must not be made unless the Court is satisfied that a custody order is appropriate having regard to the specified matters.
35 In the GFS case (supra) Wallwork J made these observations about the case before him at par 60:
"60. In my opinion and with respect, it is not clear from the learned Judge's reasoning what weight was given to the fact that in the opinion of the psychiatrists and due to his age and mental condition, the appellant does not now constitute a significant danger to the community. It is
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- also not clear how much weight was given to the consideration that a person should not normally be held in custody without a trial unless the public interest demands it. What is clear from the learned Judge's reasons is that there was considerable weight given to the seriousness of the offences and the strength of the Crown case.
- 61. Because it was not clear what weight was given to the various factors abovementioned, in my view there was error in the decision-making process – Pettitt v Dunkley [1971] 1 NSWLR 376 at 387-388. For that reason I agreed that the custody order should be set aside."
36 It will be apparent from earlier discussion that in the present case the learned Magistrate gave comparatively brief reasons for her decision. However, she made it clear that she would address "all the factors listed in s 16". Having reviewed the listed factors she concluded that it was appropriate to make the order, being the operative term used in the statutory provision.
37 It is true that the learned Magistrate did not refer explicitly to the opening precept but, to my mind, it is apparent from the tenor of her reasoning that she saw herself as being involved in a balancing exercise in which the general prohibition against the making of a custody order, being a precept which is designed to protect and underline the importance of the liberty of the subject, had to be weighed up with countervailing considerations including the public interest. In the end, the public interest was thought to be the paramount consideration.
38 It follows from this analysis of the learned Magistrate's reasoning that she appears to have given proper weight to the considerations allowed for by the statutory provision. To my mind, it was not open to her to speculate as to the manner in which the custody might be served. Accordingly, as to this ground of appeal I am not persuaded that an error has been demonstrated.
Summary
39 The appeal will be dismissed. I will hear from the parties as to whether any further orders or directions are required.
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