Director of Public Prosecutions v Anderson
[2011] VSC 625
•24 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2011 1081
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| and | |
| JOHN GREGORY ANDERSON | First Respondent |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2011 | |
DATE OF JUDGMENT: | 24 November 2011 | |
CASE MAY BE CITED AS: | DPP v Anderson | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 625 | |
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JUDICIAL REVIEW – Application for order in nature of certiorari – Non-custodial supervision order – Requirement for certificate of available services – Delay of more than 4 years since order made – Inadequacy of evidence – Oral evidence as to matters certificate would address – Order directly responsive to unchallenged evidence – Right of appeal – Right to apply for revocation or variation – Reviews required by order not undertaken – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Rose SC | Solicitor for Public Prosecutions |
| For the Respondent | No appearance |
HIS HONOUR:
The Director of Public Prosecutions (‘the DPP’) seeks an order in the nature of certiorari or of mandamus bringing up and quashing orders made by Judge Crossley in the County Court at Ballarat on 25 October 2007 in relation to the first defendant, Mr Anderson:
Declared that he be released on a non-custodial supervision order for a nominal period of 12.5 years commencing from today. Throughout the period of the order he will submit to and comply with all lawful directions of the consultant psychiatrist at the Ballarat Psychiatric Health Services or his or her nominee. That he be subject to a review on or before the end of 2009 and bi-annually thereafter.
The DPP seeks a further order remitting the matter to the County Court to be dealt with according to law.
The proceeding before me was instituted on 10 March 2011 and faces a threshold problem by reason of r 56.02 of the Supreme Court (General Civil Procedure) Rules 2005.[1] Leave is sought to commence the proceeding outside the 60 day period fixed by that rule.
[1]Rule 56.02 provides:
(1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
The orders of Judge Crossley which are in issue were made after Mr Anderson had been found not guilty by reason of mental impairment of six counts of assault, one count of aggravated burglary, and one count of threat to kill.
The transcript of the proceeding before Judge Crossley makes it clear that before making the orders now in issue, His Honour declared, pursuant to s 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the CMI Act’), that Mr Anderson was liable to supervision. Section 23 provides:
If a defendant is found not guilty because of mental impairment, the court must—
(a)declare that the defendant is liable to supervision under Part 5; or
(b) order the defendant to be released unconditionally.
There is no dispute that His Honour properly declared Mr Anderson to be liable to supervision. The questions raised in this proceeding go to the requirements of s 26 attendant upon the making of such a supervision order.
Judge Crossley proceeded from verdict to deal immediately with the plea on behalf of Mr Anderson. The effect of the CMI Act is that His Honour was required either to make interim orders under s 24, or to make a supervision order in accordance with s 26. It is now objected that His Honour made a non-custodial supervision order without the certificate required by s 26(3).
Section 26(3) states:
The court must not make a supervision order—
(a)committing a person to custody in an appropriate place; or
(b)providing for a person to receive services in an appropriate place or from a disability service provider, the Secretary to the Department of Human Services or the Secretary to the Department of Health—
unless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.
Section 47 states, in part:
(2) A certificate of available services must—
(a) state whether or not there are facilities or services available for the custody, care or treatment of the person (as the case requires); and
(b) if there are, give an outline of those facilities or services.
The certificate under s 47 is given by the Secretary to the Department of Human Services.
Ballarat Psychiatric Health Services (‘BPHS’) is an approved mental health service under the Mental Health Act 1986, and, in turn, falls within the definition of an ‘appropriate place’ under s 3 of the CMI Act. I accept Mr Rose's submission that, in consequence, s 26 required that a certificate be provided before His Honour could order that Mr Anderson submit to, and comply with, all lawful directions of the consultant psychiatrist at the BPHS.
Nevertheless, there are, to my mind, a series of difficulties with the DPP's application.
First, there is no direct evidence from a person present at the time of the hearing that a certificate was not submitted to the court. There is also no evidence from an officer of the Department of Human Services that no certificate was provided by the Secretary. I am invited to draw the inference from the absence of reference to a certificate in the transcript that no certificate was tendered.
Further, the exhibits that were before the County Court are not in evidence before me, including four reports from BPHS. It is incumbent upon an applicant for judicial review to demonstrate that a court or a tribunal could not have reached a particular conclusion of fact. It seems to me that the evidence is in a state which leaves open the reasonable possibility that there was a certificate before the County Court. The evidence is less than entirely persuasive. Nevertheless, for the purposes of this analysis, I will presume that no certificate of available services was tendered.
Secondly, direct evidence was given to Judge Crossley on behalf of the consultant psychiatrist at BPHS by Dr Sonia Sara Ghai, who was, at the date of sentence hearing, treating Mr Anderson as a psychiatrist at BPHS. Dr Ghai told the court that Mr Anderson had been a client of BPHS since he was admitted on 28 July 2006, and that he continued to be an ongoing client of BPHS. She described the regime of his treatment, which included fortnightly meetings with a psychiatric nurse and review by Dr Ghai every two weeks. Mr Anderson and his family were also receiving education concerning his mental illness and early warning signs.
On two occasions, Mr Anderson had voluntarily sought readmission in response to early warning signs. Mr Anderson was also receiving medication comprising two mood stabilisers and an antidepressant. He was compliant with the prescribed medication.
The transcript records the following evidence:
MR DANN: I’ve asked you about the past, what is the future; what is the plan, the ongoing plan for Mr Anderson, if he is released into the community or continues to be in the community?---The ongoing plan and – which will be the future plan as well, Your Honour, would be for him to continue seeing – continue to engage with Psych Services, continue to see Peter Savern every fortnight and have a review with me every two months, to remain compliant with his medication, to involve in psycho-social strategies basically involving education around his illness and early warning signs, continue to abstain from illicit drugs and of course to do some blood investigations every three months. We will just recommend continuing his own medications that he is [on].
MR DANN: Is it your view that this man can continue to be managed on a, as you like, a voluntary basis?---Considering Your Honour that he has remained compliant with medications and he has - - -
HIS HONOUR: You can only answer that from a clinical point of view, a doctor's point of view; you have no need as a doctor to have him – or to have any supervision of his treatment, do you?---I can only say from – like I said, like, from a clinical point of view, as long as he remains compliant with his medications and he's able to engage with us.
MR DANN: Everything's fine and you've no reason to think it's not going to continue to be fine?---No, not at this point, no.
It follows that His Honour's order was directly responsive to the detailed evidence before him, which demonstrated that the facilities and services necessary for the order were available. The matters which a certificate would cover under s 47(2) were directly addressed and there is no suggestion the evidence was incomplete or inaccurate.
Further, the correspondence, which is exhibited to the affidavit of Mr Castle before me, demonstrates that Mr Anderson in fact continues to this day to be subject to supervision by BPHS.
Thirdly, no objection was taken on behalf of the DPP by experienced counsel to the absence of a certificate at the hearing before Judge Crossley. I doubt, but do not need to finally decide, that it would be equitable to allow the DPP to now rely on a want of form in challenging the order of the County Court, as distinct from substantial non-compliance with s 6(3).
In Wells v Minister of Housing and Local Government,[2] Lord Denning observed:
Now, I know that a public authority cannot be estopped from doing its public duty but I do think it can be estopped from relying on technicalities and this is a technicality to be sure. … I take the law to be that a defect in procedure can be cured and an irregularity can be waived even by a public authority so as to render valid that which would otherwise be invalid.[3]
[2][1967] 1 WLR 1000.
[3]Ibid, 1007. See also the judgment of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 215.
A related question, which again I have come to the view that I do not need to decide, is whether s 26(3) should be regarded as evincing an intention on the part of Parliament that a supervision order is to be regarded as invalid if a procedural error occurs and no certificate has been received by the court under s 47, but there is evidence before the court as to the substantive matters intended to be evidence by such a certificate .[4] I doubt that it would be proper to resolve the question without requiring notice to the Secretary for the benefit of whose Department the certificate is intended to operate.
[4]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Whatever be the correct answer to this question, however, it is difficult to conclude that it would be just to extend time to allow the procedural point now in issue to be taken four years later if, as I have said, it is plain that Dr Ghai's evidence did provide the County Court with the information which s 26(3) intends that the court should have.
Fourthly, Judge Crossley’s order required review and confirmation within two years, but Mr Rose tells me that this has not occurred. There is no affidavit material before me as to the precise circumstances which have led to the failure to review and I do not think I should comment further upon this, save to observe that the failure to review constitutes a blatant breach of the terms of His Honour's order.
If the regime contemplated by Judge Crossley had been properly implemented, the order governing the terms of the supervisory order would not now be that of Judge Crossley, but such further orders as were made in 2009 and 2011 upon the bi-annual review which His Honour required. In turn, before each review under s 33, a further certificate should have been obtained under s 47(1)(b) of the CMI Act with respect to the ongoing provision of services.
In an underlying sense, it is a certificate as to the ongoing situation which is presently relevant to the justice of the order governing Mr Anderson and, in turn, the provision of services to him.
Fifthly, the DPP has the right to appeal against a supervision order under s 28A(2) of the CMI Act, but has not done so. It is, in my view, clear that Parliament's intention is that decisions of the type challenged before me be the subject of an appeal, not (in the ordinary course) judicial review.[5] Mr Rose freely conceded that it may well be that an appeal was the appropriate procedure for ventilation of the point which is now sought to be raised.
[5]R v Cook; Ex parte Twigg (1980) 147 CLR 15, 30 per Murphy J; R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835.
Thus, the DPP may still apply for revocation or variation of the non-custodial supervision order pursuant to ss 31 and 33 on the basis of evidence as to the current situation.
Further, in my view, the DPP could simply apply to bring on the review required by Judge Crossley's order. That application would bring the Department of Human Services and Mr Anderson before the court. Section 33 decisions are themselves subject to a further right of appeal to the Court of Appeal, pursuant to s 34. It follows that the CMI Act provides a comprehensive series of mechanisms for a rehearing on the merits of the underlying issue as to what form of supervisory order should be made in respect of Mr Anderson.
That rehearing would be determined on the basis of evidence as to the current situation. The question of whether or not a certificate should or should not have been provided in 2007, if in fact one was not provided, would be entirely irrelevant.
Sixthly, the underlying concern of the DPP stated in the affidavit material before this Court is expressed under the heading ‘Matters relating to need for remitter’. The affidavit states:
On 1 March 2011, I was provided a copy of an involuntary treatment order by Ms Melissa Iskov, solicitor at the Department of Human Services. The order shows that on 11 June 2010 Mr John Anderson was the subject of an involuntary treatment order at the Alfred Hospital. The making of the order tends to show Mr John Anderson may be in need of ongoing treatment and supervision.
It seems to me that this evidence simply reinforces the proposition that Mr Anderson's position should be reviewed in the light of the current evidence as to the appropriate form of supervisory order. As I have said, the scheme of the CMI Act provides for this review, and provides for any necessary variation of the order originally made by Judge Crossley.
Finally, Mr Rose made clear to me in oral submission that the DPP's procedural concern is, at heart, simply to regularise the supervision of Mr Anderson. The choice of the appropriate way to do this has, it appears, not been seen to be free from difficulty, particularly in circumstances where Judge Crossley retired before the perceived problem arose. Whilst I accept this, it nevertheless seems to me that the fundamental problem which has occurred has been a failure to review Mr Anderson's situation in accordance with Judge Crossley's order. It is difficult to see how this can be explained, at least on the affidavit material before me.
When the above matters are taken into account, I am not persuaded that relief in the nature of certiorari should be granted.
(a) The apparent purpose of s 26(3) is to protect the DHS and other providers of health services from the consequence of orders for the provision of services with which there are difficulties in terms of resources or compliance. That purpose was plainly fulfilled by the evidence of Dr Ghai. Her evidence fully covered the matters that might be covered by a certificate, and the correspondence exhibited to Mr Castle's affidavit shows that Mr Anderson remains to this day under the supervision of BPHS.
(b)The DPP has a right of appeal with respect to the terms of the judge's order.
(c)There is no dispute that Judge Crossley properly declared Mr Anderson liable to supervision. The dispute is as to the consequential non-custodial supervision order. This is not an order which the Act envisages will necessarily have a fixed permanent administrative content.
(d)The DPP has a right to seek review pursuant to the terms of the judge’s order and to seek revocation or variation of it under the CMI Act. In my view, the proper course is simply to bring the matter on for review under s 33. Such a review will enable the current merits of the situation, including the position of the Department of Human Services, to be squarely addressed.
Having regard to the above matters, I am not persuaded that special circumstances exist justifying the very late extension of time pursuant to Rule 56.02(3).[6] Further, and in any event, I would not grant certiorari by way of discretionary relief, having regard to the situation as I have set it out above.
[6]See Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68]-[80].
For the sake of completeness, I record that, despite the doubt which has been raised with respect to the technical correctness of Judge Crossley's order, it must be treated as valid, bearing in mind the principles stated by Dixon J in Posner v Collector for Interstate Destitute Persons (Vict):[7]
When there has been a failure of the due process of law at the making of an order to describe it as void is not unnatural. But what has been said will show that, except where upon its face an order is bad or unlawful, it is only as a result of the construction placed upon a statute that the order can be considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity. Modern legislation does not favour the invalidation of orders of magistrates or other inferior judicial tribunals and the tendency is rather to sustain the authority of orders until they are set aside and not to construe statutory provisions as meaning that orders can be attacked collaterally or ignored as ineffectual, if the directions of the statute have not been pursued with exactness.[8]
[7](1946) 74 CLR 461.
[8]Ibid, 483; see also Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 645-646 [151] per Hayne J; Attorney-General for New South Wales v Mayas (1988) 14 NSWLR 342, 357 per McHugh JA.
In my view, this Court should not set aside His Honour's order and, in turn, the County Court, the Director of Public Prosecutions, the Department of Human Services and Mr Anderson are bound to treat that order as valid.
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