Director of Public Prosecutions v Wallman

[2017] NSWSC 40

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Director of Public Prosecutions v Wallman [2017] NSWSC 40

Hearing dates:

3 February 2017

Date of orders:

08 February 2017

Decision date:

08 February 2017

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. The orders of the Local Court at Tamworth made on 22 August 2016 by Local Court Magistrate Prowse in respect of Matter No H62245066, Offence Reference Nos 6899171 and 6785030, further identified by Court Proceedings Nos 2016/00236717 – 001 and – 002, namely orders pursuant to s 33(1)(a) Mental Health (Forensic Provisions) Act 1999 (NSW) that the first defendant “be taken by police and detained in the mental health facility for assessment in accordance with the Mental Health Act” are set aside.

 

2. Declare that the charges laid in Matter No H62245066 as further identified in order 1 remain outstanding against the first defendant and have not been determined or otherwise disposed of by the Local Court and that the Local Court continues to have jurisdiction to hear and determine the said charges.

 

3. Order that the Local Court hear and determine the charges in Matter No H62245066 as further identified in order 1 according to law.

 

4. The first defendant is to pay the plaintiff’s costs of the summons.

5. The first defendant is granted an indemnity certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW) in respect of the appeal which is the subject of the proceedings on the summons.

Catchwords:

ADMINISTRATIVE LAW – judicial review – whether orders under Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a), made under jurisdictional error – failure to find that defendant appeared “mentally ill”

 

ADMINISTRATIVE LAW – judicial review – procedural fairness – obligation to give parties a hearing when making orders under Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a)

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a) – whether order under s 33 of defendant for assessment finally disposes of charges – relationship between Mental Health Act 2007 (NSW), Pt 2, Ch 3 and Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(2)

Legislation Cited:

Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Suitors’ Fund Act 1951 (NSW)
Summary Offences Act 1988 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305
Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337
Director of Public Prosecutions v Rugari [2016] NSWSC 630
Ex parte Parsons; Re Suitors’ Fund Act (1953) 69 WN (NSW) 380
Production Spray Painting & Panelbeating Pty Ltd v Newnham (1991) 27 NSWLR 644
Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57
Re Tracey [2011] NSWCA 43
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; HCA 43

Category:

Principal judgment

Parties:

Director of Public Prosecutions (plaintiff)
Zachary Wallman (first defendant)
The Local Court of New South Wales (second defendant)

Representation:

Counsel:
Ms Michelle England (plaintiff)
Mr Stephen Lawrence (first defendant)

  Solicitors:
Ms Dominique Kelly, Office of the Director of Public Prosecutions (plaintiff)
Mr Jeremy Styles, Aboriginal Legal Service (first defendant)
Lea Armstrong, Crown Solicitor for New South Wales (second defendant)

File Number(s):

2016/348115

Judgment

1. FAGAN J: The plaintiff applies for orders under s 69 Supreme Court Act1970 (NSW) quashing an order of a Local Court Magistrate that the first defendant, who faced criminal charges in that Court, be detained for assessment under the Mental Health Act 2007 (NSW). The learned Magistrate purported to make this order ex parte on 22 August 2016. The following day, 23 August 2016, his Honour determined that the order had effected a final disposition of the charges on which the first defendant was before the Court. The plaintiff seeks relief in respect of that decision also, including a declaration that the charges remain pending and an order that they be dealt with according to law.

2. Relevant statutes make no provision for an appeal from decisions and orders of the kind made on 22 and 23 August 2016, either to the District Court or to this Court. Judicial review is sought on grounds of error of law on the face of the record, jurisdictional error and denial of procedural fairness in failing to accord the prosecutor a hearing. The orders claimed pursuant to s 69 of the Supreme Court Act are in the nature of certiorari and mandamus.

3. The Local Court itself is the second defendant. It has filed a submitting appearance. The first defendant will be referred to hereafter simply as the defendant.

The criminal charges and proceedings in Sydney

4. The defendant was charged on 5 August 2016 by an officer of the Sydney City Local Area Command with one count of being armed with intent to commit an indictable offence (contrary to s 114(1)(a) Crimes Act 1900 (NSW)) and one count of having custody of a knife in a public place (contrary to s 11C(1) Summary Offences Act 1988 (NSW)). According to the police fact sheet prepared by the officer in charge that day, the defendant had on previous occasions faced charges of breaking and entering, carrying knives, assault including assault on police officers, affray and robbery. He had been convicted of at least some of these offences and in recent times been imprisoned. He had been released on parole on 26 July 2016. He is of Aboriginal descent and was just short of 19 years of age at the date of his arrest, 5 August 2016.

5. The facts alleged are that shortly after 2:30 pm on 5 August 2016 at Sydney Central Railway Station police on two separate occasions issued infringement notices to the defendant, one for entering a platform area without a ticket and one for smoking within a restricted area. Shortly after this police approached him to move him on because he was obstructing passengers on a stairway. The defendant initially tried to avoid police by walking away through the station but then walked back and said he was “over it”, that he wanted to go back to Silverwater and that he was “stranded” with “nowhere to go”. He said that if he was not returned to prison he would commit a robbery and “hurt a police officer”. He was carrying in his back pocket a 23 cm knife with a 12 cm blade. Police described his manner as “very agitated”. After his arrest they arranged for him to speak with a representative of the Aboriginal Legal Service but he refused.

6. He was charged with the offences referred to at [4] and brought before Parramatta Local Court the next day. He did not apply for bail and it was refused. He was remanded to appear before Central Local Court on 10 August 2016 with a notation on the record that he was “to see a Mental Health Nurse”.

7. On 10 August 2016 during proceedings at Central Local Court a verbal report was received from a Doctor Zhang to the effect that the defendant had a history of schizophrenia, Attention Deficit Hyperactive Disorder and mild intellectual impairment. The defendant had not been taking medication since his release from prison and had “reduced symptoms of psychosis”, however his “drug use remains of concern” and the likelihood of a relapse of his mental illness was “very high due to substance abuse”.

8. The Magistrate at Central Local Court on 10 August 2016 granted bail on conditions which included the following:

1. To reside at 11 Kinnara Street South Tamworth. This was apparently the residential address of a person to whom the defendant refers as his “aunty”.

2. Not to be absent from the premises between the hours of 10:00 pm and 6:00 am.

3. Upon release from custody to travel directly to Tamworth in company of workers from Mercy Connect Disability Services. That is a non-government organisation which had volunteered to assist the defendant.

4. To attend upon a general practitioner within 48 hours of release and to accept any treatment reasonably recommended.

5. To appear before the Local Court at Tamworth at 9:30 am on 22 August 2016.

Breach of bail; Tamworth Local Court orders 10 August 2016

9. The defendant was released on this conditional bail and travelled to Tamworth. I infer that Mercy Connect Disability Services monitored his presence at the residential address to which he was restricted. On or shortly before Saturday 20 August 2016 a representative of the organisation reported to police that the defendant was missing. This caused police to arrest him for breach of his bail conditions and to bring him before the Local Court at Tamworth on 20 August 2016 upon a detention application.

10. A solicitor who appeared for the defendant before the Deputy Registrar that day stated that she was unable to obtain any instructions from him. The Deputy Registrar herself questioned the defendant but he was incapable of providing a coherent account of his actions. The court considered the notes on file of Dr Zhang’s verbal report of 10 August 2016 and observed that the defendant was “obviously in need of a high level of assistance”. The court was concerned that in those circumstances he was not apparently receiving professional psychiatric treatment.

11. The Deputy Registrar made an order under s 33 (1D)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) in the following terms:

“The accused/defendant is to be taken by police and detained in the mental health facility for assessment in accordance with the Mental Health Act 2007. If on assessment the accused is found not to be a mentally ill person or mentally disordered person within the meaning of the Mental Health Act 2007, he/she is to be brought by a prescribed person back before a Magistrate or authorised officer.”

12. The indictable offence with which the defendant was charged (s 114(1) Crimes Act) is included in cl 9 of Table 1 of Schedule 1 to the Criminal Procedure Act 1986 (NSW). Therefore, by the operation of s 260 of that Act, the charge was to be dealt with summarily by the Local Court unless either the prosecutor or the defendant should elect to have it dealt with on indictment. At the time the Deputy Registrar made her order under s 33(1D) of the Mental Health (Forensic Provisions) Act on 20 August 2016 no election had been made by either party to proceed with the offence on indictment.

13. Section 31 of the Mental Health (Forensic Provisions) Act governs the applicability of Pt 3 of the Act, comprising ss 31 – 36, to summary offence proceedings in the Local Court. It provides as follows:

“31   Application

(1) This Part applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, and includes any related proceedings under the Bail Act 2013, but does not apply to committal proceedings.”

14. The proceedings before the Deputy Registrar on 20 August 2016 arose under the Bail Act 2013 (NSW) in relation to one summary offence and one indictable offence triable summarily. The proceedings were clearly not committal proceedings. Part 3 of the Mental Health (Forensic Provisions) Act, therefore applied. Within that part, s 33 contains the following subsections, so far as relevant to the Deputy Registrar’s order of 20 August 2016 and to the subsequent orders and decisions of Magistrate Prowse of 22 and 23 August 2016, to be referred to hereafter:

“33   Mentally ill persons

(1)   If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is a mentally ill person, the Magistrate (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):

(a)  may order that the defendant be taken to, and detained in, a mental health facility for assessment, or

(b)  may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the person be brought back before a Magistrate or an authorised officer, or

(c)  may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.

...

(1D) If, at the commencement or at any time during the course of the hearing of proceedings under the Bail Act 2013 before an authorised officer, it appears to the authorised officer that the defendant is a mentally ill person, the authorised officer (without derogating from any other order under the Bail Act 2013 that the officer may make in relation to the defendant):

(a)  may order that the defendant be taken to, and detained in, a mental health facility for assessment, or

(b)  may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the defendant be brought back before a Magistrate or an authorised officer.

(2)   If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate or authorised officer in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.

(3)   If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a mental health facility as a consequence of an order made under this section.

(4)   The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A)   A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1) or (1A).

(4B)   An authorised officer is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1D).

(4C)   A failure to comply with subsection (4A) or (4B) does not invalidate any decision of a Magistrate or authorised officer under this section.

...

(6)   In this section, a reference to an authorised officer is a reference to an authorised officer within the meaning of the Criminal Procedure Act 1986.”

15. The Deputy Registrar is an authorised officer within the meaning of the Criminal Procedure Act1986 (NSW): s 3(1). Pursuant to s 19(3) of the Local Court Act 2007 (NSW) a Deputy Registrar has all the functions and powers of the Registrar. Accordingly subs (1D) of s 31 was applicable to her dealing with the matter on 20 August 2016.

16. The plaintiff does not seek judicial review of, or any relief in relation to, the Deputy Registrar’s order. The Deputy Registrar was evidently satisfied that the defendant appeared to be a “mentally ill person” when he was brought before her for breach of bail. “Mentally ill person” is defined for the purposes of the Mental Health (Forensic Provisions) Act with the same meaning as in the Mental Health Act 2007 (NSW). In the latter act the definition is given in s 14, as follows:

“14   Mentally ill persons

(1)   A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a)  for the person’s own protection from serious harm, or

(b)  for the protection of others from serious harm.

(2)   In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.”

17. The Deputy Registrar’s satisfaction with respect to this pre-requisite for making the order for assessment under s 33(1D) Mental Health (Forensic Provisions) Act was well open to her having regard to the notation of Dr Zhang’s opinion on the record of proceedings before Central Local Court and taking into account the defendant’s behaviour alleged in the police fact sheet and as exhibited by the defendant himself in court on 20 August 2016.

18. Notwithstanding some contradictory entries on JusticeLink regarding vacation of the listing of the charges for Monday, 22 August 2016 under the remand from Central Local Court of 10 August 2016 (see [8](5)), that listing appears to have remained in place after the Deputy Registrar made the order for the defendant to be assessed.

Assessment of the defendant pursuant to the Deputy Registrar’s order

19. The mental health facility to which the defendant was taken by police pursuant to the Deputy Registrar’s order was the Banksia Unit of Tamworth Hospital. Assessment under the Mental Health Act, as ordered by the Deputy Registrar, required consideration by medical professionals of whether the defendant was “mentally ill” according to the definition in s 14 quoted at [16] and/or whether he was “mentally disordered” as defined in s 15. Section 15 of the Mental Health Act is as follows:

“15   Mentally disordered persons

A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a)  for the person’s own protection from serious physical harm, or

(b)  for the protection of others from serious physical harm.”

20. Sections 18 and 24 of the Mental Health Act are complementary to s 33 of the Mental Health (Forensic Provisions) Act. They are in these terms:

“18   When a person may be detained in mental health facility

(1) A person may be detained in a declared mental health facility in the following circumstances:

…

(e) on the order of a Magistrate or bail officer (see section 24) …

24   Detention on order of Magistrate or bail officer

A person may be taken to and detained in a declared mental health facility in accordance with an order made under section 33 of the Mental Health (Forensic Provisions) Act 1990.”

21. Under these sections and pursuant to the Deputy Registrar’s order the Banksia Mental Health Unit detained the defendant and commenced to assess him. Section 27 of the Mental Health Act prescribes a series of 5 steps required to be taken in relation to a person detained in a mental health facility under Pt 2, Div 1 of the Mental Health Act, including a person such as the defendant detained for assessment pursuant to an order under s 33(1D) Mental Health (Forensic Provisions) Act. The steps may be summarised as follows:

1. An authorised medical officer is to conduct an initial examination of the detained person. The person must not be further detained after the examination unless the officer certifies that the person is “mentally ill” or “mentally disordered”.

2. The detained person must be examined by a second medical practitioner as soon as possible after the certificate is given in accordance with step 1. This second examiner must be a psychiatrist if the medical officer who conducted the initial examination was not.

3. If the second examiner considers that the detained person is not mentally ill or mentally disordered, he/she must cause a third examiner, who is a psychiatrist, to undertake an examination. The third examiner must notify the authorised examiner if of the opinion that the detainee is mentally ill or mentally disordered.

1. An authorised medical officer must notify the Mental Health Review Tribunal and bring the detainee before that Tribunal for a mental health inquiry if the person has been found to be (a) mentally ill on the initial examination in step 1 and to be either mentally ill or mentally disordered in step 2 step 3 or (b) if the person has been found to be mentally disordered on initial examination and mentally ill on one of the subsequent examinations. However if on the third examination at step 3 the person is found to be neither mentally ill nor mentally disordered then he/she must not be further detained.

2. If the person is found to be mentally disordered by the authorised medical officer on initial examination and again in step 2 or step 3, he/she may be detained in the mental health facility as a mentally disordered person.

22. The certification of the authorised medical officer under step 1 of s 27 and the notification of each subsequent examiner under steps 2 and 3 are required to be in a form prescribed by regulations, referred to as a “Form 1”. In accordance with step 1 an authorised medical officer examined the defendant on 20 August 2016 and issued a Form 1 that day. The proforma document provided three alternatives, one of which was to be marked. The alternatives were that the detained person was neither mentally ill nor mentally disordered, that he was mentally ill or that he was mentally disordered. The authorised officer checked the box to certify that the defendant was mentally disordered.

23. According to the authorised medical officer’s entries on the Form 1, he had received no information as to why a psychiatric review was requested. He noted these observations:

“Vague historian, with veiled threats of self harm and suicide. Not overtly psychotic”

24. The authorised medical officer’s conclusion was stated as follows:

“Does not satisfy the criteria for mental illness under the MHA. Some risk of harm to self or others. Requires observation.”

Tamworth Local Court proceedings on 22 August 2016

25. The charges against the defendant were considered by Magistrate Prowse on Monday, 22 August 2016. The learned Magistrate dealt with the matter in chambers in the absence of and without notice to either party. His Honour made an order in relation to each charge, recorded as follows on JusticeLink:

“Mental Health Assessment s33(1)(a)

The accused/defendant is to be taken by police and detained in the mental health facility for assessment in accordance with the Mental Health Act 2007.

Presented already completed Mental Health Form 1, found to be Mentally disordered person.”

26. No reasons were recorded. On the cover sheet of the Court Attendance Notices his Honour merely made the following notation:

“22/8/16 Chambers 31(1)(a) MHFPA. Advise parties. (Assessment already completed-see form).”

27. When the charges were mentioned in court on Tuesday, 23 August 2016, the learned Magistrate gave reasons for having made the above order, as follows:

“When the matter was brought to the Court’s attention on 22 August, the Court discussed the matter with the deputy registrar, was shown the Form 1 which is at the, physically at the moment at the back of the papers. The Court looked at in the registry the Form 1. It says clearly that Mr Wallman was found to be a mentally disordered person. I then enquired of the deputy registrar was he actually kept and I am being assured by the deputy registrar that he was actually kept – in other words was he detained involuntarily – and being assured that he had been detained involuntarily, the Court then dealt with the matter in chambers as the Court believed it was empowered and entitled to do so by marking up on 22 August, Chambers 33(1A) [scil 33(1)(a)] Mental Health Forensic Provisions Act advise parties (assessment already completed – see Form).”

28. The giving of these oral reasons was prefaced by the Magistrate stating they were provided in case the prosecutor should “pop off to the Supreme Court”. (The same expression was used by his Honour when refusing to grant the prosecution an adjournment in unrelated Local Court proceedings at Liverpool on 23 July 2015: Director of Public Prosecutions v Rugari [2016] NSWSC 630 at [26]).

29. The learned Magistrate’s order of 22 August 2016 pursuant to s 33(1)(a) Mental Health (Forensic Provisions) Act was flawed in two respects, in consequence of which it must be set aside. First, a jurisdictional prerequisite to the making of such an order is that “it appears to the magistrate that the defendant is a mentally ill person”: see s 33(1) quoted at [15]. His Honour made no such finding. From the reasons he gave orally on 23 August 2016 it is evident that he accepted the authorised medical officer’s certification, under step 1 of s 27 of the Mental Health Act, that the defendant was a “mentally disordered person”. His Honour appears to have thought that this was sufficient to engage the subs (1) of s 33 but clearly it was not. “Mentally disordered” is not equivalent to and does not encompass “mentally ill”. Further, the Form 1 dated 20 August 2016 contained the express opinion that the defendant “does not satisfy the criteria for mental illness under the MHA”: see [25].

30. Secondly, the power to make an order under this subsection is only to be exercised “at the commencement or at any time during the course of the hearing of proceedings”. In any proceedings before a Local Court Magistrate concerning criminal charges both the prosecutor and the defendant are entitled to be heard. The learned Magistrate was bound to give both parties a hearing, as a fundamental aspect of procedural fairness, before making an order under the subsection. His failure to do so constituted a second jurisdictional error: Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 [4] – [5], [17], [41], [152], [168] and [169].

31. The above jurisdictional errors vitiate the decision. Because of those errors it is incumbent on this Court to make an order “to remove the legal consequences or proposed legal consequences” of the decision and order of 22 August 2016: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; HCA 43 at [26]. Even if the learned Magistrate’s failure to make a finding about whether the defendant appeared to be mentally ill should not be regarded as jurisdictional, the decision may be quashed upon that ground because it is an error that “appears on the face of the record of the proceedings”: s 69 (3) Supreme Court Act. For the purposes of that subsection, “the face of the record includes the reasons expressed by the court for its ultimate determination”: subs (4). This effect of subs (3) and (4) of s 69 was considered by Sperling J in ASIC v Farley (2001) 51 NSWLR 494; [2001] NSWSC 326 at [8]. See also Wingfoot Australia Partners Pty Ltd v Kocak at [26] – [31].

32. The evidence does not indicate that any action was taken by any mental health facility in response to the learned Magistrate’s purported order of 22 August 2016. Indeed the evidence does not show that this order was communicated to any mental health facility. I infer that there was no such communication or action because the order of 22 August 2016, even if effective and valid, would have been redundant. The action which it required – a mental health assessment of the defendant – was already being undertaken pursuant to the Deputy Registrar’s valid order of 20 August 2016. Step 2 under s 27 was carried out on 22 August 2016. On that date a psychiatrist, Dr Khambay, assessed the defendant as being neither mentally ill nor mentally disordered.

33. It is difficult to see how the learned Magistrate could have thought it was appropriate to make an order under s 33(1)(a) that the defendant be conveyed and detained for mental health assessment when his Honour was well aware, as shown by his reasons quoted at [27], that an assessment had two days earlier been ordered by the Deputy Registrar and that step 1 of the assessment process under s 27 Mental Health Act had already been taken. The transcript of proceedings the next day shows that the Magistrate thought the order he made on 22 August 2016 prevented the court from dealing any further with the charges. In those circumstances it is still more difficult to see how his Honour could have considered it appropriate to make this redundant order and to do so in chambers without giving the prosecutor an opportunity to be heard. These are manifest and fundamental errors.

Tamworth Local Court proceedings on 23 August 2016

34. On 23 August 2016 Sergeant Donovan appeared as prosecutor before Magistrate Prowse and informed his Honour that he now held the Form 1 issued on 22 August 2016 (by Dr Khambay) showing that the defendant was not mentally ill or mentally disordered. The sergeant requested that the charges be relisted so that the defendant could be brought before the court to face them. His Honour referred to the order he had purported to make on the preceding day pursuant to s 33(1)(a) Mental Health (Forensic Provisions) Act and stated his reasons for that order, as set out at [27]. The learned Magistrate then declared:

“So the matter is finalised. In the absence of the jurisdiction, the court cannot entertain the Crown’s application.”

35. The following entry was made in JusticeLink to record this disposition of the charges on 23 August 2016:

“No Jurisdiction

See Form 1 20/08/2016

Matter dealt with in chambers on that document on 22/08/2016”.

36. This decision amounted to a refusal to exercise jurisdiction. It was erroneous, first, because it was based upon the assumed effect of the order of 22 August 2016 whereas that order was a nullity. Secondly, even if a valid order had been made under s 33(1)(a) of the Mental Health (Forensic Provisions) Act, that would not have deprived the Local Court of jurisdiction to deal further with the charges. This follows from ss 31 and 32 of the Mental Health Act. Those sections are within Pt 2 of Ch 3, comprising ss 17 – 49. Section 24 of the Mental Health Act (reproduced at [20]) attracts the application of that Part to a defendant who is the subject of a Local Court order for mental health assessment.

37. Pursuant to s 31 of the Mental Health Act, if the person the Magistrate has ordered to be assessed (including under s 33(1)(a) of the Mental Health (Forensic Provisions) Act) is found to be mentally disordered but is not, or ceases to be, mentally ill, he or she may not be held for more than 3 days. If the person is found to be, or becomes, neither mentally disordered nor mentally ill he or she must not be further detained. By force of s 32(2) of the Mental Health Act, an authorised medical officer must release such a person “into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person”. In circumstances such as the present a “relevant person” means a police officer.

38. If a “relevant person” is not present when the obligation of the authorised medical officer to release the detainee arises, notice that the person will not be further detained is required to be given as soon as practicable to a police officer. Subsection (4) of s 32 enables the authorised medical officer to detain the person for up to two hours pending apprehension by a police officer. Subsection (6) provides for apprehension without a warrant.

39. The provisions of the Mental Health Act and of the Mental Health (Forensic Provisions) Act, as referred to above, are required to be applied in a co-ordinated fashion as part of a legislative scheme. It cannot be said that the Local Court’s jurisdiction with respect to pending charges comes to an end upon the making of an order under s 33(1)(a) Mental Health (Forensic Provisions) Act given that one possible outcome, as envisaged by s 31(4) and s 32 Mental Health Act, is that there would be found no basis for detaining the defendant on mental health grounds and that he would be re-apprehended by police – implicitly, on the original charges.

40. If a person examined pursuant to an order of the Local Court under s 33 of the Mental Health (Forensic Provisions) Act should be found to be mentally ill at step 4 of s 27 and if the Tribunal upon inquiry under s 34 Mental Health Act should order continuing detention under s 38(4), then clearly it would not be immediately possible for the local Court to proceed to deal with the pending charges. Should that situation continue for 6 months after the date of the order under s 33 of the Mental Health (Forensic Provisions) Act then the charges would be deemed to be dismissed. This is provided for in s 33(2), reproduced at [14].

41. Section 33(2) Mental Health (Forensic Provisions) Act makes it clear that an order such as that which the Magistrate made on 22 August 2016 under subs (1)(a) for assessment of a defendant does not of itself terminate the Local Court’s jurisdiction with respect to charges against the defendant. The order does not have that effect even if, following assessment, the defendant is dealt with under the Mental Health Act, unless his detention thereunder continues for 6 months without him being brought back before a Magistrate in the meantime.

42. The learned Magistrate’s misapprehension that his jurisdiction had been exhausted justifies the making of a declaration by this Court that the charges against the defendant remain outstanding and have not been disposed of and an order in the nature of a writ of mandamus to require the Local Court to deal with the charges according to law.

Orders

43. The plaintiff is entitled to the relief it seeks and there must be an order that the first defendant pay the plaintiff’s costs. However the first defendant should have an indemnity certificate in respect of the proceedings under s 6(1) of the Suitors’ Fund Act 1951 (NSW). For the purposes of that section it has been held that proceedings such as the present are an “appeal”: Ex parte Parsons; Re Suitors’ Fund Act (1953) 69 WN (NSW) 380; Production Spray Painting & Panelbeating Pty Ltd v Newnham (1991) 27 NSWLR 644; Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal (No 2) [2004] NSWCA 337; Re Tracey [2011] NSWCA 43 at [51]; Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305. The certificate will have the effect that the first defendant will be able to recover from the Fund established under s 3 of the Act an amount equal to the plaintiff’s costs of the summons: s 6(2).

44. For the above reasons the orders of the Court are:

1. The orders of the Local Court at Tamworth made on 22 August 2016 by Local Court Magistrate Prowse in respect of Matter No H62245066, Offence Reference Nos 6899171 and 6785030, further identified by Court Proceedings Nos 2016/0023 6717 – 001 and – 002, namely orders pursuant to s 33(1)(a) Mental Health (Forensic Provisions) Act 1999 that the first defendant “be taken by police and detained in the mental health facility for assessment in accordance with the Mental Health Act” are set aside.

2. Declare that the charges laid in Matter No H62245066 as further identified in order (1) remain outstanding against the first defendant and have not been determined or otherwise disposed of by the Local Court and that the Local Court continues to have jurisdiction to hear and determine the said charges.

3. Order that the Local Court hear and determine the charges in Matter No H62245066 as further identified in order (1) according to law.

4. The first defendant is to pay the plaintiff’s costs of the summons.

5. The first defendant is granted an indemnity certificate under s 6(1) of the Suitors’ Fund Act 1951 in respect of the appeal which is the subject of the proceedings on the summons.

**********

Decision last updated: 08 February 2017