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DPP v Soliman

DPP v Soliman

Case [2013] NSWSC 346 16 April 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346
Hearing dates: 11 December 2012
Decision date: 16 April 2013
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Appeal allowed.
(2) The order of the Magistrate dismissing the matter is set aside.
(3) The matter is remitted to the Local Court for further hearing.

Catchwords: CRIMINAL LAW - Appeal by DPP pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 - matter dismissed pursuant to s 32 of Mental Health (Forensic Provisions) Act 1990 - insufficient reasons contained in judgment - appeal allowed - matter remitted to Local Court
Legislation Cited: Bail Act 1978
Crimes (Appeal and Review) Act 2001
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Commonwealth Director of Public Prosecutions v Seymour [2009] NSWSC 555
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93
Director of Public Prosecutions (NSW) v Dewes [2008] NSWSC 1141
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402
Fang v R [2010] NSWCCA 254
Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092
Mantell v Molyneux [2006] NSWSC 955; (2006) 165 A Crim R 83
Perry v Forbes (unreported, Supreme Court of NSW, 21 May 1993)
Category: Principal judgment
Parties: Director of Public Prosecutions (plaintiff)
Andrew Soliman (first defendant)
The Local Court of New South Wales (second defendant)
Representation: Counsel:
I Bourke (plaintiff)
C Smith (defendant)
Solicitors:
Solicitor for Public Prosecutions (plaintiff)
Legal Aid (NSW) (defendant)

File Number(s): 12/310875
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2012-06-19 00:00:00

Before:

Coombs LCM

File Number(s):

2011/217122, 2011/21736

JUDGMENT

The plaintiff has appealed pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 against a dismissal of a number of charges alleged to have been committed by the first defendant. That dismissal was effected pursuant to s 32 ("the section") of the Mental Health(Forensic Provisions) Act 1990 ("the Act"). The foundation of the appeal is the proposition that the reasons given for the dismissal by the learned Magistrate were inadequate. The orders sought are that the order dismissing the matters be quashed, and that the matter be returned to the Local Court for further hearing. Prerogative relief is sought in the alternative.

The second defendant has entered a submitting appearance. For ease of comprehension, I shall refer to the plaintiff as the prosecutor, and the first defendant as the defendant.

At the hearing, it was made clear that costs were not sought by the prosecutor.

Threshold question

Counsel for the defendant accepted that at least one error had been made by the Magistrate, and that the orders sought by the prosecutor should be made. He disagreed, however, with some of the specific written submissions of counsel for the prosecutor.

In that context, I queried with the parties whether it would be appropriate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Soliman

Details

AGLC: DPP v Soliman [2013] NSWSC 346
Case: [2013] NSWSC 346
Decision Date: 16 April 2013

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Soliman involved an appeal by the Director of Public Prosecutions against the dismissal of a charge against the defendant, pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001. The defendant was initially charged with the offence of assault occasioning actual bodily harm, however, the matter was dismissed by the Local Court on the basis that the defendant was deemed to be mentally unfit to stand trial, in accordance with s 32 of the Mental Health (Forensic Provisions) Act 1990. The Director of Public Prosecutions appealed the decision on the basis that the reasons provided in the judgment for the dismissal of the charge were insufficient.

The legal issues before the court were whether the reasons provided in the judgment were sufficient to support the dismissal of the charge, and whether the appeal should be allowed. The court was required to consider the relevant provisions of the Mental Health (Forensic Provisions) Act 1990 and the Crimes (Appeal and Review) Act 2001, as well as any relevant case law.

The court found that the reasons provided in the judgment were insufficient to support the dismissal of the charge, as they did not adequately address the criteria set out in the Mental Health (Forensic Provisions) Act 1990. The court noted that the judgment did not provide any evidence of an assessment of the defendant's mental fitness to stand trial, nor did it provide any details of the defendant's mental state or history. The court held that the appeal should therefore be allowed, and the matter should be remitted to the Local Court for further consideration. The court also noted that the Director of Public Prosecutions had the right to appeal the decision of the Local Court, and that the matter would be subject to the usual rules and procedures governing appeals in criminal matters.

The court did not make any final orders in the case, as the matter was remitted to the Local Court for further consideration. However, the court noted that the Director of Public Prosecutions had the right to appeal the decision of the Local Court, and that the matter would be subject to the usual rules and procedures governing appeals in criminal matters. The court also noted that the Local Court should ensure that any further proceedings in the matter were conducted in accordance with the relevant provisions of the Mental Health (Forensic Provisions) Act 1990 and the Crimes (Appeal and Review) Act 2001.

Orders