Jones v ACT Magistrates Court
[2014] ACTSC 143
•13 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jones v ACT Magistrates Court & Anor |
Medium Neutral Citation: | [2014] ACTSC 143 |
Hearing Date(s): | 22 May 2014 |
DecisionDate: | 13 June 2014 |
Before: | Mossop M |
Decision: | Proceedings dismissed. |
Category: | Principal Judgment |
Catchwords: | JUDICIAL REVIEW – ACT Magistrates Court – Mental impairment – Jurisdictional fact – Jurisdictional error |
Legislation Cited: | Crimes Act 1900 (ACT) ss 334, 336 Criminal Code 2002 (ACT) ss 27, 28 Crimes (Sentencing) Act2005 (ACT) s 17 |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Craig v South Australia (1995) 184 CLR 163 The Queen v Falconer (1991) 171 CLR 30 |
Parties: | Benjamin Robert Jones (Plaintiff) ACT Magistrates Court (First Defendant) Ella Belinda Headon (Second Defendant) |
Representation: | Counsel Mr K Lee (Plaintiff) Ms L Taylor (First Defendant) |
| Solicitors ACT Department of Public Prosecutions (Plaintiff) ACT Government Solicitor (First Defendant) | |
File Number(s): | SC 254 of 2012 |
Publication Restriction: | Nil |
Mossop M:
Introduction
The Director of Public Prosecutions has, by originating application, sought judicial review of a decision of the ACT Magistrates Court dismissing proceedings against the second defendant pursuant to s 334 of the Crimes Act 1900 (ACT). The Director has sought an order in the nature of a writ of certiorari to quash the decision of the Court and an order remitting the matter back to the Court, differently constituted, so that it may be determined according to law.
The Director contends that the Court committed a jurisdictional error in finding, for the purposes of s 334(1)(a), that the second defendant was “mentally impaired”. The Director also contends that the Court committed a jurisdictional error in that it failed to consider the factors referred to in s 334(3) for the purposes of deciding whether to make an order under subsection (2)(a) or (b).
Section 334 of the Crimes Act provides:
334Powers of Magistrates Court
(1) This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that—
(a)the accused is mentally impaired; and
(b)on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division.
(2) If this section applies, the Magistrates Court may by order—
(a)dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order; or
(b)dismiss the charge unconditionally.
(3) In determining whether to make an order under subsection (2) (a) or (b), the Magistrates Court shall have regard to—
(a)the nature and seriousness of the mental impairment; and
(b)the period for which the mental impairment is likely to continue; and
(c)the extent to which by reason of the accused’s mental impairment the accused is likely to do serious harm to himself or herself or others; and
(d)whether the ACAT could make an order under the Mental Health (Treatment and Care) Act 1994, section 26 (What ACAT must take into account) or section 27 (ACAT may not order particular drugs etc); and
(e)the seriousness of the alleged offence; and
(f)the antecedents of the accused; and
(g)the effectiveness of any order previously made under subsection (2) (a) or (b), including to the extent to which—
(i)the order assisted the accused to obtain appropriate treatment and care for his or her mental impairment; and
(ii)access to that treatment and care has enabled the accused to modify his or her behaviour, being behaviour of a kind that has previously resulted in the accused having been charged with an offence.
(4) Despite subsection (2), the Magistrates Court may only make an order under that subsection in relation to proceedings with respect to an indictable offence that may be heard and determined summarily with the consent of the director of public prosecutions.
(5) If the Magistrates Court makes an order under subsection (2) (a), the order operates as a stay of proceedings, or of further proceedings, against the accused in relation to the offence.
(6) If the Magistrates Court makes an order under subsection (2), it must not make an order under any of the following provisions of the Crimes (Sentencing) Act 2005 for the offence:
(a)section 13 (Good behaviour orders);
(b)section 17 (Non-conviction orders—general);
(c)section 19 (Reparation orders—losses and expenses generally);
(d)section 20 (Reparation orders—stolen property).
(7) An order under subsection (2) does not constitute a finding that an offence has or has not been committed.
(8) In proceedings to which this section applies, to determine whether an accused has a mental impairment, the Magistrates Court may make any orders it considers appropriate, including the following:
(a)that the accused submit to the jurisdiction of the ACAT;
(b)that the proceedings be adjourned;
(c)that the person be released on bail.
(9) If the Magistrates Court makes an order under subsection (8) (a), the ACAT shall notify the Magistrates Court about each of the matters referred to in subsection (3) (a) to (d).
mental impairment—see the Criminal Code, section 27.
Section 27 of the Criminal Code 2002 (ACT) (Criminal Code) provides:
27Definition—mental impairment
(1) In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2) In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
The second defendant had been charged with a Level 4 contravention of s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The second defendant appeared and indicated that she would be pleading guilty. She was present in Court with her father who was permitted to assist her.
The police statement of facts was tendered and became Exhibit 1. The prosecutor confirmed that the defendant did not have a criminal history. A number of documents and references were tendered by the plaintiff without objection and became Exhibit A. These documents had been provided to the Director’s office the previous day and included:
(a)a letter from the second defendant’s parents;
(b)a reference from a Ms Jessica Lucas;
(c)a reference from a Ms Betty Smith;
(d)a letter from an officer of the second defendant’s employer relating to a medical assessment which had been arranged by her employer with Dr William Knox, psychiatrist;
(e)a report of Dr William Knox, consultant psychiatrist dated 4 July 2013 to the second defendant’s employer;
(f)a “rehabilitation report” prepared by an injury management and rehabilitation consultant dated 8 November 2013 (although one of the pages of the report was missing);
(g)a “graduated return to work programme” prepared by the same consultant relating to the period 16-20 September 2013; and
(h)eight medical certificates bearing dates between February 2013 and October 2013.
The prosecutor provided the following summary of the facts to the magistrate:
About 6:15 PM on Tuesday 1 October 2013 police were conducting mobile patrols in Amaroo, policeman manoeuvred their vehicle to block Saxby Close to prevent a silver coloured Toyota Camry sedan from proceeding further along that street. Police approached the vehicle and had a conversation with a female driver who identified herself as [the second defendant], the defendant now before the court.
As police were speaking with the defendant they could smell alcohol emanating from the vehicle. Upon request, the defendant provided police with a full C-class ACT drivers licence. The defendant underwent a screening test and that was positive, later undergoing a breath analysis. That returned a positive result of 0.232 g of alcohol per 210 L of breath.
Police were of the view that the defendant was moderately affected by alcohol. She was issued with an immediate suspension notice. While in police custody, the defendant was polite and cooperative with police.
The magistrate read the documents. Having done so the following exchange then occurred:
Her Honour: Mr [Prosecutor], I am wondering what your attitude is to section 334?
[Prosecutor]: Based on the report of Dr Knox, I note on page 3:
“in answer to your schedule of questions, [the second defendant] is diagnosed as not having a personality disorder per se, but having chronic anxiety and a degree of depression leading to a DSM diagnosis of anxiety disorder not otherwise specified.”
I am not sure whether that would meet the statutory criteria for a 334.
Her Honour: I think that it does meet the statutory for a-well once there is a diagnosis, as far as I understand the legislation. The whole episode is one that might fit into the bizarre category. It seems that she checked herself out of hospital early, in a state of illness at that time. Certainly she wasn’t released from hospital in the normal course, from what I can gather. It seems to me that it would fall more appropriately into the 334 category then into the section 17 category, per se. It is a serious offence.
[Prosecutor]: The only reason I hesitate, your Honour, about the 334 application is because the definition for mental impairment comes from section 27 of the Criminal Code, where mental impairment is defined as, inter alia, a severe personality disorder, and I am not sure whether the disorder that the defendant has been diagnosed with matches that description.
Her Honour: Mental impairment is a lot broader than just that particular diagnosis. Schizophrenia, for example, would fall into the category. It seems to me that if it was-334 is mental impairment, rather than severe. Let me just check with that legislation.
The prosecutor then quite properly assisted the magistrate to identify the applicable definition from the Criminal Code.
The proceedings then continued:
Her Honour: So why doesn’t this fall into the category of mental illness? Mental illness is defined as:
‘An underlying pathological infirmity of the mind whether of long or short duration and whether permanent or temporary but does not include a condition, a reactive condition, resulting from the reaction of a healthy mind to extraordinary external stimuli.’
It would seem to me that the evidence before me would put it squarely into that definition of mental impairment as set out in section 27.
[Prosecutor]: Yes, I hear what Your Honour is saying. I am not sure I can put it any higher. The way I read the psychiatrist’s report is that it is not that she is mentally ill. If we look at the bottom of page 3:
‘it is important not to see [the second defendant] as an especially mentally impaired person, although her high expectations lead her to mood impairment.’
So I am not---
Her Honour: Well, she has a diagnosis. I am not going to rely upon a doctor for a legal definition.
[Prosecutor]: Yes.
Her Honour: Once a diagnosis has been made, as far as I understand the legislation, she is entitled to rely on that diagnosis and I---
[Prosecutor]: Your Honour, the only point I am trying to make is I think it depends on what diagnosis is there given: and given that it is not one that, on my understanding, matches that of mental illness part of the section 27 definition, the only other thing it [could] fall under would be the severe personality disorder.
Her Honour: Why doesn’t it fall within mental illness, ‘and underlying pathological infirmity of the mind of long or short duration…’
Why doesn’t her diagnosis fit that definition?
[Prosecutor]: I’m sorry, your Honour, I can’t put it any higher than I have, it’s just that is my reading of the psychiatrist’s report. If your Honours reading is different, then, I can’t take this any further.
Perhaps the last thing I will say is my point is only that it is clear that the defendant does have problems with anxiety and with depression. This has been defined as an “anxiety disorder not otherwise specified” in the DSM, and I am not sure whether that meets the statutory definition. Unfortunately, I don’t have any---
Her Honour: It is a general personality disorder. Personality disorder is defined in the DSM.
[Prosecutor]: in the DSM, yes.
The second defendant and her father then each briefly mentioned how the second defendant’s condition was treated by her employer. The transcript then continues:
[Prosecutor]: I have also read that, your Honour, although I am not sure the definition that they use necessarily accords with the definition in the Criminal Code. But I can see, your Honour - I can’t take you any further on this, I don’t have any further information I can provide. So I think it might be best if I leave it at that.
Her Honour: Thank you.
It seems there is a diagnosis, a DSM diagnosis, of anxiety disorder. It seems that she checked herself out of hospital when obviously she shouldn’t. I think I can infer from that that she was acutely unwell at that point, it seems from all the material before me. It seems to me that the definition falls within that of mental illness as set out in section 27 of the Criminal Code, and also seems to me that this is a matter where it is appropriate in the circumstances for the matter to be dealt with pursuant to section 334.
I may, in some circumstances, have remitted the matter to ACAT for the making of an order, but it seems to me from the material before me that there is already a process and sufficient and appropriate intervention currently in place, so as to alleviate that requirement.
[Second defendant] please stand.
I am going to dismiss this matter pursuant to the provision that allows me to deal with matters where appropriate, or where it is appropriate, to divert into the mental health arena. But let me underline to you that drinking alcohol and then driving a car is excruciatingly dangerous and I am sure you would not wish your family members to be on the road when somebody else was driving with that level of alcohol in their system.
[Second defendant]: no.
Her Honour: Because the risks are very severe. I am satisfied that at the material time you were very unwell. However, it is incumbent upon you to take steps to ensure you don’t become unwell like that again.
[Second Defendant]: Yes.
Her Honour: This matter is dismissed pursuant to section 334.
[Prosecutor]: May it please.
The proceedings lasted 17 minutes in total.
The evidence
In the Magistrates Court there was no objection by either party to any of the documentary evidence that was tendered notwithstanding that, in important respects, the material contained hearsay evidence. In any event, in relation to the application of s 334, s 336 of the Crimes Act provides: “For this division [which includes section 334], the Magistrates Court may inform itself as it considers appropriate.”
The substance of the police statement of facts was accurately summarised by the prosecutor to the magistrate as described in the transcript above. The police statement of facts did not explain how it was that the police came to be in Saxby Close - the street in which the plaintiff lives.
The letter addressed to the Court from the second defendant’s parents dated 15 November 2013 provided important background information in relation to the second defendant and the circumstances of the offending conduct. The document indicated that she had a long history of depression, anxiety and related illnesses which have generally been well controlled. She had only been booked twice by police for minor speeding offences and had never been booked for a “DUI” offence. She had been a model, hard-working talented employee during her many years with a federal government department although there had been times when she struggled with the severe onsets of her medical condition. In relation to the circumstances surrounding the offence the letter included the following points:
On 1 October 2013, suffering from a depressive episode which was, in effect, an extreme expression of a difficult period that has impacted on her for much of this year (the evidence for which is provided in her medical certificates for the Court hearing), she discharged herself from hospital, having voluntarily admitted herself a little earlier.
It appears she was suffering from some sort of panic attack caused by complications with her medication, which had been undergoing some significant adjustments, and the effects of stressful contact with her former partner (and father of her daughter). The main problem seems to have been with a very strong drug, Naltrexone. She was immediately taken off the drug.
Things apparently spiralled out of control over a very short period of time. She does not know why, on this occasion, she did not call us.
It is certain that when she checked herself out of hospital, she was in a most distracted, abnormal state, and intoxicated by alcohol for. She has virtually no recollection of the hours in hospital, nor the period afterwards.
She does not even know when that drinking occurred. It is inexplicable to us, and her.
What we do know now was that she was advised by hospital security that, if she did begin to drive home, they would immediately ring the Gungahlin Police. Such was her mental state that she still drove home, and was duly met by the Police-because they had been contacted. The Police were waiting for her at her Amaroo residence.
The letter then makes the submissions in support of an order under s 17 of the Crimes (Sentencing) Act2005 (ACT) and the impact of a loss of licence on the second defendant and her daughter. In relation to actions taken subsequent to the episode it said:
The shock of the whole experience has resulted in [the second defendant] taking a careful range of steps to ensure it does not happen again. These steps have been worked out through discussion with all relevant professionals, and her workplace. The documents supplied attest to this. We, her parents, feel with her that this is the best structure for successful treatment and rehabilitation that has ever been put in place.
The reference from Jessica Lucas, a work colleague at the federal government department where the second defendant worked, was a glowing one as was the reference from Betty Smith, a long-term neighbour of her family.
The letter from her employer dated 20 June 2013 provided some background to the medical assessment by Dr Knox.
The report of Dr Knox is a medical report dated 4 July 2013 reporting to a rehabilitation case manager in the federal government department where the second defendant works. Unfortunately, although the doctor was responding to particular questions that he had been asked, those questions are not set out in the report. The report indicated that in the doctor’s opinion the second defendant was clearly an intelligent young woman who had a good future once she was able to work through some of the identity issues that have confounded her life. He described her as chronically anxious, highly self-critical and a person who strives to achieve at a high level. He indicated that in his opinion the second defendant was taking appropriate antidepressant and anxiety modulating medication but that an issue was her excessive use of alcohol, especially to help her sleep in the face of her anxiety and worries. He noted that he had advised her that it would be wise for her to completely cease the use of alcohol.
One of the questions that he was asked appears to have been for a diagnosis of her condition. He responded as follows:
Principally [the second defendant’s] diagnosis relates to her personality style, and although she does not have a Personality Disorder per se there are a number of imbalances in her personality style which cause chronic Anxiety in particular, and a degree of Depression. I believe a useful and appropriate DSM diagnosis to your client is Anxiety Disorder not Otherwise Specified. Treatment of these superficial symptoms is appropriate, but more thorough psychological assistance is the priority, in my opinion.
He appears also to have been asked about his recommendations in relation to treatment. He said:
There is not adequate treatment at this point, and [the second defendant] does require appropriate, skilled psychotherapy by a clinical psychologist, or psychiatrist, to deal with the dysfunctional personality style that leads to her Anxiety and Depression.
It is important not to see [the second defendant] as an especially mentally impaired person, although her high expectations lead her to mood impairment. With appropriate treatment [the second defendant] can be a very capable and successful person. Security in the workplace is important for her, although understandably she needs to be a reliable and available employee.
He also referred to the need to guide the second defendant against overstretching herself and wishing to please everybody and the importance of getting her back to work in order to ensure that she did not remain unwell.
The incomplete Rehabilitation Report dated 8 November 2013 indicated that upon her return from leave in mid-August 2013 the second defendant attended Directions ACT but on the weekend of 31 August 2013 required intervention from “the Crisis Team ACT” which I understand to be a reference to the ACT Health Crisis Assessment and Treatment Team – a 24-hour mental health service.
The “Graduated Return To Work Program” document indicated that in the week commencing 16 September 2013 the plan was to have the second defendant working six hours per day five days per week.
The eight medical certificates certified that the second defendant was unfit for work for various periods between January 2013 and October 2013. Two medical reports dated 2 February 2013 identify the medical condition as “Severe relapse of Depression”. The medical report dated 11 October 2013 refers to the condition being “anxiety, depression and associated symptoms”.
Plaintiff’s first submission – mental impairment
The Director submitted that the existence of the magistrate’s satisfaction that the accused was mentally impaired was a jurisdictional fact that must exist prior to the making of an order under s 334(2).
The Director refers to the judgment of French CJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Malaysian Declaration Case) where his Honour, when discussing the concept of a jurisdictional fact, said:
Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137] per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183] per Gummow and Hayne JJ.
In the present case I accept that the existence of the state of satisfaction by the magistrate in relation to the matters identified in s 334(1)(a) and (b) amounts to a jurisdictional fact. In other words, the magistrate must be satisfied of the matters in paragraphs (a) and (b) before there is any power under s 334(2) to make an order.
However, while it is open to refer to the matters in s 334(1)(a) and (b) as jurisdictional facts, to do so is not particularly useful. This is because whether or not the magistrate had a state of satisfaction will be a fact which is apparent from the magistrate’s reasons. The concept of jurisdictional fact is useful in cases where it indicates that the existence or non-existence of a fact is a precondition to the exercise of jurisdiction and hence that, upon judicial review, it is a fact which is to be determined by the evidence before the Court rather than by the conclusions or state of satisfaction of the decision-maker below. In cases such as this, where the existence or non-existence of the state of satisfaction on the part of the magistrate is the precondition to jurisdiction and most unlikely to be the subject of a factual contest before the reviewing Court, it is simpler to describe it as a precondition to the exercise of a power rather than getting tangled up in the case law about jurisdictional facts.
The real issue raised by the submissions of the Director is whether or not, in reaching the state of satisfaction that her Honour did in relation to the existence of a mental impairment, her Honour misunderstood the requirements of s 334(1)(a) and the definition of mental impairment provided by that subsection and hence fell into jurisdictional error.
There was some debate between the parties as to precisely what would constitute jurisdictional error on the part of the Magistrates Court.
In Craig v South Australia (1995) 184 CLR 163 (Craig) the Court drew a distinction between the position of administrative bodies and inferior courts. The decision in Craig was summarised and explained in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 573[71]-574[73] (Kirk) as follows:
71.The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.
72.First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:
(a)the absence of a jurisdictional fact;
(b)disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c)misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.
73.The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.
74.As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. (Footnotes omitted)
The distinction between an error of law that would give rise to only a non-jurisdictional error and an error of law arising from a misapprehension of the Court’s functions and powers is, as the Court recognised in both Craig and Kirk, one which is particularly difficult to discern: Kirk at 567[56], 574[73]. So far as trial judges are concerned that is an accurate but unhelpful comment. However, having regard to the examples given in Craig (at 178 fn 61) and referred to again in Kirk (at 574[72]), as well as the errors identified as being jurisdictional errors in Kirk (at 574[74], 575[76]), a misapprehension as to the scope of the concept of mental impairment for the purposes of s 334(1)(a) would amount to a jurisdictional error which could warrant the grant of an order in the nature of a writ of certiorari.
The issue then becomes whether, having regard to the evidence that was before the Court, it was open to the magistrate to achieve the state of satisfaction required by s 334(1)(a), or does the fact that the magistrate did reach that state of satisfaction and/or the stated reasons for doing so indicate that she necessarily misunderstood the nature of her functions and powers?
The definition in s 27 of the Criminal Code is one that is largely based upon the provision in the Commonwealth Criminal Code. The explanatory memorandum for the bill which enacted s 27 provided:
Clause 27 Definition – mental impairment
This is an important provision that sets out definitions of “mental impairment” and “mental illness” for the purposes of the Code and more particularly, for the purposes of clauses 28 and 29, which encompass the principles on the criminal responsibility of mentally impaired persons. Mental impairment is defined to include senility, intellectual disability, mental illness (which is also defined), brain damage and severe personality disorder. The definition is not exhaustive and therefore other forms of mental impairment may give rise to a lack of criminal responsibility.
The Explanatory Memorandum for the Criminal Code expanded on this and on the definition of “mental illness” as follows:
[The definition of “mental impairment”] is an inclusory definition because the McNaghten term "disease of the mind" has caused a great deal of difficulty for the courts without any satisfactory conclusion. The balance of authority favours the view that ultimately the question of whether a condition is a "disease of the mind" is for the jury.
This definition includes severe personality disorders within the definition of "mental impairment", thus allowing that condition to form the basis of a mental impairment defence.
The issues in relation to criminal responsibility are moral rather than medical. Ultimately, it was decided that the issue of personality disorder was too complex to be resolved by a blanket exclusion and that a jury should be allowed to consider whether, for example, a defendant's severe personality disorder prevented him or her from knowing the wrongness of the conduct. This approach accords with the broad definition of "disease of the mind" under the McNaghten Rules. The term “severe” was included to emphasise the degree of the disorder.
[Clause 27] defines mental illness as an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli, (though such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur).
The Code confines a defendant who argues that a mental impairment caused him or her to act involuntarily or without the necessary fault element to the mental impairment defence [subclause 29(1)]. Therefore, in some cases - for example, when involuntariness is in issue, it will be crucial to determine whether the involuntariness arose from a mental impairment. Difficulties have arisen in deciding whether conditions such as epilepsy, diabetes and dissociation amount to a mental illness. Ultimately, the test settled on by the majority of the High Court in Falconer asks the jury to determine whether the defendant’s mind was healthy or unhealthy, (1990-91) 171 CLR 30 at 53-4. Although that test will leave a quite fundamental question to the jury in a limited number of cases, it was considered that there is no way to specify the issue more closely. Therefore the proposed subsection codifies the Falconer test.
In The Queen v Falconer (1991) 171 CLR 30 at 53-54, referred to in the explanatory memorandum, Mason CJ, Brennan and McHugh JJ said:
In his judgment in Radford [(1985) 42 SASR 266], King C.J. (at pp 274-275) stated in summary form the effect of the authorities. In our respectful opinion, his Honour's judgment substantially states the common law and we quote the passage at length:
“if a jury is called upon to decide whether a state of automatism is due to disease of the mind, upon conflicting evidence or conflicting interpretations of the evidence, it must be told what the law understands by that phrase and it should be told that in language which a jury of laymen is likely to grasp. The expression 'disease of the mind' is synonymous, in my opinion, with 'mental illness'. In his charge to the jury in The King v. Porter (at p 188) Dixon J. used the expression 'disease disorder or disturbance'. But the words 'disorder' and 'disturbance' must take their colour from the word 'disease' and refer to disorder and disturbance of the mental faculties which can be characterized as mental illness. In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten rules. As Lord Denning pointed out in Bratty v. Attorney-General for Northern Ireland (at p 412), the major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind. Moreover, physical diseases, such as psychomotor epilepsy, (Bratty v. Attorney-General for Northern Ireland) and arteriosclerosis (Reg. v. Kemp), when they affect the soundness of the mental faculties should be regarded as diseases of the mind. Lord Denning considered that any 'mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind': Bratty's case (at p 412). Disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control, and impulsiveness': The King v. Porter (at pp 188- 189). The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms.”
One may cavil at the description of a mere physical condition such as arteriosclerosis, albeit one which produces a "mental illness", as itself a disease of the mind. But the dichotomy between mental illness and a healthy mind is correctly drawn. However, we would think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. Subject to that qualification, the law is as stated by King C.J. in the passage cited. So stated, the law in Australia may not correspond precisely with the speech of Lord Diplock in Sullivan.
It is important to note that the function of the definition of mental impairment is in the usual case to feed into the operation of s 28 of the Criminal Code which identifies the circumstances in which mental impairment denies criminal responsibility. The existence of a mental impairment itself is only the starting point for a denial of criminal responsibility on the grounds of mental impairment. That is because of the requirement in s 28 that the mental impairment must be one that had the effect that the person did not know the nature and quality of the conduct, did not know that the conduct was wrong or meant that the person could not control the conduct. The threshold therefore for the existence of a mental impairment is not very high and much is left to the jury. The real work that must be done in s 28 is done by s 28(1)(a)-(c).
When the definition of mental impairment is picked up in s 334, because it is in general terms and does not provide a very significant hurdle, much of the work in relation to a s 334 application is done by the requirement in s 334(1)(b) that the magistrate must be satisfied that the making of an order is appropriate.
However it is still necessary for the magistrate to be satisfied of the existence of a condition which meets the statutory words used in the definition understood in the light of the legislative purpose of those provisions, namely the codification of the decision in Falconer.
The diagnosis given by Dr Knox was one from the Diagnostic and Statistical Manual of Anxiety Disorder Not Otherwise Specified. Having regard to the date of that diagnosis, the evidence about the long-standing nature of the second defendant’s condition and, in particular, the evidence about the circumstances in which the offending conduct occurred, it was open to the magistrate to find that the diagnosed condition continued at the date of the offence. Certainly there was no jurisdictional error in making such a finding as the magistrate appears to have done.
While the Director pointed to the comments made by Dr Knox which are consistent with the proposition that, in so far as there was a mental illness, it was at the less serious end of the spectrum, I am satisfied that the Anxiety Disorder Not Otherwise Specified falls within the scope of the opening words of the definition of mental illness. Put more accurately for present purposes, I am satisfied that it was open to the magistrate to find that such a condition was an underlying pathological infirmity of the mind. Further, I am satisfied that it was open to her Honour to conclude that such a diagnosed condition was not simply the reaction of a healthy mind to extraordinary external stimuli. Having regard to the evidence both in Dr Knox’s report and the evidence provided by the letter from the second defendant’s parents, it is difficult to see how the magistrate could have concluded on the evidence that the condition was simply the reaction of a healthy mind to extraordinary external stimuli.
The definition of mental impairment is an inclusive definition. One of the concepts which it includes is that of mental illness, which is in turn a defined term. Also included in the definition of mental impairment is a “severe personality disorder”. The inclusion of this qualified term – severe personality disorder – necessarily implies that a personality disorder which is not severe is not included in the scope of mental impairment and hence that it must be excluded from the definition of mental illness. If it were otherwise then the qualification imposed by the word “severe” could be bypassed by incorporation of personality disorders in the definition of mental illness. The Director pointed to Dr Knox’s note that the second defendant did not suffer from a personality disorder per se. However the fact that the second defendant did not suffer from a personality disorder in a strict sense does not mean that her condition could not come within the scope of mental illness if it satisfied the terms of that definition.
In summary, having regard to the proper interpretation of the definition of mental impairment, it was open to her Honour, on the evidence before her, to conclude that the second defendant did suffer from a mental impairment and hence reaching that conclusion was not indicative of the magistrate having misconceived her statutory function under s 334(1)(a). Further, there is nothing else in the magistrate’s reasons which would indicate that she so misconceived her function.
Plaintiff’s second submission – s 334(3) factors
The Director submits that on a fair reading of both her Honour’s short oral reasons and the transcript of the proceedings as a whole her Honour fell into jurisdictional error by disregarding matters that the relevant statute required to be taken into account as a condition of jurisdiction, namely each of the listed factors in s 334(3).
Craig (at 178) and Kirk (at 574) recognised that “disregard of a matter that the relevant statute requires to be taken to account as a condition of jurisdiction” would amount to jurisdictional error.
In assessing this submission it is important to note first that the prosecutor appearing before the magistrate made no submissions directed to any of the particular factors in s 334(3) or indeed to any other matter relevant to whether or not the magistrate should have been satisfied that it was appropriate to make an order (as to which see the decision of Refshauge ACJ in Nelson v Heil [2013] ACTSC 11 at [23]). Second, there is no assertion that the magistrate fell into jurisdictional error by denying the prosecution procedural fairness. While the transcript indicates that the principal area of debate at the hearing was whether or not the threshold of mental impairment was satisfied, the transcript does not disclose a situation where either expressly or by inference the prosecutor was denied an opportunity to fairly present the arguments that he wished to present. I fully accept that the prosecutor was called upon to address, with no notice, the possible application of s 334. The prosecutor competently and fairly assisted the Court by drawing its attention to the relevant statutory provisions, including the terms of the definition of mental impairment in s 27. The prosecutor also properly pointed out those aspects of the report of Dr Knox which were suggestive that the definition of mental impairment was not satisfied. If the prosecutor had more submissions to make then he had the opportunity to do so. If he was surprised by her Honour’s giving of a decision without further opportunity to make submissions on another issue on which he had not yet been able to make submissions then he could have interrupted her Honour or indeed made it clear after her Honour had concluded the reasons that he still wished to make submissions on other issues. It is likely that had he done so and her Honour recognised that he had not had a proper opportunity to make submissions then he would have been permitted to do so. However, it appears to me to be most likely that, consistent with an economical use of time in a busy list, the prosecutor made submissions on his principal point and did not trouble the Court with submissions which could have been made but which traversed issues which would have been apparent to a magistrate who routinely deals with provisions such as s 334 in the course of addressing criminal matters such as these.
In terms of each of the items in s 334(3) the reasons of her Honour and the transcript more generally disclose as follows.
Section 334(3)(a): The nature of the mental impairment is specifically referred to in her Honour’s reasons. She identifies the DSM diagnosis. The seriousness of the mental impairment at the time of the offence is specifically referred to as her Honour describes the second defendant as being “acutely unwell”. As to the seriousness of the impairment more generally it is clear that her Honour had regard to the report of Dr Knox which describes the history and features of the impairment.
Section 334(3)(b): In terms of the “period for which the mental impairment is likely to continue” her Honour clearly considered that the acute manifestation of the disorder had passed. She told the second defendant that she should “take steps to ensure you don’t become unwell like that again”. She clearly also had regard to the “sufficient and appropriate intervention” to which she referred. I also think that it is clear, having regard to the significance of the report of Dr Knox in the proceedings before her that she had regard to Dr Knox’s opinion that the prognosis was good.
Section 334(3)(c): Her Honour clearly had regard to the capacity for the second defendant to do harm to herself and others if she drank and drove again. She explicitly referred to the fact that to do so was “excruciatingly dangerous” and that the “risks are very severe”. However clearly having regard to her other remarks, her Honour considered that, in the circumstances, the potential for those risks to materialise was low.
Section 334(3)(d): This was a paragraph which was not of any relevance in the present case and hence there was no need for her Honour to pay specific regard to it.
Section 334(3)(e): Plainly her Honour took into account the seriousness of the offence mentioning it expressly during the course of argument (“It is a serious offence”) and also making comments about the seriousness of the consequences of the offending conduct during the course of her reasons. It would be unrealistic to suggest that a magistrate dealing with a level 4 drink driving offence where the reading was 0.232 grams of alcohol per 210 litres of breath, did not have regard to the seriousness of the offence.
Section 334(3)(f): Her Honour specifically asked the prosecutor about the antecedents of the accused early in the proceedings and was told that she was not recorded.
Section 334(3)(g): This consideration was not relevant as there had been no order previously made under s 334(2)(a) or (b).
While a reviewing court must not examine the unedited and unpunctuated record of ex tempore remarks in a busy magistrates court with too great a degree of strictness: Acuthan v Coates (1986) 6 NSWLR 472 at 478-479, there is still room for the proposition that the absence of a direct reference to a particular consideration can give rise to an inference that it was not taken into account. However in the present case it is clear either from the reasons given or from a transcript of the proceedings as a whole that her Honour did in fact have regard to the factors that she was obliged by s 334(3) to have regard. Reaching the conclusion that the relevant matters were taken into account is easier in circumstances where the issues and evidence were, as in this case, limited. For these reasons, I am not satisfied that the plaintiff has made out its second submission.
Conclusion
As a consequence I am not satisfied that the magistrate committed either of the jurisdictional errors asserted by the Director. Therefore the application must be dismissed. The second defendant did not seek costs. Therefore the appropriate order is:
(1)The proceedings are dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour, Master Mossop.
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