Jones v Booth

[2019] NSWSC 1066

Supreme Court

New South Wales

Medium Neutral Citation:	Jones and Anor v Booth and Anor [2019] NSWSC 1066
Hearing dates:	7 August 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	1. The Amended Summons is dismissed. 2. The parties are to exchange, and provide to Johnson J’s Associate, written submissions (not exceeding three pages) on the issue of costs within seven days from today, with the Court to give judgment thereafter on any costs application on the papers and without the need for a further hearing.
Catchwords:	CIVIL LAW – declaratory relief sought concerning qualifications of a psychologist to furnish a report in support of a s.32 Mental Health (Forensic Provisions) Act 1990 application – where report rejected by Magistrate as it was not a psychiatric report – report later accepted by different Magistrate – application under s.32 later successful – whether live controversy exists for grant of declaratory relief – lack of utility or real interest – Plaintiff seeks advisory opinion without reference to concrete facts – appropriate to make general observations concerning construction and operation of s.32 – no bright line test as to areas where a psychological report can or cannot be received on a s.32 application – application for declaratory relief refused
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007 Supreme Court Act 1970
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394; [2004] FCA 1440 Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 Director of Public Prosecutions (NSW) v Sheen [2017] NSWSC 591 Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 Director of Public Prosecutions v Wallman [2017] NSWSC 40 Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61 Jung v R [2017] NSWCCA 24 Lam v R [2015] NSWCCA 143 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 Oil Basins Limited v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60, R v Arnold [2004] NSWCCA 294 R v HW [2017] NSWLC 25 R v Peisley (1990) 54 A Crim R 42 R v Petroulias (No. 36) (2008) 73 ATR 83; [2008] NSWSC 626 R v Whitbread (1995) 78 A Crim R 452 Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180 WW v R [2012] NSWCCA 165
Texts Cited:	---
Category:	Principal judgment
Parties:	Bradley Steven Jones (First Plaintiff) Joseph Perdicaro (Second Plaintiff) Leading Senior Constable Darren Booth (First Defendant) Local Court of New South Wales (Second Defendant)
Representation:	Counsel: Mr MW Smith (Plaintiffs) Ms S Palaniappan (First Defendant)   Solicitors: Hunter Flood Lawyers (Plaintiffs) HWL Ebsworth Lawyers (First Defendant) Local Court of New South Wales (Second Defendant - Submitting Appearance)
File Number(s):	2018/286360
Publication restriction:	---

Judgment

1. JOHNSON J: By Amended Summons filed on 7 August 2019, the Plaintiffs, Bradley Steven Jones and Joseph Perdicaro, seek declaratory relief in proceedings against the Defendants, Leading Senior Constable Darren Booth and the Local Court of New South Wales (“the Local Court”).

2. The Plaintiffs seek declaratory relief concerning the qualifications of the First Plaintiff, Mr Jones (a psychologist), to furnish a report to the Local Court in circumstances where application is made for a defendant to be dealt with by way of diversion under s.32 Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”).

3. As will be seen, there is a substantial issue concerning the utility and appropriateness of granting declaratory relief in the circumstances of the present proceedings. It is necessary, however, to explain the factual background to the proceedings and the issues upon which declaratory relief is sought.

Hearing of the Amended Summons

4. The hearing of the Amended Summons proceeded on 7 August 2019. Mr M Smith of counsel appeared for the Plaintiffs and Ms S Palaniappan of counsel appeared for the First Defendant. In accordance with usual practice, a submitting appearance had been filed on behalf of the Second Defendant, the Local Court.

5. A Joint Court Book (comprising two volumes) was admitted (Exhibit A). These volumes contained affidavits (including transcripts and other documents) which were read without objection at the hearing.

6. Counsel had furnished written submissions in advance of the hearing and counsel spoke to those submissions at the hearing.

Factual Background

7. The evidence revealed the following events which were not in contest at the hearing.

8. On about 6 April 2018, Mr Perdicaro was charged with two criminal offences:

1. stalk or intimidate with intent to cause fear of physical or mental harm under s.13(1) Crimes (Domestic and Personal Violence) Act 2007; and

2. common assault (domestic violence) under s.61 Crimes Act 1900.

9. On 13 April 2018, Ms Kim Hunter, solicitor, visited her client, Mr Perdicaro, who was then in custody at the Metropolitan Reception and Remand Centre (“MRRC”) at Silverwater. Ms Hunter considered that Mr Perdicaro would benefit from a psychological assessment and she retained the First Plaintiff, Mr Jones, to examine Mr Perdicaro and prepare a report for the Local Court proceedings.

Mr Jones Prepares a Report

10. On 23 April 2018, Mr Jones attended the MRRC at Silverwater and conducted a psychological assessment of Mr Perdicaro. Thereafter, Mr Jones prepared a report dated 2 May 2018 in support of an application under s.32 MHFP Act. In that report, Mr Jones outlined, amongst other things, his examination of Mr Perdicaro including his administration of various tests, including the Beck Anxiety Inventory, the Beck Depression Inventory - Second Edition, the Adult ADHD Self-Report Scale and the Jasper/Goldberg Adult ADD Screening Examination - Version 5. After applying these tests and undertaking an examination of Mr Perdicaro, Mr Jones expressed the opinion that he was suffering from the following disorders:

1. post-traumatic stress disorder;

2. attention deficit/hyperactivity/disorder, predominantly hyperactive/impulsive presentation; and

3. major depressive disorder, moderate severity, with anxious distress.

11. The report of Mr Jones explained, in appropriate detail, the way in which he had come to these conclusions. Mr Jones concluded his report with the suggestion that the “clinically unusual circumstances of this matter” were such that the Court might wish to consider dealing with Mr Perdicaro under s.32(1)(a)(iii) MHFP Act. If that course was to be taken by the Local Court, Mr Jones annexed to his report a draft treatment plan for consideration by the Court.

Local Court Proceedings on 4 May 2018

12. On 4 May 2018, Mr Perdicaro’s matters came before Dr RA Brown, Magistrate, sitting at the Blacktown Local Court. Ms Hunter indicated to the Court that an application was being made under s.32 MHFP Act with respect to Mr Perdicaro and the report of Mr Jones of 2 May 2018 was tendered in support of the application. A discussion ensued between the presiding Magistrate and Ms Hunter in which his Honour indicated his concern that there was not a psychiatric report. His Honour said (T3, 4 May 2018):

“Because most of what a psychologist could advise me of is not within the terms of the Mental Health (Forensic Provisions) Act.”

13. Ms Hunter submitted that the report of Mr Jones should be admitted on the application. The following discussion ensued (T3-4, 4 May 2018):

“HIS HONOUR: … The requirements of section 32 relate to cognitive impairment, suffering from a mental illness, or suffering from a mental condition for which treatment is available in a mental health facility but not being a mentally ill person. Those are all decisions that require some knowledge and some expertise in mental health, psychiatry fundamentally and in my view it’s not something that can be done by a psychologist.

…

MS HUNTER: … your Honour is of the view that Mr Jones doesn’t have the required expertise to diagnose –

HIS HONOUR: Yes precisely.

…

HIS HONOUR: He is not qualified as an expert.

MS HUNTER: Because he’s a psychologist and not a psychiatrist?

HIS HONOUR: Fundamentally, yes.”

14. Discussion continued as to the course to be adopted given the point which had been reached. His Honour did not dismiss the application under s.32 MHFP Act. His Honour determined to adjourn the proceedings (T8, 4 May 2018):

“HIS HONOUR: Look, I tell you what. Maybe if I seek a Justice Health psychiatric assessment of him, we may be able to cover both sides of the coin.

HUNTER: Please the Court. That’s an excellent suggestion. Thank you, your Honour.

HIS HONOUR: That should satisfy all of us.

HUNTER: And perhaps that expert might be assisted by Mr Jones’s report, perhaps.”

Local Court Proceedings on 20 June 2018

15. The proceedings were adjourned to 20 June 2018. On that date, Mr Perdicaro’s matters again came before Magistrate Brown at Blacktown Local Court. Ms Hunter had obtained a further report of Mr Jones dated 19 June 2018 which outlined his qualifications and experience. Ms Hunter made submissions in support of the tender of Mr Jones’ reports by reference to the decision of R A Hulme J in Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760, where a report of a psychologist was relied upon in support of an application under s.32 MHFP Act.

16. Ms Hunter made further submissions, culminating in the following exchange (T2, 20 June 2018):

“MS HUNTER: … Mr Jones has the forensic registration and qualifications, Masters degree and registration to give him the specialised knowledge required under s 79 of the Evidence Act to be an expert report in this matter Your Honour.

HIS HONOUR: I’m against you on the matter.”

17. Once again, his Honour did not dismiss the s.32 application. Rather, the proceedings were adjourned to 6 August 2018.

A s.32 Order is Made on 4 July 2018

18. The matter was relisted in the interim on 4 July 2018 to permit Mr Perdicaro to see a Mental Health Nurse and a Community Corrections Officer in the Local Court precincts. That arrangement was to enable those persons to take a history from Mr Perdicaro in order to produce a report for the purpose of a s.32 application.

19. The matter was first mentioned before Magistrate Brown on 4 July 2018, but came before Magistrate Robinson later that day. Ms Hunter appeared for Mr Perdicaro and an application under s.32 MHFP Act proceeded before Magistrate Robinson. The report of Mr Jones dated 2 May 2018 was tendered on the application. Magistrate Robinson determined to deal with Mr Perdicaro under s.32 MHFP Act. Her Honour referred to the report of Mr Jones in the course of reasons delivered that day (T30, 4 July 2018):

“In support of [the s 32 application] I have seen a report prepared by Mr Steven Bradley [Jones], forensic psychologist,…who saw the applicant in custody on 23 April. As a consequence of seeing Mr Perdicaro, the psychologist, Mr [Jones], diagnosed Mr Perdicaro with a number of conditions which bring him within the jurisdictional limit of section 32.”

20. Magistrate Robinson made an order under s.32 MHFP Act dismissing the charges and discharging Mr Perdicaro into the care of a responsible person, Mr Jones (or his authorised delegate), upon the condition that Mr Perdicaro abide by the treatment plan (which accorded with Mr Jones’ draft treatment plan). The s.32 order was also subject to a condition that Mr Perdicaro:

“… follow all treatment directions and recommendations of the responsible person, including but not limited to, attendance upon his G.P. for consideration of medications or referrals to a Psychiatrist for consideration of medication.”

21. Accordingly, the report of Mr Jones of 2 May 2018 was received by a Magistrate on Mr Perdicaro’s s.32 application and was taken into account for the purpose of the making of an order under that provision on that day.

Proceedings in Supreme Court

22. By Summons filed in this Court on 18 September 2018, Mr Jones and Mr Perdicaro sought eight declarations, primarily directed to the issue of Mr Jones’ qualifications as a psychologist.

23. On 31 July 2019, the Plaintiffs gave notice to the Defendants of an intention to seek leave to file an Amended Summons in the form filed in Court on 7 August 2019, which added a ninth declaration.

24. The Amended Summons seeks declarations in the following terms:

“1. A declaration that the First Plaintiff is qualified to diagnose whether a person is:

(i)    Cognitively impaired; or

(ii)    Suffering from a mental illness; or

(iii)    Suffering from a mental condition for which treatment is available in a mental health facility; and

(iv)    a mentally ill person

for the purposes of Section 32 of the Mental Health (Forensic Provisions) Act 1990 ("the Act").

2.   A declaration that the First Plaintiff is qualified to determine whether treatment is available in a mental health facility for a person suffering from a mental condition for the purposes of Section 32 of the Act.

3.   A declaration that the First Plaintiff is qualified to prepare treatment plans for the purposes of Section 32 of the Act.

4 A declaration that the First Plaintiff is qualified to act as a treatment provider for the purposes of Section 32A of the Act.

5. A declaration that the First Plaintiff has the specialised knowledge for the purposes of s79 of the Evidence Act 1995 to provide an expert opinion and/or report to a Court in regard to his opinion or opinions for the purposes of Section 32 of the Act.

6. A declaration that the First Plaintiff has the specialised knowledge for the purposes of s79 of the Evidence Act 1995 to provide a suggested treatment plan to a Court for the purposes of Section 32 of the Act.

7. A declaration that a diagnosis by a psychiatrist is not a condition precedent to the determination required by Section 32(1)(a) of the Mental Health (Forensic Provisions) Act.

8.   A declaration that the Second Plaintiff was denied procedural fairness when the Magistrate in the Court below refused to consider:

(i)    The expert report prepared by the First Plaintiff.

(ii)    The treatment plan prepared by the First Plaintiff.

(iii)    Whether the First Plaintiff’s training, study and experience qualified him to prepare the expert report and treatment plan that was sought to be tendered on behalf of the Second Plaintiff in the Court below.

9. A declaration that in determining the application pursuant to Section 32 of the Mental Health (Forensic Provisions) Act his Honour erred in law when he failed to accept the First Plaintiff’s report as expert evidence pursuant to Section 79 of the Evidence Act.”

The Claim for Declaratory Relief

25. It will be apparent from the above factual narrative that Mr Perdicaro made a successful application on 4 July 2018 under s.32 MHFP Act. Whatever complaint Mr Perdicaro may have had before then as to the approach of Magistrate Brown to the report of Mr Jones, that issue had been resolved favourably to Mr Perdicaro as a result of the order made by Magistrate Robinson on 4 July 2018. It is difficult to see that Mr Perdicaro has any live interest in these proceedings in those circumstances.

26. Insofar as Mr Jones may have had a grievance concerning the approach of Magistrate Brown prior to 4 July 2018, that issue was likewise resolved by the approach adopted by a different Magistrate on 4 July 2018 in accepting his report on the s.32 application, and making orders which included implementation of Mr Jones’ proposed treatment program for Mr Perdicaro.

27. In an effort to overcome the apparent lack of utility of a claim for declaratory relief in these circumstances, affidavits were relied upon on behalf of Mr Jones which indicated that some solicitors had been unwilling to retain him to provide reports for the purpose of s.32 MHFP Act applications given news of the approach adopted by Magistrate Brown concerning Mr Perdicaro’s case. The evidence indicated that Mr Jones would charge $2,200.00 (inclusive of GST) for provision of s.32 reports and that he was concerned that he was suffering, and would continue to suffer, an economic detriment because solicitors would refrain from utilising his services where applications under s.32 MHFP Act were to be made.

28. The evidence relied upon by Mr Jones in this respect did not involve an actual quantification of what was said to be the lost income. Rather, there was some general evidence of the approach of several solicitors who had adopted this approach. The affidavits of the solicitors did not indicate that each solicitor had been informed that, despite the approach of Magistrate Brown in this case, another Magistrate had made orders under s.32 in the same case relying upon the report of Mr Jones. Counsel for the Plaintiffs informed the Court that each of these solicitors had been advised that the report was ultimately accepted.

29. The evidence in the present proceedings on this aspect rises no higher than indicating the approach of a single Magistrate on one occasion (in Mr Perdicaro’s case) as set out earlier in this judgment. There was no evidence that Magistrate Brown had continued to adopt this approach after Mr Perdicaro’s case. Indeed, the Court was informed at the hearing of the Amended Summons that Magistrate Brown had retired, although he has been appointed as an Acting Magistrate. There was no evidence that any other Magistrates in New South Wales adopted the same approach as Magistrate Brown. Clearly, Magistrate Robinson took a different approach in the very same case.

30. Accordingly, for the purpose of considering utility on an application for declaratory relief, the evidence relied upon by Mr Jones rises no higher than the approach adopted by a single Magistrate on two days in one case at Blacktown Local Court in mid-2018.

31. This is not a promising foundation for a claim that declaratory relief should be granted at all, let alone in the terms sought in the Amended Summons.

Principles Concerning Declaratory Relief

32. Mr Jones and Mr Perdicaro seek declaratory relief under s.75 Supreme Court Act 1970.

33. The power to exercise that jurisdiction does not exist at large and is confined to the determination of real legal controversies. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10, Mason CJ, Dawson, Toohey and Gaudron JJ said (citations omitted):

“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘it is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise’. However, it is confined by the considerations which mark out the boundaries of judicial power.

Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.”

34. In Oil Basins Limited v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60, Dawson J noted (by reference to Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-438; [1972] HCA 61), the requirements to be satisfied before a Court will exercise its discretion to make a declaration:

1. the question must be a real and not a theoretical question;

2. the person raising it must have a real interest to raise it; and

3. he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.

35. Courts have stressed that declaratory relief should not be granted if what is sought is an advisory opinion upon a hypothetical question: Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 at 401-403; [2004] FCA 1440 at [26]-[39] (Sackville J).

36. In Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, Lockhart J (Spender and Cooper JJ agreeing) said at 414:

“For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

*   The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: In Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.

*   The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen': University of New South Wales v Moorhouse (1975) 133 CLR 1 per Gibbs J at 10; or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority (NSW) [1977] 52 ALJR 180 per Mason J at 180 and per Aickin J at 189.

*   The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437; and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448.

*   Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J at 596.”

37. In my view, what is sought in these proceedings is an advisory opinion without reference to concrete facts. Insofar as the declarations sought relate to past events, the Local Court has allowed Mr Perdicaro’s s.32 MHFP Act application after admitting Mr Jones’ report of 2 May 2018. There is no live controversy concerning those events.

38. The declarations sought by the Plaintiffs involve the prospect of the Court granting declaratory relief in an abstract context and unconfined for the future. I am quite unpersuaded that there is a real question to be determined by the Court. The fact that Mr Jones asserts he has some unquantified actual or potential financial loss because of the ruling by one Magistrate in one case at one Local Court in 2018 does not, in my view, give rise to a proper foundation for a finding that he has a “real interest” to raise what is, in any event, a theoretical question in this case.

39. Insofar as paragraph 8 of the Amended Summons seeks a declaration concerning a denial of procedural fairness, there is a further basis for refusing to grant such a declaration. There was, at most, a delay in the acceptance of Mr Jones’ report of 2 May 2018 by a Local Court Magistrate. His report was accepted and acted upon by Magistrate Robinson on 4 July 2018. There was no “practical injustice” in these circumstances: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 206-207; [2016] HCA 29 at [82]-[83].

40. There is some utility in the Court making general observations about the construction and operation of s.32 MHFP Act, an important provision to be exercised in the criminal jurisdiction of the Local Court. The statements of the Court in that respect may provide some assistance to Mr Jones (and more generally) in an understanding of the operation of s.32 MHFP Act. If there is any risk that solicitors may not retain Mr Jones in the future in appropriate cases for the purpose of the provision of a report on a s.32 application, then the general statements of the Court in this judgment may serve to correct that position.

41. In the course of submissions, counsel for the Plaintiffs sought that the Court consider the grant of a declaration in the following terms:

“A declaration that in considering the application pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 his Honour erred in law when he arbitrarily rejected the First Plaintiff's report as expert evidence pursuant to section 32(1)(a) Mental Health (Forensic Provisions) Act 1990. His Honour should have given active intellectual consideration to whether, in the circumstances of this case, the First Plaintiff had the requisite specialised knowledge to give the opinion in his report of 2 May 2018.”

42. It is not appropriate to make a declaration in this form either in the circumstances of this case. The effect of what the Court will say in this judgment may constitute an indication along the lines sought. However, it is not appropriate, in the absence of a real (and not hypothetical) issue, for the Court to grant declaratory relief in the form sought in this proposed amended declaration and I decline to make such an order.

Construction and Operation of s.32 MHFP Act

43. What follows is intended to provide guidance in an area of importance for the administration of criminal justice in the Local Court.

44. Section 32 MHFP Act lies within Part 3 of that statute which is entitled “Summary Proceedings Before a Magistrate Relating to Persons Affected By Mental Disorders”.

45. Section 32 MHFP Act provides as follows:

“32    Persons suffering from mental illness or condition or cognitive impairment

(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:

(a)    that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i)    cognitively impaired, or

(ii)    suffering from mental illness, or

(iii)    suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b)    that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2)    The Magistrate may do any one or more of the following:

(a)    adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013,

(c)    make any other order that the Magistrate considers appropriate.

(3)    The Magistrate may make an order dismissing the charge and discharge the defendant:

(a)    into the care of a responsible person, unconditionally or subject to conditions, or

(b)    on the condition that the defendant attend on a person or at a place specified by the Magistrate:

(i)    for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or

(ii)    to enable the provision of support in relation to the defendant’s cognitive impairment, or

(c)    unconditionally.

(3A)    If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B)    If the defendant fails to appear, the Magistrate may:

(a)    issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3C)    If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:

(a)    issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3D)    If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4)    A decision under this section to dismiss charges against a defendant 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 under subsection (2) or (3).

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

(5)    The regulations may prescribe the form of an order under this section.

(6) In this section:

cognitive impairment means ongoing impairment of a person’s comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person’s ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person’s brain or mind, and includes (without limitation) any of the following:

(a)    intellectual disability,

(b)    borderline intellectual functioning,

(c)    dementia,

(d)    acquired brain injury,

(e)    drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f)    autism spectrum disorder.”

46. The terms “mental condition” and “mentally ill person”, as they appear in s.32(1)(a), are defined in s.3 MHFP Act as follows:

“mental condition means a condition of disability of mind not including either mental illness or developmental disability of mind.

…

mentally ill person has the same meaning as it has in the Mental Health Act 2007.”

47. The term “cognitive impairment” is, of course, defined in s.32(6) MHFP Act.

48. Section 32A MHFP Act provides for the provision of reports from treatment providers.

49. Section 33 MHFP Act provides for a different procedure to be undertaken if a defendant appears to be a “mentally ill person” as defined in the Mental Health Act 2007. The construction and operation of s.33 has been considered in Director of Public Prosecutions v Wallman [2017] NSWSC 40 and Director of Public Prosecutions (NSW) v Sheen [2017] NSWSC 591.

50. Section s.32(1)(a) makes clear that the section may apply if it appears to the Magistrate that the defendant falls within one of the conditions referred to and “is not a mentally ill person”. If the defendant appears to the Magistrate to be a “mentally ill person”, then s.33, and not s.32, has potential application. Accordingly, the construction and operation of s.33 can be put to one side for the purpose of these proceedings.

51. Section 36 MHFP Act states:

“36    Means by which Magistrate may be informed

For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself.”

52. In Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93 at 109; [2006] NSWCA 154 at [74], McColl JA (Spigelman CJ and Handley JA agreeing) said:

“In exercising the Pt 3 jurisdiction, the Magistrate is given powers of an inquisitorial or administrative nature to inform herself or himself as the Magistrate thinks fit: s 36. That power, which would clearly have to be exercised in accordance with procedural fairness requirements, demonstrates the breadth of the inquiry a Magistrate is entitled to undertake in determining whether to send a defendant along the diversionary route, or leave him or her to be dealt with in accordance with law.”

53. As a result of s.36 MHFP Act, the rules of evidence have no direct application to a s.32 MHFP Act application. To that extent, declarations sought by the Plaintiffs which sought to invoke s.79 Evidence Act 1995 were misconceived.

54. The position is similar in sentencing proceedings where the Evidence Act 1995 does not apply unless the Court so directs: s.4(1) and (2) Evidence Act 1995. However, as Hoeben CJ at CL (Beech-Jones J and myself agreeing) observed in Lam v R [2015] NSWCCA 143 at [75]:

“It is trite to note that the Evidence Act 1995 does not apply in sentencing proceedings unless a direction is given to that effect, and that there is a degree of flexibility in sentencing proceedings as to the manner in which evidence may be given. Nevertheless, the rules of evidence as set out in the Act and at common law, embody principles of fairness which have been worked out by the courts over many years. An important part of that body of rules are those relating to opinion evidence.”

55. A similar approach is appropriate with respect to the receipt of expert reports by the Local Court on an application under s.32 MHFP Act. The Local Court should consider the qualifications and expertise of the author of any report which is sought to be tendered at the hearing of an application under s.32 MHFP Act, together with the contents of the report, to determine whether the report should be admitted at the inquiry and what weight should be given to it.

56. A Magistrate is required to give reasons when determining an application under s.32 MHFP Act. As Button J observed in Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 at [55]-[61], the extent of reasons required will depend upon the issues in contest, with a balancing exercise to be undertaken which takes into account the seriousness of the offence.

57. A Magistrate would fall into error if a blanket approach was adopted so that reports of psychiatrists only could be received on applications under s.32 MHFP Act. The type of report which may be appropriate will depend very much on the particular case.

58. As s.32 MHFP Act itself makes clear, issues of “cognitive impairment” and a “mental condition” fall within the terms of the provision. Conditions which fall within the definition of “cognitive impairment” are frequently reported on by psychologists, usually after administration of well-recognised tests. Section 32(1)(a)(ii) extends to the appearance that a defendant is “suffering from mental illness”, but with the qualification that the person “is not a mentally ill person” as defined in the Mental Health Act 2007.

59. As the present case makes clear, there are areas where a psychologist may report and conduct testing which bear upon these issues. In reality, there is no bright line test which delineates, for the purpose of s.32 MHFP Act, areas where a psychological report can or cannot be received.

60. One clear distinction between the two professions is that psychiatrists are medical practitioners who may prescribe medication. Psychologists are not medical practitioners so that prescription of medication is not an available form of treatment by them. The distinction was illustrated in a practical way in Mr Perdicaro’s treatment plan which required him to “attend psychiatric assessment for ADHD and accept any medicated therapy deemed appropriate” (see [20] above).

61. Any attempt to generalise as to which cases may be appropriate for a psychologist to report on under s.32 MHFP Act, or cases where a psychiatric report may also assist the Court (in addition to or in place of a psychological report) is not helpful. It is, of course, not possible to articulate all the permutations and combinations of factors which may arise with respect to a particular defendant and it would be pointless to seek to undertake that exercise.

62. It is noteworthy that a number of the cases which have considered s.32 MHFP Act have involved reports by psychologists: Director of Public Prosecutions v El Mawas at 95 [8], 96-97 [20]-[22]; R v HW [2017] NSWLC 25 at [16]-[25], [74]; Director of Public Prosecutions (NSW) v Saunders at [7]-[8]; Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180 at [12]-[13], [15]ff.

63. It may be accepted that psychologists play a significant part in the provision of reports for applications under s.32 MHFP Act, and the operation of treatment plans for individual defendants who may be subject to a s.32 order.

64. From time to time, statements have been made by Courts expressing concern and disapproval where a psychologist’s report crosses the line into the expression of psychiatric opinion, sometimes accompanied by bare acceptance of a defendant’s account combined with a limited explanation as to how the particular diagnosis was reached. In R v Peisley (1990) 54 A Crim R 42, Wood J (Gleeson CJ and Grove J agreeing) expressed strong criticism of a psychologist’s report. His Honour said at 51-52:

“Although I do not wish to venture into that area, having regard to the fact that the sentence appeal is withdrawn, I do not wish to depart from this appeal without expressing some concern as to one aspect of the evidence placed before his Honour. That related to the opinion of Mr W J Taylor, a clinical psychologist whose opinion on this issue was objected to by the Crown. Mr Taylor observed at one stage that there were suggestions in the test results that the appellant could have suffered a disassociative disorder and particularly a neurosis at the time of the offence, even though somewhat inconsistently he said his test results showed no signs of any personality disorder or emotional instability on the part of the appellant.

In my view, that opinion lacked all weight and suffered from at least two serious defects. First, it is apparent from the report that the so-called test results were nothing more and nothing less than the history given by the appellant of the shooting. Second, Mr Taylor entirely omitted from account earlier incidents when the appellant had shot his brother and had been convicted of street fighting, together with the evidence of the conversations concerning prior threats by the appellant to shoot Rixon and Forester.

I consider it necessary to observe once again that it is important that clinical psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of clinical psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry, and in the present case Mr Taylor's opinion was entirely unsupported by the psychiatric opinion.

Additionally. I would express my concern that a report from Mr Taylor was placed before the sentencing Judge framed in terms as follows:

‘It could well be that ... indicate that he may have been expressing a brief episode of depersonalisation neurosis.’

That is a diagnosis, if it can be called such, which is so imprecise, so tentative, and so uncertain, that it should not have been placed before the learned sentencing Judge even if it was within Mr Taylor's field of expertise.”

65. This passage from R v Peisley has been relied upon from time to time to confine opinions expressed by psychologists in particular cases: R v Petroulias (No. 36) (2008) 73 ATR 83 at 111; [2008] NSWSC 626 at [164]; WW v R [2012] NSWCCA 165 at [58]-[60]; Lam v R at [81]-[83], [90]; Jung v R [2017] NSWCCA 24 at [41]-[42].

66. However, the undue rejection of a psychologist’s report has been criticised in other decisions, where the report was capable of bearing upon the issues arising for determination: R v Whitbread (1995) 78 A Crim R 452 at 460-461; R v Arnold [2004] NSWCCA 294 at [63]-[64].

67. Reference to these cases points to the difficulty with a blanket approach (in a factual vacuum), either in favour of or against the use of a psychologist’s report on a s.32 application. What will be of assistance to the Court, and appropriate to receive, will depend upon the particular circumstances of the case.

68. What I have said in this part of the judgment demonstrates that the approach adopted by Magistrate Brown, with respect to the report of Mr Jones concerning Mr Perdicaro, was erroneous in that it operated to exclude the report upon the flawed basis that a psychiatric report only was relevant to issues on a s.32 application.

Conclusion

69. Whilst accepting that the approach adopted by Magistrate Brown disclosed error, it did not give rise to a refusal of the s.32 MHFP Act application. In due course, the report of Mr Jones was received and Mr Perdicaro was the beneficiary of a successful application under s.32 MHFP Act.

70. The present proceedings were commenced some two months after Magistrate Robinson dealt with Mr Perdicaro under s.32 MHFP Act. By that time, the issue was of academic interest only. Mr Jones has not demonstrated that he has sufficient interest in the proceedings to warrant the Court granting declaratory relief. In any event, the declarations sought are all framed inappropriately. They seek advisory opinions in an abstract setting. There is no utility in the grant of declaratory relief.

71. During the hearing on 7 August 2019, I indicated that, should the Court determine to dismiss the Amended Summons, an opportunity would be given to the parties to make submissions as to costs once the Court had delivered judgment in the proceedings.

72. I will allow the parties an opportunity to make written submissions on the issue of costs with the Court’s decision as to costs to be given thereafter on the papers.

73. I make the following orders:

1. the Amended Summons is dismissed;

2. the parties are to exchange (and provide to my Associate), written submissions (not exceeding three pages) on the issue of costs within seven days from today, with the Court to give judgment thereafter on any costs application on the papers and without the need for a further hearing.

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Decision last updated: 21 August 2019