Kelly v Saadat-Talab

[2008] NSWCA 213

Reported Decision: 72 NSWLR 305

New South Wales

Court of Appeal

CITATION:	KELLY v SAADAT - TALAB [2008] NSWCA 213
HEARING DATE(S):	30 September 2008
JUDGMENT DATE:	6 November 2008
JUDGMENT OF:	Allsop P at 1; Ipp JA at 31; Handley AJA at 32
DECISION:	(1) Leave to appeal granted; (2) Notice of appeal to be filed within 10 days; (3) Appeal allowed; (4) Judgment of the Common Law Division is set aside and in lieu thereof there is substituted an order that the respondent’s appeal to the Common Law Division be dismissed; (5) The respondent is to pay the appellant's costs of the proceedings in this Court, and in the Common Law Division, but is to have a certificate under the Suitors Fund Act in respect of the costs in this Court.
CATCHWORDS:	CRIMINAL LAW (C’wlth) – Sentencing – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act. - FEDERAL JURISDICTION – Criminal law – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act.
LEGISLATION CITED:	Crimes Act 1914 (Cth Crimes Act 1990 (NSW) Crimes Legislation Amendment Act (No. 2) 1989 Criminal Code Act 1995 (Cth) Judiciary Act 1903 (Cth) Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health (Criminal Procedure) Amendment Act 2005 NSW (No. 109) Mental Health Act 1958 (NSW) Mental Health Services Act 1974 (Qld) Migration Act 1958 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38; 223 CLR 251 Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 Austral Pacific Group Limited (In liquidation) v Airservices Australia [2000] HCA 39; 203 CLR 136 Australasian Memory Pty Limited v Brien [2000] HCA 30; 200 CLR 270 Australian Securities and Investments Commission v DB Management Pty Limited [2000] HCA 7; 199 CLR 321 Balog v ICAC [1990] HCA 28; 169 CLR 625 Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 David Grant & Co Pty Limited v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 Dossett v TKJ Nominees Pty Limited [2003] HCA 69; 218 CLR 1 Downey v Trans Waste Pty Ltd [1991] HCA 11; 172 CLR 167 Garnett v Bradley (1878) 3 App Cas 944 Kartinyeri v Commonwealth [1998] HCA 52; 195 CLR 337 Leon Fink Holdings Pty Limited v Australian Film Commission [1979] HCA 26; 141 CLR 672 Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 Putland v The Queen [2004] HCA 8; 218 CLR 174 R v Wallis [1949] HCA 30; 78 CLR 529 Re Wilcox; Ex parte Venture Industries Pty Limited (1996) 66 FCR 511 Saraswati v R [1991] HCA 21; 172 CLR 1 Shergold v Tanner [2002] HCA 19; 209 CLR 126 South Australia v Tanner [1989] HCA 3; 166 CLR 161 University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447
PARTIES:	Andrew Kelly - Appellant Sharokh Saadat-Talab - Respondent
FILE NUMBER(S):	CA 40907/2007
COUNSEL:	Ms W Abraham QC - Appellant S Prince - Respondent
SOLICITORS:	Commonwealth DPP - Appellant Parish Patience Lawyers - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC13072/2007
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	28/11/2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 1353

CA40907/2007

ALLSOP P
IPP JA
HANDLEY AJA

Thursday 6 November 2008

Andrew KELLY v Sharokh SAADAT-TALAB

CATCHWORDS

CRIMINAL LAW (C’wlth) – Sentencing – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act.

FEDERAL JURISDICTION – Criminal law – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act.

HEADNOTE

The respondent, while in detention at Villawood Detention Centre was involved in an incident on 27 September 2004 which gave rise to charges under the Criminal Code 1995 (C’wlth). At the time he was suffering from a major depressive illness but he had recovered by the time the charges came on for hearing. Counsel for the respondent made an application to the magistrate for an order under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) that it would be more appropriate to deal with the respondent under that section “than otherwise in accordance with law”. Section 32 enabled such an order to be made if the defendant had been suffering from a mental illness at the time of the offence, even if he was no longer suffering from that illness at the time of the hearing. Section 20BQ of the Crimes Act (C’wlth) only permitted such an order to be made if the defendant was suffering from a mental illness at the time of the hearing. The magistrate dismissed the application on the ground that s 20BQ of the Crimes Act applied and s 32 of the State Act did not. The respondent’s appeal to the Supreme Court was allowed on the ground that s 32 was picked up as Federal law by s 68(1) of the Judiciary Act. The prosecution applied for leave to appeal, and the Court heard full argument on that application. Held: (1) Leave to appeal should be granted; (2) The question was whether the State section was “applicable” so that s 68(1) of the Judiciary Act made it “apply”; (3) Section 20BQ embodied “a Commonwealth legislative scheme which was complete on its face” and “left no room” for the operation of s 32 of the State Act: Putland v The Queen (2004) 218 CLR 174 per Gleeson CJ at 179-180 applied; (4) The appeal should be allowed.

ORDERS

(1) Leave to appeal granted;

(2) Notice of appeal to be filed within 10 days;

(3) Appeal allowed;

(4) Judgment of the Common Law Division is set aside and in lieu thereof there is substituted an order that the respondent’s appeal to the Common Law Division be dismissed;

(5) The respondent is to pay the appellant's costs of the proceedings in this Court, and in the Common Law Division, but is to have a certificate under the Suitors Fund Act in respect of the costs in this Court.

**************

CA40907/2007

ALLSOP P
IPP JA
HANDLEY AJA

Thursday 6 November 2008

Andrew KELLY v Sharokh SAADAT-TALAB

JUDGMENT

1 ALLSOP P: I have had the advantage of reading the reasons in draft of Handley AJA. I agree with the orders that his Honour proposes. Partially in deference to the careful and helpful arguments of counsel and partially in deference to the position of the respondent charged with a summary offence said to have had a relationship with a major depressive illness related to his incarceration for four years as (then) an unlawful non-citizen under the Migration Act 1958 (Cth), I would prefer to express my reasons in my own words, though I agree generally with his Honour’s reasons.

2 Though the Judiciary Act 1903 (Cth), ss 68 and 79 are in relevantly different form (“so far as they are applicable”: s 68(1); and “except as otherwise provided”: s 79), “little, if any, functional difference” exists between these two forms of qualification: Putland v The Queen [2004] HCA 8; 218 CLR 174 at 179 [7] (per Gleeson CJ) and 189 [41] (per Gummow and Heydon JJ, with whom Callinan J agreed at 215 [121]).

3 The meaning of “otherwise provided” in s 79 (and so the implicitly identical test in s 68) involves the assessment of the operation of the two statutes in question (assuming that the Constitution, s 109 has not removed the State Act from operation at an antecedent stage: Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at 576 [38] and 586 [76]; and Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38; 223 CLR 251 at 271 [61]-[63] (per Gleeson CJ and McHugh, Gummow, Hayne and Heydon JJ)), being the Commonwealth law and the State or Territory law picked up by s 68 or s 79, working together as laws of the same polity – the Commonwealth.

4 In GPAO at 587-588 [79]-[80] Gleeson CJ and Gummow J (with whom Gaudron J and Hayne J agreed in this respect: see 606 [135] and 650 [254]) adopted what Mason J had said in University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447 at 463 in explicating the relevant notion of inconsistency involved. There, Mason J said the following:

Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency. In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time…

5 In Austral Pacific Group Limited (In liquidation) v Airservices Australia [2000] HCA 39; 203 CLR 136 at 144 [17], Gleeson CJ and Gummow and Hayne JJ applied GPAO and further said:

The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act that the provisions of the Compensation Act are irreconcilable with the other law. If so, the Compensation Act “otherwise provides” within the meaning of s 79 of the Judiciary Act . GPAO shows that the question is not answered by application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase “covering the field”.

6 Thus, if the Commonwealth law expressly or by implication makes contrary provision to the putative surrogate federal law (the State law to be picked up) the State law will not be picked up. This can be seen to be inconsistency or repugnancy such that the two laws cannot be reconciled one with the other such that an implied repeal to the extent of the inconsistency would occur: Metwally at 463. Such inconsistency has been described as “actual contrariety”. Putland at 189 [40] where Gummow and Heydon JJ referred to Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 at 275 and Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; 218 CLR 1 at 7 [14] and 13-14 [43].

7 Further illumination of the notion of contrariety is given by the clarity of the passage from the reasons of Fullagar J in Butler v Attorney-General (picking up also what Lord Blackburn said in Garnett v Bradley (1878) 3 App Cas 944 at 966), cited by Gummow and Heydon JJ in Putland at 189 [40]. In Butler v Attorney-General Fullagar J said at 275-276:

The books contain, of course, plenty of examples of an implied repeal – total or partial – of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms. The classical statement on the subject is, I think, to be found in the opinion of Lord Blackburn in Garnett v. Bradley … . After calling attention to the generally unsatisfactory nature of the authorities, his Lordship said: "I shall not attempt to recite all the contrarieties which make one statute inconsistent with another; the contraria which make the second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general affirmative words used in the new law would not of themselves repeal the old. But when the new affirmative words are, as was said in Stradling v. Morgan …, such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together; the second repeals the first" … .

It should be pointed out in this connexion that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s. 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, a paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant .
(Footnotes omitted.)

8 The clarity required for such contrariety and the rarity of implied repeal, reflected upon by Fullagar J in Butler v A-G were referred to in Dossett v TKJ Nominees Pty Limited [2003] HCA 69; 218 CLR 1 at 7 [14] (per McHugh J) and at 13-14 (per Gummow, Hayne and Heydon JJ). As was pointed out in Dossett at 14 [43], the passage of Fullagar J in Butler v Attorney-General at 275 has been applied on a number of occasions by the High Court: South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 171 (per Wilson, Dawson, Toohey and Gaudron JJ); Saraswati v The Queen [1991] HCA 21; 172 CLR 1 at 17 (per Gaudron J); Kartinyeri v Commonwealth [1998] HCA 52; 195 CLR 337 at 375 (per Gummow and Hayne JJ); and Shergold v Tanner [2002] HCA 19; 209 CLR 126 at 136-137 (per Gleeson CJ and McHugh, Gummow, Kirby and Hayne JJ, citing Gaudron J in Saraswati at 17).

9 This notion of contrariety encompasses not only the circumstance where “a Commonwealth law expressly or by implication made a contrary provision” to the State law to be picked up – the putative surrogate federal law (see Putland at 179 [7], per Gleeson CJ), but also where “there [was] a Commonwealth legislative scheme relating to the [relevant subject matter] which was ‘complete upon its face’ and can ‘be seen to have left no room’ for the operation of [the section to be picked up]”: Putland at 179-180 [7], per Gleeson CJ.

10 To put the matter in the relevant statutory context here, would picking up the State law (the Mental Health (Criminal Procedure) Act 1990 (NSW), s 32) derogate from and effectively impliedly repeal all or any part of the Commonwealth law (the Crimes Act 1914 (Cth), s 20BQ) or is the Crimes Act, s 20BQ complete upon its face leaving no room for operation of the law to be picked-up?

11 These two ways of putting the matter can be seen to be intimately related. If the Commonwealth law is complete upon its face leaving no room for the operation of a surrogate federal law, that is so because part of the content of the existing Commonwealth law is a negation of additional statutory content on the subject. If a State law to be picked up as surrogate federal law would add statutory content to the subject, there would be an implied repeal of the negation of additional content present within the Commonwealth Act.

12 Handley AJA refers to the canon of statutory construction (the maxim expressum facit cessare tacitum) that if there be a power given by a particular provision which prescribes the mode by which it shall be exercised and the conditions and restrictions which must be observed in its exercise, the operation of general powers in the same statute will be excluded: see R v Wallis [1949] HCA 30; 78 CLR 529 at 550; Leon Fink Holdings Pty Limited v Australian Film Commission [1979] HCA 26; 141 CLR 672 at 678; Downey v Trans Waste Pty Limited [1991] HCA 11; 172 CLR 167 at 171-172; and Australasian Memory Pty Limited v Brien [2000] HCA 30; 200 CLR 270 at 280-281 [21].

13 The maxim expressum facit cessare tacitum can be seen as an aspect of the maxim expressio unius est exclusio alterus: see Pearce DC and Geddes RS Statutory Interpretation in Australia (LexisNexis/Butterworths) 5th Ed at 142 [4.30] citing Attorney-General (NSW); Ex rel Franklins Stores Pty Limited v Lizelle Pty Limited [1977] 2 NSWLR 955 at 962 and Plunkett v Smith (1911) 14 CLR 76.

14 To the extent that this equation of the two is legitimate, caution is required to be exercised in their application: Australian Securities and Investments Commission v DB Management Pty Limited [2000] HCA 7; 199 CLR 321 at 340 [42] and the cases there cited; Pearce and Geddes op cit at 140-142. The requirement for caution in the use of the maxim expressum facit cessare tacitum was stated by the Court in Balog v ICAC [1990] HCA 28; 169 CLR 625 at 632 and Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 575.

15 That said, Professors Pearce and Geddes in their work point out, at 142-143 [4.30]-[4.31], that the use of the expressum facit maxim has been more enthusiastically embraced in giving effect to the dictum of Dixon J in R v Wallis and to the similar statement by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 at 7 where the following was said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

16 The cases to which Professors Pearce and Geddes refer at p 143 of their work reinforce the authorities to which Handley AJA has referred: see in particular, David Grant & Co Pty Limited v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 276 (per Gummow J, with whom Brennan CJ and Dawson, Gaudron and McHugh JJ agreed).

17 The operation of the maxim is readily understandable in the context in the case of construing specific and general provisions in the one Act. It is not entirely clear how the maxim operates in respect of two Acts passed by the same Parliament each of which deals in a particular way with the relevant subject matter: see the comments of the Full Court of the Federal Court (Black CJ and Cooper and Merkel JJ) in Re Wilcox; Ex parte Venture Industries Pty Limited (1996) 66 FCR 511 at 530-531.

18 The task here is not the resolution of the extent of operation of a specific and a general provision in one Act. Rather, it is to assess whether picking up a State law as a Commonwealth law would be contrary to an existing Commonwealth law, either because it would be contrary to it in a way that could be seen to effectively repeal it or derogate from it, or because it would be contrary to or derogate from an express or implied complete regime on the relevant subject constituted by the existing Commonwealth law. The negative to be found in the latter case is one to the effect that the provision is, or is part of, a scheme complete upon its face, and to introduce the surrogate federal law would derogate from the intended exclusivity or completeness of the existing Commonwealth law.

19 The maxim assists in this enquiry, but ultimately the resolution of this question is determined not merely by the application of the maxim, but by the process of statutory interpretation of the intended content of the Crimes Act, s 20BQ.

20 The context of the introduction of s 20BQ was that there were provisions to similar effect in New South Wales (the Crimes Act 1990 (NSW), ss 428W and 428X). Queensland’s provision dealt only with detaining persons in hospital: Mental Health Services Act 1974 (Qld), s 29A.

21 The Australian Law Reform Commission Report on Sentencing (Report No 44, 1988) dealt with the subject. A discussion of mentally ill and intellectually disabled offenders is found at pp 109-119 of the Report. There was a recognition of the inadequacy of legal approach to the issue up to that time. This led the Commission to say the following at [200] of the Report:

The Commission recommends that a reference covering all issues concerning the mentally ill and the intellectually disabled in the criminal justice system should be given to it. Full-scale reforms for mentally ill or intellectually disabled Australian Capital Territory and federal offenders will undoubtedly take some years to develop and implement. Because the position of these offenders has been ignored for nearly a century, the following recommendations have been made to allow them access to some of the advantages of recent innovations in this area. These recommendations should, however, be seen as only a stop-gap measure, until comprehensive reforms are implemented.

22 No relevant draft legislation was provided by the Commission in its report. However, in the report, there was discussion under the heading “New Sentencing Options” of “hospital orders”, “psychiatric probation orders” and “guardianship orders” (the first two of which can be seen in the Crimes Act, Division 9, ss 20BS – 20BY). There was no discussion of the type of provision in s 20BQ or the pre-existing New South Wales provisions: Crimes Act1900, ss 428W and 428X.

23 As Gummow and Heydon JJ said in Putland at 193 [52], the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth) expressed various objectives in amending the Commonwealth Crimes Act, varying between the making of exhaustive provisions on some subjects and supplementary provision on others. The example of the former given by their Honours was taken from the Outline of the Explanatory Memorandum concerning non-parole periods:

3. to provide a separate regime for fixing federal non-parole periods rather than relying on applied State or Territory legislation;

24 In the same Outline the following appeared in [7]-[9] about the mentally ill or disabled:

7. to establish new procedures for federal offenders charged on indictment with a federal offence and who are found unfit to plead or unfit to be tried or not guilty on the grounds of mental illness;
8. to provide new procedures for magistrates courts when dealing summarily with federal matters where the defendant is mentally ill or intellectually disabled;
9. to provide the additional sentencing options of hospital orders, psychiatric probation orders (for mentally ill offenders) and program probation orders (for intellectually disabled offenders);

25 The expression “separate regime” is not used in relation to magistrates dealing summarily with the mentally ill in [7] of the outline above, but the “new provisions” on their face were an apparently complete regime for the approach by magistrates to the subject matter of diversion. The requirement for the present existence of the mental illness or disability (“is suffering from”) in s 20BQ can be seen to give effect to an aspect of the safeguards in such reforms: see the discussion in the Report at [209] and [213].

26 Prior to the introduction of s 20BQ, in New South Wales, the Crimes Act (NSW), s 428W or s 428X would have been picked up (depending upon whether the defendant was mentally ill within the meaning of the Mental Health Act 1958 (NSW)). These provisions provided as follows:

Persons suffering from mental illness or condition
428W (1) Where, 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 developmentally disabled, is suffering from a mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of the Mental Health Act 1958; 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 Chapter than otherwise in accordance with law,
the magistrate:
(c) may dismiss the charge and discharge the defendant:
(i) into the care of a responsible person, unconditionally or subject to conditions;
(ii) upon the condition that the defendant attend upon a person or at a place specified by the magistrate for assessment of the defendant’s mental condition or treatment, or both; or
(iii) unconditionally; or
(d) may do any more or more of the following:
(i) adjourn the proceedings;
(ii) grant the defendant bail in accordance with the Bail Act 1978;
(iii) make any other order that the magistrate considers appropriate.
(2) A decision under subsection (1)(c) to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
Mentally ill persons
428X (1) Where, at the commencement or at any time during the course of the hearing of proceedings before a magistrate, it appears to the magistrate that the defendant is a mentally ill person within the meaning of the Mental Health Act 1958, the magistrate (without derogating from any other order the magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise):
(a) may order that the person be taken by a member of the Police Force to, and be detained in, an admission centre within the meaning of the Mental Health Act 1958 to be examined and dealt with under that Act as if the person were a person admitted to and detained in an admission centre under section 12(1) of that Act; or
(b) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.
(2) Where a defendant is dealt with the commencement or at any time during the course of the hearing of proceedings before a magistrate in accordance with subsection (1), the charge which gave rise to the proceedings shall, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, be deemed to have been dismissed unless, within that period, the defendant is brought before a magistrate to be further dealt with in relation to the charge.
(3) Where a defendant is brought before a magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the magistrate shall, in dealing with the charge, take account of any period during which the defendant was in an admission centre, a mental hospital or an authorised hospital within the meaning of the Mental Health Act 1958 as a consequence of an order made under subsection (1)(a).
(4) A deemed dismissal of charges under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.

27 The terms of s 20BQ comprised on their face an intended regime of treatment in summary jurisdiction of the mentally ill. The terms of s 20BQ do not easily admit of a construction that they are intended to be supplemented or complemented by additional or differently worded provisions on the very same subject, such as ss 428W and 428X and now the Mental Health (Criminal Procedure) Act, ss 32 and 33.

28 In Putland, the narrow terms of the Commonwealth provision (the Crimes Act, s 4K(3) and (4)) were easily understood against the history of the legislation and told against any implication of a negative: Putland at 182 [14]. Here, the introduction of Division 8 (ss 20BQ and 20BR) can be seen to be a self-contained coherent regime for the diversion of persons charged in the summary jurisdiction by reference to mental illness.

29 If s 20BQ is not to be regarded as the only regime to deal with the subject of diversion from the criminal justice system by reference to mental illness, an effect will be brought about of the overlaying of similar, but differently expressed, regimes, involving (as here) different underlying policies. An examination of the terms of s 20BQ providing nominated conditions of application (involving policy considerations) and nominated responses, in the absence of which the criminal justice system will operate leads to the conclusion, in my view, that Division 8 was intended to be an exhaustive statement of the Commonwealth Parliament’s response to the issue dealt with, and thus for the purposes of the Judiciary Act, ss 68 and 79 a scheme complete upon its face leaving no room for the operation of the cognate State provision in the Mental Health (Criminal Procedure) Act, s 32 (and s 33) to be picked up as federal law.

30 For the avoidance of doubt I should add one matter which arose in debate. The mental illness spoken of in s 20BQ relates, as I would read the provision, to any underlying condition and someone would not cease to be mentally ill because of a stable regime of medication.

31 IPP JA: I agree with Allsop P and Handley AJA.

32 HANDLEY AJA: This is an application for leave to appeal from a decision of Rothman J who allowed an appeal by the respondent from an order of Huber LCM who dismissed his application under s 32 of the Mental Health (Criminal Procedure) Act 1990 (the State Act), operating as Federal law under s 68(1) of the Judiciary Act, for an order that it would be more appropriate to deal with him under that section "than otherwise in accordance with law." The Magistrate held that the provisions of s 20BQ of the Crimes Act 1914 (the Federal Act) applied and s 32 did not.

33 The case was listed for full argument on the basis that the Court would be in a position to finally dispose of the matter if it granted leave to appeal.

34 The respondent, an Iranian citizen, alleges that he converted from Islam to Christianity and came to Australia because he feared persecution. He was detained at Villawood Detention Centre between 2000 and 2004. On 27 September 2004 an incident occurred at the Centre which gave rise to charges under the Criminal Code Act 1995 (Cth) that he threatened to harrass, caused harm to, and obstructed a Commonwealth official.

35 It was common ground that the respondent was suffering from a major depressive illness at the time of the alleged offences but was not at the time of the hearing before the Magistrate.

36 Section 32(1) (the State section) applies to "proceedings before a Magistrate" where the defendant "is (or was at the time of the alleged commission of the offence … )" relevantly for this case "(ii) suffering from mental illness; or (iii) suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990."

37 If the Magistrate finds (para (b)) that "it would be more appropriate to deal with the defendant in accordance with the provisions of this part than otherwise in accordance with law" he may make various orders which include adjourning the proceedings, granting bail, dismissing the charge and discharging the defendant either into the care of a responsible person subject to conditions or otherwise, or on condition requiring him to report for assessment of his mental condition, or for treatment or both, or unconditionally.

38 The corresponding section in the Federal Act is s 20BQ (the Federal section) and there is a substantial degree of overlap between the two sections. There are differences, only some of which are directly relevant. The principal difference which has led to these proceedings is that the Federal section only applies relevantly where the person charged "is suffering from a mental illness" whereas the State section also applies where the defendant "was" suffering from such an illness "at the time of the alleged commission of the offence". It is not necessary to explore the other differences.

39 Critically for present purposes s 20BQ(1)(b) provides that a Federal offender who is suffering from a mental illness etc may be dealt with under the section, instead of “otherwise in accordance with law.”

40 If the State section applied as Federal law it was open to the Magistrate to find that it was more appropriate to deal with the respondent under Part 3 of the State Act, "than otherwise in accordance with law". However if only the Federal section applied it was not open to the Magistrate to make such a finding.

41 The case does not raise any question of inconsistency under s 109 of the Commonwealth Constitution because the State section could only apply if it was Federal law picked up by s 68 of the Judiciary Act. Section 68(1), & (2) relevantly provide:

"(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) …
(c) …
(d) …;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several Courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b) …
(c) …
of offenders or persons charged with offences against the laws of a State or Territory … shall, subject to this section … have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth ….”.

42 The question for determination therefore is whether the State section was “applicable” so that s 68(1) made it "apply" to the hearing of these charges or whether the Federal section made the State section inapplicable.

43 If s 68(1)(a) made the State section applicable it applied as surrogate Federal law: Northern Territory v GPAO (1999) 196 CLR 553, 588. The test to determine whether s 32 applies is whether it is applicable and capable of being applied having regard to the prescription in the Federal section. In Putland v The Queen (2004) 218 CLR 174, 179-180 Gleeson CJ said:

“The laws of a State or Territory to which s 68(1) refers apply ‘so far as they are applicable’. Although there is not in s 68, as there is in s 79 of the Judiciary Act , an express qualification to the operation of the provision by the use of the word ‘except as otherwise provided by the Constitution or the law of the Commonwealth’, in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification. … Relevantly for present purposes, s 52 of the Sentencing Act would not be picked up and applied by s 68 if a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme relating to the sentencing of the appellant which was ‘complete upon its face’ and can ‘be seen to have left no room’ for the operation of s 52.”

44 In the same case Gummow and Heydon JJ said at 188:

“It appeared to be accepted by the parties in this Court that s 68(1) was to be read in a sense it would have if, as a matter of express statement rather than an implication, there was a qualification for provision otherwise made from time to time by the laws of the Commonwealth. That understanding should be accepted.

45 But for ss 68 and 79 of the Judiciary Act State law could not prevent Federal offences being tried according to law. Section 68, by picking up State and Territorial laws with respect to the procedures for summary conviction, would make the State section applicable if there was no Federal section dealing with the same topic.

46 The applicability of the State section, operating as Federal law under s 68, depends on the principles which determine whether a later law of the same Legislature has repealed an earlier one. Similar principles apply when general and special provisions in the same statute have to be reconciled. In a case of the latter kind, R v Wallis [1949] HCA 30; 78 CLR 529, Dixon J said at 549-550:

“Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel Iron & Coal Co. (Burslem), Ltd v Ward (1868) LR 3 Ex 172, 177 Willes J refers to ‘the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorised under other circumstances than those defined’.”

47 These principles have frequently been applied: Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; 141 CLR 672; Saraswati v R [1991] HCA 21; 172 CLR 1; Downey v Trans Waste Pty Ltd [1991] HCA 11; 172 CLR 167; and Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270, 280.

48 In my opinion these principles should determine the result in this case. The Federal section appoints in affirmative words the course to be followed in deciding whether a summary prosecution is to be determined otherwise than by trial in accordance with law. The power to determine “otherwise” is qualified by an express condition that the person charged "is suffering from" a mental illness or an intellectual disability. The authority of the Magistrate to exercise the powers in the Federal section is given by affirmative words, but its expression excludes the exercise of the powers under other circumstances.

49 The Federal section should be understood as providing that, unless it applies, offenders charged with Federal offences shall be dealt with otherwise, that is according to law. The negative is inherent in the choice between disposing of the case by exercising the powers conferred by the Federal section or by disposing of it "otherwise in accordance with law".

50 The Federal section was added by the Crimes Legislation Amendment Act (No. 2) 1989. At that time analogous provisions existed in the law of New South Wales and Queensland, but not in the other States and Territories.

51 Section 428W of the Crimes Act (NSW) which was in force when the Federal section was enacted was similar in terms to the Federal section. It applied where (subs (1)(a)) the defendant "is developmentally disabled, is suffering from a mental illness or is suffering from a mental condition for which treatment is available in a hospital". Section 32 of the State Act in its original form enacted in 1990 was in substantially the same terms. At that time the State section did not apply where the defendant was suffering from mental illness etc “at the time of the alleged commission of the offence", but not at the date of hearing.

52 Section 32 was amended to apply to persons who had the relevant conditions at the time of the offence, but not at the time of the hearing, by the Mental Health (Criminal Procedure) Amendment Act 2005 NSW (No. 109) Sch 1 cl [17].

53 In 1989 specific provisions in Queensland which applied in summary proceedings were limited to persons whose condition warranted their detention in a hospital.

54 The legislative history supports the view that the Federal section is applicable in the present case, and the State section is not.

55 When s 32 of the State Act was extended in 2005 to cases where the defendant was suffering from a mental illness etc at the time of the alleged offence, but not at the time of the hearing, s 20BQ, in the words of Gleeson CJ in Putland, quoted above para [12], made “contrary provision”, and had enacted “a legislative scheme which was complete on its face.” In the words of Gummow and Heydon JJ in the same case: para [13] (above) “provision was otherwise made” by s 20BQ. It follows that, s 32 as extended in 2005 was not “applicable to persons … charged with offences against the laws of the Commonwealth.”

56 In my judgment the appeal succeeds and the following orders should be made:

(1) Leave to appeal granted;
(2) Notice of appeal to be filed within 10 days;
(3) Appeal allowed;
(4) Judgment of the Common Law Division is set aside and in lieu thereof there is substituted an order that the respondent’s appeal to the Common Law Division be dismissed;
(5) The respondent is to pay the appellant's costs of the proceedings in this Court, and in the Common Law Division, but is to have a certificate under the Suitors Fund Act in respect of the costs in this Court.

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