Khalil v His Honour, Magistrate Johnson - [2008] NSWSC 1092

No judgment structure available for this case.

CITATION: KHALIL v HIS HONOUR, MAGISTRATE JOHNSON & ANOR [2008] NSWSC 1092

HEARING DATE(S): Monday 13 October 2008

JUDGMENT DATE :
17 October 2008

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Leave to appeal refused.

CATCHWORDS: COURTS AND JUDGES – Magistrates – summary criminal proceedings – person with alleged mental condition – application to divert from criminal law processes – Mental Health (Criminal Procedure) Act 1990, s.32 – whether proceedings part-heard by first Magistrate following adjournment – proceedings subsequently heard and determined by another Magistrate – application under s.32 refused – failure to give opportunity make submissions before Magistrate expressed a final view on one aspect - the matter under s.32(1)(b) – held denial of procedural fairness in relation to that aspect – whether denial of procedural fairness could possibly have made a difference to the outcome – held a properly conducted adjudication could not possibly have produced a different result – leave to appeal refused

LEGISLATION CITED: Bail Act 1978
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Mental Health (Criminal Procedure) Act 1990
Supreme Court Act 1970

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ayoub v Stapleton [2001] NSWSC 767
Bridges v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 456
Commissioner of Taxation v La Rosa [2003] FCAFC 125
Confos v Director of Public Prosecutions [2004] NSWSC 1159
Director of Public Prosecutions v El Mawas [2006] 66 NSWLR 93
Fifty Property Investments Pty Limited v O’Mara [2006] NSWSC 428
Galea v Galea (1990) 19 NSWLR 263
Gibson v Repatriation Commission [2000] FCA 739
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Re Refuge Tribunal; ex parte Aala (2000) 204 CLR 82
Regina v Watson; ex parte Armstrong (1976) 136 CLR 248
Stead v State Government Insurance Commission (1986) 161 CLR 141
Vakauta v Kelly (1989) 167 CLR 568
Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

PARTIES: Fadi KHALIL v
HIS HONOUR, MAGISTRATE Paul JOHNSON & ANOR

FILE NUMBER(S): SC No 11568 of 2008

COUNSEL: P: T Gartelmann
2D: I Bourke

SOLICITORS: P: Fay Rose Legal
1D: I V Knight (submitting appearance)
2D: S C Kavanagh

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): N/A

LOWER COURT JUDICIAL OFFICER : Johnson LCM

LOWER COURT DATE OF DECISION: 11 December 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 17 OCTOBER 2008

No 11568 of 2008

FADI KHALIL v HIS HONOUR, MAGISTRATE PAUL JOHNSON & ANOR

JUDGMENT

HIS HONOUR:
Introduction

1 The proceedings in this matter were originally commenced by way of summons filed on 9 April 2008. On 24 April 2008, an amended summons was filed. Although, on its face, the relief claimed is that for which provision is made in s.69 of the Supreme Court Act 1970, the primary claim was presented as an application for leave to appeal under s.53 of the Crimes (Appeal and Review) Act 2001 against the decision of Local Court, his Honour, Magistrate Johnson, the first defendant, given on 11 December 2007. A submitting appearance was filed on behalf of the Magistrate on 17 April 2008.

2 Under s.53(3) of the Crimes (Appeal and Review) Act, a person against whom an interlocutory order has been made by a Local Court in relation to the person in summary proceedings may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

3 An application for leave to appeal must be made within the period prescribed: s.53(4). The period permitted by that provision for an application is 28 days after the making of the decision. The present application has been brought out of time and leave is sought in that respect in circumstances disclosed in the affidavit of the plaintiff’s solicitor, Fouadi Khalil, sworn 20 May 2008.

4 The plaintiff, alternatively, seeks the relief to which I have earlier referred under s.69 of the Supreme Court Act.

5 On the hearing of the proceedings in this Court, the plaintiff was represented by Mr T Gartelmann of counsel. The second defendant, the Director of Public Prosecutions (NSW) was represented by Mr I Bourke of counsel. Written submissions were lodged by both counsel and these were supplemented at the hearing on 13 October 2008. I record my appreciation to both counsel for their succinct and helpful submissions.

6 The decision in question is that of Magistrate Johnson’s refusal to deal with the plaintiff (the defendant in the Local Court) under s.32 of the Mental Health (Criminal Procedure) Act 1990, a provision enabling the diversion of sufferers of specific mental conditions from the criminal law process. In short, the learned Magistrate determined that the plaintiff’s application did not fall within the provisions of s.32 and, accordingly, refused to take action as provided for in s.32(2) or (3).

7 The plaintiff has been charged with a large number of offences as set out in the Court Attendance Notices, copies of which constitute Annexure A to the affidavit of Karen Parouchais, solicitor, affirmed on 11 June 2008.

8 In summary, the charges are as follows:-

• 15 offences under s.178BA of the Crimes Act 1900 (obtaining a valuable thing by deception).

Crimes Act

9 The Crown case is that the charges arise out of a series of events alleged to have taken place on the one day, namely, 27 March 2007, at various retail outlets in the Wollongong area.

10 The Crown alleged that on the last-mentioned date, the plaintiff, and two other men, attended various retail outlets and, using fraudulent credit cards, obtained property to the total value of approximately $13,000.

Overview of the local court proceedings culminating in the impugned decision

11 On 11 September 2007, the plaintiff appeared before the Wollongong Court, the proceedings on that date being listed before his Honour, Magistrate Johnson. Counsel for the plaintiff advised the Court that an application was to be made under s.32 of the abovementioned Act. The matter was then referred to another magistrate who was sitting in the same court complex.

12 Later that same day, the proceedings came before Magistrate Walker for the purposes of hearing the application under s.32. On that occasion, the report of a clinical psychologist, Dr Christopher J Lennings, dated 24 August 2007 was before the Court. The record of proceedings does not indicate that the report was formally tendered and there is no reference in it to the police Statement of Facts having been tendered.

13 According to the transcript, Magistrate Walker expressed a preliminary view (at p.3) that the basis for the application was not, in his opinion, the “normal” type of basis dealt with under s.32 of the Act. Magistrate Walker heard submissions from counsel then appearing for the plaintiff (Mr Ozen of counsel) and from the police prosecutor in relation to the s.32 application. The Magistrate soon after adjourned the proceedings, noting that there was no “treatment plan”. The purpose of the adjournment to another day was to provide the plaintiff with the opportunity of enabling such a plan to commence.

14 Magistrate Walker stated that once the plan had commenced, then the “s.32 application can be considered again” and remarked “I’ve made a note that the treatment plan is to be implemented and we’re to see that it is underway before further consideration”. The proceedings were adjourned until 16 October 2007. I note, at this point, that that was a date when Magistrate Walker was not available as he had been rostered for leave. See, in that respect, Exhibit 2.

15 On 16 October 2007, the proceedings were listed in the Wollongong Local Court before his Honour, Magistrate Andrews. The plaintiff, on that occasion, was represented by his solicitor, Ms Khalil who indicated to the Magistrate that she understood the s.32 application was part heard before Magistrate Walker. Ms Khalil inquired as to whether Magistrate Andrews wished to “deal with it … or adjourn it to allow another magistrate … [to deal with it]”.

16 Magistrate Andrews indicated that, if not inconvenient, he considered that Magistrate Walker should deal with the application. The application was, accordingly, adjourned to 11 December 2007.

17 On 11 December 2007, the proceedings were listed before Magistrate Johnson who took the view that the proceedings were not part heard and that he would proceed to hear the application. The learned Magistrate made it clear that he had, early that morning, listened to the tape of the proceedings in the matter before Magistrate Walker on 11 September 2007. His Honour, on that date, made notes in relation to the matter, a copy of which was tendered in the present proceedings (Exhibit 1).

18 Ms Khalil asked Magistrate Johnson for the proceedings to go before Magistrate Walker but that application was refused.

19 The solicitor for the plaintiff made further submissions, some revisiting her contention that the proceedings were part heard before Magistrate Walker, others directed to the s.32 application.

20 It was common ground that Magistrate Johnson had available to him and had read documents relevant to the application under s.32 but there was uncertainty as to whether his Honour had a copy of the police statement of facts. It is evident from the record of proceedings before him that he had read Dr Lennings’ report, which was the primary material relied upon by the plaintiff in support of his application. It may also be inferred that the Magistrate had an appreciation of the matters relied upon by the Crown in relation to the alleged offences, having regard to the details of the alleged offences as set out in each Court Attendance Notice, copies of which were annexed to the affidavit of Ms Karen Parouchais affirmed on 11 June 2008.

21 In his submissions in the proceedings in this Court, Mr Gartelmann advised that his instructing solicitor had informed him of a practice operating at the relevant Court whereby documents in support of an application similar to that made under s.32 were filed at the Local Court and served on the parties in advance of the hearing and that that would appear to be consistent with the fact that the transcript did not disclose the tender of any document either on the day in question or other days.

22 The learned Magistrate, as earlier indicated, refused to deal with the plaintiff pursuant to s.32 of the Mental Health (Criminal Procedure) Act.

The relief claimed

23 In the amended summons, the relief claimed includes:-

(1) An order extending the time for filing the summons for leave to appeal.

(2) An order setting aside the decision of the learned Magistrate made in the Local Court at Wollongong on 11 December 2007 refusing the application made pursuant to s.32 of the Mental Health (Criminal Procedure) Act .

(3) A declaration that the jurisdiction of the learned Magistrate had constructively not been exercised for an order that the matter be remitted to the Local Court at Wollongong to be determined according to law.

Grounds

24 The grounds of appeal set out in the amended summons are as follows:-

(1) The first defendant erred in law in determining an application under s.32 of the Mental Health (Criminal Procedure) Act in circumstances where another Magistrate had part-heard the application.

Mental Health (Criminal Procedure) Act

(a) denied the plaintiff adequate opportunity to present evidence in the hearing of the application;

(b) denied the plaintiff adequate opportunity to make submissions in the hearing of the application;

(c) demonstrated an apparent pre-judgment of the application;

(d) demonstrated an apparent bias in hearing the application;

(e) refused to allow the hearing of the application to continue before the Magistrate who had previously commenced to hear it.

The statutory scheme

25 The long title of the Mental Health (Criminal Procedure) Act is “an Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions”.

26 Part 3 of the Act applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, and includes any related proceedings under the Bail Act 1978, but does not apply to committal proceedings: s.31(1).

27 Section 32, which appears in Part 3 of the Act provides:-

“32. Persons suffering from mental illness or condition

(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) developmentally disabled, 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 1978,

(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 for assessment of the defendant’s mental condition or treatment or both, 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 six 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.”

28 “Mental condition” means “a condition of disability of mind not including either mental illness or developmental disability of mind”: s.3.

29 For the purposes of Part 3, 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: s.36.

30 In Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 at [2], Spigelman CJ observed that the structure of s.32(1) turns on whether each of two matters “appears to the Magistrate”, namely:-

(1) one of the three facts set out in s.32(1)(a); and

(2) that “it would be more appropriate to deal with the defendant” in the manner set out in s.32(1)(b).

Facts

31 Before dealing with the submissions put forward by the plaintiff and the second defendant, it is necessary to elaborate upon events attending the hearing on 11 September 2007 before Magistrate Walker and the hearing on 11 December 2007 before Magistrate Johnson

32 On 11 September 2007, Magistrate Walker, as earlier noted, in the submissions of counsel for the plaintiff, raised the point (transcript pp.2 to 3):-

“Well it hardly seems the basis of the normal type of thing we see in s.32 applications where someone has a real mental illness and they do things because of a mental illness. This is just obtaining money by deception. It seems it would take a pre-determined mental attitude to be able to do it in the first place, it’s not the normal matter that comes within s.32 is it?”

33 Following further submissions by counsel for the plaintiff, Magistrate Walker raised the question of a treatment plan:-

“Now with the treatment plan it sets out things there but there’s nothing been done.”

34 Counsel for the plaintiff indicated that his client’s first appointment for “psychotherapy” with a Dr David Luke (a clinical psychologist) had been made for the following Friday. Magistrate Walker then observed (transcript p.3):-

“

If I do it

under s.32 I’ve got to have a plan that is set out and ready to go.”

35 It is clear that, at this early stage, that the Magistrate raised a query as to whether or not the first of the three matters required to be established under s.32(1) existed in the present case (that is, the existence of a “mental condition”). The question of the treatment plan went to the second of those three issues (that “it would be more appropriate to deal with the defendant” in the manner set out in s.32(1)(b)) and was raised by him in the context that the treatment plan would only be relevant if he was satisfied of the first matter. At that time, as earlier stated, no treatment plan had, in fact, been implemented. In these circumstances, the matter was, in due course, adjourned, his Honour stating (at transcript pp.5 to 6):-

“What I intend to do is adjourn the matter to allow that treatment plan to commence and once that’s been done well that s.32 application can be considered again. Now how long do you think you need to get all these things underway?”

36 The proceedings were then adjourned on that basis.

37 When the proceedings came before his Honour, Magistrate Johnson on 11 December 2007, his Honour indicated that he had “listened to the transcript” and expressed the view that he did not consider that the proceedings were part-heard. His Honour observed that Magistrate Walker did not say that he was part-heard. He also observed that the Magistrate had not written on the papers that it was part-heard.

38 After some further exchange with the plaintiff’s solicitor, Ms Khalil, the Magistrate stated (transcript, pp.1 to 6):-

“HIS HONOUR: Anyway, let’s get on with this application, do you want to proceed with this application or not?

KHALIL: Well we wish to proceed but Mr Ozen had all ready

made arguments in relation to s.32 and Magistrate Walker appeared to be satisfied with the limbs but haven’t been satisfied --

HIS HONOUR: The facts weren’t even tendered to the court, how could you deal with a s.32 and be satisfied without reading the facts.

KHALIL: They were your Honour.

HIS HONOUR: No they’re not.

KHALIL: Your Honour I’d need to go before Magistrate Walker again.

HIS HONOUR: You’re not going before Magistrate Walker again I’m doing it, I’ve read the application, where’s Mr Ozen today?

KHALIL: Well Mr Ozen didn’t come because there was no reason for him to come because he didn’t have to argue on the 32 any more. All that needed to happen was Magistrate --

HIS HONOJUR: Mr Walker said he would adjourn the matter for a s.32 application be made to him.

KHALIL: No he adjourned the matter, if you look on the note it says the treatment plan.

HIS HONOUR: Did you ever listen to the transcript?

KHALIL: No.

HIS HONOUR: I did.

KHALIL: Well may I have a copy of the transcript?

HIS HONOUR: I haven’t got a transcript, I listened to the tape.

KHALIL: Well I’d be seeking to listen to that your Honour.

HIS HONOUR: Well you can make arrangements to do that in the court office if you wish to do that.

KHALIL: Your Honour I have here an updated report.

HIS HONOUR: This is not a case for a s.32 application, this man does not suffer from a mental illness, this man is not developmentally delayed and this man is not suffering from a mental condition for which treatment is available in a hospital. None of those apply.

KHALIL: My understanding is Magistrate Walker was satisfied that they did apply. Now he would not have adjourned it and the treatment plan to be instigated --

HIS HONOUR: Don’t interrupt me. I said none of those things apply. There was no evidence that this man is mentally ill, that this man is suffering from a mental condition for which treatment is available in a hospital or this man is developmentally delayed. None of those things apply in Mr Khalil’s case. He does not meet the criteria of s.32.

KHALIL: I disagree and I also disagree --

HIS HONOUR: I didn’t ask you if you disagree, I said – well is he mentally ill.

KHALIL: He suffers from a mental condition.

HIS HONOUR: Is he mentally ill?

KHALIL: He is not mentally ill, he does not need to be mentally ill.

HIS HONOUR: Stop. Well that’s one of the criteria, he’s not mentally ill. Is he developmentally disabled?

KHALIL: No.

HIS HONOUR: Okay so the only criteria you can rely upon is that he suffers from a mental condition for which treatment is available in a hospital.

KHALIL: That’s correct.

HIS HONOUR: Is that what you rely on?

KHALIL: Yes.

HIS HONOUR: The psychologist doesn’t say that, does he.

KHALIL: Well I’d be asking that your Honour read the report again.

HIS HONOUR: I’ve read the report, I got in early this morning at half past 7 and I read it and it doesn’t say that.

KHALIL: Well your Honour is there a reason --

HIS HONOUR: I’m not going to argue with you, this is not a suitable case. Even if you got over that hurdle, given the nature of the offences this is not an appropriate case to deal with under s.32.

KHALIL: Can I ask your Honour why the matter was adjourned for a treatment plan to be put in place.

HIS HONOUR: You were there were you?

KHALIL: Yes I was there.

HIS HONOUR: Well I wasn’t there you can answer the question, you can answer your own question.

KHALIL: Well because his Honour was satisfied that the two limbs had been met but what he was concerned about --

HIS HONOUR: I’m not here to argue with you this is not a section – I’m going to raise my voice and talk over the top of you, this is not a s.32 matter. It will not be dealt with under s.32. One you don’t get over the first hurdle and two if you did this is a most inappropriate case to deal with under s.32.

KHALIL: To be honest then your Honour --

HIS HONOUR: Are you going to argue with me? Stop --

KHALIL: -- I don’t know why --

HIS HONOUR: Stop,

KHALIL – we’ve been adjourned constantly.

HIS HONOUR: Stop. Don’t argue with me, what pleas are your entering?

KHALIL: Well I wish to proceed with a s.32 before Magistrate Walker.

HIS HONOUR: Your s.32 application is refused. What pleas are your entering.

KHALIL: I would suggest that Magistrate Walker is part heard in it and that it goes before --

HIS HONOUR: I’ll enter pleas of not guilty for you if you don’t enter pleas. I’ll give you two seconds to enter a plea or I’ll enter them for you and then I’ll set it down for hearing.

KHALIL: Your Honour I must admit you appear to be showing bias in this matter.

HIS HONOUR: No, no I’ve read it, I’ve read the application and I’ve listened to what Mr Walker said and I’ve listened to the tape. If you want to go and listen to the tape again by all means you do it and then come back again.

KHALIL: Is there a reason you’re not putting it back before Magistrate Walker?

HIS HONOUR: Yes indeed.

KHALIL: Considering that Magistrate Andrews wouldn’t deal with it.

HIS HONOUR: Because the court wasted two days because solicitors from your office didn’t make sure that Mr Khalil’s case was resolved before the 6th and 7 December.

KHALIL: So you’re punishing Mr Khalil because of what solicitors form my office did.

HIS HONOUR: I’m not punishing Mr Khalil at all. This is an application without substance without merit whatsoever.

KHALIL: I would be asking that the matter go --

HIS HONOUR: I’ve wasted enough time on it now, you can get instructions and enter your pleas today, you can go and listen to the tape if you want to. I’m not listening to any more of it. I’ve heard enough now.

KHALIL: May I be excused.”

39 At that point, another matter was interposed. At some later time, the present matter was called on (at transcript, pp.6 to 7):-

HIS HONOUR: Yes Ms Khalil.

KHALIL: Your Honour I’d be seeking an adjournment of two to three months to test your decision in relation to the s.32 application and if your Honour’s against me on that I’m not into

a position to enter in any pleas today and we’d be seeking an adjournment into the new year to consider our position.

HIS HONOUR: You’ve had since March to consider a plea and I did tell your colleagues from your office who were here last week for the other two co-accused to let you know if the s.32 was not successful then you were to enter a plea.

KHALIL: Counsel are not available --

HIS HONOUR: And you’ve had nine months to consider what pleas should be entered and I would have thought that --

KHALIL: -- to advise

HIS HONOUR: -- would be plenty of time. I beg your pardon?

KHALIL: Counsel are not available to advise the client on a plea and I am not in a position to enter in a plea.

HIS HONOUR: Well there are plenty of counsel and plenty of lawyers to advise someone on a matter that is fairly straight forward.

KHALIL: Well your Honour I do not have any instructions on entering a plea and thus cannot enter in a plea --

HIS HONOUR: Well I did ask your – did your colleagues tell you I wanted a plea entered today?

KHALIL: Yes my colleagues did indicate that to me.

HIS HONOUR:

Okay so what’s been done in the last nine months to enter a plea, I mean there must have been at some stage, some consideration given whether or not if the s.32 is unsuccessful. I mean the s.32 matter didn’t get before Mr Walker until nearly nine months, six months after the event. So there must have been some consideration given to whether there’d be a plea or whether there’d be a 32 application or what we’d do if the 32 was unsuccessful. Someone must have thought about that.

KHALIL: Well counsel had brought it up with Mr Khalil however given the events that happened on 11 September it wasn’t brought up since then and --”

40 There was then further discussion about other matters including the whereabouts of the plaintiff’s counsel and as to what the transcript before the Magistrate had revealed.

The plaintiff’s submissions

41 The plaintiff’s written submissions filed on 15 September 2008 set out the history of the application including what is termed the “purported determination of the application”. Reference is also made to the decision of the Court of Appeal in El Mawas (supra) and to the judgment of Howie J in Confos v Director of Public Prosecutions [2004] NSWSC 1159.

Ground 1 – were the proceedings part heard?

42 In relation to Ground 1, it was submitted for the plaintiff that Magistrate Walker had commenced the hearing of the application, had received and considered material in support of it, received submissions of the parties and expressed “at least preliminary views in relation to the questions to be determined in the application” (paragraph 14).

43 It was further submitted that Magistrate Walker should have concluded the hearing of the application, in the absence of some event or circumstance making that impracticable or impossible. Reference was made in that respect to the principles enunciated by Kirby P in Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649.

44 It was submitted for the plaintiff that no occasion had arisen for another judicial officer to conclude a hearing in the circumstances of this case and that Magistrate Johnson had failed to give any reasons for declining to allow the proceedings to be heard before Magistrate Walker.

45 In the circumstances of the case, it was submitted no occasion arose which would warrant a departure from what was described as “the primary rule” whereby proceedings should be completed by the judicial officer who had commenced a hearing of them.

46 Mr Gartelmann, in his oral submissions, sought to support the proposition that the proceedings were part heard by reference to the following matters:-

(1) The statement by Magistrate Walker after reference to the absence of a treatment plan “if I do it under s.32 I’ve got to have a plan that is set out and ready to go” (transcript, 11 September 2007, p.3). It was argued that this indicated that his Honour was contemplating hearing the proceedings himself rather than referring them to some other Magistrate.

“… s.32 application can be considered again”

“afresh or anew or something to that effect”

47 Mr Gartelmann submitted that, whilst his Honour stood the matter over to 16 October 2007, a date upon which he would not be available, that could be seen as being consistent with the matter going over for mention on that date. Mr Gartelmann suggested a further interpretation which I need not here detail (transcript, p.8) but he fairly conceded that that interpretation was “somewhat speculative”. I agree with that observation.

48 Mr Bourke, on behalf of the Director of Public Prosecutions, submitted that the actions of Magistrate Walker were inconsistent with him regarding himself as being part heard. In that respect, he relied upon the following facts:-

(1) That Magistrate Walker did not mark the bench papers as “part heard” .

(2) That his Honour adjourned the proceedings to a date on which he was not sitting at the Court.

(3) That he adjourned the proceedings to allow the treatment plan to commence and that “… once that’s been done, well that s.32 application can be considered again …” . Mr Bourke also relied upon Magistrate Walker’s statement “… I’ve made a note that the treatment plan is to be implemented and we’re to see that it is underway before further consideration ” (emphasis added).

“I’m not quite sure whether your Honour wants to deal with it or you want to adjourn it to allow Magistrate Walker … [to deal with it]”

49 Mr Bourke submitted, alternatively, that, even if the proceedings could be regarded as part heard, the plaintiff’s solicitor had waived any entitlement to rely upon that ground. In that respect, it was said that the plaintiff’s solicitor, on 16 October 2007, effectively invited Magistrate Andrews to hear the application and that this amounted to a waiver. It was argued there was a further instance of waiver on 11 December 2007 before Magistrate Johnson.

50 In his oral submissions, Mr Bourke submitted that an important matter in considering whether proceedings should be regarded as being part heard is the question as to what, if any, issues have been considered or determined and regard should be had as to the actual nature of the hearing.

51 In this context, he observed that the proceedings before Magistrate Walker involved no disputed issues of fact, the only issue being what “inferences should be drawn from that report …” (transcript, p.22) referring to the report of Dr Lennings.

52 Finally, Mr Bourke submitted that there had been no explicit requests made by the plaintiff’s solicitor or counsel to Magistrate Walker to treat the matter as a part heard case.

Ground 2 – Denial and procedural fairness?

53 In relation to Ground 2, it was submitted by counsel for the plaintiff that the hearing before Magistrate Johnson failed to meet most, if not all, of the tenents of procedural fairness required of a court. In this respect it was submitted that the plaintiff was denied an adequate opportunity to present his case and attempts made by the solicitor for the plaintiff to refer to material and to make submissions were “overridden” by the Magistrate.

54 It was further submitted that the Magistrate demonstrated an apparent bias in hearing the application and that a reasonable fair-minded observer might reasonably apprehend “… that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (paragraph 24).

55 In the written submissions for the plaintiff it was contended:-

“26. The manner in which Johnson LCM conducted the hearing would have conveyed to the hypothetical observer an apparent pre-judgment of the application. His Honour’s repeated statement that the case was ‘not a case’ for such an application, before giving the parties the opportunity to make submissions as to the issue, manifested that the application had already been determined.”

56 In oral submissions, Mr Gartelmann addressed the following matters:-

“because the court wasted two days because solicitors from your office didn’t make sure that Mr Khalil’s case was resolved before 6 and 7 December”

“… to an unavoidable impression from which a reasonable observer would draw the inference that the learned Magistrate was apparently biased”

I have considered the submissions made on this aspect. I do not consider that the matter was an influencing factor in relation to the questions involved in the first or second grounds of appeal nor do I consider that it reflects any apparent bias. The Magistrate, plainly, was exasperated at the plaintiff’s solicitors for not having drawn to Magistrate Andrew’s attention the listing in relation to the alleged co-offenders and that that had resulted in lost time. Mr Gartelmann fairly conceded that, taken in isolation, this aspect of the matter would not demonstrate perceived bias. I confirm that nothing said on the matter, in my opinion, could support the proposition that it demonstrated any apparent bias in Magistrate Johnson.

“do you want to proceed with this application or not?”

“The reason I have taken your Honour through that passage is in support of the proposition that the plaintiff was denied adequate opportunity to present his case in support of the application pursuant to s.32. At the outset of that exchange the solicitor then appearing for the plaintiff was, we would submit, quite legitimately concerned still with the appropriateness of his Honour hearing the matter at all, having regard to what had transpired. The learned Magistrate then essentially asked three questions directed to the eligibility of the matter to be dealt with pursuant to s.32, that is, in relation to the jurisdictional question and then purported to refuse the application and that was the extent of the opportunity given to the plaintiff in the purported hearing of the application to present his case.”

57 Mr Gartelmann submitted that the exchange between Ms Khalil and Magistrate Johnson to which he drew attention revealed “… an inadequate opportunity for the plaintiff to present his case. His Honour did not allow the plaintiff to refer to the evidence, to make submissions in any meaningful way about the relationship between the evidence and the relevant questions for determination in hearing an application pursuant to s.32 and that is one of the considerations that would tend towards a finding that the plaintiff was denied procedural fairness in the purported hearing of the application” (transcript, 13 October 2008, p.12).

58 In his written submissions, Mr Bourke responded to the two “sub-categories of suggested error”, namely, that “the plaintiff was denied adequate opportunity to present his case” and “Johnson LCM demonstrated apparent bias in hearing the application”.

59 Mr Bourke emphasised, in relation to the first matter, that the plaintiff’s solicitor, when asked by Magistrate Johnson as to whether she wanted to proceed with the application, indicated that she did wish to proceed. Mr Bourke submitted (Outline Submissions for the second defendant (DPP), paragraph 22):-

“… the solicitor should then have proceeded with the application, by tendering relevant materials, and making submissions. Rather than take that course, the solicitor referred to the history of Mr Ozen having ‘already made arguments in relation to s.32’ and to her (erroneous) belief that ‘Magistrate Walker appeared to be satisfied with the limbs …’”

60 Mr Bourke correctly observed that the solicitor had erred in informing Magistrate Johnson that Magistrate Walker had made any determination in relation to the matters under s.32(1)(a) and (b).

61 Mr Bourke further submitted (Outline Submissions for the second defendant):-

“25. Rather than take up the offer by Magistrate Johnson to present the s.32 application, the Plaintiff’s Solicitor continued largely to repeat the erroneous submission that Magistrate Walker was part-heard, and that (in effect) he had already been satisfied of (some of) the ‘limbs’ of s.32. Although the Solicitor indicated that ‘your Honour I have here an updated report’, there was apparently no attempt to tender the report and make submissions about it.”

62 Mr Bourke acknowledged that the proceedings “were not conducted in a model fashion”. Nonetheless, the submission made was that, in fact, the plaintiff’s solicitor was given an adequate opportunity to present the plaintiff’s case but that the opportunity was not acted upon by her in any effective way.

63 In relation to the question of apparent bias, Mr Bourke submitted that it was clear from the transcript that Magistrate Johnson “… took a fairly robust attitude to the appropriateness of applying s.32 to the plaintiff’s circumstances. However, the fact that a judicial officer has formed a preliminary view about an application is, in itself, unexceptional, and does not, without more, amount to apprehended bias or pre-judgment …”.

64 Mr Bourke supported his submission by stating it was not unusual for judges to formulate propositions in order that they be tested and that what a judge says in the course of argument will be merely tentative and exploratory, citing the High Court’s judgment in Regina v Watson; ex parte Armstrong (1976) 136 CLR 248 at 264.

65 He also submitted that, even if it could be said that the Magistrate displayed some impatience or irritation with the application, or with the plaintiff’s solicitor’s presentation of it, it was not at such a level that would justify a finding of actual or apprehended bias. In that respect, he relied upon the observation of Priestley JA in Galea v Galea (1990) 19 NSWLR 263 at 283B.

Consideration

Ground 1

66 In relation to Ground 1, a close examination of the transcript of proceedings before Magistrate Walker on 11 September 2007 establishes the following matters.

67 On that occasion, the plaintiff was represented by Mr Ozen of counsel on which occasion Mr Ozen made submissions in relation to what was termed “the first question” which may be taken as a reference to the issue arising under s.32(1)(a)(iii), that is, whether the plaintiff was suffering from “a mental condition for which treatment is available in a hospital”.

68 After Magistrate Walker expressed doubt as to the basis of the application under s.32 (as set out in paragraph [13]), Mr Ozen made some further submissions about the nature of the suggested medical condition. It was then that Magistrate Walker raised the question of the absence of a treatment plan and that if he did make an order under s.32, he would have to have a plan. There was further discussion on that question and a response by the prosecutor as to the nature of the condition referred to in the psychologist’s report. The prosecutor also addressed on “the second limb” which was a reference to the issue arising in terms of s.32(1)(b), namely, whether “… it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law.”

69 Mr Ozen further addressed on the psychologist’s evidence but not specifically on the issue under s.32(1)(b). The Magistrate then indicated that he intended to “adjourn the matter to allow the treatment plan to commence …”. He added “… once that’s been done, well, that s.32 application can be considered again”.

70 There was then discussion as to an adjourned date.

71 On analysis, the following matters are relevant to the first ground:-

(1) The proceedings before Magistrate Walker on 11 September 2007 proceeded for a short time recorded over five pages of transcript.

(2) It became clear that the application was deficient in that there was no available evidence in relation to a treatment plan in the event that the Court was otherwise satisfied as to the plaintiff’s eligibility under s.32 and an opportunity was, accordingly, given to the plaintiff to address that situation by allowing him time to commence the proposed treatment.

(3) I do not attribute the significance suggested in the submissions for the plaintiff to Magistrate Walker’s statement “If I do it under s.32 …” . That is, at least, equally consistent with the possibility that the proceedings may, but would not necessarily, come back before his Honour once the case was ready to proceed after the “plan” was implemented and evidence about the plaintiff’s progress under the plan was available.

(4) The proceedings were, accordingly, adjourned for that purpose without any reference to the matter being treated as part heard and without a request being made for the matter to be marked as part heard.

72 I accept, as argued on behalf of the second defendant, that there was some evidence that the plaintiff’s solicitor was prepared to act upon the basis that the proceedings were not part heard when the matter came before Magistrate Andrews on 16 October 2007. Although Ms Khalil at first said that she believed the proceedings were part heard, she then raised the question as to whether Magistrate Andrews would deal with the matter.

73 Whether or not Magistrate Walker could be said to have commenced a hearing on 11 September 2007, the transcript reflects the fact that the Magistrate acted upon the basis that, as the plaintiff did not have the required evidence on a treatment plan, he not having yet embarked upon such a plan, the hearing he had commenced was to be terminated so that the application could then be dealt with, that is, when the proceedings were ready for hearing.

74 Having considered the matters to which I have referred, I am not satisfied that the plaintiff has established that the proceedings were part-heard. A busy Magistrate, if he regarded himself as part heard, would be expected to record on the court record or at least in his or her diary or in the Court roster that the hearing was to be continued part heard before him on a future date. There is no evidence to that effect. Having regard to the matters to which I have referred, I am, accordingly, not satisfied that the plaintiff has made out Ground 1.

Ground 2

75 In relation to Ground 2, I make the preliminary observation that it is apparent that the proceedings were not conducted by Magistrate Johnson on 11 September 2007 in the orderly manner that one would expect on an application under s.32 of the Act to proceed. In that respect:-

(1) There was no process followed involving the tender and marking of documents by way of evidence.

(2) There was no other means of identification employed to record precisely what documents were available to the Magistrate.

(3) The Magistrate did not identify with clarity what documents were and were not before Magistrate Walker on 11 September 2007.

76 An examination of the transcript, however, also reveals that the plaintiff’s solicitor must also share some responsibility for the way in which the proceedings were conducted.

77 After Magistrate Johnson indicated that he did not consider the proceedings to be part heard, he, as earlier noted, stated “anyway, let’s get on with this application, do you want to proceed with this application or not?”.

78 At that point, it was for Ms Khalil to determine whether or not she wished to apply for an adjournment for a short time or to another date, whether or not she required counsel to appear or otherwise to proceed by focusing upon the issues and make relevant submissions. Her response to the Magistrate’s question was “well we wish to proceed, but Mr Ozen had already made arguments in relation to s.32 and Magistrate Walker appeared to be satisfied with the limbs but haven’t been satisfied --”.

79 In this respect, it is clear:-

(1) Ms Khalil indicated that she did wish to proceed with the matter.

(2) She wrongly stated that Magistrate Walker had appeared to have some satisfaction in terms of s.32(1)(a) and (b).

(3) She did not take steps to tender any documentary material such as the statement of facts or any other document.

(4) Ms Khalil did not seek to add anything on the s.32(1)(a) matter to what had already been put forward by Mr Ozen in his submissions and which the Magistrate had access to as part of the information available to him.

“your Honour

I’d need to go before Magistrate Walker again”

“you’re not going before Magistrate Walker, I’m doing it, I’ve read the application, where’s Mr Ozen today?”

80 By the time of this exchange, it was plain that the hearing was not at all proceeding as it should have proceeded. Ms Khalil soon after referred to the fact that she had “an undated report” (p.3) but according to the transcript she made no attempt to tender the report or provide a copy to the Magistrate. It appears, however, from the evidence in the present proceedings that a copy of the report of Dr Luke dated 15 October 2007 had been placed with the Court file on 11 October 2007 (Ms Parouchais stated the report was tendered and “admitted in evidence” on that date). Ms Parouchais’ affidavit affirmed on 12 September 2008 also established that the plaintiff’s affidavit sworn 16 October 2007 had also been filed. It is reasonable to assume that both documents were available to the Magistrate on 11 December 2007.

81 Magistrate Johnson then made the statement that “this is not a case for a s.32 application …”, which in context, as recorded in the transcript, was a reference to the fact that it did not meet the criteria in s.32(1)(a).

82 There then followed a little later a further statement by Magistrate Johnson that he did not consider, given the nature of the offences that it was “an appropriate case to deal with under s.32”. Rather than addressing specifically the issue arising under s.32(1)(b) as to whether or not the facts and circumstances satisfied the second stage required for an application under s.32, Ms Khalil sought to answer what was put to her by simply saying “can I ask your Honour why the matter was adjourned for a treatment plan to be put in place”, the inference here being that the answer to what was put to her by Magistrate Johnson was that Magistrate Walker must be taken to have been satisfied as to both matters under s.32(1)(a) and (b) when, in fact, plainly Magistrate Walker had not expressed any final view on those two matters when the application was before him on 11 September 2007.

83 In the circumstances in which the proceedings were conducted, the question arises as to whether, as contended by Mr Gartelmann of counsel for the plaintiff in his written and oral submissions, the plaintiff was denied an adequate opportunity to present his case, whether attempts by his solicitor to make submissions were “overridden” and whether the manner in which the Magistrate conducted the hearing would have conveyed to the hypothetical observer an apparent pre-judgment of the application (Written Submissions, paragraphs 25 and 26).

84 Before determining the issues raised in relation to Ground 2, it is desirable to consider those issues in the context of the relevant statutory provisions.

85 The legislative framework and the general purpose and policy of s.32 was considered in detail by McColl JA in El Mawas (supra) at [47] to [58]. The provisions of s.32 themselves, together with the analyses of Spigelman CJ and McColl JA in that case, enable a number of propositions to be formulated as follows:-

(1) The nature of the powers exercised by a magistrate under the Part 3 jurisdiction are of an inquisitorial or administrative nature and the magistrate may inform himself or herself as he or she things fit: s.36 of the Act, see McColl JA in El Mawas (supra) at [74].

(a) one of the three facts set out in s.32(1)(a); and

“it would be appropriate to deal with the defendant”

(3) A Magistrate exercising the jurisdiction under Part 3 may have regard to any evidentiary material produced on behalf of a defendant on matters relevant to s.32(1)(a) and (b) as well as to “an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant …” : s.32(1)(b).

(4) The powers under Part 3 are to be exercised in accordance with procedural fairness requirements: El Mawas (supra) per McColl JA at [74].

(5) In formulating the judgment for which s.32(1)(b) calls, a proposed course of treatment, including, in particular, the existence and contents of a treatment plan, may be considered and given such weight as the Magistrate considers appropriate in making that judgment: see discussion on this aspect in El Mawas (supra) by Spigelman CJ at [10].

(6) In addition to receiving evidentiary materials or relevant information, it is necessary that a Magistrate during the course of a hearing in relation to the application of s.32 permit the defendant or his or her legal representative to make submissions relevant to matters arising under or in terms of the two “stages” prescribed by s.32(1) (a) and (b).

El Mawas

Confos

86 Returning to the facts of the present matter, it is clear that Magistrate Johnson had access to the following:-

(1) The Court file.

(2) The record of the transcript of proceedings before Magistrate Walker on 11 September 2007 which he used to inform himself of the matters raised on the 11 September 2007. There was no objection to him having done so.

87 It is apparent from the transcript that Magistrate Johnson had, prior to the hearing, familiarised himself with the submissions that had been made by Mr Ozen of counsel and documents relevant to issues involved in the application including the report of Dr Lennings.

88 No submissions concerning the matter required to be considered under s.32(1)(b) had been made by Mr Ozen or Ms Khalil on 11 September 2007. Mr Ozen may well have decided not to proceed that far, given, as earlier discussed, that the proceedings required an adjournment in order to obtain evidence about a treatment plan, a matter relevant to s.32(1)(b).

89 The specific issues raised in the plaintiff’s submissions, firstly, in relation to the claimed denial of an adequate opportunity to present the plaintiff’s case in relation to the contentions of apparent bias and pre-judgment should, as Mr Gartelmann correctly submitted, be considered together.

90 The transcript of 11 December 2007 confirms, as earlier indicated, that very shortly after he embarked on the hearing of the application, Magistrate Johnson stated “this is not a case for a s.32 application …” (at transcript, p.3) as set out earlier in this judgment. Following an exchange with the plaintiff’s solicitor as to which of the three facts set out in s.32(1)(a) was relied upon, Magistrate Johnson immediately then proceeded to deal with the matter arising under s.32(1)(b) (whether it “would be more appropriate to deal with the defendant”) and expressed his opinion in strong terms (transcript, pp.4 to 5):-

“HIS HONOUR: I’m not going to argue with you, this is not a suitable case. Even if you got over that hurdle, given the nature of the offences, this is not an appropriate case to deal with under s.32.”

91 The latter statement was made by the Magistrate without any submission having been received from the plaintiff’s solicitor and, in the circumstances to which I have earlier referred, none having been made on that aspect earlier by Mr Ozen to Magistrate Walker. It is clear, in my opinion, that, in the circumstances, no proper opportunity was given to the plaintiff’s solicitor to address the issue under s.32(1)(b) before the Magistrate expressed his concluded view about that matter.

92 Whilst the plaintiff’s solicitor did not, either before or after Magistrate Johnson’s last-mentioned statement was made, seek to engage the important issue arising under s.32(1)(b), the Magistrate in moving so swiftly to express his concluded views on the matter under s.32(1)(b), could not, in my opinion, be said to have given the plaintiff’s solicitor the opportunity of dealing with that particular matter before reaching and stating his determination.

93 In those circumstances, I am of the opinion that the plaintiff has established that there was a denial of procedural fairness in that the plaintiff’s solicitor was not afforded an opportunity of making submissions in relation to the matter under s.32(1)(b) before the Magistrate announced his decision in that regard in clear and emphatic terms.

94 The Magistrate’s actual decision can be seen as recorded on p.5 of the transcript of 11 December 2007 in which he stated:-

“I’m not here to argue with you this is not a section – I’m going to raise my voice and talk over the top of you, this is not a s.32 matter. It will not be dealt with under s.32. One you don’t get over the first hurdle and two if you did this is a most inappropriate case to deal with under s.32.”

95 Insofar as the learned Magistrate’s statement can be said to have evidenced pre-judgment at the point in the proceedings in which it was made, it was not followed by any application to him by the plaintiff’s solicitor to either hear submissions on that matter or to disqualify himself before any formal order was made refusing the application. I will return to the significance of these matters below in relation to the question of leave.

96 A little later after that statement was made, Ms Khalil simply stated, once again, “Well I wish to proceed with a s.32 before Magistrate Walker” which Magistrate Johnson said was refused. Ms Khalil, then again, contended that Magistrate Walker had been part heard, following which Magistrate Walker pressed her to enter a plea on behalf of the plaintiff. It was only then that the question of bias was raised when Ms Khalil stated “your Honour I must admit you appear to be showing bias in this matter”.

The question of leave to appeal or exercise of the Court’s discretion

97 A denial of procedural fairness does involve a question of law within the meaning of s.53(3) of the Crimes (Appeal and Review) Act: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 366 to 367 per Deane J. In light of the conclusion I have expressed, namely, that the plaintiff was denied procedural fairness to the extent that the plaintiff’s solicitor was not given an opportunity to make submissions on the matter for consideration under s.32(1)(b) before the Magistrate formed and expressed a firm view on it, the question then is whether or not leave to appeal ought be granted.

98 Alternatively, in terms of the relief of a prerogative nature sought, a similar question arises as to whether or not the discretion should be exercised in favour of granting the relief sought.

99 The grant of leave to appeal under s.53(3), as in the case of the exercise of the discretion, involves the exercise of a broad power or discretion in the Court but one which is to be exercised with regard to accepted principles. Accordingly, the grant of leave may be refused or the discretion declined where a finding of procedural unfairness is made by appropriate regard to matters such as:-

• Delay.

• The absence of any operative significance (or the absence of any substantive injustice), arising from a denial of procedural fairness.

100 Other general discretionary considerations include:-

• The reluctance of courts to interfere with the workings of the criminal courts.

• The availability of appeal processes.

Delay

101 In the present case, I do not consider that delay is a relevant factor operating against the grant of leave or the favourable exercise of the discretion. The circumstances occasioning the delay were fully explained in the affidavit of Ms Khalil sworn 30 May 2008. No submissions were made on this aspect by Mr Bourke on behalf of the second defendant.

The significance of the denial of procedural fairness to the outcome

102 In evaluating whether injustice may be said to have been occasioned by the denial of procedural fairness in relation to the discrete aspect identified above, the question is whether the denial of the opportunity to be heard on the issue arising under s.32(1)(b) made a difference to the outcome of the proceedings. That test was stated and applied by Gleeson CJ in Re Refuge Tribunal; ex parte Aala (2000) 204 CLR 82 at [88]. In the same case, Gaudron and Gummow JJ at 116 to 117 adopted the approach that it was sufficient, as was stated by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 that “the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome”. See also Bridges v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 456 at [10]; Gibson v Repatriation Commission [2000] FCA 739 and Commissioner of Taxation v La Rosa [2003] FCAFC 125 per Hely J at [84].

103 It is well-accepted that all a plaintiff need establish is that the denial of natural justice deprived him or her of the possibility of a better outcome. In order to negate that possibility it is necessary for the Court to conclude that a properly conducted adjudication could not possibly have produced a different result: Stead (supra) at 147 and Fifty Property Investments Pty Limited v O’Mara [2006] NSWSC 428 per Brereton J at [53].

104 As the relevant authorities reveal, the application of that test will very often be difficult to satisfy, especially, for example, where decisions as to credibility are based on erroneous and unfavourable factual assumptions relevant to credibility.

105 Accordingly, it is necessary to take account of the nature of the particular matter that fell for Magistrate Johnson’s determination. The matter under s.32(1)(a) involved a question of fact: El Mawas (supra) per McColl JA at [75] and, as her Honour there stated, it is one properly described as a jurisdictional question.

106 There was both evidence presented (Dr Lennings’ report) and submissions made by Mr Ozen on that jurisdictional question. Bearing in mind the definition of the expression “mental condition” in s.3 of the Act, the question was whether the plaintiff, at the relevant time, “suffered from a mental condition for which treatment is available on a mental health facility”. “Mental condition” is defined in s.3 as “a condition of disability of mind not including either mental illness or developmental disability of mind”.

107 Dr Lennings, in his capacity as a psychologist, there being no evidence available to the learned Magistrate of a medical diagnosis by a medical practitioner, opined that the plaintiff presented with a “mood disorder” which he considered to be “moderately severe” in which symptoms of “depression and comorbid anxiety” occurred. He also concluded that the plaintiff had “some impulse disorder behaviour (his gambling) …”.

108 Dr Lennings did not explain how the plaintiff’s “disorder”, as described, might be considered to fall within the definition of “mental disorder” or a “condition of disability of mind” in the terms defined (see above). The psychologist merely asserted that it was of “sufficient severity to bring him into the criteria as outlined in s.32 of … the Act”. He also stated “His mood disorder was clearly contributory to the offence and in part helps explain his poor judgment”. The substrata for those opinions was not articulated: Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. Nor was there any explanation as to how or in what sense the mood disorder was “contributory”. However, in the context of an application under s.32, such deficiencies could only be said to go to the weight to be given by the Magistrate to the opinions, and not to admissibility, the Magistrate being entitled to inform himself as he thinks fit: s.36.

109 Whether or not Dr Lennings’ conclusions in these respects are valid, the plaintiff was not, by reason of the particular breach of procedural fairness which I have determined, deprived of the opportunity of having the evidence that he relied upon, namely, Dr Lennings’ report, placed before the Magistrate nor was he, on the question of his eligibility under s.32(1)(a), deprived of the opportunity of having counsel’s submissions made in relation thereto, these having been placed before Magistrate Walker and noted by Magistrate Johnson who said that he had listened to the tape recording of the proceedings before Magistrate Walker. As earlier noted, there was no objection raised as to Magistrate Johnson’s method of proceeding in relying on information garnered from the hearing conducted on 11 September 2007.

110 In relation to the matter under s.32(1)(b), the Magistrate concluded that “the nature of the offences” meant that “this is not an appropriate case to deal with under s.32” (transcript, p.4), adding, at transcript p.5, that if the plaintiff got over “the first hurdle, this is a most inappropriate case to deal with under s.32”.

111 The question in this case, so far as the plaintiff is concerned, is whether, by not providing his solicitor with the opportunity to make submissions on s.32(1)(b), that “deprived him of the opportunity of the possibility of a successful outcome”: Stead (supra) at 147 in relation to the matter arising under that provision.

112 It is clear that Magistrate Johnson considered that the “nature of the offences” (transcript, p.4) was central in concluding that the case was “not an appropriate case” to be dealt with under s.32. However, it is also important to observe that he also had a clear view that the evidence (which, of course, included Dr Lennings’ report), was not sufficient to satisfy the criteria as to the primary issue of eligibility under s.32(1)(a). That conclusion was reached, as I have observed, having heard the recorded submissions of Mr Ozen made on 11 September 2007 on that aspect and Ms Khalil did not seek to supplement those submissions on 11 December 2007.

113 A Magistrate must be satisfied in relation to both matters under s.32(1)(a) and (b). On the findings I have made, there was no breach of procedural fairness in respect of the Magistrate’s conclusion on the s.32(1)(a) matter. The Magistrate’s determination, which was adverse to the plaintiff on s.32(1)(a), necessarily meant that the application under s.32 could not have succeeded regardless of what the outcome may have been of a properly conducted hearing in relation to s.32(1)(b).

114 It follows that the defect in the hearing in relation to the latter question could not be said to have had any material significance to the outcome of the application. In other words, the breach of procedural fairness to which I have referred in relation to s.32(1)(b) could not be said to have deprived the plaintiff of a successful outcome as the plaintiff did not, on the basis of the Magistrate’s assessment (there having been a proper hearing in relation to eligibility under s.32(1)(a)), meet the specified criteria.

Other matters on the issue of leave/discretion

115 By reason of the conclusion that the breach of procedural fairness was not productive of any injustice to the plaintiff, it is unnecessary to consider at any length other matters that could affect the question of the grant of leave/discretion. However, as submissions were made on them, I will briefly set out some observations.

116 I have earlier referred to the fact that no application was made to the learned Magistrate to disqualify himself from continuing in the matter and, in particular, before making an order refusing the application. The relevant principle where there has been a failure to observe the requirements of the appearance of impartial judgment were stated by the High Court in Vakauta v Kelly (1989) 167 CLR 568 at 572, Brennan, Deane and Gaudron JJ. However the specific failure to meet the requirements of procedural fairness in the present case was primarily related to the question of the absence of a proper opportunity to address the Court below on the particular matter arising under s.32(1)(b) and not, on my assessment, one of apparent bias. I do not consider that the abovementioned principle should be applied in the circumstances of this case, particularly having regard to the way in which the proceedings were conducted, as I have earlier outlined.

117 In relation to other matters relevant to the questions of leave and discretion, the proceedings have now been pending in the Local Court for some time. It is clearly desirable for criminal proceedings to be head and determined as soon as possible. Those matters may also be taken into account on the question of the grant of leave or the exercise of discretion in favour of granting relief in this case. In so saying, I am mindful of the fact that the caution exercised by this Court in interfering with current criminal proceedings in other courts is more pronounced where a hearing of proceedings has actually commenced as, for example, was the position in Ayoub v Stapleton [2001] NSWSC 767 per Sperling J. It is unnecessary to express a concluded view on this aspect.

118 In all the circumstances, I do not consider that it is appropriate to grant leave to appeal. Accordingly, leave to appeal is refused. On the same basis, and for the same reasons, I do not consider that the discretion available to the Court should be exercised favourably to the plaintiff in the circumstances outlined in this judgment in relation to relief claimed under s.69 of the Supreme Court Act. I make orders accordingly.

119 I will provide the parties with the opportunity to be heard on any question of costs.

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Citations

Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092

Most Recent Citation

In the Application of S under section 32 of the Mental Health (Forensic Proceedings) Act 1990 [2013] NSWLC 4

Cases Citing This Decision

4

Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240

Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760

DPP v Soliman [2013] NSWSC 346

Cases Cited

14

Statutory Material Cited

5

DPP v El Mawas [2006] NSWCA 154

Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159

CITATION:	KHALIL v HIS HONOUR, MAGISTRATE JOHNSON & ANOR [2008] NSWSC 1092
HEARING DATE(S):	Monday 13 October 2008
JUDGMENT DATE :	17 October 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Leave to appeal refused.
CATCHWORDS:	COURTS AND JUDGES – Magistrates – summary criminal proceedings – person with alleged mental condition – application to divert from criminal law processes – Mental Health (Criminal Procedure) Act 1990, s.32 – whether proceedings part-heard by first Magistrate following adjournment – proceedings subsequently heard and determined by another Magistrate – application under s.32 refused – failure to give opportunity make submissions before Magistrate expressed a final view on one aspect - the matter under s.32(1)(b) – held denial of procedural fairness in relation to that aspect – whether denial of procedural fairness could possibly have made a difference to the outcome – held a properly conducted adjudication could not possibly have produced a different result – leave to appeal refused
LEGISLATION CITED:	Bail Act 1978 Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Mental Health (Criminal Procedure) Act 1990 Supreme Court Act 1970
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Ayoub v Stapleton [2001] NSWSC 767 Bridges v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 456 Commissioner of Taxation v La Rosa [2003] FCAFC 125 Confos v Director of Public Prosecutions [2004] NSWSC 1159 Director of Public Prosecutions v El Mawas [2006] 66 NSWLR 93 Fifty Property Investments Pty Limited v O’Mara [2006] NSWSC 428 Galea v Galea (1990) 19 NSWLR 263 Gibson v Repatriation Commission [2000] FCA 739 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Re Refuge Tribunal; ex parte Aala (2000) 204 CLR 82 Regina v Watson; ex parte Armstrong (1976) 136 CLR 248 Stead v State Government Insurance Commission (1986) 161 CLR 141 Vakauta v Kelly (1989) 167 CLR 568 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642
PARTIES:	Fadi KHALIL v HIS HONOUR, MAGISTRATE Paul JOHNSON & ANOR
FILE NUMBER(S):	SC No 11568 of 2008
COUNSEL:	P: T Gartelmann 2D: I Bourke
SOLICITORS:	P: Fay Rose Legal 1D: I V Knight (submitting appearance) 2D: S C Kavanagh
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	N/A
LOWER COURT JUDICIAL OFFICER :	Johnson LCM
LOWER COURT DATE OF DECISION:	11 December 2007