Murray v Regina

[2010] NSWDC 126

CITATION:	Murray v Regina [2010] NSWDC 126
HEARING DATE(S):	21/05/10, 27/05/10
JUDGMENT DATE:	27 May 2010
JURISDICTION:	CRIMINAL - APPELATE JURISDICTION
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Appeal uphold . Conviction set aside. All three charges dismissed pursuant to s 32 of the Mental Health Forensic Provisions Act 1990 NSW. Appelant discharged unconditionally.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction - charges dismissed pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 (NSW)
LEGISLATION CITED:	s 32 Mental Health (Forensic Provisions) Act 1990 (NSW)
TEXTS CITED:	Richmond D. Inquiry into health services for the psychiatrically ill and developmentally disabled; Sydney: N.S.W. Department of Health, 1983.
PARTIES:	Stewart MURRAY Regina
FILE NUMBER(S):	2009/7385
SOLICITORS:	Aboriginal Legal Service (NSW/ACT) Ltd (Appelant) Director of Public Prosecutions (Respondent)

1. HIS HONOUR: The appellant appears before me appealing against convictions for three offences, common assault, resist police and assault with an act of indecency. He has pleaded guilty to each of these offences before the local magistrate.

2. There was evidence before the magistrate that, in the opinion of Dr Anthony Samuels, Senior Visiting Forensic Psychiatrist with Justice Health, the man was mentally ill. In my opinion that should have led the learned magistrate to take the view that he should be dealt with under the provisions of the Mental Health (Forensic Procedures) Act 1990 (NSW). However, that was not done. He was convicted and given a sentence of imprisonment. It may be that the learned magistrate was influenced by evidence before him that Mr Stewart on an earlier occasion had been sent to the Bloomfield Hospital and walked out.

3. The offences to which he pleaded guilty were slapping a man twice in the face on a street in Dubbo, grabbing a woman by her breasts as she was walking out of a McDonalds and then sitting on a footpath and refusing to cooperate with the police and accusing them of persecuting him.

4. The actions of Mr Murray are of a type that upset people, there can be no doubt about it. It would be a very upsetting to just walk along the street and have a total stranger walk up and slap you on the face for no apparent reason. But when they are analysed against the background that he presents and the mental health evidence that has been presented about him, it is clear that at the relevant time he was mentally ill. He probably still is mentally ill. I was told earlier last week when he came before me that he was receiving medication in gaol and he was stable. However, during the course of those proceedings for no apparent reason he started sobbing uncontrollably. It is obvious to me that he should not be treated as someone who is a criminal. He should be treated as someone who needs assistance. It is probable that most of his criminal record has occurred whilst he has been mentally ill. It is a tragedy to see someone mentally ill before the courts. The courts these days in New South Wales find it very difficult to know what to do with them. Ever since the Richmond report the number of lock-up facilities in the state for mental ill people has decreased and it is very difficult to make effective orders when you cannot.

5. He has in reality served his entire sentence, or the sentences imposed by the magistrate. He is currently in custody for other alleged offences. I would invite the authorities to consider when it comes to dealing with those other offences whether in fact they are regarded as offences, or for the actions of a mentally ill man.

6. In any event what I propose to do is to dismiss all three charges pursuant to the provision of s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and I discharge him unconditionally. That means I uphold the appeal. I set aside the conviction. I discharge him unconditionally under s 32 of the Mental Health (Forensic Provisions) Act. I do that unconditionally because I have no place I could probably send him at this point as he is being held for other matters. I would invite, as I said, the authorities and the learned imagines before whom the matters come to consider giving him some form of community treatment order.

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