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Nelson v Heil

Nelson v Heil

Case [2013] ACTSC 11 25 January 2013

Appeal

Criminal Liability

Mental Health (Criminal Procedure) Act

Criminal Law

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LEMUELLE GEOFFERY NELSON V CAMERON LAURENCE HEIL
[2013] ACTSC 11 (25 January 2013)

APPEAL AND NEW TRIAL

– jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against decision not to proceed under Crimes Act 1900 (ACT)
s 334 – appellate jurisdiction of Supreme Court beyond Magistrates Court Act 1930 (ACT)
pt 3.10 – whether jurisdiction may derive from Supreme Court Act 1933 (ACT) s 20 or Australian Capital Territory (Self-Government) Act 1988 (Cth) s 48A – Kelly v Apps considered – no right of appeal against decision under s 334 – prerogative relief may be available.

CRIMINAL LAW – diversion to mental health tribunal – disposition of criminal charges under Crimes Act s 334 – section operates at every stage of a summary trial – plea of guilty not a prerequisite – diversion a discretionary decision – test for exercise of discretion “appropriateness” – relevant factors to determine appropriateness – possible criminal justice proceedings relevant – subjective factors relevant – meaning of “seriousness of the alleged offence” in context – seriousness determined by reference to maximum penalties and circumstances of alleged conduct – no appellable error in discretionary decision.

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

Crimes Act 1900 (ACT), ss 26, 309(1), 331, 334. 336, 428W

Crimes Act 1900 (NSW), s 428W

Magistrates Court Act 1930 (ACT), ss 207, 208, pt 3.10
Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Mental Health and Related Services Act 1998 (NT), s 77

Mental Health (Treatment and Care) Act 1994 (ACT), ss 29, 30
Supreme Court Act 1933 (ACT), ss 20, 34B

ACT Mental Health Review Committee, Legislative Assembly of the Australian Capital Territory, Balancing Rights (1990)
Explanatory Statement, Crimes (Amendment) Bill 1994 (ACT)

Lewis Carroll, Alice’s Adventures in Wonderland (Lee and Shepard, 1^st ed, 1869)
Falstein, M F, Falstein, S E, McHugh, P R, ‘Mini-Mental State: A practical method for grading the cognitive state of patients for the clinician’ (1975) 12 Journal of Psychiatric Research 189
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Commissioner for Housing v Ganas (2003) 150 ACTR 1
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
De Domenico v Marshall (2001) 146 ACTR 30
Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
Evans v Shiels (2004) 185 FLR 1
House v The King (1936) 55 CLR 499
Kelly v Apps (2000) 98 FCR 101
Mackie v Hunt (1989) 19 NSWLR 130
Markarian v The Queen (2005) 228 CLR 357
Minister for Corrective Services v Harris (Unreported, Supreme Court of NSW, Brownie J, 10 July 1987)
Mununggurr v Gordon (2011) 30 NTLR 45
O’Neill v Lockyer (2012) 260 FLR 124
Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rose v Snape [2000] ACTSC 115

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nelson v Heil

Details

AGLC: Nelson v Heil [2013] ACTSC 11
Case: [2013] ACTSC 11
Decision Date

CaseChat Overview and Summary

Lemuelle Nelson appeals against the decision of the Chief Magistrate of the Magistrates Court of the Australian Capital Territory (ACT) not to proceed with the matter under s 334 of the Crimes Act 1900 (ACT). The appeal is dismissed. Nelson was arrested and charged with four offences of assault. An application was made that he be dealt with under s 334 of the ACT Crimes Act. The application was opposed by the respondent. The Chief Magistrate refused to make an order under s 334. Nelson appeals against that decision. The appeal raises three issues. The first is whether the Chief Magistrate took into consideration matters which were irrelevant to the determination of the application. The second is whether the Chief Magistrate failed to take into account matters which were relevant to the determination of the application. The third is whether the Chief Magistrate misconstrued s 334(3)(e) and (g) of the ACT Crimes Act. In relation to the first issue, the Court found that the Chief Magistrate had not taken into consideration any irrelevant matters. In relation to the second issue, the Court found that the Chief Magistrate had not failed to take into account any relevant matters. In relation to the third issue, the Court found that the Chief Magistrate had not misconstrued s 334(3)(e) and (g) of the ACT Crimes Act. The appeal is dismissed.

Orders