Nilsson v Department of Police and Emergency Management
[2010] TASSC 6
•10 March 2010
[2010] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Nilsson v Department of Police and Emergency Management [2010] TASSC 6
PARTIES: NILSSON, Sigrid Alexandra
v
DEPARTMENT OF POLICE
AND EMERGENCY MANAGEMENT
FILE NO/S: 832/2009
DELIVERED ON: 10 March 2010
DELIVERED AT: Hobart
HEARING DATE: 5 February 2010
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law – Procedure – Costs – Power to award – Costs in Criminal Cases Act – Complaint withdrawn – Application for costs refused – Relevant considerations.
Costs in Criminal Cases Act 1976 (Tas), s4(1).
Aust Dig Criminal Law [3179]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: M M G Miller
Solicitors:
Appellant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASSC 6
Number of paragraphs: 39
Serial No 6/2010
File No 832/2009
SIGRID ALEXANDRA NILSSON v DEPARTMENT OF POLICE
AND EMERGENCY MANAGEMENT
REASONS FOR JUDGMENT EVANS J
10 March 2010
The applicant seeks a review of an order dismissing an application she made for costs under the Costs in Criminal Cases Act 1976 following the withdrawal of a complaint charging her with disorderly conduct and two assaults.
The complaint related to an incident on 14 June 2007 arising from the applicant's involvement in the removal of her mother from the Royal Hobart Hospital contrary to medical advice. Two or three days prior to the incident, the applicant's mother had been admitted to the hospital for the treatment of a head injury suffered in a fall. The applicant became concerned about the care and treatment that her mother was receiving and indicated that she would remove her mother from the hospital. Those involved in the treatment of her mother were concerned about this development so, on the prosecution's case, an "Initial Order" was made under the Mental Health Act 1996, s26, so that the applicant's mother could be detained in the hospital as an involuntary patient. It was the prosecution's case that the Order was signed as the applicant and her mother were leaving her room at the hospital, and that thereafter they were restrained by hospital staff. In the course of what then ensued, it was alleged that the applicant engaged in disorderly conduct by acting in a violent manner and yelling in a loud voice, and assaulted two members of the hospital's staff by kicking them. The complaint was withdrawn before the completion of the prosecution case. To that point what had emerged from the cross-examination of the prosecution's witnesses was that, whilst the applicant challenged aspects of the evidence of the prosecution witnesses about her conduct, the gist of their evidence about her conduct was not in dispute and her primary defence was that she was unaware of the Order and understood that her mother was free to leave the hospital. Whilst her lack of awareness of the Order would be mitigatory, it was not apparent how it would have amounted to a defence. As to ignorance of the law being no excuse and the difficulty of construing a lack of awareness of a matter of law as a mistake of fact for the purposes of the defence of honest and reasonable, but mistaken, belief in the existence of a state of facts which would excuse an act or omission, see the Criminal Code Act 1924, ss12 and 14 and Ostrowski v Palmer (2004) 218 CLR 493.
The perception that the gist of the prosecution's evidence about the applicant's conduct was not in dispute finds some support in a statutory declaration that she filed for the purposes of her application for costs. In that declaration she said that, prior to the incident on the morning of 14 June 2007, she had approached a number of men in the corridor outside her mother's room. The men included nursing staff, Michael Weeding [the clinical nurse manager of the neurosurgical unit], a uniformed security guard, Christopher Taylor the head of the orderlies, Martin Nettle and Dr Croft. She spoke to them and at some point during this exchange she was told by Mr Weeding and Mr Nettle that she could not remove her mother from the hospital. She said she returned to her mother's room and:
"As I was packing the suitcases, I noticed that the men in the corridor outside the room, including the security guard and the man in the suit (Taylor) were putting on rubber gloves. I started to think that they may stop me from leaving so I rang the police from my mobile phone in Mum's room asking them to attend. I told the police on the phone that I suspected that these men were going to try to stop me. Instead of helping me, the police asked to speak to the security guards and refused to send the police. I found that frustrating and annoying as it was I who was requiring assistance and complaining about the hospital. Apparently no one understood about a patient's legal rights or my legal rights. As far as I was concerned, I had every right to make the decision to leave the hospital with her and to make decisions for her as her daughter, even if she couldn't. I believed all along that it was my right and my mother's right to choose whether or not she remained at that hospital. I then hung up, remembering my criminal law from uni, and thought, 'they won't dare touch us because it would be an assault'.
…
The incident occurred directly outside my mother's room in front of the reception desk.
…
The incident … occurred as follows: Arm in arm with my mother, I walked up to the men who were standing across the corridor, but as I approached them, they reached out and stopped me, grabbing me with their hands. I noticed that as we walked from the room and were grabbed there were nurses lined up along the corridor who, as in one military action, simultaneously pulled shut all the doors to the patients rooms. You could hear all the doors thud closed together as the nurses let them shut. It struck me that this had all been planned beforehand.
As Mum and I approached these men, Christopher Taylor stepped forward first and took my right arm and then Martin Nettle took my other arm and another person grabbed me as well – I think it was Wattenberg. I immediately started to yell, 'Help'. I yelled 'help' several times and struggled to get them to let me go. I resisted being grabbed as they had no right to touch me or my mother. At the same time, my mother was also grabbed by about three men. They then very violently started to pull Mum away from me. I started to scream to get them to stop. My mother then started to scream. I could feel my handbag strap pull tight on my left shoulder, being pulled to the right across my back, as though Mum had grabbed the strap to hold on to me and it was pulling at my left shoulder very sharply, pulling me back. They continued to pull her away very forcefully, very violently. I could feel the surge of force as they were pulling her. They then suddenly pulled her away and literally hauled her off screaming backwards through the doors of the hospital room. She just screamed and screamed and I saw her hands bang against the door as they dragged her backwards. As this happened, I tried even harder to get them to let me go – there seemed to be at least 4 people manhandling me by then – and they grabbed other bits of me. I was very scared for my poor Mum and I wanted them to stop so they wouldn't hurt her; I kicked out and got two of the men in the leg and knee area I think.
The statutory provisions that govern the applicant's application for costs are contained in the Costs in Criminal Cases Act 1976. The complaint having been withdrawn, that Act, s4(1), applied. It provides that in that event:
"the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable."
With respect to that discretion, the balance of the section provides:
"(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:
(a)Whether the proceedings were brought and continued in good faith;
(b)Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;
(c)Whether the investigation into the offence was conducted in a reasonable and proper manner;
(d)Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;
(e)Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty.
(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.
(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.
(5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof."
As to the application of the above provisions, the following passage from the decision of Cosgrove J in R v Freshney [1977] Tas SR 126 has been accepted as authoritative in a number of cases. This passage was cited and applied by the learned magistrate in the course of the reasons she published dismissing the applicant's application for costs. Cosgrove J said at 128:
"The following conclusions can, I think, be drawn from this section:
1 The discretion to order costs is an unfettered discretion. Subsections 3 and 4 appear to anticipate a temptation to fetter the discretion and are designed to prevent in advance, as it were, any such limitations being imposed.
2 The considerations enumerated in pars (a) to (e) of subs (2) are of the same nature. They state considerations which ought to be considered. But in case one or more of them might be thought to be conclusive, the subjection emphasises that they are not.
3 Unless an issue is raised under par (e), a tribunal hearing an application should refrain, so far as possible, from expressing or hinting at any view as to the guilt or innocence of the applicant.
4 The section is a grant of power. That power must, I think, be construed in the context of the enactment, that is to say, against the background that, until it became law, the Court had no power to order costs of trials.
5 The power granted is power to award 'such costs as it thinks just and reasonable' ie, only to award costs where it is just and reasonable that the Crown should pay an accused person's costs; and then only such amount (see s 4(1) and s 6) as is just and reasonable. The statute does not in terms refute or abrogate the long-standing principles of public policy that (a) criminal trials are for many reasons not to be equiparated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs, an acquittal not being a declaration of innocence (so much is almost spelt out in the section).
It seems to me to follow that the power is not to be exercised unless there is some positive reason for doing so; some circumstance or consideration which activates the discretion (cf the authorities dealing with the discretion to extend time).
6 Because the emphasis is on justice, inefficiencies in investigation or irregularities in procedure would not of themselves activate the discretion. There must be some circumstance, other than acquittal which, whether or not it be based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs."
At the conclusion of this Court's hearing of the applicant's notice to review, she was given an opportunity to respond to a comment that had been made by counsel for the respondent. Whilst doing so the applicant, very briefly and succinctly, in substance said that the resolution of this matter depends firstly on the validity of the Initial Order, and then on whether the hospital personnel had acted lawfully; "it all comes back to that Order". I agree with her. Her best chance of succeeding on her application for costs was to establish one of the circumstances detailed in the Costs in Criminal Cases Act, s4(2), and her best prospect of doing that was to establish that the Initial Order was invalid and in consequence that the hospital staff had no lawful justification for interfering with her removal of her mother from the hospital. If this result was achieved, it could be said that the prosecution was fatally flawed and that the applicant had satisfied the consideration that underpins that Act, s4(2)(e), that is, established that she was not guilty. It is to be regretted that this was not the approach taken by the applicant on the hearing before the magistrate or at the outset of the hearing before this Court. Had it been so, the need for a lengthy hearing of her costs application before the magistrate, and the need to canvass the 683 pages contained in the appeal books she has provided to this Court may have been avoided. That said, it is necessary to briefly traverse that which occurred in the hearing before the magistrate.
The hearing commenced on 5 May 2008. The applicant was represented by a lawyer. On that day the prosecution called evidence from four police witnesses who had attended the hospital on the morning of the incident, Dr Alexander Koefman, the intern who completed the Initial Order, and Michael Weeding. On the next day of the hearing, 28 July 2008, the prosecution called Tobias Croft, a clinical psychologist employed at neuropsychology in the hospital, and Christopher Taylor, the manager of medical orderlies and security services at the hospital. When the hearing resumed on 3 October 2008 the prosecution had three more witnesses to call. They were Peter Handley, a clinical nurse specialist, Wolfgan Watenberg, a medical orderly, and Simon Bodfish, a security officer. At the outset of the hearing on that day, the applicant's lawyer obtained leave from the magistrate to withdraw as the applicant had terminated the lawyer's instructions. Thereafter the applicant applied for an adjournment of the hearing and provided a medical certificate to the effect that she was unfit to continue her usual occupation. In response to the magistrate's inquiry about his attitude to the requested adjournment, the prosecutor said:
"Your Honour, I don't oppose the application. I had intended to inform the court without going into detail that I held serious concerns as to whether the defendant was fit to proceed today as a result of some exchanges we had prior to court but I won't go into those."
The hearing was adjourned and when it resumed on 22 October 2008, the prosecutor said:
"Your Honour, I have reviewed this file and determined that it's not in the public interest for the prosecution to continue. I therefore seek leave to withdraw the complaint."
Leave having been granted for the withdrawal of the complaint, the applicant applied for costs and the hearing of that application was adjourned. It resumed on 12 December 2008 when the prosecutor informed the magistrate that the application for costs was opposed, and added:
"Your Honour, I indicated when I sought leave to withdraw the complaint that the prosecution had formed the view that it wasn't in the public interest for the prosecution to proceed. I can indicate just today that that was based on compassionate grounds and I'm in a position to elaborate obviously the hearing of the application."
The learned magistrate explained to the parties that if there was any factual material that either party wanted to rely on in the costs hearing that fell outside the evidence that had already been presented, it would be necessary for that party to put the evidence before the court in a proper form. The hearing was adjourned and thereafter the matter was before the magistrate on six dates, the final date being 26 August 2009 when her Honour published reasons for rejecting the application.
In the course of the hearing the applicant on a number of occasions disputed the prosecutor's reasons for withdrawing the complaint. An illustration is a passage in the written submissions she provided to the magistrate in support of her application in which she said:
"Withdrawal was apparently done 'in the public interest' without further elaboration by prosecutor – in my view, tantamount to no real reason being given. The only reasonable and sensible inference to be drawn is that police did not think they would win the case."
In response the prosecutor ultimately filed a statutory declaration to which he attached a copy of his letter to the hospital dated 20 October 2008, in which he set out his reasons for considering that it was not in the public interest for the prosecution to proceed, and sought the hospital's views on that issue. That letter is as follows:
"Ms F Dewhurst
Medico Legal Adviser
Royal Hobart HospitalFax: (03) 6231 3520
sigrid alexandra nilsson – c/n 15618/08
The abovementioned complaint is listed for mention on 22 October 2008 and for further hearing on 21 November 2008. The Complaint was listed for further hearing on 3 October 2008. Ms Nilsson obtained an adjournment on that date as she had just terminated her instructions to the solicitor representing her and was not in a position to continue with the hearing on that day.
I am of the view that it is not in the public interest for the prosecution of Ms Nilsson to proceed. In my view Ms Nilsson has significant mental health issues. She was clearly not in a fit state to defend the Complaint on 3 October 2008. For that reason, if Ms Nilsson had not sought an adjournment I would have. I understand Mr Peter Handley, who observed Ms Nilsson's demeanour whilst he was waiting to give evidence, was very concerned as to her state of health.
Three separate complaints were laid against Ms Nilsson in relation to her conduct at the Royal Hobart Hospital in June 2007. Complaint Number 16144/07 charged Ms Nilsson with disorderly conduct and trespass at the Hospital on 11 June 2007. Complaint Number 15168/07 charged Ms Nilsson with one charge of disorderly conduct and two charges of assault at the Hospital on 14 June 2007. Complaint Number 14801/07 charged Ms Nilsson with failing to comply with the direction of a police officer to leave the Hospital on 15 June 2007. Complaint Number 16144/07 was not pursued as it was clear that the Department of Emergency Medicine was not a public place and there was insufficient evidence to prove the trespass charge. Complaint Number 14801/07 was found proved after a defended hearing. Ms Nilsson was released without conviction on the condition she be of good behaviour for a period of twelve months and not commit any offence under the Police Offences Act during that time. She has since appealed that order. Complaint Number 15618/07 remains part heard. My view that it is not in the public interest to proceed with the prosecution of that complaint is based upon the following factors:
(i)My concerns in relation to the state of Ms Nilsson's mental health and the detrimental effect the prosecution is apparently having on her health.
(ii)The nature of the charges contained in the Complaint (the victims of the two assaults suffered only minor scratches).
(iii)Ms Nilsson has incurred significant costs (she asserts some $12,000) in defending the charges laid against her.
(iv)If the Complaint is found proved it is likely that Ms Nilsson will again be released without conviction on condition that she be of good behaviour.
(v)The order made in respect of Complaint Number 14801/07 should operate as a deterrent to her.
I am minded to seek leave to withdraw Complaint Number 15618/07 on 22 October 2008. Before, however, making a final decision in that regard I seek the Hospital's views concerning the issue.
mark miller
Principal Legal Officer"
Whilst the applicant and the prosecutor gave considerable attention to the prosecutor's reasons for withdrawing the complaint, the learned magistrate, in my view quite rightly, did not. What was relevant to the learned magistrate was not the prosecutor's views as to why the complaint should be withdrawn, but the evidence before the learned magistrate that bore on the circumstances detailed in the Act, s4, and any other relevant circumstances. For these reasons I reject ground 1(ii) of the notice to review which contends that her Honour erred in failing to have any, or proper, regard to the prosecutor's reasons for withdrawing the complaint, the validity and adequacy of those reasons, and the delay of 16 months in withdrawing the complaint. As to the delay of 16 months referred to, I note that the complaint was dated 11 July 2007 and it was withdrawn on 22 October 2008. There is no basis for the contention that her Honour failed to pay proper regard to the duration of the period that the complaint was on foot before it was withdrawn.
I turn to the validity of the Initial Order. The following grounds of the notice to review relate to it:
"1Her Honour erred in failing to have any, or proper, regard to all relevant circumstances in deciding whether to grant costs, including:
i the making and validity of the initial mental health order and the lawfulness of the actions of Royal Hobart Hospital staff in restraining – or otherwise assaulting – the defendant and her mother;
…
2Her Honour erred in finding that there was no fatal flaw in the prosecution case in that she should have found that:
…
ii The initial order was not made when the defendant walked from the hospital room with her mother, therefore the defendant, on any reasonable view, could not have been informed of an order that did not exist; or
iii Even if it was accepted that the defendant was told of the initial order before she left the room, any such verbal notification was irrelevant to the fact that the actions of the hospital staff, at first instance, in apply force to the defendant and her mother or depriving them of their liberty were unlawful assaults, if, at the time, the order:
·was not made, or
·was legally invalid
vi The initial order, even if valid and made at the relevant time, conferred no legal authority on hospital staff under s 26(3)(a) of the Mental Health Act 1996, to manhandle the defendant or deprive her of her liberty when she left the hospital room, and was an unlawful assault on the defendant."
As already mentioned, before this Court, the applicant ultimately submitted that the outcome of this matter all comes back to the validity of that Order. This is not to suggest that the applicant abandoned the other arguments that she advanced. Before the learned magistrate and this Court, many of the submissions that she advanced were directed to establishing her innocence by demonstrating that the prosecution witnesses were not credible and were unreliable. To that end she relied on a table that ran to 32 pages in which she compared the evidence of eight witnesses on some 29 matters. Some of those matters were of little, if any, relevance, although that they were no doubt of real concern to the applicant. For example, one of the matters was: "Was defendant properly/fully informed of patient's condition?" It seems to me that, in part because of this generalised attack on the prosecution's case, such evidence as was before the magistrate that went to the issue of the validity of the Initial Order was somewhat cursory and was not adequately tested.
The Mental Health Act 1996, s24, provides that a person may be detained as an involuntary patient in an approved hospital if certain criteria are satisfied, one of which is that the person appears to have a mental illness. An application for the detention of a person as an involuntary patient may be made by an authorised officer, s25(a), and if a medical practitioner is satisfied that the criteria are established, the medical practitioner may make the appropriate order which is referred to as an initial order; s26. An initial order ceases to have effect if an approved medical practitioner has not confirmed it within 24 hours of the person's admission, s27(c).
The form for an initial order is not prescribed in that Act or the regulations under it that were in force at the time of the incident, the Mental Health Regulations 1999. It seems, however, that a standard form for an initial order had been prepared, as the document containing the Order put into evidence is in a standard form bearing what was the Tasmanian Government logo and appears to be headed as follows:
"Initial Order
Form 1
Mental Health Act 1996 section 24 – 27"
I say appears to be headed as above as a small portion of the heading of the Order has been covered by a label attached to it which contains the applicant's mother's personal details. The footer to the document reads:
"Form 1 – Mental Health Act 1996 – Status – FINAL – Version 2 – Date: 11/11/2004"
On the face of the Order put into evidence, it was applied for by Peter Handley, who has completed and signed that part of the form of the Order that relates to the application for it and in doing so he has ticked the box next to the following:
"Authorised Officer (tick if yes)"
The complaint was withdrawn before Mr Handley was called to give evidence. A written statement, apparently taken from Mr Handley by police on the day of the incident, was put into evidence. It details what he said occurred in the course of the incident and makes no reference to the Initial Order or whether he was an authorised officer for the purposes of the Mental Health Act. A statement of facts for the prosecutor that was put into evidence following the withdrawal of the complaint describes Mr Handley as a clinical nurse specialist. There was also evidence that he was a member of what was called a Code Black team that responded to incidents in the hospital involving the safety of patients and staff. Christopher Taylor, the manager of medical orderlies and security services at the hospital, said that the Code Black team was comprised of a minimum of four medical orderlies, a security officer, and a clinical team leader, who was Peter Handley. Michael Weeding, the clinical nurse manager for the neurosurgical unit at the hospital, gave evidence to the effect that ancillary to an initial order, the Mental Health Act gave an authorised officer the power to take a person into protective custody for four hours whilst waiting for an initial order to be made. This evidence was correct insofar as the Mental Health Act, ss15(1) and 16, empower an authorised officer who considers that a person has a mental illness, and that there is a serious risk of harm to the person or others, to take the person into protective custody for a period of not more than four hours for the purpose of having the person examined and diagnosed by a medical practitioner. In the context of this evidence Mr Weeding said that he was not an authorised officer, but that Peter Handley was. When cross-examined by the applicant's lawyer, Mr Weeding was shown a document which he agreed "suggested otherwise" than that Mr Handley was an authorised officer. Little can be derived from this evidence. The document placed before Mr Weeding was not identified and the prosecutor's request that it be marked for identification was refused by the learned magistrate. Given the importance that the applicant now attaches to the validity of the Initial Order, it is unfortunate that the document was not put into evidence in the course of the costs hearing that followed the withdrawal of the complaint. Accordingly the only cogent evidence before the learned magistrate was that on the face of the Order it had been applied for by Mr Handley who was an authorised officer. Following the withdrawal of the complaint no effort was made by either party to explore, by way of further evidence from Mr Handley or some other appropriate source, issues as to whether he was an authorised officer and whether and when he had applied for and completed the application for the Initial Order. In result it cannot be said, on the evidence before the learned magistrate, that the applicant established that she was innocent by reason of any invalidity in the Order arising from Mr Handley's involvement with it.
Dr Alexander Koefman gave evidence that he completed the Initial Order in respect of the applicant's mother as the applicant took her mother by the arm and was marching her out the door of her room towards the security guards standing in the hallway. On the basis of this evidence the events that are the subject of the charges occurred after he made the Order. Dr Koefman had been working in the neurological unit for some weeks prior to the incident. He was part of the team treating the applicant's mother. She had been admitted to the unit some days prior to 14 June 2007. He said that there had been concern about her mental state from the time of her admission and that the concern related to her short term memory and disorientation. He said Dr Tobias Croft, a clinical psychologist employed at neuropsychology at the hospital, had been requested to assess whether the applicant's mother was capable of making decisions for herself regarding her health or staying in the hospital. That assessment was made on the day of the incident prior to its occurrence. Dr Koefman also said that he had been present when there was a discussion with the applicant about her wish to remove her mother from the hospital and about the concerns of hospital staff referable to this. Those involved in the discussion included Mr Debiers (a neurosurgeon at the hospital), Dr Damien Amarto (Dr Koefman's registrar), Dr Bessa Efkatar, and Michael Weeding.
Dr Croft's evidence included evidence to the following effect. His role was to assess the applicant's mother's mental state and whether she was in a fit state to discharge herself. There was "plenty" in her medical notes to indicate that she was not fit to discharge herself. There was evidence in her file that for around two years she had suffered from dementia of sufficient severity to prevent her undertaking many everyday tasks. The injury she had suffered in the fall that brought about her admission to the hospital had produced a subdural haematoma, a bleed in the right part of the brain, and her Glasgow Coma Scale was hovering around 13 or 14. This indicated that she was not properly orientated to time, place and person, and the hospital notes indicated that over the two days prior to 14 June 2007 she had on numerous occasions not been orientated to time, place and person. He had concluded that she was not in a fit state to self-discharge from the hospital.
Before returning to Dr Koefman's evidence I set out the charges contained in the complaint as they were as at the outset of the prosecution:
"CHARGE: Disorderly Conduct.
BREACH OF: Section 13(1)(c) Police Offences Act, 1935.
PARTICULARS: You are charged with on the 14th June, 2007, in Royal Hobart Hospital Neurological Ward, a public place at Hobart in Tasmania, engaging in disorderly conduct, namely by interfering with a patient under a Initial Form 1 order under the Mental Health Act by attempting to remove the patient, by acting in a violent manner requiring you to be restrained and yelling in a loud voice.
AND FURTHER: 2. –
CHARGE: Common Assault.
BREACH OF: Section 35(1) Police Offences Act, 1935.
PARTICULARS: You are charged with on the 14th June, 2007 at Hobart in Tasmania, unlawfully assaulting Christopher Graham TAYLOR by kicking out with your feet and striking him in the left shin.
AND FURTHER: 3. –
CHARGE: Common Assault.
BREACH OF: Section 35(1) Police Offences Act, 1935.
PARTICULARS: You are charged with on the 14th June, 2007 at Hobart in Tasmania, unlawfully assaulting Wolfgan WATTENBERG by kicking out with your feet and striking him in the left knee."
As already mentioned, Dr Koefman said he completed and signed the Initial Order and that after he did so he observed the applicant take her mother by the arm and march her out the door of the ward towards those who ultimately restrained her. He said that Dr Croft had assessed the applicant's mother prior to him making the Initial Order. His recall was that Peter Handley had not completed the portion of the form of Initial Order that deals with the application for it before he, Dr Koefman, signed it. In the course of cross-examining Dr Koefman, the applicant's lawyer put to him that he was not an authorised officer for the purposes of the Mental Health Act. Whilst this had no bearing on the validity of the Initial Order, the question prompted the learned magistrate to query whether the validity of the order was relevant. The applicant's lawyer pointed out that the particulars to the disorderly conduct charge alleged that the applicant engaged in disorderly conduct "namely by interfering with a patient under an Initial Form 1 order under the Mental Health Act". The applicant's lawyer submitted that if it could be established that there was no Initial Order, then the applicant and her mother had every right to leave the hospital and it could not be established that the applicant was interfering with a patient under an Initial Form 1. The applicant's lawyer said "I think it all goes to this particular limb of this particular charge" and suggested that "the prosecution perhaps needs to reconsider as to whether those particulars remain in [the charge]". Following this exchange, the particulars to that charge were amended by deleting the words mentioned and the hearing proceeded, at least at that point, on the basis that, in the words of the learned magistrate, "the validity of the Order is not now a relevant line of inquiry". For so long as that view prevailed, it was, in my view, erroneous. The validity of the Initial Order was central to the justification for hospital staff interfering with the applicant's removal of her mother from the hospital. As it happens, the invalidity of the Initial Order was shortly thereafter touched on again when at the conclusion of the cross-examination of Dr Koefman, he was asked to confirm that when he made the Order he had been an intern and had not completed an approved period of supervised training so as to become a registered medical practitioner. He acknowledged that this was so and said that he was not then a fully registered medical practitioner.
In her written submissions to the learned magistrate, the applicant submitted that the Initial Order was invalid for five reasons.
The first reason was that Dr Koefman was not an approved officer under the Mental Health Act. This was no basis for concluding that the Order was invalid. The evidence was not that Dr Koefman had applied for the Order, but that it had been applied for by Peter Handley.
The second reason was that Dr Koefman, the person who made the Order, was an intern and was not a registered medical practitioner as required by the Mental Health Act, s26. That section requires that an initial order be made by a "medical practitioner". That term is not defined in that Act, however the Medical Practitioners Registration Act 1996, s3(1), relevantly provides:
"(1) In this Act, unless the contrary intention appears —
'medical practitioner' means a person who practises medicine;
'non-practising registration' means registration under section 22;
'practising registration' means registration under section 19, 20 or 21."
As might be expected from the definition of "non-practising registration", s22 relates to a person who is eligible to apply for registration but does not intend to practise. As to persons covered by the term "practising registration"; s19, relates to the registration of a person who has the requisite qualifications and has completed an approved period of supervised training; s20, deals with the registration of a person who has the requisite qualifications and is about to start an approved period of supervised training; and, s21, deals with a person who is not eligible to apply for registration under s19, but who may nevertheless be registered as a medical practitioner on appropriate conditions for particular purposes. On the evidence before the learned magistrate, the only inference realistically open was that Dr Koefman had practising registration pursuant to s20 and was a medical practitioner, he being a person who practises medicine. The evidence before the magistrate did not establish that the Order was invalid because Dr Keofman was not a medical practitioner.
The third reason was that:
"… the evidence indicates that Peter Handley was not an authorised officer at the time, and was therefore unable to apply for any such order. Even if he were an authorised officer, he did not actually apply for the order, as Dr Koefman filled it in in full first before Mr Handley could have assessed my mother and made application for it."
I have already dealt with the proposition that Mr Handley was not an authorised officer. On the evidence of Dr Koefman, he completed the portion of the form of the Order that related to him before Mr Handley completed the part of the form that related to his application for the Order. This does not establish that Mr Handley did not apply for the Order or, for that matter, that he had not done so orally before it was made. On the face of the Order, as signed by Mr Handley, he applied for it. There is no evidence to the effect that Mr Handley had not assessed the applicant's mother before applying for the Order. In any event, the Act does not impose a requirement that an authorised person who applies for an initial order has made any particular assessment of the person who is the subject of the application. (The situation is otherwise where an authorised officer takes a person into protective custody for the purpose of having the person examined and diagnosed by a medical practitioner, see the Mental Health Act, s15(1)). The evidence before the learned magistrate does not sustain the applicant's contentions.
The fourth reason was that there were no valid ground for making the Initial Order as the applicant's mother was never assessed as having a mental illness. Pursuant to the Mental Health Act, ss24 and 26, a medical practitioner who makes an initial order must be satisfied that the person appears to have a mental illness. In the Order as completed by Dr Koefman, he stated that he was satisfied that "the patient appears to have a mental illness" and that statement is consistent with his evidence. His view finds support in other evidence including the applicant's statement in her declaration that she had every right to make decisions for her mother, "even if she couldn't". See the portion of the applicant's declaration that is set out in par3 of these reasons. Dr Koefman's statement that the applicant's mother appeared to have a mental illness is not undermined by his evidence that he made the Initial Order because the applicant's mother was unable to make decisions for herself regarding her health or staying at the hospital, and that the Order was made so the applicant's mother could be retained against her will.
The fifth reason was that the Order did not exist at the time that the applicant left the room with her mother. Dr Koefman's clear evidence was to the contrary and no evidence before the learned magistrate provided a basis for rejecting his evidence.
In her published reasons for rejecting the applicant's application for costs, the learned magistrate referred to the applicant's contention that the Initial Order was not valid, but did not specifically deal with it. Her Honour did, however, say that:
"This is not a case where there has been shown to be a fundamental flaw that should have been evident to the prosecution. It is not a case where there is now revealed objective evidence that positively demonstrates that the prosecution could not succeed."
As I have already said, in my view the applicant's only realistic prospect of establishing that the prosecution was fundamentally flawed was to establish that the Initial Order was invalid. For the reasons that I have given, I am not satisfied that she did so. It may of course be that had the issue of the validity of the Order been thoroughly tested by way of further evidence, its invalidity could have been established. Whilst that prospect was not expressly identified by the learned magistrate, it was covered by her acceptance in her reasons for decision "that there was a real prospect that the prosecution would have failed to establish guilt beyond reasonable doubt if the hearing had proceeded to conclusion". I am accordingly not satisfied that the learned magistrate erred in relation to the issue of the validity of the Initial Order.
The applicant's written submissions include a heading "Ground 1(iii) — Other relevant circumstances disregarded by the court". This ground does not appear in the notice to review. Under this heading in her submissions, a number of circumstances are detailed and many submissions are made. As to them it is sufficient to say that insofar as any of the circumstances are sustainable and relevant, I am not satisfied that her Honour erred referrable to the same.
Ground 2.i. is:
"2Her Honour erred in finding that there was no fatal flaw in the prosecution case in that she should have found that:
1 The prosecution evidence could not have established beyond reasonable doubt that the defendant was informed about the initial order because of the gross inconsistencies in the evidence of Mr Chris Taylor, Mr Wolfgang Wattenberg, Mr Simon Bodfish, Mr Michael Weeding and Mr Peter Handley, and the fact that the defendant's evidence that she was not so informed was verified by three prosecution witnesses. Further, Her Honour erred in fact in finding that the alleged conveying of the information occurred in a 'chaotic situation', thus explaining conflicts in the witness evidence."
On my reading of the evidence her Honour did not err in finding as she did that this is not a case where there had been shown to have been a fundamental flaw that should have been evident to the prosecution. Again, on my reading of the evidence before her Honour, it was not open to her to finally conclude that the prosecution could not have established beyond reasonable doubt that the applicant was informed about the Initial Order. In any event, as already explained, it is not apparent how the applicant's lack of awareness of the order amounts to a defence. I am not satisfied that her Honour erred in finding, as she did, that it must be borne in mind that the witness statements covered a very chaotic situation, and it would be expected that the witness accounts would vary and conflict to some extent. That finding is correct.
Ground 3 is:
"3Her Honour erred in failing to find, on the evidence before [her], that the only reasonable conclusion open to the court was the acquittal of the defendant on all charges."
I am not satisfied that her Honour erred in failing to so find. Her Honour did conclude that there was a real prospect that the prosecution would have failed to establish guilt beyond reasonable doubt if the hearing had proceeded to a conclusion, and in my view she could not properly have gone any further than that.
Ground 4 is:
"4Her Honour erred in finding that the costs application centred on credibility issues, in failing to apply correct legal authority to the case and in incorrectly applying the test in Langmaid v Millhouse."
I agree with her Honour's finding that the costs application as pressed before her centred on credibility issues. The balance of this ground as argued relates to the decisions in Soladenko v R A38/1984 and Langmaid v Millhouse [2001] TASSC 58. Insofar as her Honour referred to and dealt with these authorities, I am not persuaded that she did so incorrectly.
Ground 5 is:
"5Her Honour erred in improperly exercising her discretion in that, having found, sufficiently, that there was a real prospect of the defendant being acquitted, Her Honour then inappropriately refused any grant of costs to the defendant."
Her Honour's finding that there was a real prospect that the prosecution would have failed to establish guilt beyond reasonable doubt if the hearing had proceeded to a conclusion did not mean, as this ground suggests, that the applicant was thereby entitled to an order for costs. It is to be remembered that the Costs in Criminal Cases Act, s4(3), provides that no defendant shall be granted costs by reason only of an acquittal, dismissal, withdrawal or discharge in respect of a charge. As noted in par6 of the passage from R v Freshney referred to in par5 of these reasons, there must be some circumstance other than an acquittal that gives an applicant a just claim on the community for the payment of his or her costs. Even if her Honour had found that the applicant had established that she was not guilty, that alone would not necessarily have entitled her to an order for costs; R v Cashinella A112/1994, at 6, and Gesler v Hibble [2008] TASSC 31, par[17]. See also Gray v Brown B16/1995 at 4.
For these reasons I am not satisfied that her Honour erred. The notice to review is dismissed.
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