Nilsson v Tasmania
[2010] TASFC 7
•22 December 2010
[2010] TASFC 7
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Nilsson v Tasmania [2010] TASFC 7
PARTIES: NILSSON, Sigrid
v
STATE OF TASMANIA
FILE NO/S: 218/2010
JUDGMENT
APPEALED FROM: Nilsson v Department of Police and Emergency Management [2010] TASSC 6
DELIVERED ON: 22 December 2010
DELIVERED AT: Hobart
HEARING DATE: 8 September 2010
JUDGMENT OF: Crawford CJ, Blow J, Porter J
CATCHWORDS:
Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Denial of natural justice – Disputed fact in case accepted without adequate opportunity to challenge.
Aust Dig Magistrates [270]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: M M G Miller
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASFC 7
Number of paragraphs: 113
Serial No 7/2010
File No 218/2010
SIGRID NILSSON v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
BLOW J
PORTER J
22 December 2010
Order of the Court
Appeal allowed.
Order made by Evans J on 10 March 2010 dismissing the motion to review, set aside.
Order made by Magistrate Wood on 26 August 2009 dismissing the application for costs, quashed.
Appellant's application for costs remitted for re-hearing by a magistrate.
Serial No 7/2010
File No 218/2010
SIGRID NILSSON v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ
22 December 2010
The appellant was charged on complaint with disorderly conduct and two assaults. It was part-heard by a magistrate, Mrs H M Wood, on two dates, following which it was twice adjourned. The complainant was then given leave to withdraw the complaint.
The appellant applied to the magistrate for an order under the Costs in Criminal Cases Act 1976, s4(1), that she be paid her costs in respect of her defence. The magistrate dismissed her application.
The appellant sought a review of the order dismissing her application under the Justices Act 1959, s107(1). In the circumstances of the case, the grounds of the motion to review were constrained by s107(4)(a) to errors or mistakes on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. The motion to review was dismissed by Evans J.
The appeal to this Court resulted. The basis of the appeal is constrained by the Justices Act, s123(1), to a point of law or the admission or rejection of evidence.
It is necessary to consider in some detail the course of the proceedings in the Magistrates Court, the decision of the learned magistrate and the decision of the learned judge.
The hearing of the complaint
I will take the history of the hearing from the magistrate's reasons for dismissing the application for costs and from the judge's reasons for dismissing the motion to review. The charges flowed from the appellant's actions on 14 June 2007 when she was accompanying her mother and assisting her to leave the Royal Hobart Hospital contrary to medical advice. Her mother had been admitted to hospital two or three days earlier after suffering a head injury following a fall. A CT scan had revealed some bleeding and she was receiving assessment and treatment in the Neurosurgical Unit. The appellant became concerned about the level of care her mother was receiving and the way in which she was treated as a patient. Communications between her and hospital staff became problematic and she indicated that she wished to take her mother out of hospital.
The magistrate found that treating practitioners were concerned about the prospect that the appellant would remove her mother from the hospital and about her mother's safety. It was also found that Dr Koefman made an initial order for admission under the Mental Health Act 1996, s26, providing for the admission and detention of the mother as an involuntary patient in the hospital. The making and validity of the order has been challenged by the appellant.
The magistrate found that the signing of the order occurred as the appellant was leaving the Unit. According to her case, she was unaware that the order had been made and understood that her mother was a voluntary patient and free to leave. As she and her mother commenced to leave the hospital together, they were restrained by hospital security staff.
There was then an altercation between the appellant and security staff. If the appellant had had the opportunity to give evidence in her defence, she would have said that in the altercation her mother was pulled away from her very forcefully and was screaming as they dragged her backwards and the appellant was being held and grabbed. She would also have said that as a result, she kicked out and struck two members of the security staff in the leg. Her defence was that although she struck them as alleged, she did so lawfully in self-defence. After that, security officers took her to the floor where she was restrained until police officers attended.
Prosecution witnesses included treating practitioners, hospital security staff and police officers. On the first day of the hearing on 5 May 2008, evidence was given for the prosecution by three police officers, Dr Koefman and the clinical nurse manager of the Neurosurgical Unit, Mr Weeding. On the second day of the hearing on 28 July 2008, evidence was given for the prosecution by a clinical psychologist employed at Neuropsychology in the hospital, Dr Croft, and the manager of medical orderlies and security services, Mr Taylor. It was Mr Taylor who was the alleged victim of one of the assaults, particulars of the charge alleging that the appellant kicked out with her feet and struck him in the left shin.
When the hearing resumed on 3 October 2008, the prosecution had three more witnesses to call. They were a clinical nurse specialist, Mr Handley, a medical orderly, Mr Wattenberg, and a security officer, Mr Bodfish. Mr Wattenberg was the alleged victim of the other assault. The particulars in the complaint alleged that the appellant assaulted him by kicking out with her feet and striking him in the left knee.
The particulars of the charge of disorderly conduct, as amended, were that in the neurological ward at the hospital, a public place at Hobart, the appellant engaged in disorderly conduct by interfering with a patient under an initial order under the Mental Health Act by attempting to remove the patient, by acting in a violent manner requiring her to be restrained, and by yelling in a loud voice.
At the outset of the hearing on 3 October 2008, the appellant's lawyer obtained leave from the magistrate to withdraw. The appellant had terminated the lawyer's instructions. The appellant then applied for an adjournment, providing a medical certificate to the effect that she was unfit to continue her usual occupation. The prosecutor said that he did not oppose it and that he had intended to inform the magistrate, without going into detail, that he held serious concerns as to whether the appellant was fit to proceed that day consequent upon some exchanges they had prior to court. The hearing was adjourned.
When it resumed on 22 October 2008, the prosecutor said to the magistrate that he had reviewed the file and determined that it was not in the public interest for the prosecution to continue and he sought leave to withdraw the complaint. Leave was granted. The appellant then applied for costs. The hearing of that application was adjourned.
The hearing by the magistrate of the application for costs
The hearing of the application occupied more hearing time than the hearing of the charges. It came before the magistrate on six different dates until on 26 August 2009, the magistrate published reasons for dismissing it.
A great number of exhibits were tendered. They included the statements of witnesses the prosecution would have called if the complaint had not been withdrawn. One of the circumstances the Costs in Criminal Cases Act, s4(2)(e), required the magistrate to have regard to was whether the appellant was discharged from the proceedings because she established (either by the evidence of witnesses called by her or by cross-examination of witnesses for the prosecution or otherwise) that she was not guilty. Such an event had not taken place and so s4(2)(e) did not apply. Nevertheless, she wished to give sworn evidence and she wanted the magistrate to hold a comprehensive trial of what was alleged in the complaint. According to the magistrate's reasons for decision, the appellant's reasons were that she wanted to vindicate her position, to refute the prosecutor's assertion that the prosecution was discontinued on compassionate grounds and to establish that the true reason was that the police did not think they would win their case. The magistrate resisted taking the course sought by the appellant and ruled that prosecuting counsel, Mr Miller, and the appellant were permitted to file a statement or statutory declaration. The magistrate was concerned that a contested hearing of evidence would take far too long. Her Honour referred to the statement of Mr Miller, who did not object to the course the appellant wished to have taken, that he would be more than a day cross-examining the appellant on the costs application if she gave evidence. However, he indicated that he was content to give evidence in relation to the reasons for discontinuing the prosecution.
Mr Miller filed a statutory declaration in response. In it he said that prior to 3 October 2008, he had concerns about the state of the appellant's mental health. On 3 October, his concerns were reinforced when he observed her demeanour at the court, which included that she was in a highly agitated state. I will not set out all of what he said about that, but he added that concern about her state of mental health was also expressed to him that day by an experienced psychiatric nurse who had observed the appellant's demeanour while the nurse was waiting to give evidence and expressed his view to Mr Miller that the prosecution should be discontinued as clearly, she was very unwell.
Mr Miller said in his statutory declaration that after further consideration he decided it was not in the public interest to pursue the prosecution because of the detrimental effect he believed it was having on the appellant's health. He also had regard to the fact that if the complaint was found proved, it was likely that the appellant would be released without conviction on condition she be of good behaviour for a period. That was the order made when another complaint that arose out of an incident at the hospital, had been found proved against the appellant. He also considered that the finding on the other complaint, and the costs the appellant had incurred in defending three complaints against her, were likely to operate as a deterrent to future behaviour of a like nature. He added that his view that the prosecution should be discontinued was not influenced by any concerns regarding the strength of the prosecution case or the veracity of any of the prosecution witnesses. He said he held no such concerns.
Attached to his statutory declaration was a copy of a letter he sent on 20 October 2008 to the medico-legal advisor at the hospital, in which he explained his views and asked for the hospital's views in response. An additional reason he expressed in the letter was that the victims of the two assaults suffered only minor scratches. He also added that according to the appellant, she had incurred $12,000 in defending charges against her in the three complaints that had arisen out of her conduct at the hospital on three different dates.
The appellant responded with a statutory declaration of her own. She gave her version of the events that took place at the court on 3 October 2008. While accepting that she had found certain events provocative and intimidating, she denied that she had acted in an agitated fashion. In other respects, she did not say anything in her statutory declaration that directly attacked Mr Miller's reasons for discontinuing the prosecution of the complaint. That is understandable. She could not give evidence of Mr Miller's state of mind. Nevertheless, in the course of extensive argument, she submitted that the magistrate should not accept Mr Miller's stated reasons, arguing that they were not credible, and that the real reason for discontinuing the prosecution arose out of a recognition that the prosecution case was so weak that it was doomed to fail.
The magistrate accepted Mr Miller's stated reasons in the following passage in her reasons for decision:
"I do not propose to look behind the reasons advanced by the prosecution and I consider that the applicant's statutory declaration in response does not give cause for me to do so. Accordingly, I accept that the prosecution discontinued the proceedings for the reasons advanced."
Grounds of the motion to review and of the appeal to this Court concern that passage.
As noted by the magistrate in her reasons, the appellant made comprehensive submissions at the hearing of the costs application. She made them orally and in writing, and provided tables analysing the evidence. Her submissions included:
1There was a real prospect of her being acquitted of the charges because the prosecution case was weak for reasons that included:
(a) numerous inconsistencies in the prosecution evidence to the extent that the prosecution would not have been able to prove the case beyond reasonable doubt;
(b) the initial order for admission was not valid because it was not made correctly or there were no valid grounds for its making, and in any event, it had not been made before the time of the alleged offences. For those reasons, the actions of the hospital's staff in seeking to restrain the appellant and her mother were unlawful and she was entitled to resist them in accordance with the principles of self-defence;
(c) even if the initial order was validly made in time, the appellant was not told, and did not know of it or of any intention to make it. For that reason, she was justified in using force in accordance with the principles of self-defence. Further, her case was that she was not fully informed of her mother's medical problems and she believed that her mother had the right to decide to leave the hospital if she wished, even against medical opinion. Her case was, at the every least, that she believed she had the right, as her mother's daughter and carer, to make decisions for her mother regarding her care and treatment;
(d) even if the hospital staff had the right to restrain them, the degree of force used by the staff was excessive. If the hearing had proceeded, she would have called evidence to establish that.
2Withdrawal of the complaint halfway through the hearing was a very significant and serious step to take, given that the prosecution case had been vigorously pursued for so long. Compassionate grounds were not credible grounds for withdrawing the complaint.
3The complaints of assault by Mr Taylor and Mr Wattenberg were made to prevent the appellant from lodging her own complaint of assault against them.
4The proceedings were not brought and continued in good faith because:
(a) neither the prosecutor or the police sighted the interim order until late in the proceedings;
(b) the conduct of the hearing was designed to put maximum pressure on the appellant, and the prosecutor intentionally delayed the calling of weaker key witnesses knowing they would damage the prosecution case;
(c) the charges of assault were laid without her being informed of them beforehand.
5The investigation into the offences was not conducted in a reasonable and proper manner, and proper steps were not taken to investigate matters coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings.
6The nature of the proceedings was vilificatory and hardship was caused by their prolonged nature.
7The evidence of the alleged victim, Mr Taylor, was weak in that it was repeatedly inconsistent with, and contradicted, the evidence of other witnesses on several issues. For those reasons, he was not a credible witness.
8Police officers gave false evidence.
9Police station charge room CCTV footage on the day of the alleged offences was not provided in whole to the appellant. There had been an inadequate explanation for missing sections.
The magistrate summarised the appellant's arguments as seeking to demonstrate by a comprehensive analysis that on all issues her account would have been preferred by the magistrate and that there were unsatisfactory aspects to the prosecution case in respect of all elements of the offences. Further, the appellant's position was that the prosecution case was so unsatisfactory, with so many inconsistencies, that it was weakened to an extent that she would have been found not guilty if the hearing had proceeded to a conclusion.
The magistrate had regard to the Costs in Criminal Cases Act, s4, and to its requirements in subs(2) that she have regard to all relevant circumstances and in particular, to the matters contained in pars(a) to (e) of the subsection. She referred to the often cited principles relating to applications under the Act, that were distilled from the section by Cosgrove J in R v Freshney [1977] Tas SR 126 at 128.
The magistrate correctly noted that the requirement of s4(2)(e), that she take into account whether the appellant was discharged from the proceedings because she established (either by the evidence of witnesses called by her or by cross-examination of witnesses for the prosecution or otherwise) that she was not guilty, did not apply. The cause of the discharge was the withdrawal of the complaint.
Nevertheless, the magistrate regarded the prosecution's reasons for discontinuing to be a relevant circumstance she should take into account. She referred to it as "the critical question". As I stated earlier, she accepted the reasons given by Mr Miller in his statutory declaration.
The magistrate also held that the weaknesses in the prosecution case, and the merits of the defence, were circumstances that should be taken into account, regardless of whether s4(2)(e) required it.
At this point, it is appropriate to set out the provisions of s4:
"4 Costs of successful defendant
(1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where —
(a)he is acquitted of the offence;
(b)the complaint charging him with the offence is dismissed or withdrawn; or
(c)he is discharged upon an indictment for the offence —
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.
(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."
The magistrate came to the following conclusions when deciding to dismiss the application. Concerning the nature of the proceedings and whether proper steps were taken to investigate any matter (see 4(2)(b)), the only criticism she considered to be justified was that the police should have sought to question the appellant regarding the alleged assaults, but did not do so. However, the magistrate doubted that an interview would have affected the decision to prosecute, thinking it likely that if the appellant had raised the issue of self-defence, the prosecution would nevertheless have proceeded because self-defence is a classic question of fact for a jury, or a judicial officer without a jury, to decide.
The magistrate did not regard inconsistencies in witnesses' statements as matters requiring further investigation. The events giving rise to the charges occurred in "a very chaotic situation", and it was to be expected that the accounts of witnesses would vary and conflict to some extent.
No fundamental flaw in the case was found that should have been evident to the prosecution. No objective evidence had been revealed that positively demonstrated that the prosecution could not succeed.
Next considered by the magistrate was the strength of the prosecution case and whether the only reasonable conclusion open was a reasonable doubt concerning guilt. The magistrate accepted that the appellant had highlighted areas of conflict and inconsistencies in the prosecution case on certain key points and that she had pointed to matters that gave rise to concerns about the credibility or reliability of aspects of the evidence of some prosecution witnesses. However, the magistrate found that the evidence of one witness and evidence that was likely to have been given by three other witnesses for the prosecution, would have been capable of satisfying her beyond reasonable doubt that the appellant did not act in self-defence. She concluded that it would have been reasonably open to accept their evidence.
The appellant's account of the incident as set out in her statutory declaration appeared to be credible to the magistrate. If she was to give evidence with the same conviction she demonstrated when arguing her case, she would have been a credible witness, the magistrate thought. Therefore, it was accepted that there was a real prospect of the appellant being acquitted. However, a reasonable doubt as to guilt was not the only conclusion reasonably open. For that reason, it could not be said that the court was affirmatively satisfied of innocence or that it ought to have had a reasonable doubt. See Langmaid v Millhouse (2001) 10 Tas R 170 at 181.
The magistrate found as reasonably open a finding that given the location of the conduct in the public hospital, the conduct was capable of amounting to disorderly conduct (see McDonald v Sherrin (1998) 8 Tas R 146) although she accepted that an alternative finding might be open if the appellant's evidence regarding her state of mind was accepted.
The magistrate concluded by stating that she was satisfied 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. However, she was not satisfied that was the only conclusion reasonably open to the court. She remained unpersuaded, having taken into account all the circumstances, that the appellant had a just claim on the community for payment of her costs. Accordingly, the application was dismissed.
The issues concerning the validity of the initial order for admission under the Mental Health Act and when it was made
The grounds of appeal to this Court include the following:
"1His Honour erred in failing to find that the appellant was entitled to costs under the Costs in Criminal Cases Act 1976 (the Act) because the initial order was invalid or was not lawfully made or completed or in existence at the time of the incident, so establishing a fatal flaw in the prosecution case;
1AHis Honour erred by refusing to admit, and give appropriate weight to, further evidence submitted by the appellant under s110(2) of the Justices Act 1959, which was relevant to determining the validity of the initial order, being an information sheet written by Alzheimer's Australia stating that dementia is not a mental illness;
2His Honour erred by failing to properly consider and give appropriate weight to evidence submitted by the appellant under s110(2) of the Justices Act 1959, being the application for a guardianship order, made by intern, Alex Koefman, on the day of the incident, which was relevant to determining the grounds for the initial order and its validity."
Ground 1.i of the motion to review the magistrate's decision asserted that the magistrate erred in failing to have any, or proper, regard to all relevant circumstances in deciding whether to grant costs, including "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". Ground 2 of the motion to review asserted that the magistrate erred in finding there was no fatal flaw in the prosecution case, in that she should have found that:
"i…
iiThe 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
iiiEven 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 applying 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; or
ivThe 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."
In substance, the matters raised by those grounds were argued by the appellant to the magistrate. See par23, subpars 1(b), (c), (d) above. The magistrate did not determine what was raised about them. Instead, the magistrate dealt with the prosecution case in general and its strength. She found that it had not been shown that there was a fundamental flaw in the prosecution case that should have been evident to the prosecution, or that there had been revealed objective evidence that positively demonstrated that the prosecution could not succeed. Her Honour accepted that the appellant had pointed to matters that gave rise to concern about the credibility or reliability of aspects of the evidence given by some of the prosecution witnesses.
In his judgment determining the motion to review, the judge agreed with the submission of the appellant that resolution of her case depended firstly on the validity of the initial order and then on whether the hospital personnel had acted lawfully, and with her statement that "it all comes back to that order". His Honour noted that if the initial order was invalid and in consequence the hospital staff had no lawful justification for interfering with her removal of her mother from the hospital, it could be said that the prosecution case was fatally flawed and the appellant would have satisfied the consideration that underpinned s4(2)(e), that she was not guilty.
I presume that those views were based on the premise that if the initial order was invalid, the accused was justified in using reasonable force in defence of herself and her mother but if, on the other hand, the initial order was valid, she was not entitled to use any force in defence of herself or her mother. There is a fallacy in that premise about which I will say more later.
For the purpose of his consideration of grounds 1.i and 2.ii, iii and iv, the judge made his own detailed analysis of the evidence that had been presented before the complaint was withdrawn, so far as that evidence was relevant to the issue of the validity of the initial order and the time of its making. His Honour noted the requirements of the Mental Health Act 1996 for the making of an initial order, which provides for the admission and detention of a person in an approved hospital as an involuntary patient.
Section 26 required an initial order to be made by a medical practitioner. The judge referred to the evidence of Dr Koefman that he made the initial order in respect of the appellant's mother, completing it as the appellant took her mother's arm and was marching her out the door of her room towards the security guards standing in the hallway. On the basis of that evidence, the events that were the subject of the charges occurred after he made the order.
The judge found that Dr Koefman was a medical practitioner as required by s26. The appellant submitted he was not, as he was an intern only. The judge inferred from the evidence that Dr Koefman had practising registration pursuant to the Medical Practitioners Registration Act 1996, s20, that he was a medical practitioner for the purpose of the Mental Health Act, and that the evidence before the magistrate did not establish that the initial order was invalid because Dr Koefman was not a medical practitioner.
The appellant challenged those findings before this Court. She argued that the evidence was that Dr Koefman held only conditional registration under the Medical Practitioners Registration Act and not general registration under the Act and, for that reason, he was not a medical practitioner. The argument should be rejected. A conditionally registered medical practitioner is a medical practitioner nevertheless.
The Mental Health Act, s25, specified that an authorised officer might apply for an initial order. The judge referred to evidence that Mr Handley applied for the initial order and to evidence of Mr Weeding that Mr Handley was an authorised officer. His Honour accepted that evidence, referring to it as cogent evidence. The appellant argued that there was evidence suggesting otherwise, but the judge considered little could be derived from that evidence. Mr Handley had not yet given evidence when the complaint was withdrawn.
The finding of the judge that Mr Handley was an authorised officer was a finding of fact, not of law, and is unassailable on appeal to this Court because it is not a point of law and does not concern the admission or rejection of evidence, as required by the Justices Act, s123(1).
The appellant argued to the judge that there was insufficient time available for Mr Handley to have assessed her mother before making the application. The judge found as a fact that there was no evidence that Mr Handley had not made such an assessment. His Honour held, as a matter of law, that the Act did not require the applicant for an initial order to make an assessment. That was correct.
The appellant argued further to the judge that there was no valid ground for making the initial order because her mother was never assessed as having a mental illness. The Mental Health Act, ss24 and 26, required the medical practitioner who made the initial order to be satisfied that she appeared to have a mental illness. In the initial order, Dr Koefman stated that he was satisfied of that. The judge found that statement to be consistent with his evidence. That was a finding of fact that is unassailable on appeal to this Court.
In this Court, the appellant argued that as the only evidence was that her mother suffered from dementia, it could not have been concluded that she suffered from a mental illness. She submitted that a person who has a serious impairment of the capacity for rational thought by reason of dementia or Alzheimer's disease cannot be regarded as suffering from a mental illness.
There is no merit in that argument. The Mental Health Act, s4(1), included in its definition of a mental illness a mental condition resulting in serious distortion of perception or thought or serious impairment or disturbance of the capacity for rational thought. The definition extends to conditions of the mind, whether or not they might qualify as a disease in other respects. That the cause of the condition of the appellant's mother may have been dementia or Alzheimer's disease is of no consequence.
Ground 1A of the appeal to this Court complains of a failure by the judge to admit evidence of an information sheet published by Alzheimer's Australia. She claimed that it stated that dementia is not a mental illness. There was no error in refusing to admit that evidence on the hearing of the motion to review. What others thought did not resolve what a mental illness was for the purposes of the Mental Health Act. It was the definition in s4 that governed this case. Ground 1A fails.
The judge's finding that the initial order was in existence at the time the appellant left the room with her mother was based on Dr Koefman's evidence to that effect. His Honour said there was no evidence to the contrary before the magistrate. Being a finding of fact, the finding cannot be attacked in this Court because of the Justices Act, s123(1). It follows from all I have said concerning the initial order that grounds 1 and 1A of the appeal fail.
On the hearing of the motion to review, the judge allowed the appellant to tender a written request to the Guardianship and Administration Board under the Guardianship and Administration Act 1995, s65, for an emergency order. It was made by Dr Koefman later on the day of the incident. It requested that by reason of urgency, the Board make an order for the appointment of a guardian of the appellant's mother.
It is the appellant's case that the request is evidence of the fact that the reason for the making of the initial order, and the detention of the appellant's mother in the hospital, was not because she was suffering from a mental illness but because the hospital staff wished to continue neurological observations of her. The appellant argued that the judge erroneously considered that the making of the request was irrelevant.
That the request was made does not advance the appellant's case in any material way. In the request, Dr Koefman stated that the appellant's mother suffered from dementia, an intracranial haematoma, cerebral contusions and a fracture of an orbit. He stated that she had exhibited delirious episodes and that she was considered not to have the capacity to make decisions, including a decision to leave the hospital, secondary to poor orientation and short-term memory, and probable dementia. He explained that neurosurgical opinion was that she required ongoing neurological observation for her head injuries that had been sustained three days earlier. He stated that "we" were not satisfied that she was safe to be discharged from hospital from a neurosurgical viewpoint and that she required monitoring for complications that included bleeding and seizures.
The appellant argued to this Court that the application for the guardianship order demonstrated that it was not considered that her mother had a mental illness at the time. That cannot be accepted. What was stated by Dr Koefman in the application demonstrated that it was his opinion that due to mental illness (as defined in the Mental Health Act, s4(1)) her mother was not capable of making decisions in her own interests, such as a decision to leave the Royal Hobart Hospital. The application to the Board for an emergency order was made so that there would be a responsible person who, under the Guardianship and Administration Act, would have the power to make sensible decisions for her in her own interests. Ground 2 fails.
Was the validity and time of making the initial order a material issue?
In pars40 and 41 of these reasons, I referred to the statements of the judge that the resolution of the defence case depended firstly on the validity of the initial order and whether the hospital personnel acted lawfully, and that if the initial order was invalid and the hospital staff had no lawful justification for interfering with the appellant's removal of her mother from the hospital, the prosecution case was fatally flawed and the appellant would have established that she was not guilty. Those statements reveal a misunderstanding of the legal nature of the defence case, for reasons I will explain.
Later in his judgment, the judge referred to the appellant's argument in her defence that she had not been informed of the existence of the initial order at the time of the alleged offences. His Honour found on the evidence before the magistrate that it was not open to the magistrate to finally conclude that the prosecution could not have established beyond reasonable doubt that the appellant was informed of the initial order. His Honour continued that "in any event ... it is not apparent how the applicant's lack of awareness of the order amounts to a defence". Earlier a similar comment was made, although the judge accepted that her lack of awareness would be mitigatory. His Honour added: "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." With respect, his Honour's statements reveal the same misunderstanding of the legal nature of the defence case.
The appellant admitted that she assaulted the two complainants. Her defence to the two assault charges was self-defence. No doubt she also relied on that defence on the disorderly conduct charge, so far as it concerned her violence directed to the complainants. The defence raised the Criminal Code, s46, the effect of which was that she would have been justified in using, in defence of herself and her mother, such force as, in the circumstances as she believed them to be, it was reasonable to use.
Her beliefs at the time of the incident were central to the defence, but whether as a matter of law the initial order was validly made was of no consequence to it. There is no suggestion she had a belief about that at the material time. However, whether she was unaware of the existence of the initial order was relevant to her defence. If she was unaware of the order, it supported her claim that she believed the hospital staff had no lawful right to restrain her from accompanying her mother from the hospital and no lawful right to prevent her mother from leaving the hospital. If she was aware of the order, it made it less likely she believed those matters and it tended to make her violence unreasonable.
Ground 3 of the appeal to this Court asserts error by the judge "in failing to consider that the appellant was entitled to costs because the initial order conferred no authority on hospital staff under s26(3) of the Mental Health Act 1996, to grab or manhandle the appellant or deprive her of her liberty, so rendering that act an assault to which she was entitled to respond in self-defence". The ground is based on the same misunderstanding of the nature of the defence upon which the appellant was seeking to rely. For that reason, the ground fails.
Ground 4 asserts error by the judge "in finding that the principle, 'ignorance of the law is no excuse' applied to the case against the appellant, in failing to consider the appellant's argument that she was unaware of the order and had, thus, acted in self-defence, and that given the grossly inconsistent state of the prosecution case – including that of Mr Taylor and Mr Weeding – the prosecution could not have rebutted self-defence beyond reasonable doubt". The ground squarely raises the question of self-defence and asserts that the judge erred by failing to consider her case that the prosecution evidence heard by the magistrate was not capable of proving beyond reasonable doubt that she was not lawfully justified by the principles of self-defence in acting in the way she did.
The judge acknowledged the appellant's case early in his judgment, when he observed that at the point of time when the complaint was withdrawn, "the gist of [the prosecution] 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".
The ground relies on one of the appellant's central arguments that if the initial order had been made when she acted as alleged in the charges, she was not aware of its existence and she believed, and had no reason to doubt, that she and her mother were entitled to leave the hospital and that hospital personnel had no right to use force to prevent them from doing so, and that she was entitled to defend herself and her mother against that force.
Although that argument was not directly made by a ground of the motion to review the magistrate's decision, it had a connection with two grounds. In ground 2.i the appellant asserted that the magistrate erred in finding that there was no fatal flaw in the prosecution case and instead, should have found that the prosecution evidence could not have established beyond reasonable doubt that the appellant was informed about the initial order, because of inconsistencies in the evidence of five prosecution witnesses, and because three prosecution witnesses verified that she was not so informed. In ground 2.ii of the motion to review the magistrate's decision the appellant asserted that the magistrate erred by not finding that the initial order had not been made when she walked from the hospital room with her mother.
The judge considered both of those grounds, notwithstanding the errors he made concerning the legal nature of the appellant's defence. Concerning ground 2.i, his Honour concluded from the evidence before the magistrate that the magistrate did not err in finding, as she did, that there had not been shown that there was a fundamental flaw in the prosecution evidence that should have been evident to the prosecution. The judge also concluded from the evidence before the magistrate that it was not open to the magistrate to finally conclude that the prosecution could not have established beyond reasonable doubt that the appellant was informed about the initial order. Concerning ground 2.ii, the judge held that Dr Koefman's clear evidence was that the initial order had been made when the appellant left the room with her mother and there was no evidence before the magistrate that provided a basis for rejecting his evidence.
Those findings and conclusions of the magistrate and the judge amounted to findings of fact and cannot be the subject of an appeal to this Court because of the Justices Act, s123(1). What the appellant wishes this Court to do is to conduct its own review of the evidence and come to its own findings. That is not a course the Court should follow.
Ground 5 of the appeal to this Court asserts that the judge "erred in finding that the defence of mistake of fact could not have applied to the case or been successfully utilised by the appellant in the matter".
The judge did not find that the defence of mistake of fact could not have applied to the case and for that reason, the first half of the ground need not be considered further. However, the second half of the ground needs to be considered because the judge said that it was not apparent how any lack of awareness of the initial order on the part of the appellant would have amounted to a defence. Behind the statement was a failure to appreciate that lack of awareness was material to the issue of self defence.
It does not follow that because the learned judge made an error the appeal must be allowed and the motion to review the magistrate's decision must be upheld. It must first be established that if the judge had not made the error, the motion would have been upheld.
It is apparent from the reasons of the magistrate that she was aware that self-defence was central to the appellant's case. The magistrate referred to the appellant's argument that even if the initial order was valid, the prosecution would not have been able to rebut self-defence beyond reasonable doubt. She referred to the appellant's claim that she was not told of the existence of the initial order or an intention to make it, or about any issue of protective custody. She also referred to the appellant's claim that she believed that her mother had a right to decide to leave the hospital if she wished, because she was a voluntary patient, and that, at the very least, the appellant believed that she had the right, as her mother's carer and daughter, to make decisions for her mother regarding her care and treatment.
The magistrate also had regard to the appellant's arguments that there were unsafe and unsatisfactory aspects to the prosecution case in respect of all of the elements of the offences, and that the prosecution case was so unsatisfactory with so many inconsistencies that it was weakened to an extent that the appellant ought to have been found not guilty if the matter had proceeded to a conclusion. The magistrate accepted there were inconsistencies, but noted the prosecutor's submission that such inconsistencies were not uncommon, especially in assault cases. In connection with that, the magistrate observed that the witnesses' statements covered a very chaotic situation and it would be expected that their accounts would vary and conflict to some extent. The magistrate also observed that in order to find a person guilty a court need not accept all the prosecution witnesses and indeed, the evidence of one witness in the face of other conflicting evidence may nevertheless be regarded as so compelling as to be capable of persuading the court of the prosecution case.
As I noted earlier, the magistrate accepted that the appellant's account of the incident in a statutory declaration appeared to be a credible one and concluded that she would be a credible witness if she gave evidence in the same manner as she had argued her case. However, although accepting there was a real prospect of the appellant being acquitted, the magistrate did not consider that reasonable doubt was the only reasonable conclusion open to the court.
By ground 3 of the motion to review the magistrate's decision, the appellant asserted that the magistrate erred in failing to find, on the evidence before her, that the only reasonable conclusion open to the court was the acquittal of the appellant on all charges. The judge concluded that the ground had not been established. Obviously upon the basis of the evidence, his Honour concluded that the magistrate could not properly have gone any further than decide 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. His Honour held that did not mean that the appellant was therefore entitled to an order for costs.
The problem for the appellant is that the hearing of the charges before the magistrate did not reach a conclusion. Prosecution witnesses were still to give evidence and it was likely that evidence would be called by the defence, including evidence of the appellant. The appellant faced a difficult task when she sought to persuade the magistrate to find positive satisfaction that the prosecution case would have failed, when so much evidence was yet to be given. The conclusions of the magistrate were correct ones and unassailable on the hearing of the motion to review and on the appeal to this Court.
I add that the function of the judge on the hearing of the motion to review was not to make his own findings of fact. The magistrate's findings could not be overturned merely because the judge's findings may have been different. Error on the part of the magistrate had to be shown. If the magistrate's findings were reasonably open on the evidence, they were unassailable. Taylor v Armour& Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117; Hrycyszyn v Groves unreported 27/1982.
The appeal cannot succeed because of ground 5.
Were the prosecutor's reasons for withdrawing the complaint relevant?
Ground 6 of the appeal to this Court asserts that the judge erred in holding that the prosecutor's reasons for withdrawing the complaint, and the adequacy and validity of those reasons, were not relevant circumstances, and further that the judge erred in failing to find that the reasons were invalid and inadequate and should not have been accepted as proper reasons for withdrawing the complaint.
Ground 1.ii of the motion to review the magistrate's decision raised such matters. It asserted error by the magistrate in failing to have any, or proper regard to all relevant circumstances in deciding whether to grant costs, including "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".
In par21 of these reasons, I pointed out that the magistrate accepted the prosecutor's reasons, having decided not to look behind them, and commented that the appellant's statutory declaration did not give cause for doing so. The magistrate expressly found that the prosecution discontinued the proceedings for the reasons claimed by the prosecutor. Not only did the magistrate consider the reasons for discontinuing the proceeding as a relevant circumstance to be taken into account, she considered them to be "the critical question".
The magistrate acknowledged that the appellant not only refuted the reasons advanced by the prosecutor for discontinuing but in addition maintained that the prosecution was not motivated by them at all. In the light of the appellant's position, the magistrate should not have accepted the prosecutor's given reasons without hearing evidence about the matter and without giving the appellant the opportunity to challenge the prosecution evidence about the issue, including by cross-examination of the prosecutor.
A fact that is in issue has to be proved if it is material to the determination of a case. The reasons of the prosecution for withdrawing the complaint amounted collectively to a fact in issue. The magistrate accepted that it was the critical question. The decision not to look behind the prosecutor's statement of his reasons in his statutory declaration, but to accept them without giving the appellant the opportunity to have the statement tested by cross-examination of the prosecutor at the very least, and perhaps by calling evidence, was a breach of the requirements of natural justice. It amounted to a reviewable error.
The judge considered the reasons of the prosecution for withdrawing the complaint as irrelevant in the following passage of his judgment:
"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 ... ."
While the reasons for seeking leave to withdraw the complaint were not matters requiring attention by pars(a) to (e) of the Costs in Criminal Cases Act, s4(2), the opening words of the subsection required the magistrate to have regard to all relevant circumstances.
The judge did not think the issue to be relevant, but did not explain his reasons for thinking that. By commenting that the magistrate rightly did not give the issue considerable attention his Honour appeared to be suggesting that the magistrate did not think the issue had much relevance. Of course, with respect, that was erroneous and did not accord with the magistrate's statement that the reasons were the critical question.
It was the appellant's case before the magistrate that the prosecutor's reasons for withdrawing were not critical and should not be accepted. She argued that the true reason was that the prosecution realised that the case was hopeless and destined to fail. Although rejecting the argument, the magistrate recognised the relevance of the reasons for withdrawing the complaint, when she distinguished the case from Soldatenko v R unreported 38/1984, in which an order for costs was made in favour of an accused person following the abandonment of the prosecution part way through a trial after the crucial prosecution witness had crumbled under cross-examination.
I conclude that ground 6 of the appeal succeeds in part. I also conclude that ground 1.ii of the motion to review should have been upheld by the judge upon the basis that the magistrate failed to have proper regard to the prosecutor's reasons for withdrawing the complaint and the validity and adequacy of those reasons. The judge should have concluded that there was a breach of natural justice for the reasons I have explained.
Did the judge err by finding that the magistrate paid sufficient regard to the delay in withdrawing the complaint?
Ground 7 of the appeal asserts that the judge erred in finding that the magistrate paid sufficient regard to the prosecutor's delay of 16 months from the filing of the complaint on 11 July 2007 to its withdrawal on 22 October 2008. The judge simply held that there was no basis for the appellant's contention that the magistrate failed to pay proper regard to the duration of the period.
There is no merit in the ground. The time taken was not a basis for exercising the discretion as to costs in the appellant's favour. Although the complaint was made on 11 July 2007, the first day of the hearing was not until 5 May 2008 and the second day was on 28 July 2008. The third day was scheduled for 3 October 2008, but the hearing was adjourned at the appellant's request. It was on the next scheduled day, 22 October 2008, that the complaint was withdrawn.
A substantial part of the prosecutor's stated reasons for withdrawing the complaint were that at the court on 3 October 2008 he became concerned about the appellant's mental health. The appellant argues that there had been ample opportunity before that day for the prosecutor to observe and assess her mental state. To give weight to the argument would require, at the very least, a finding that it ought to have been obvious prior to 3 October 2008 that the appellant was mentally unwell. That was not the case of either party. For that reason, there is no merit in the argument. Ground 7 fails.
Did the judge err in failing to find that the magistrate did not pay any, or sufficient regard to the relevant circumstances to which reference is made in the Costs in Criminal Cases Act, s4(2)(a) – (d)?
Ground 8 asserts that the judge erred in failing to find that the magistrate did not pay any, or sufficient, regard to the circumstances raised by pars(a), (b) and (c). The section required the magistrate to have regard to those matters.
Although the appellant made submissions to the judge about this aspect, no ground of the motion to review raised it. The judge noted that. Concerning the submissions, his Honour said that it was sufficient to say that insofar as any of the circumstances were sustainable and relevant, he was not satisfied that the magistrate erred referable to them.
That conclusion was open to his Honour and as the matters raised by ground 8 were not the subject of a ground of the motion to review, this Court should not consider them further.
Ground 8 also asserts that the judge failed to find that the magistrate did not pay any, or sufficient regard to the failure of the prosecutor to provide the magistrate with information relating to the existence or non-existence of the circumstances raised by pars(a), (b), (c) and (d) of s4(2). It was not a ground of the motion to review and for that reason the judge was not obliged to consider it. It follows that his Honour committed no relevant error and this Court should not consider the matter further. Ground 8 fails.
Connected with it is ground 9. It asserts that the judge erred in failing to find that the magistrate did not have proper regard to the "obvious" fact that excessive force was used by hospital staff when restraining the appellant. That was not made a ground of the motion to review either and once again, it follows that the judge made no error of the asserted kind. Ground 9 fails.
Ground 10 fails for the same reason. It asserts that the judge erred by failing to find that the magistrate did not have any, or proper regard to certain circumstances, but that was not made the subject of a ground of the motion to review.
Did the judge err in failing to fairly and fully review all the relevant evidence and in drawing erroneous conclusions from the evidence?
Ground 11 attacks 10 findings of fact made by the judge upon a consideration of evidence before the magistrate. The appellant asserts that different findings should have been made.
As the Justices Act, s123(1), constrains the right of appeal to this Court to a point of law or the admission or rejection of evidence, there is no right of appeal against those findings. The ground fails.
Did the judge err by agreeing with the magistrate that the application for costs centred on credibility issues?
Ground 12 raises the same matters that were raised by ground 4 of the motion to review the magistrate's decision. The ground is in two parts. The first part asserts that the judge erred when he agreed with the magistrate's conclusion that the application for costs centred on issues regarding the credibility of the prosecution witnesses.
The statement was not erroneous. The credibility of the prosecution witnesses was not the only issue raised on the hearing of the application for costs, but it was a substantial one. The credibility of many of the prosecution witnesses, police and the prosecutor himself, was attacked by the appellant in argument. I referred to some of her arguments that raised credibility issues in pars23 and 24 of these reasons. There were significant conflicts between her version of the events and the evidence of prosecution witnesses and statements of prosecution witnesses who were yet to give evidence. She asserted that prosecution witnesses had concocted their evidence.
The second part of ground 12 asserts that the judge erred when holding that the magistrate correctly applied legal authority to the case and that she did not err in applying a test to be found in Langmaid v Millhouse (2001) 10 Tas R 170.
What the judge in fact said was: "The balance of this ground as argued relates to the decisions in Soladenko[sic] 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." It is the correctness of that statement of the judge that requires consideration, which requires in turn a consideration of what was said by the magistrate.
The magistrate referred to Soldatenko as indicating that an applicant for costs could seek to demonstrate his or her innocence on the hearing of the application for costs. The appellant sought to rely on that case. However, I do not regard it as an authority for much at all, but rather an example of a case in which an order for costs was made after the prosecution had abandoned its case partway through the hearing. The reason for doing so was that its case depended largely on the evidence of the sole complainant in a rape case and her credit was destroyed in cross-examination, to the extent that the prosecutor abandoned the case before cross-examination had finished. A directed acquittal followed. In the course of deciding to make an order for costs in favour of the accused, Cox J accepted that an acquittal would have been inevitable if the case had been allowed to continue to a conclusion in the normal way. However, that was not the conclusion of the magistrate in this case and her Honour correctly made the point that Soldatenko's case was different.
The magistrate cited a passage from the judgment of Cox CJ in Langmaid v Millhouse at 181 concerning his conclusion as to the proper approach to s4(2)(e):
"Thus s4(2)(e) applies where the judge presiding at a jury trial or magistrate sitting as the tribunal of fact is affirmatively satisfied of innocence, or is satisfied that a tribunal of fact, even though there is a case to answer, ought to have a reasonable doubt. Before it can apply, the situation must be such that it goes beyond the stage where reasonable people might properly entertain different conclusions as to guilt and reach that where a conclusion of innocence or reasonable doubt as to guilt is the only reasonable outcome."
After citing that passage, the magistrate stated, correctly in my view, that it was clear from the terms of s4(2)(e) that the factor of the defendant having established that he or she was not guilty applied only to situations where the defendant was discharged from the proceedings because he or she established that she was not guilty. It was for that reason that the magistrate went on to make the point that in a case where the prosecution abandons the proceedings, the critical question under the subsection [the reference should have been to par(e)] was "why" the prosecution was discontinued.
However, the magistrate did consider whether there was a fundamental flaw that should have been evident to the prosecution; whether there had been revealed objective evidence that positively demonstrated that the prosecution could not succeed; and whether the only conclusion open was that of a reasonable doubt if the case had continued. She answered each of those questions in the negative.
The magistrate concluded: "I accept there was a real prospect of the defendant being acquitted. However, I do not consider that reasonable doubt is the only reasonable conclusion. My assessment of this case is that it falls short of the Langmaid test." Her reference to the test was to the passage she had cited earlier. No valid criticism of her conclusion can be made.
As I understand it, the appellant submits that the magistrate erred in applying what was said by Cox CJ because s4(2)(e) did not apply here, as it did in Langmaid. However, all the magistrate was doing was making the point that unlike what happened in Langmaid, the appellant had not established that she was not guilty, notwithstanding that she had argued strenuously for a finding that she had done so. Her application may well have been successful if she had succeeded with that argument.
Ground 12 fails.
Conclusion
Because of the partial success of ground 6, the only appropriate course is for the Court to allow the appeal, set aside the judge's order dismissing the motion to review, quash the magistrate's order dismissing the application for costs and remit the application for costs for re-hearing by a magistrate.
File No 218/2010
SIGRID NILSSON v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW J
22 December 2010
I agree with the reasons of the learned Chief Justice and the orders that he proposes.
File No 218/2010
SIGRID NILSSON v STATE OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
PORTER J
22 December 2010
I have had the benefit of reading the reasons for judgment of Crawford CJ. I agree with those reasons and with the orders which his Honour has proposed.
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