NSW Police v Smith

[2016] NSWLC 24

Local Court

New South Wales

Medium Neutral Citation:	NSW Police v Smith [2016] NSWLC 24
Hearing dates:	21 October 2016
Decision date:	07 December 2016
Jurisdiction:	Criminal
Before:	Mulroney ALCM
Decision:	Application for the charges to be diverted with under s 32, Mental Health (Forensic Provisions) Act refused. Application for the charges regarding an event in 2014 to be permanently stayed refused.
Catchwords:	CRIMINAL PROCEEDINGS – mental health – application for diversion – application for permanent stay of proceedings
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990, ss 32, 33
Cases Cited:	DPP v El Mawas [2006] NSWCA 154 Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 Mantell v Molyneux [2006] NSWSC 955 Police v AR 2010 CLN 1 R v Drummond (unreported, NSW Court of Criminal Appeal, 27/5/94) R v Presser [1958] VR 45
Category:	Procedural and other rulings
Parties:	NSW Police (prosecution) Mark Smith (defendant)
Representation:	Solicitors: Mr Nicholas (for the prosecution) Mr Heenan (for the defendant)
File Number(s):	2015/44766, 2016/262928

Judgment

Introduction

1. Mark Smith was born in 1976. In 2004 Mr Smith suffered a stroke whilst driving a car. During treatment for the stroke scans revealed an arterio-venous malformation (AVM) on his brain. Treatment of this required serious surgery on his brain. The result of the brain surgery was organic brain damage that has resulted in neurological and neurocognitive deficits. [1]

   1. Dr Margaret Pickles, report 7 August 2015

2. Mr Smith has required ongoing treatment for these conditions from a team of specialists including a neurosurgeon, a neurologist and a forensic psychiatrist.

3. During the period since 2004 Mr Smith has been charged with various offences. For a number of these matters he has been found not guilty. A number of the matters have been dealt with under the provisions of what is now the Mental Health (Forensic Provisions) Act 1990.

4. Mr Smith joined the New South Wales Police Force in 1997. He attained the rank of Senior Constable. A report from Dr Pickles states that he was dismissed in 2007 but that there are ongoing proceedings challenging this decision.

The Present Charges

5. Two sets of charges are for determination. The first set relate to events on 3 December 2014 and involve two charges of Common Assault and one of Damaging Property (the 2014 charges). The second set involves a charge of Common Assault arising from events on 27 December 2015 (the 2015 charge).

The 2014 charges – facts

6. Mr Smith caught a taxi at 6.30am from Surry Hills to a hotel in Phillip St, Sydney. He had a dispute with the driver over the fare. He then became aggressive toward the driver and said, amongst other things, “go back to where you came from”. Whilst still in the taxi he pushed the driver to the chest on three occasions. He rummaged in parts of the taxi and took a phone charger. He was requested to leave the taxi and refused. He threw a bottle of water at the driver. While exiting…