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 the taxi he pulled the taxi meter from its bracket and kicked it.

7. After both Mr Smith and the driver left the taxi Mr Smith approached the driver and punched him to the left side of his head. He tried to punch the driver again and missed. He was then punched on the nose by the driver. Mr Smith then purported to arrest the driver. He then left and went into a hotel. He was found by police shortly afterwards in a hallway on level 8 of the hotel. He was arrested there and subsequently charged.

The 2015 charge – facts

8. Mr Smith engaged in an argument with a patron in a bar at the Orient Hotel in The Rocks at around 1am on 27 December 2015. A security officer asked him to leave the bar and he refused. Another security guard asked Mr Smith to go to the main entrance of the hotel. They walked there together and once there Mr Smith was told that his aggressive behaviour was happening too often and that he was banned from the hotel. Mr Smith disputed the right to do this and was informed of the relevant power under the Liquor Act. He demanded a banning letter and was told he would be given one. Mr Smith then slapped the security guard and tried to run. The security guard attempted to detain him and Mr Smith dropped to the ground. Whilst there he was showing middle fingers to the guard and to a hotel manager.

9. Police arrived. Mr Smith told them he suffered from epilepsy and had had a fall. They asked if he needed an ambulance and told him he needed to move from the road to the footpath. His response was to tell the police to “fuck off and call an ambulance”. An ambulance was called and took Mr Smith to hospital. At a later time police sought to interview Mr Smith and he did not respond.

Criminal History

10. Mr Smith has been charged with a number of offences over time. Many of these charges have been withdrawn or dismissed after hearing. He has had a limiting term imposed pursuant to mental legislation and has also had a prosecution in the District Court permanently stayed due to his mental health. Ain the Local Court matters have been dealt with pursuant to s 33 Mental Health (Forensic Provisions) Act 1990 in 2012, and pursuant to s 32 in 2013. In 2014 on appeal the District Court imposed a s 10A conviction with a disqualification from driving for a mid-range PCA offence. He has also been placed on bonds for wearing a police uniform when not entitled (s 10) and Resisting Police (s 9) on 2 separate occasions.

The Applications

11. An application was made to deal with all of the charges pursuant to the provisions of section 32, Mental Health (Forensic Provisions) Act. A further application was made that, if I was not satisfied that the charges should be dealt with in this way, I should deal with the 2014 charges by ordering a permanent stay of proceedings on the basis that Mr Smith was not fit to plead to those charges and never would be.

12. An earlier application was made for these matters to be dealt with pursuant to s 32 before another Magistrate. That application was refused. This application was entertained on the basis that there was fresh information about Mr Smith’s mental condition.

Evidence regarding Mr Smith’s mental conditions

13. The following reports were tendered:

Dr Pickles, treating psychiatrist

• 7 August 2015. An emergency Department Discharge Summary from Sydney Hospital prepared by Dr Pallas regarding an admission on 3 December 2014 was an annexure to this report.

• 27 August 2015

• 16 October 2015

14. Dr Pickles commenced treating Mr Smith in February 2005 and had seen him, usually weekly, since that time until she ceased to practise. In her first report she says that Mr Smith suffers from:

• Diminished strength, movement and sensation in his right arm

• Some disturbance of language and of information processing

• Diagnosed epilepsy

• Episodic seizures

• Ongoing memory and concentration problems

• Poor cognitive functioning

15. She reports that Mr Smith had an operation on his brain in November 2004 to deal with the AVM discovered after his stroke. Further surgery was required due to a large haemorrhage. Further AVM material was found on his brain during this process. He has also had surgery at a later time for AVMs in his nose, bowel and stomach. In 2007 a further operation was required when the third AVM on his brain was located.

16. With regard to alcohol Dr Pickles reported that when she first saw him he was drinking a carton of beer each day. He was abusing alcohol at some stages to the point of dependency. He has also had periods of abstinence, the most recent being from April to December 2014.

17. He went to Albury in December 2014 as a volunteer at a sporting event. He forgot to take his medication and was unmedicated for 5 days. This was immediately prior to the 2014 offences and probably the predisposing event for those offences. He did not take any steps to obtain substitute medication by contacting Dr Pickles or a medical practitioner in Albury and asking for the necessary prescriptions. Dr Lennings reported that Mr Smith was drinking in Albury to enable him to sleep due to the level of agitation he experiences without medication. Mr Smith told Dr Pickles that he had discovered that he began drinking on the afternoon of 2 December and he believed that he continued until arrested.

18. It was her opinion is that:

Given his neurological vulnerabilities, heavy neuro-tranquilizing medication along with anti-depressant and anti-seizure medication regime, alcohol is quite toxic for Mark and it has a severe destabilizing effect on his behaviour.

19. Dr Pickles also reports that

... due to the period of time Mark was drinking on or around 3rd December 2014, he was in the extremely hazardous level of intoxication.

20. She states that it is possible that Mr Smith has suffered episodes of alcoholic amnesia or dissociative amnesia.

Dr Lennings, consultant non-treating psychologist

• 27 March 2016

• 8 September 2016

21. Dr Lennings reports (in addition to Dr Pickles) that Mr Smith continues to have epileptic seizures, most recently in August 2016. He continues to suffer from depression and anxiety.

22. In addition Dr Lennings gave evidence before me.

23. Dr Pickles saw Mr Smith at 3pm on 3 December 2014, the day of the 2014 offences, after he was released from police custody.

Legislative Framework

24. Section 32 of the Mental Health (Forensic Provisions) Act 1990 provides

32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following:

(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013 ,

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(c) unconditionally.

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B) If the defendant fails to appear, the Magistrate may:

(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:

(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).

(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.

(5) The regulations may prescribe the form of an order under this section.

25. DPP v El Mawas [2006] NSWCA 154 provides guidance for consideration of an application under these provisions:

71 Part 3 of the Act requires a Magistrate to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s 32(1) or mental illness (s 33) with the object of ensuring that the community is protected from the conduct of such persons.

…

76 The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), “it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law. That decision clearly calls for the exercise of subjectivity or value judgments in which “…‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’ ”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission at [19]. In my view, as Howie J concluded in Confos, it involves a discretionary decision in which the Magistrate is permitted latitude as to the decision which might be made, a latitude confined only by the subject matter and object of the Act: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (at [19]).

Consideration – s32

26. I am satisfied that Mr Smith is “suffering from a mental condition for which treatment is available in a mental health facility”. The combination of his neurological condition together with the fact that he suffers from anxiety and depression makes it clear that he falls into that category. It is also clear that these conditions require constant treatment and management. His condition is unlikely to improve to any great extent. It is more likely that it will decline.

27. The next question – the “value judgement” question – is whether it is more appropriate to deal with either or both of these matters pursuant to s 32. There are three key criteria:

• The seriousness of the offence or offences

• The degree of planning involved

• The limited application of s 32, i.e. the initial period of the order is for 6 months, after which a further order can be made if during the term of the order a magistrate is made aware of information leading to a suspicion that the person has been non-compliant with the order.

28. Neither of the sets of offences can be regarded as particularly serious. Of course any assault is upsetting to the victim. A taxi driver (2014 offences) is in a vulnerable position and the public interest requires that taxi drivers can conduct their occupation without fear of assault. A security guard may expect to be involved with violent behaviour by a patron from time to time but should not be treated as if this is something that they should just take on the chin, so to speak.

29. Neither of the sets of offences can be regarded as planned. They each have the hallmarks of impulsive behaviour. Each involved a somewhat irrational response to someone going about their occupation in a regular fashion making a reasonable request of Mr Smith.

30. The critical question regarding each of the sets of offences is whether the public interest and Mr Smith’s interests will be best served by diversion under s 32 or by him being dealt with according to law. Section 32 requires a balancing of the purpose of punishment and the need for diversion: Confos v DPP [2004] NSWSC 1159.

31. I am satisfied that primary public interest here is to enable Mr Smith to avoid further similar behaviour and thus to protect people in the future from being the victims of violence from him. Ordinarily this would involve diversion to a regime focused on treating his mental health such as is provided for by s 32.

32. In Mr Smith’s case there are two important considerations regarding the efficacy of a therapeutic approach. One is that he has previously been dealt with in what is primarily a therapeutic manner on a number of occasions and that, despite this, there have been further incidents.

33. I am satisfied that he has generally been compliant and co-operative with his team of advisors. This is a strong predictor that he will continue to be compliant with a treatment plan. I am also satisfied that the treatment regime is appropriate for his conditions and that he is receiving good care from his professional advisors. Unfortunately there was a major failure of compliance in December 2014. Mr Smith forgot his medication and did nothing constructive about this. Dr Lennings explained in answer to a question from me that Mr Smith’s executive functioning was poor because of his condition, so it would not be reasonable to expect that he should have considered this course.

34. The other consideration is the role of alcohol in Mr Smith’s offending. Dr Pickles’ opinion suggests that alcohol was a significant feature in the 2014 offences. In his ERISP Mr Smith reported consuming a considerable quantity of alcohol. This is not borne out by the Discharge Summary or the Police Facts. Neither refer to signs of intoxication. If Mr Smith was drinking up to the time of his arrest signs of intoxication such as unsteady gait, alcohol smell, bloodshot eyes, etc. None of these were reported. It may be that the degree of his agitation and extreme behaviour overrode consideration of intoxication. It is also curious that he reports very heavy drinking in an ERISP and that there is not mention of this or an opinion ventured regarding his intoxication in the Facts Sheet.

35. Clearly Mr Smith was quite intoxicated at the time of the 2015 offence. Mr Heenan quite properly conceded on Mr Smith’s behalf that his medical advisors had informed him of the adverse impact of alcohol consumption given his neurological condition and the medication he was receiving. I was told that Mr Smith has abstained from alcohol since the 2015 offence. There is no clinical confirmation of this, but his self-report, the frequency of his contact with medical advisors and the absence of further charges provides support for the contention. Dr Pickles’ report of 27 August 2015 reports that he attends Alcoholics Anonymous. Dr Lennings most recent report also confirms this. Dr Lennings also reports that Mr Smith has in the past attended two reputable residential rehabilitation programs.

36. Included in Mr Smith’s criminal record is an offence from mid-2013 of mid-range PCA for which on appeal he received a s 10(a) bond (i.e. a bond without conviction). This is a further indication of the problem Mr Smith has had with alcohol.

37. If a person is dealt with pursuant to s 32 a frequent practice is to notify treatment providers of the terms of any order, including any treatment plan, and with information that they can notify the court of a breach of the treatment plan. My experience is that treatment providers are usually reluctant to notify the court of non-compliance with a treatment plan, at least in part because of the conflict with maintaining a therapeutic relationship and not seeing their role as one involving enforcement of a court order. There was no evidence that any person regularly treating Mr Smith would take on this role.

38. Section 32 also provides an option for the person to be discharged into the care of a responsible person. This enables someone to be aware of the terms of the treatment plan and to encourage the person who is subject to the order to comply with the treatment plan. No responsible person was nominated in Mr Smith’s case.

28. I am not satisfied that it is more appropriate to deal with these matters pursuant to s 32 Mental Health (Forensic Provisions) Act. Mr Smith needs greater (more intense and over longer time) monitoring of his compliance with treatment, especially abstinence from alcohol, than s 32 provides. He also needs positive reinforcement of strategies to avoid relapse into alcohol use for a longer period than the possible further period that s 32 provides.

29. It is in the public interest that Mr Smith is encouraged to maintain sobriety and treatment and to avoid situations which may increase the risk of violent offending by the possible sanction for non-compliance with a community based order.

30. It is more appropriate that Mr Smith is dealt with pursuant to law which permits greater oversight and has the threat of more serious sanctions. The application to deal with these matters pursuant to s 32 is refused.

Fitness to be tried

42. There is no legislative provision dealing with fitness to plead or be tried for proceedings in the Local Court. Fitness to be tried is perhaps the more appropriate description.

43. For over 200 years courts have recognised that a person cannot be tried if they are not in a mental condition to defend themselves. [2] This consideration is usually referred to as whether a person is fit to be tried.

    2. R v Dashwood [1943] KB 1, 4

44. In R v Presser [1958] VR 45 Smith J set out the test to be applied to the question of fitness to be tried [3] .

And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

3. In Police v AR 2010 CLN 1 Judge Marien, President of the Children’s Court noted at [16] that:

45. These criteria have been summarised as follows:

2.6 The Presser standards require that the accused be able to:

(1) understand the offence with which he or she is charged

(2) plead to the charge

(3) exercise the right to challenge jurors

(4) understand generally the nature of the proceeding as an inquiry into whether he or she committed the offences charged

(5) follow the course of proceedings so as to understand what is going on in a general sense

(6) understand the substantial effect of any evidence that may be given against him or her

(7) make a defence or answer to the charge

(8) where the accused is represented, give necessary instructions to counsel regarding the defence, and provide his or her version of the facts to counsel and, if necessary, the court, and

(9) have sufficient mental capacity to decide what defence he or she will rely on and to make that known to counsel and the court. [4]

4. New South Wales Law Reform Commission, Report 138 (June 2013), People with cognitive and mental health impairments in the criminal justice system: criminal responsibility and consequences

46. A Local Court has the power, despite the absence of any statutory scheme such as applies to accused persons in the Supreme and District Courts, to grant a permanent stay of proceedings if an accused person is unfit to be tried. Mantell v Molyneux [2006] NSWSC 955. The Presser criteria are those which are to be applied.

47. In Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, Mason CJ said (at [21]):

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton, at p 111, per Wilson J

48. Inability to remember is the only basis on which the application for a permanent stay of proceedings is based. Dr Lennings’ evidence was that Mr Smith was now not able, and would never be able, to access his memory of the events of the 2014 offences. It is noteworthy that Mr Smith participated in an Electronically Recorded Interview of a Suspected Person (ERISP) on 3 December 2014 during which for most of the interview he was able to give a cogent response to questions. Thus at one point in time he had a memory that is no longer available. There may be concerns about the ERISP given the combination of Mr Smith’s mental condition and the possibility of his intoxication at the time of the ERISP. It was, however, common ground in these proceedings that for the greater part of the ERISP Mr Smith provides a cogent and consistent account of what he says happened for most of the interview and that it was only in the latter part that his answers showed signs of confusion. It is also noteworthy that the Sydney Hospital Discharge Summary does not refer to intoxication although it does refer to Mr Smith being:

…in an emotional and distressed state. He presented with a diminished level of memory and concentration regarding his medication …. It was evident that his behaviour was as a result of his non-compliance with his medication.

49. Mr Smith attended the hospital after his ERISP.

50. Dr Pickles reports that Mr Smith was found not fit to plead by Judge Charteris in the District Court in 2010. I was not provided with a copy or transcript of his decision, so I am unaware of the basis of that decision. She further reports that (as at 7 August 2015) he had not been found fit to plead by the Mental Health Review Tribunal. Again, no decision of that body has been supplied to me, so I am unable to take its rationale into account.

51. The issue of inability to remember has been dealt with in R v Drummond (unreported, NSW Court of Criminal Appeal, 27/5/94). Grove J said that:

If at trial the Crown adduces evidence which might - even in the light of the onus of proof - give rise to an expectation that an explanation be forthcoming from the accused, there is no reason why an explanation for the absence cannot be given. Nor is the applicant prevented from using information derived from secondary sources as he or his advisers think fit in the course of the litigious contest.

52. In this case Mr Smith has available the ERISP to provide a contemporaneous account.

53. In the same case Gleeson CJ stated:

As had been pointed out by Grove J, the decision in R v Dennison is supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge.

The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser, incapable of letting Counsel know what his version of the facts is. The accused person who says to his counsel “I can't remember what happened on that day” is not thereby unfit to plead.

54. In effect, even if Mr Smith is unable to remember what occurred this cannot provide a basis for a claim that he is unfit to be tried.

55. Even if R v Drummond did not exist the question would still be does Mr Smith “because of mental defect, fail to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.” In my view the existence of the ERISP and the nature of his responses and statements in that document mean that a minimum standard has been met and it would not be justified to take the very significant step of permanently stopping the prosecution of Mr Smith. The application for a permanent stay is refused.

Acting Magistrate P Mulroney

Downing Centre Local Court

7 December 2016

**********

Endnotes

Those criteria have been adopted in the High Court of Australia and the New South Wales Court of Criminal Appeal, see R v Ngatayi (1980) 147 CLR 1, Kesavarajah v The Queen (1994) 181 CLR 230, R v Mailes (2001) 53 NSWLR 251 and R v Rivkin [2004] NSWCCA 7. In Ngatayi the High Court in the majority judgment said that the test of capacity or fitness needs to be applied in a “common sense fashion” and that the accused “need not have the mental capacity to make an able defence or to act wisely in his own best interests”.

Decision last updated: 02 February 2017