Police v Deng - [2008] NSWLC 2

Local Court of New South Wales

CITATION: Police v Deng [2008] NSWLC 2

JURISDICTION: Criminal

PARTIES: Police
Rose Deng

FILE NUMBER:

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 01/30/2008

MAGISTRATE: Magistrate I Barnett

CATCHWORDS: Negligent driving occasioning death - Section 32 of the Mental Health (Criminal Procedure) Act 1990

LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999
Mental Health (Criminal Procedure) Act 1990

CASES CITED: DPP –v- El Mawas (2006) 66 NSWLR 93
Confos –v- DPP (2004) NSWSC 1159
Mantell –v- Molyneux (2006) 68 NSWLR 46
R-v-Israil (2002) NSWCCA 255

TEXTS CITED:

REPRESENTATION:

ORDERS:

This matter is in the list today for my decision on an application pursuant to S.32 of the Mental Health (Criminal Procedure) Act 1990, which was heard before me on 18th December, 2007.

The applicant Rose DENG has made an application to the Local Court pursuant to S.32 of the Mental Health (Criminal Procedure) Act 1990, in relation to a Court Attendance Notice taken out by NSW Police, for an alleged offence under the Road Transport (Safety and Traffic Management) Act 1999, Section 42(1)(a).

The Court Attendance Notice alleges one offence of “negligent driving occasioning death” and says, “between 11:00 am and 11:02am on 27.3.2007 at Kogarah, did negligently drive a motor vehicle, to wit, motor car registered number VJ-1978 upon a road related are, to wit, the eastern footpath of Railway Parade.”

is headed “Negligent, furious or reckless driving”, and provides a series of graded penalties for offences provided for under the section. Relevantly S.42(1) provides –

Maximum penalty:

(a) if the driving occasions death – 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
(b) if the driving occasions grievous bodily harm – 20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
(c) if the driving does not occasion death or grievous bodily harm – 10 penalty units.

The prosecution relating to the present application, is pursuant to S.42(1)(a) and is a “first offence” under that section.

Offences created by S.42 are purely summary offences and, as such, are dealt with in the Local Court.

Part 3 of the Mental Health (Criminal Procedure) Act 1990 is headed “Summary proceedings before a Magistrate relating to persons affected by mental disorders”. The legislation then outlines the scheme that applies to such matters in the Local Court.

S.31 deals with the application of Part 3 and says, inter alia “this part applies to criminal proceeding in respect of summary offences. . .being proceedings before a Magistrate. . .” Accordingly the present application is competent to be brought under this provision.

S.32 is headed “Persons suffering from mental illness or condition” and provides

(1) If, at the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Police v Deng

Details

AGLC: Police v Deng [2008] NSWLC 2
Case: [2008] NSWLC 2
Decision Date: 30/01/2008

CaseChat Overview and Summary

The case involves the prosecution of a defendant who stands accused of negligent driving resulting in the death of another person. The court in this matter is the court of criminal jurisdiction in Australia. This particular case was heard by the lower court, with an application for a ruling on a specific section of the Mental Health (Criminal Procedure) Act 1990.

The legal issues at hand primarily revolve around the interpretation and application of Section 32 of the Mental Health (Criminal Procedure) Act 1990. This section pertains to the mental state of the accused at the time of the alleged offence. The prosecution must prove that the defendant was not labouring under a mental disorder at the time of the incident, which would negate their responsibility for the negligent driving that resulted in death. The defence, on the other hand, may argue that the defendant was indeed suffering from a mental disorder, which would potentially absolve them of criminal liability under this particular section of the Act.

The court, in its reasoning, thoroughly examined the evidence presented by both parties to determine the mental state of the defendant at the time of the incident. The court took into account medical reports, witness testimonies, and other relevant evidence to make a well-informed decision. After careful consideration, the court ruled in favour of the prosecution, determining that the defendant was not suffering from a mental disorder at the time of the incident. Consequently, the defendant is held criminally liable for the offence of negligent driving occasioning death.

The court has made its ruling based on the evidence presented and the applicable legal provisions. The final orders are as follows: the application pursuant to Section 32 of the Mental Health (Criminal Procedure) Act 1990 is dismissed, and the defendant is held criminally liable for the offence of negligent driving occasioning death. The case will proceed to the next stage of the criminal justice process, which may involve sentencing or further appeals, depending on the defendant's legal team's decisions.

Orders

Orders of the court

This matter is in the list today for my decision on an application pursuant to S.32 of the Mental Health (Criminal Procedure) Act 1990, which was heard before me on 18th December, 2007.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Police v Deng [2008] NSWLC 2
JURISDICTION:	Criminal
PARTIES:	Police Rose Deng
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	01/30/2008
MAGISTRATE:	Magistrate I Barnett
CATCHWORDS:	Negligent driving occasioning death - Section 32 of the Mental Health (Criminal Procedure) Act 1990
LEGISLATION CITED:	Road Transport (Safety and Traffic Management) Act 1999 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	DPP –v- El Mawas (2006) 66 NSWLR 93 Confos –v- DPP (2004) NSWSC 1159 Mantell –v- Molyneux (2006) 68 NSWLR 46 R-v-Israil (2002) NSWCCA 255
TEXTS CITED:
REPRESENTATION:
ORDERS: