Police v Pines
[2013] NSWLC 3
•08 March 2013
Local Court
New South Wales
Medium Neutral Citation: Police v Pines [2013] NSWLC 3 Hearing dates: 31/01/2013 Decision date: 08 March 2013 Jurisdiction: Criminal Before: Buscombe LCM Decision: No jurisdiction - charges taken to be dismissed by operation of statute
Catchwords: CRIMINAL LAW - mental health - s 33 Mental Health (Forensic Provisions) Act 1990 - order made under s 33(1)(a) - accused taken to hospital for assessment and discharged - proceedings adjourned - no appearance by accused on adjourned date and warrant for arrest issued - warrant not executed and accused not brought before court for further 9 months - charges taken to be dismissed by operation of s 33(2) Legislation Cited: Criminal Procedure Act 1986
Interpretation Act 1987
Mental Health Act 2007
Mental Health (Forensic Provisions) Act 1990Texts Cited: D Howard and B Westmore, Crime and Mental Health Law in New South Wales, 2nd edition (2010)
NSW Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: Diversion, Report 135 (2012)Category: Principal judgment Parties: Police
Javan Robert Pines (the accused)Representation: Sgt Gorman (for the Police)
Ms A Curnick, Legal Aid Commission (for the accused)
File Number(s): 2011/336979
Judgment
Introduction and history of the proceedings
This matter came before me on 31 January 2013 when the solicitor for the accused made application that I mark the papers "no jurisdiction". As I understand the submission that was advanced to me it was based upon s 33(2) of the Mental Health (Forensic Provisions) Act1990 (MHFP Act). The accused sought to put detailed submissions before me, and the delay in the delivery of this decision is partly a result in the delay in the receipt of those submissions.
In order to consider the submission made on behalf of the accused it is necessary to outline the history of the proceedings in so far as the court record is concerned. I do not have available to me the transcript of any aspect of the proceedings.
The evidence tendered to me and the notations on the court file indicate the following. Police allege that on 22 October 2011 the accused committed some 10 offences. They are: malicious damage (3 counts), Assault police officer in execution of duty occasioning actual bodily harm (1 count), behave in an offensive manner in a public place (1 count), Use offensive language in a public place (1 count), Assault police officer in the execution of duty (3 counts), Resist or hinder police in execution of duty (1 count).
It appears from the material before me that the police who arrested the accused on 22 October 2011 took the accused to the Prince of Wales Hospital under s 22 of the Mental Health Act 2007. The court attendance notices that were issued in relation to the alleged offences were returnable on 23 November 2011 at Central.
The papers indicate that the accused appeared on 23 November 2011 from custody. The file indicates that on that day a letter was presented to the Court dated 23 November 2011 under the hand of Dr Laurie Power, a Senior Consultant Psychiatrist at the Prince of Wales Hospital. The letter contains the following:
"Mr Pine is a young man who has Bipolar Affective Disorder with manic lapses. He was admitted to the Prince of Wales Hospital on the 6th September 2011 with a manic episode. Prior to his admission I understand he committed a serious crime for which he is charged. I believe that at the time of his crime he was mentally ill. He has improved greatly during his admission and is fit for discharge soon. On discharge the plan is to see him on a regular basis, initially once to twice a week, with regular acute care team follow up and a possible case manager and community treatment order......I would recommend to the court that he be returned to the Prince of Wales Hospital, so that he can continue his treatment."
It appears given the date mentioned in the letter, that the "serious crime" referred to was not one of the alleged offences that were before the Court on 23 November 2011.
The Court papers for 23 November 2011 contain the following handwritten note: "Sect 33 taken by police officer and detained in mental facility for treatment." This is an apparent reference to s 33 of the MHFP Act. On the file is a copy of the order made under s 33(1)(a) of the MHFP Act signed by the Registrar. The terms of the order are as follows: "The defendant is to be taken by police, or a prescribed person as ordered by the Court and detained in the mental health facility for assessment in accordance with the Mental Health Act 2007." Both the order and the court papers indicated that the proceedings were adjourned to 13 December 2011.
The discharge summary from the hospital is before me and it records the fact that the accused was discharged from the Prince of Wales Hospital on 25 November 2011. It noted that he had a court date on 13 December 2011 and that the accused had been advised to seek legal advice.
The court papers indicate that on 13 December 2011 when the proceedings were mentioned at Central, the accused did not appear. He was legally represented, the papers noted that he had been, "discharged from (indecipherable)" on 25 November 2011. The papers indicated that the accused had his bail continued and the matter was adjourned to 17 January 2012 for plea or mention. There was a direction for the Registrar to notify the accused to attend or a warrant for his arrest would issue.
The court papers indicate that on 17 January 2012 the proceedings were mentioned at Central. There was no appearance of the accused and the legal representative sought, and was granted, leave to withdraw. The papers were marked "warrants to issue" although it does not appear that there was any action taken under s 196 of the Criminal Procedure Act 1986.
On 22 October 2012 the accused appeared at Waverley Court having been arrested under the warrant that had been issued at Central on 17 January 2012. Bail was refused, pleas of not guilty were entered, and the matter was listed for reply to the brief on 28 November 2012. It appears that later that day bail was in fact granted to the accused.
The proceedings were next before the Court on 28 November 2012. I am unable to determine precisely what happened on that occasion apart from the fact that bail was varied and the proceedings were adjourned to 18 December 2012.
On 18 December 2012 the accused appeared on bail, his pleas of not guilty were maintained and the proceedings were adjourned to 8 January 2013.
On 8 January 2013 the proceedings were adjourned to the Downing Centre to fix a date for hearing, as the estimate of the hearing date was more than a day.
On 10 January 2013 the proceedings were adjourned to 17 January 2013 with the papers noting "Q of jurisdiction as s.33(1)(a) order made 6 months (indecipherable)".
On 17 January 2013 the proceedings were adjourned to 31 January 2013 for hearing with the notation "on Q of jurisdiction s.32".
As I indicated at the outset, the proceedings were argued before me on 31 January.
The material before me is silent as to what the hospital did once it determined the accused was no longer to be detained as a mentally ill person, apart from discharging him on 25 November 2011 and advising him of his court date and to seek legal advice. All I know is the accused was discharged from the hospital and did not appear in court on the adjourned date. He was discharged from the mental health facility only two days after the making of the order. A warrant was issued for his arrest on 17 January 2012 but he was not brought before the court upon execution of that warrant until 22 October 2012. That was more than 6 months after the making of the order. The question arises as to whether in those circumstances the charges were dismissed by operation of the statute.
The statutory provisions
The starting point is section 33 of the MHFP Act. It is contained in Part 3 of that legislation and applies to summary offences and indictable offences triable summarily before a magistrate.
That section relevantly provides as follows:
Mentally ill persons
If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is a mentally ill person, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise):
(a) may order that the defendant be taken to, and detained in, a mental health facility for assessment, or
(b) may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the person be brought back before a Magistrate or an authorised officer, or
(c) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.
…
If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate or authorised officer in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.
If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a mental health facility as a consequence of an order made under this section.
The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.
…
In this section, a reference to an “authorised officer” is a reference to an authorised officer within the meaning of the Criminal Procedure Act 1986.
The argument advanced on behalf of the accused is that an order was made under s 33(1)(a) of the MHFP Act on 23 November 2011, and he was not brought before a magistrate within the 6 month period referred to in s 33(2) of the MHFP Act. The submission on behalf of the accused is that it is immaterial that the proceedings involving the accused were listed before a magistrate in the 6 month period, if the accused is not physically brought before a magistrate in that period, the charge or charges to which the order related are taken to have been dismissed.
In my opinion it is appropriate in considering the submission made on behalf of the accused, to have regard to s 32 of the Mental Health Act 2007 as it interacts with s 33 of the MH FP Act.
Section 32 of the Mental Health Act provides a mechanism whereby if an order is made under s 33(1)(a) of the MHFP Act, and an accused is assessed as not being mentally ill, the accused may be brought back before the Court. Section 32 of the Mental Health Act provides as follows:
Detention on order of Magistrate or bail officer
(1) This section applies to a person detained in a mental health facility under this Part who is required not to be detained or further detained in the facility and who was taken to the facility:
(a) by a police officer under this Division after being apprehended by a police officer because the officer believed the person to be committing or to have recently committed an offence, or
(b) on the order of a Magistrate or an authorised officer under section 33 of the Mental Health (Forensic Provisions) Act 1990.
(2) An authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person.
(3) If a relevant person is not so present when the authorised medical officer becomes aware that the person must not be detained or further detained, the authorised medical officer must, as soon as practicable, notify a police officer at the appropriate police station that the person will not be further detained.
(4) The authorised medical officer may take any of the following actions in relation to a person (other than a person referred to in subsection (5)), after considering any matter communicated by a police officer as to the intended apprehension of the person by a police officer:
(a) detain the person for a period not exceeding one hour pending the person's apprehension by a police officer,
(b) admit the person in accordance with this Act as a voluntary patient,
(c) discharge the person, in so far as it may be possible to do so, into the care of the person's primary carer,
(d) discharge the person.
(5) If the person is a person ordered to be brought back before a court under section 33 (1) (b) of the Mental Health (Forensic Provisions) Act 1990: (a) it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after notification, and (b) the authorised medical officer must detain the person pending the person's apprehension by a police officer.
(6) A police officer may apprehend a person under this section without a warrant.
(7) In subsections (2) and (3): "relevant person" means: (a) if the detained person was taken to the mental health facility on an order under section 33 of the Mental Health (Forensic Provisions) Act 1990, any person (including a police officer) charged by the order with taking the person from the facility, or (b) in any other case, a police officer.
Section 32 of the Mental Health Act draws a distinction between persons in relation to whom an order is made under s 33(1)(b) of the MHFP Act and persons to whom an order under another subsection is made. Where an order, as here, is made under s 33(1)(a) of the MHFP Act, the authorised medical officer upon determining the person may no longer be detained as a mentally ill person, is to release the person into the custody of what the section refers to as a "relevant person" if that person is at the mental health facility. Where an order is made under s 33(1)(a) of the MHFP Act, such a person is any person including a police officer charged by the order with taking the person from the facility, or a police officer. There is some ambiguity in the provision because where an order is made under s 33(1)(a) there is no person named in the order, "charged with taking the person from the facility".
If a "relevant person" is not present at the mental health facility when the authorised medical officer becomes aware that the person must not be further detained, the authorised medical officer must as soon as practicable, notify a police officer at the appropriate police station that the person will not be further detained (see s 32(3)).
Where a person is the subject of an order under section 33 of the MHFP Act, other than an order under s 33(1)(b) of the Act, the authorised medical officer may detain a person for up to an hour pending the person's apprehension by a police officer. That power exists no doubt to ensure that an accused person can be brought before a magistrate where an order under s 33(1)(a) MHFP has been made. However, where the order is not made under s 33(1)(b) of the MHFP Act, there is no duty under the Act on a police officer who has been contacted by the authorised medical officer to attend and apprehend the person. Contrast this with the situation under s 32(5) of the Mental Health Act. Where the order is made under s 33(1)(a) of the MHFP Act there are other options available to the authorised medical officer (see s 32(4)).
Section 32 of the Mental Health Act provides a mechanism whereby a person dealt with under s 33(1)(a) or (b) of the MHFP Act may physically be taken back before a magistrate. That provision is clearly concerned with the physical return of the person so that the person is before a magistrate.
Section 33(2) of the MHFP Act provides that the charges are taken to be dismissed unless the defendant is brought before a magistrate in the 6 month period.
Academic Consideration of s 33 of the MHFP Act
I am not aware of any higher court consideration of the s 33(2) of the MHFP Act. I have considered the second reading speech and the explanatory notes in relation to the legislation none of which shed any light on the issue. (I note in passing the legislation was at the time it was initially passed called the Mental Health (Criminal Procedure) Act1990).
There has been some discussion in academic writing on s 33 of the MHFP Act which suggests that an order under s 33(1)(a) is a final order in relation to a charge as the order itself does not provide for the accused to return to a magistrate if found not to be mentally ill.
Section 33 of the MHFP Act has been considered in Crime and Mental Health Law in New South Wales by Dan Howard and Dr Bruce Westmore (2nd edition) published by Lexis Nexis Butterworths. In that publication the learned authors quote from New South Wales Law Reform Commission Consultation Paper 7, which was published in 2010. That discussion paper describes s 33 of the MHFP Act as allowing the involuntary admission of an offender diverted from criminal proceedings. The learned authors point out that the following comment appears in the discussion paper;
"the power [under section 33 (1) (a)] to refer the defendant for assessment without requiring that he or she be returned to court is generally used for low-level offending where the magistrate would, in the event that the charges were proven, probably discharge the defendant without conviction."
The discussion contained in Crime and Mental Health Law in New South Wales, supports the view that an order under s 33(1)(a) of the MHFP Act is a final order disposing to finality of a charge as it does not of itself provide for the return of an accused to Court if found not to be mentally ill.
The NSW Law Reform Commission also discussed s 33 of the MHFP Act and its interaction with the Mental Health Act in greater detail in its report no. 135 titled "People with Cognitive and Mental Health in the Criminal Justice System: Diversion". The Commission discussed the uncertainty surrounding orders made under the section, in particular in relation to orders under s 33(1)(a), and whether or not an order made under that section is a "final order" in terms of the charge brought against an accused. The Report notes that an order under s 33(1)(a) of the MHFP Act is viewed by some judicial officers as a final order in relation to the charge brought against an accused. This is in keeping with the comment from the Commission's discussion paper, which I have set out above.
Conclusion
In my opinion an order made under s.33(1)(a) is not a final order in relation to a charge brought against an accused. The analysis I set out earlier of s 32 of the Mental Health Act demonstrates that the section does provide a mechanism for the return to Court of a person who is subject to such an order but is not found to be mentally ill. The mechanism is such that it may be that such a person is not returned to a magistrate, but a mechanism is provided. This is particularly so because where the order is under s 33(1)(a) the medical officer can only detain the person for an hour and there is no duty on a police officer who may be contacted to attend the hospital.
In my opinion the fact that when a magistrate decides to send a person for assessment under s 33 of the MHFP Act, a person need only appear to be mentally ill, is another reason suggesting that an order under s 33(1)(a) is not a final order. At the time the order is made a magistrate is unlikely to have available a medical diagnosis of the accused, and the provision is engaged if it simply appears to a magistrate that an accused is mentally ill. It would be surprising if a final order could be made on the basis of simply how an accused appeared.
I turn to consider the ordinary meaning of the words used in s 33(2) of the MHFP Act. In my opinion there can be no doubt that the phrase "If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate in accordance with this section", is simply a reference to the taking of the accused to a mental health facility in accordance with an order made under s 33(1)(a) (or (b)). There is simply no other action needed for the accused to be dealt with under the section. Where the order is made under s 33(1)(a) the manner in which an accused is then to be dealt with, once taken to the mental health facility, is not governed by the terms of the order or the MHFP Act, but in accordance with the provisions of the Mental Health Act. See my earlier analysis.
Here the evidence is that the accused was taken to and detained in a mental health facility for assessment in accordance with the order made. In my opinion the accused was dealt with in accordance with the section.
The phrase "brought before a magistrate" contained in s 33(2) contains ordinary common English words. The word "brought" is the past participle of the word "bring". The Concise Oxford Dictionary relevantly defines "bring" to mean "carry or accompany to a place". The word "bring" involves the physical movement of something. Relevantly the word "before" is defined in the Concise Oxford Dictionary to mean, "in front of". When regard is had to the definitions of those words, the ordinary English meaning of the phrase "brought before a magistrate", in my opinion, is that the person concerned is to be physically brought in front of a magistrate. The mere listing of proceedings before a magistrate does not equate, in my opinion, with bringing a person before a magistrate.
I am conscious that the object of s 33 of the MHFP is to provide for diversion of persons from the criminal justice system, in relation to summary offences or indictable offences triable summarily, who at the time they are before the Court, appear to be mentally ill. The deemed dismissal of the charges under s 33(2), if such a person has not been brought before the Court within 6 months of an order being made under s 33, may well have been intended by the legislature only to apply where a person remained in a mental health facility for 6 months or more. While that may well have been the legislative intention, the words used in the section do not reflect that intention, and I can see no other provisions in the statute that restrict the ordinary English meaning of the phrase. It would have been very easy for the legislature to qualify the provisions in s 33(2), by requiring some inquiry as to the reason why the person had not been brought before the Court, yet there is no such qualification.
In arriving at this conclusion I have had regard to s 33 of the Interpretation Act1987, which requires that "a construction that would promote the purpose or object underlying the Act or statutory rule... shall be preferred to a construction that would not promote the purpose or object." To insert in s 33(2) of the MHFP Act a requirement that the charges are only to be taken to be dismissed if the accused was detained for the 6 month period in a mental health facility, involves a fundamental amendment to the terms of the provision and that requirement does not arise by implication.
Section 33(2) of the MHFP Act, in my opinion, operates to deem dismissed the charges if an accused, in relation to whom an order was made under s 33(1)(a) of the MHFP Act, is not physically brought before a magistrate within the 6 month period specified in the section. The section does not invite any inquiry as to why the person was not brought before a magistrate. If the person is not so brought, the charges are taken to be dismissed by operation of the statutory provision.
In my opinion, it follows that there are no charges before the court as they are taken to be dismissed by operation of the statutory provision, as the accused was not brought before a magistrate within 6 months of the making of the order. It matters not that he was not detained in a mental health facility for that period, or that it appears on the evidence before me, that having been discharged from that facility, he failed to appear at court. It follows, in my opinion, that the Court has no jurisdiction as the charges are deemed to have been dismissed by operation of the statute. Whether further charges may still be brought against the accused is a matter which I do not need to consider.
This analysis of s 33 of the MHFP Act means that police and prosecuting authorities, in relation to accused persons charged with summary offences or indictable offences to be tried summarily, and in relation to whom an order is made under s 33, in particular s 33 (1)(a), will need to monitor the assessment and treatment of such a person. They will need to liaise closely with the mental health facility to which the person has been taken for assessment to ensure that if the person is no longer to be detained by that facility, they are brought before a magistrate in the 6 month period.
Magistrate M. Buscombe
Downing Centre
8 March 2013
**********
NOTE: for the purpose of the JusticeLink case management system, orders under s 33(1) must be recorded as finalising orders (as no bail determination should have been made or a future court date set) in order to give effect to the statutory deemed dismissal of the charges after a period of 6 months without the need for a further order of the court.
Decision last updated: 16 April 2013
1
0
4