District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Preston v R [2023] NSWDC 362 Hearing dates: 29 August 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The appeal against conviction is allowed.
(2) I set aside the conviction and the penalty imposed by the Magistrate.
(3) I find that the appellant has a mental health impairment.
(4) Based on the facts and the evidence it would be more appropriate to deal with the appellant in accordance with the provisions of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act than otherwise in accordance with law.
(5) I dismiss the Court Attendance Notice and discharge the appellant into the care of Dr Anthony Nicholas, psychologist, for a period of 12 months from 8 September 2023, concluding on 7 September 2024 on condition that he continues to participate in treatment with Dr Nicholas at such times as may be arranged between them.
(6) Should the appellant fail to comply with the conditions of this order he may be called to appear before the Court following notification by Dr Nicholas to the Court or Community Corrections of non-compliance and the charge may be dealt with as if the appellant had not been discharged.
Catchwords: CRIME — Appeals — Appeal against conviction
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Cases Cited: AGv Director of Public Prosecutions [2015] NSWCA 218
Chararav R [2006] NSWCCA 244
Confos v Director of Public Prosecutions [2004] NSWSC 1159
Costa v Public Trustee of NSW [2008] NSWCA 233
Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93
Fox v Percy (2003) 214 CLR 118
GianoutsasvGlykis [2006] NSWCCA 137
House v The King (1936) 55 CLR 499
Category: Principal judgment Parties: Maurice Preston (Appellant)
Rex (Respondent)Representation: Counsel:
Solicitors:
R Steward (Appellant)
Kells Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2020/164286 Publication restriction: None Decision under appeal
- Court or tribunal:
- Downing Centre
- Jurisdiction:
- Local Court
- Date of Decision:
- 24 February 2023
- Before:
- Magistrate Perry
- File Number(s):
- 2020/164286
Judgment
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On 24 February 2023 Maurice Preston (the appellant) was convicted of an offence of common assault contrary to s 61 Crimes Act 1900 by her Honour Magistrate Perry. The appellant appeals against that conviction as of right.
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The appellant contends that the Magistrate should have found that he had established the defence of self-defence or alternatively to have dealt with the matter pursuant to s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Forensic Provisions Act).
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At about 10.45pm on 10 May 2019 the appellant and a female acquaintance were passengers in a taxi driven by Arvinderhit Singh Mann (the complainant). A dispute arose after the female vomited shortly after the beginning…
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- AGLC
- Preston v The King [2023] NSWDC 362
- Case
- [2023] NSWDC 362
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the conviction should stand or be set aside, and if the appellant should be dealt with under the Mental Health and Cognitive Impairment Forensic Provisions Act rather than the general criminal law. The court had to consider whether the appellant's mental health condition warranted a different legal approach under the provisions of the Act.
The court acknowledged the appellant's mental health impairment and recognised that this factor was pertinent to how the case should be managed. It was determined that given the evidence presented, the appellant's mental health condition was significant and should lead to a different legal outcome. The court found that the appropriate course of action was to set aside the conviction and penalty imposed by the Magistrate, and to direct the appellant's case to be handled under Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act. This decision was made to ensure that the appellant received appropriate care and treatment.
Consequently, the appeal against conviction was allowed, the conviction and penalty were set aside, and the appellant was discharged into the care of a specified psychologist for a period of 12 months, with conditions to participate in ongoing treatment. Should the appellant fail to comply with the conditions, he would be subject to further court proceedings.
Orders
Orders of the court
(1) The appeal against conviction is allowed.
(2) I set aside the conviction and the penalty imposed by the Magistrate.
(3) I find that the appellant has a mental health impairment.
(4) Based on the facts and the evidence it would be more appropriate to deal with the appellant in accordance with the provisions of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act than otherwise in accordance with law.
(5) I dismiss the Court Attendance Notice and discharge the appellant into the care of Dr Anthony Nicholas, psychologist, for a period of 12 months from 8 September 2023, concluding on 7 September 2024 on condition that he continues to participate in treatment with Dr Nicholas at such times as may be arranged between them.
(6) Should the appellant fail to comply with the conditions of this order he may be called to appear before the Court following notification by Dr Nicholas to the Court or Community Corrections of non-compliance and the charge may be dealt with as if the appellant had not been discharged.
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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