Quinn v Director of Public Prosecutions

[2015] NSWCA 331

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Quinn v Director of Public Prosecutions [2015] NSWCA 331
Hearing dates:	16 October 2015
Decision date:	16 October 2015
Before:	Basten JA at [1]; Macfarlan JA at [11]; Adamson J at [13]
Decision:	1. Extend time for filing the summons to 21 May 2015. 2. Dismiss the summons. 3. Order the applicant to pay the respondent’s costs.
Catchwords:	ADMINISTRATIVE LAW - judicial review of refusal of the District Court to make an order under s 32 of Mental Health (Forensic Provisions) Act 1990 (NSW) – review limited to jurisdictional error – primary judge entitled to give consideration to operation and effect of an order under s 32 – open to the primary judge to take into account and give weight to the need for general deterrence in deciding whether to make an order under s 32 MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 – matters relevant to considering whether to make order – operation of possible condition – matters relevant to sentencing according to law
Legislation Cited:	Crimes Act 1900 (NSW), s 192E Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17 Criminal Procedure Act 1986 (NSW), s 267, Sch 1 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10 District Court Act 1973 (NSW), s 176 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited:	Director of Public Prosecutions v El Mawas [2006] NSWCA 154; 66 NSWLR 93 Garde v Dowd [2011] NSWCA 115; 80 NSWLR 680 Mantell v Molyneux [2006] NSWSC 955; 68 NSWLR 46 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Spanos v Lazaris [2008] NSWCA 74
Category:	Principal judgment
Parties:	Adam Quinn (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: G Wendler (Applicant) N Adams SC/M Rabsch (Respondent)   Solicitors: Saba El-Hanania Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/151198
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 05 November 2014 Before: Culver DCJ File Number(s): 2013/327863

EX TEMPORE Judgment

1. BASTEN JA: I agree with Adamson J that there should be an extension of time within which to commence this proceeding, but the summons should be dismissed; the applicant must pay the respondent’s costs in this Court.

2. The present application is brought in the supervisory jurisdiction of this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). The matter in the District Court being an appeal from the Local Court, there is no further right of appeal to this Court. Nevertheless, it is not in doubt that the Court’s supervisory jurisdiction may be engaged. Given the privative clause in s 176 of the District Court Act 1973 (NSW) the jurisdiction of this Court is limited to correction of jurisdictional error on the part of the court below. [1]

   1. Spanos v Lazaris [2008] NSWCA 74 at [15]; Garde v Dowd (2011) 80 NSWLR 680; [2011] NSWCA 115 at [10].

3. The errors alleged in the present case may best be described as involving a constructive failure on the part of the District Court judge to exercise the court’s jurisdiction. The matter under challenge was the refusal to deal with the applicant pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the terms of which have been set out by Adamson J.

4. That section is engaged, relevantly for present purposes, if it appears to the court that the defendant is “suffering from mental illness … but is not a mentally ill person”. [2] There was no express finding that this condition was satisfied, apparently because so much was accepted by the prosecutor in the District Court.

   2. Forensic Provisions Act, s 32(1)(a)(ii).

5. Once the condition of engagement was satisfied, it was necessary for the judge to make an evaluative assessment in order to exercise a discretionary power. That assessment involved a balancing exercise, namely that “it would be more appropriate to deal with the defendant in accordance with the provisions of [Pt 3 of the Forensic Provisions Act] than otherwise in accordance with law”. The powers then engaged are certain, mainly interim, powers under subs (2) and final orders dismissing the charge, either conditionally or unconditionally, pursuant to subs (3). As noted by Spigelman CJ in Director of Public Prosecutions v El Mawas,[3] s 32 “can be accurately described as conferring ‘a very wide discretion’.”

   3. (2006) 66 NSWLR 93; [2006] NSWCA 154 at [4].

6. It would be open to a defendant to seek review on the basis of jurisdictional error if it could be demonstrated that the judge had taken into account some factor, consideration of which was foreclosed as a matter of law (an irrelevant consideration), or had failed to take into account some factor which was required by law to be considered (a relevant consideration). Given the balancing exercise required, it could not be said that any aspect of the applicant’s mental condition at relevant times would be a prohibited consideration, nor that any factor relevant to the exercise of a sentencing discretion for the offence would be irrelevant. Accordingly, it was entirely appropriate (and possibly required) for the judge to take into account the nature of the offence, the circumstances of the offending and relevant sentencing principles, including the need for general deterrence.

7. It was also appropriate (if not required) that the judge give consideration to the consequences of making an order under s 32(2) or (3), including having regard to the manner in which any potentially appropriate condition might be formulated and might operate. [4]

   4. Mantell v Molyneux (2006) 68 NSWLR 46; [2006] NSWSC 955 at [47]-[48] (Adams J).

8. The matters which the judge took into account all fell squarely within the range of these considerations, which were, at the least, permissible considerations. Counsel for the applicant referred to the judge’s consideration of the limited period (6 months) for which compliance with a condition can be enforced as a fettering of the discretion under s 32(1). To describe consideration of a factor which works to limit the effective scope of a condition as an illegitimate fetter is not appropriate. Further, to describe the consideration as assuming delinquency is not an appropriate characterisation: there is a distinction between considering possibilities and assuming one.

9. That being so, this Court could only intervene if it were shown that the manner in which those matters were taken into account was manifestly unreasonable, in the terms discussed by the High Court in Minister for Immigration and Citizenship v Li. [5] No argument was put in these terms in the present case; indeed, on the material set out by Adamson J, it is difficult to see how it could have been raised.

   5. (2013) 249 CLR 332; [2013] HCA 18 at [74]-[76] (Hayne, Kiefel and Bell JJ); see also at [28]-[30] (French CJ) and [106]-[110]-[112] Gageler J).

10. In these circumstances, there was no scope for the intervention of this Court.

11. MACFARLAN JA: I agree with the judgments of Basten JA and Adamson J. I add the following observations. 

12. The applicant submitted that the primary judge proceeded on the basis that an order under s 32 could only operate for a period of six months. I do not agree. Rather, her Honour spoke of the order having only six months "to work." In my view, this was a reference to the maximum period during which the order was likely to have practical effect: that is, the period specified in s 32(3A) and subs (3D) during which compliance could be supervised.

13. ADAMSON J: By summons filed on 21 May 2015 Adam Quinn, the applicant, seeks an order setting aside the refusal of Culver DCJ to make an order under s 32 of the Mental Health (Forensic Provisions) Act (the Act). The applicant relies on this Court’s jurisdiction under s 69 of the Supreme Court Act with respect to jurisdictional error, as s 176 of the District Court Act precludes relief in the nature of certiorari based on error of law on the face of the record. [6]

    6.    Spanos v Lazaris (supra) at [15] per Basten JA (Beazley and Bell JJA agreeing).

14. As her Honour refused to make the order under s 32 on 5 November 2014, the applicant requires an extension of time under Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2) to commence these proceedings. The applicant relied on an affidavit of Saba El-Hanania of 23 July 2015, who explained that the delay arose by reason of the time it took to obtain transcript of the District Court proceedings and of the reasons for decision. I am satisfied that the applicant has provided a satisfactory explanation for the delay. The respondent opposed the extension on the grounds of lack of merit and futility, as no challenge was made in the summons to the sentence imposed by her Honour. In response, Mr Wendler, who appeared on behalf of the applicant, foreshadowed an application to amend the summons to claim consequential relied in respect of the sentence imposed.

15. Although I am not persuaded that the application for relief has merit, I am persuaded that it is appropriate to grant an extension of time to the applicant to commence these proceedings.

The background facts

The Local Court proceedings

16. On 21 February 2014 the applicant pleaded guilty before Brydon LCM at Manly Local Court to a charge of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of ten years’ imprisonment if the prosecutor elected that it be heard in the District Court[7] ; but otherwise, if it was dealt with summarily, the maximum penalty was a fine not exceeding $11,000 or two years’ imprisonment. [8]

    7. Crimes Act, s 192E(1)(b).

    8. Criminal Procedure Act 1986 (NSW), s 267 and Sch 1, Table 1.

17. The prosecution case was that, between April and October 2013, the applicant falsely reported both to police and to his insurer, AAMI Insurance, that his car was stolen, as a result of which he was paid $42,825. The offence was revealed by chance during unrelated telephone surveillance.

18. Magistrate Brydon imposed a fine of $1,000 for the offence and sentenced the applicant to a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A condition of his bond was that he continue his psychiatric and psychological management with Dr Choudary, or his delegate, for a minimum of 12 months and thereafter for such period as deemed necessary. The applicant did not apply for an order pursuant to s 32 of the Act in the Local Court.

The appeal to the District Court

19. The applicant appealed as of right to the District Court against his sentence pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). Such an appeal is by way of rehearing of the evidence given in the Local Court, although fresh evidence may be given. [9] It was common ground that the District Court had jurisdiction to set aside a sentence and discharge a defendant under s 32 of the Act in such an appeal.

    9. Crimes (Appeal and Review) Act, s 17.

20. The applicant’s appeal against sentence was heard in the District Court by Culver DCJ on 5 November 2014. The applicant sought an order that he be dealt with under s 32 of the Act. In the alternative, he sought an order pursuant to s 10 of the Crimes (Sentencing Procedure) Act, which, if made, would result in no conviction being recorded.

21. Her Honour, who gave ex tempore reasons for her decision, declined to make an order under s 32 of the Act. Her Honour allowed the appeal, confirmed the s 9 bond and set aside the $1,000 fine imposed by the Local Court.

22. Her Honour recorded in the reasons for decision that the applicant had a history of mental health issues as well as an arachnoid cyst which extended to the frontal lobe area which “appears to have impacted on his psychological functioning”. Her Honour considered that these conditions did not remove the need for deterrence and described the criminality as associated with organised crime. Her Honour recounted that, over a period of six months, the applicant had stored his car at a workshop to have it modified for racing purposes; reported it as stolen to police and to his insurer; claimed $42,825 from the insurer; and continued to store the vehicle at the workshop for an extended period.

23. After referring to the medical material, which her Honour accepted suggested that the applicant’s judgment would have been impaired, Culver DCJ referred to the need to balance the public interest in having the applicant’s mental health dealt with and the public interest in general and specific deterrence. Her Honour continued:

“If the applicant can be treated appropriately there is a strong suggestion from the lack of prior criminal history, a strong suggestion from the wealth of medical support available to the applicant and his compliance with his treatment, that he does enjoy a good prospect of rehabilitation. But there is a residual, albeit lowered opportunity in any sentencing context for a message of general deterrence to the community. Furthermore, any s 32 order would only have six months to work. The Court has options available to it to adjourn and then look at the 32, but once a 32 order is made it only has a maximum of six months to work.

I could not be confident that that six month period would address adequately any of the public interests to which I have referred. The combination of all those combination of all those circumstances means that I must refuse the application under s 32 and find that it is not in the public interest overall.”

The relevant legislative provisions

24. The Crimes (Appeal and Review) Act relevantly provides:

“11 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).”

. . .

“17 Appeals against sentence to be by way of rehearing of evidence

An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.”

25. Section 176 of the District Court Act provides:

“No proceedings in the nature of certiorari

No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.”

26. Section 32 of the Act relevantly 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):

. . .

(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.

. . .”

The grounds of alleged jurisdictional error

27. The grounds are not set out in terms in the summons. However, it can be discerned from the orders sought in the summons that the applicant contends that her Honour erred by:

1. “holding that once a s 32(3) order is made by the Court it only has a maximum of 6 months to work”;

2. “taking into consideration irrelevant matters purportedly pursuant to s 32(3A) and (3D)” of the Act; and

3. “holding that general deterrence in punishment was controlling and therefore mandated the applicant’s offending be dealt with according to law rather than the provisions of s 32 of the Act”.

28. As the distinction between an error of law on the face of the record and a jurisdictional error is, at times, difficult to draw, I propose to consider whether the errors alleged to have been made by the Court below have been established before considering whether, if so, any qualify as a jurisdictional error so as to fall within that aspect of this Court’s jurisdiction that is not covered by the privative clause in s 176 of the District Court Act.

Grounds 1 and 2: the reference to six months

29. The reference in the reasons to “six months” appears in the extract set out above, and is contained in the following passage:

“Furthermore, any s 32 order would only have six months to work. The Court has options available to it to adjourn and then look at the 32, but once a 32 order is made it only has a maximum of six months to work.”

30. The applicant contended that her Honour’s refusal of a s 32 order was “principally” based on this consideration and that it involved an “erroneous self-imposed prohibition on its s 32 jurisdiction”. He submitted:

“The jurisdiction in ss 32(3A) and (3D) is a Court’s monitoring or supervisory jurisdiction referable to the jurisdiction in s 32(2) and (3). Sections 32(3A) and (3D) are not determinative of a s 32 order or controlling in the sense found by the Court to wit: “any s 32 order would only have six months to work.”

31. I am unable to discern any error, much less a jurisdictional error, in her Honour’s approach. Her Honour was entitled to consider what would be achieved by a s 32 order and what its operation and effect would be in deciding whether to make it. Her Honour stated, correctly, that although there was an option to adjourn the matter, once an order was made under s 32(3), any allegation that the applicant had failed to comply with a condition contained in the order could only be enforced as provided for by s 32(3A), (3B), (3C) and (3D) during the period of six months following the making of the order.

31. It is, in my view, plain that her Honour took this matter into account, as her Honour was, entitled, and indeed obliged, [10] to do, when deciding whether to make an order under either s 32(2) or s 32(3).

    10.    Mantell v Molyneux (supra) at [40]–[48] per Adams J.

Ground 3: alleged controlling effect of general deterrence

33. Although her Honour used the word “must” before deciding not to make an order under s 32 (as appears from the extract from the reasons set out above), a fair reading of the reasons indicates that her Honour’s decision not to make the s 32 order was made after weighing relevant considerations, including the weight to be accorded to general deterrence, which militated against making such an order. It was open to her Honour to take the need for general deterrence into account in deciding whether to make the order. The weight to be given to relevant considerations is a matter for the decision-maker and does not generally give rise to an error of law[11] , much less a jurisdictional error.

    11. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.

Conclusion

34. The applicant has failed to make out any of the grounds and failed to establish that the Court below made any jurisdictional error. Accordingly, I propose the following orders:

1. Extend time for filing the summons to 21 May 2015.

2. Dismiss the summons.

3. Order the applicant to pay the respondent’s costs.

**********

Endnotes

Decision last updated: 22 October 2015