R v Cameron

[2024] NSWLC 12

Local Court

New South Wales

Medium Neutral Citation:

R v Cameron [2024] NSWLC 12

Hearing dates:

13 September 2024, 20 September 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Criminal

Before:

Donnelly LCM

Decision:

See orders at [70]

Catchwords:

Applications for the Local Court to conduct a fitness hearing and then permanently stay proceedings in accordance with DPP v Shirvanian (1998) 44 NSWLR 129 if the court finds the defendant is unfit – alternative application that the defendant be diverted and discharged under s14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Local Court – jurisdiction – common law – whether the Local Court has a power to conduct a fitness hearing despite Parliament’s exclusion of the Local Court from the statutory scheme for fitness hearings in Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Mantell v Molyneux (2006) 68 NSWLR 46 holding that at common law the Local Court has a power to conduct a fitness hearing –Pioch v Lauder (1976) 13 ALR 266 contrary holding that in the absence of a statutory power there is no power for a court exercising summary jurisdiction to conduct a fitness hearing – Pioch v Lauder approved by the High Court in Ebatarinja v Deland (1998) 194 CLR 444 – Pioch v Lauder and Ebatarinja v Deland applied in CL (A Minor) v Lee (2010) 29 VR 570 and CL, (A Minor) v DPP [2011] VSCA 227

References in NSW cases to Pioch v Lauder and Ebatarinja v Deland discussed – Mantell v Molyneux (2006) 68 NSWLR 46 doubted – principle in Lipohar v The Queen (1999) 200 CLR 485 that there is only one common law of Australia referred to – NSWLR Commission recommendations to create a statutory fitness regime in the Local Court discussed – unnecessary to decide the common law issue in the circumstances of the case

Mackie v Hunt (1989) 19 NSWLR 130 – observation of M Campbell J that given the exclusion of the Local Court from the statutory scheme for fitness hearings “it is not surprising" that Magistrates are “given certain different powers of disposition” of discharging a defendant – Local Court has power to divert a defendant who may be unfit – Mackie v Hunt and DPP v El Mawas (2006) 66 NSWLR 93 applied

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 s 12,14,15 – the defendant should be diverted and discharged given inter alia the time he has spent in custody and the unchallenged expert opinion that he is unfit

Legislation Cited:

Crimes Act 1900 (ACT), s 311

Criminal Law Consolidation Act 1935 (SA), s 269H

Criminal Justice (Mental Impairment) Act 1999 (Tas), s 8

Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9

Mental Health Act (NSW) 2007

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4,5,12,14, 35

Mental Health Act 2016 (Qld), ss 172-173

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

CL, (A Minor) v DPP [2011] VSCA 227

CL (A Minor) v Lee (2010) 29 VR 570

Confos v DPP [2004] NSWSC 1159

DPP (NSW) v Hamzy [2019] NSWCA 314

DPP v Heagney [1999] NSWSC 303

DPP v Sami El Mawas [2006] NSWCA 154

DPP v Soliman [2013] NSWSC 346

Eastman v The Queen (2000) 203 CLR 1

Ebatarinja v Deland (1998) 194 CLR 444

Lipohar v The Queen (1999) 200 CLR 485

Mantell v Molyneux (2006) 165 A Crim R 83 Mackie v Hunt (1989) 19 NSWLR 130

Newson v Ly [2001] NSWSC 1117

Perry v Forbes (unreported Sup Ct of NSW 21 May 1993)

Pioch v Lauder (1976) 13 ALR 266

Police v Williamson [2018] NSWLC 25

Police v Smith [2016] NSWLC 24

Police v AR (unrep) Children's Court 18.11.2009

R v Engert (1995) 84 A Crim R 67

R v HW [2017] NSWLC 25

R v KF [2011] NSWLC 14

R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251

R v Presser [1958] VR 45

TR v Director of Public Prosecutions [2020] NSWSC 255

Texts Cited:

New South Wales Law Reform Commission Report 138 People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences May 2013

Category:

Principal judgment

Parties:

New South Wales Police Force (Prosecution)

Preston William Cameron (Defendant)

Representation:

Solicitors:

Mr N Breen, Legal Aid Commission (Defendant)

Sergeant L Mussing (Prosecution)

File Number(s):

2023/714480

Publication restriction:

No

Judgment

1. The defendant is charged with four offences: an offence of sexually touch another person without consent under s 61KC(a) of the Crimes Act; an offence of attempt stalk/intimidate with intent to cause fear of harm under s 13(5) of the Crimes (Domestic and Personal Violence) Act; an offence of common assault under s 61 of the Crimes Act; and an offence of being armed with intent to commit an indictable offence under s 114(1)(a) of the Crimes Act.

2. There was no election by the Director of Public Prosecutions (NSW) for any of the charges to be dealt with in the District Court. The defendant was involuntarily detained in a mental health facility from 4 February 2024 to 26 February 2024 and thereafter he was refused bail. The total period he was involuntarily detained and refused bail (as at 20 September 2024) is 7 ½ months.

3. Mr Breen on his behalf has made three applications. The first is for the Court to determine whether the defendant is fit to plead and to stand trial. This application seeks to have the Court apply the test set out in R v Presser [1958] VR 45.

4. The second application is for the Court to order a permanent stay of proceedings on the basis that the defendant is not fit because he fails to meet the minimum standards of fitness referred to in the Presser criteria.

5. In the event that the first two applications fail the third application is to divert and discharge the defendant unconditionally pursuant to ss 12 and 14 of the Mental Health Cognitive Impairment Forensic Provisions Act.

The course of proceedings

6. On 8 July 2024, the case was listed for a stay of proceedings hearing on 13 September 2024. The formal orders of the Court were for the defendant to serve and file any expert reports by 28 August 2024 and for the prosecution to file and serve its material in reply by 6 September 2024. The matter was listed earlier for a mention only on 23 July 2024. On that day the matter was adjourned to 13 September 2024 for a fitness hearing which, of course, is the basis for the permanent stay application.

The defence applications

7. When the matter first came before me on 13 September 2024 Mr Breen made the three applications and supported each with defence materials. The defence materials tendered were as follows:

1. Defence outline of submissions;

2. Report of Clinical Psychologist Richard McBride dated 26 August 2024;

3. A Justice Health letter dated 5 July 2024 of Wendy Hoey;

4. A Justice Health Report dated 5 April 2024 of consultant forensic psychiatrist Dr Gordon Elliot;

5. A Mental Health discharge summary of St George Hospital on 26 February 2024;

6. A report of Clinical Psychologist Richard McBride dated 18 February 2021; and

7. A Mental Health Review Tribunal Report dated 30 December 2019.

8. The central document supporting the first two applications is the report of Clinical Psychologist Richard McBride dated 26 August 2024. He opines for the second time that the defendant is unfit. The first time was in the 2021 report. Mr Breen helpfully provided the earlier report to the Court and written submissions. Mr Breen in his submissions sets out the bases for the opinion by reference to the R v Presser [1958] VR 45 test. Mr Breen submitted as follows:

This evidence establishes that Mr Cameron has complex mental health needs. He has a diagnosis of moderate intellectual disability, attention deficit hyperactivity disorder, substance abuse disorder, in partial remission because of custodial status, and schizophrenia. The combination of symptoms that Mr Cameron experiences gives rise to inherent and complex difficulties when interacting with the criminal justice system.

The 2021 McBride report briefly states that Mr Cameron is unfit to stand trial. A detailed analysis is included in the 2024 McBride report which observes:

• The impact of the combination of his intellectual disability and schizophrenia is significant.

• Mr Cameron presented with disorganised speech characterised by clanging word associations, tangential thoughts, derailment of thought and conversation and non sensical responses.

• Mr Cameron’s discursive and tangential responses compromise the ability to instruct a legal representative.

• He has experienced delusional and paranoid thinking, in particular:

1. that he deals drugs to himself in gaol;

2. he’s afraid that people are going to shit in my bowels;

3. content about a colostomy bag; and

4. people are out to get him.

• Mr Cameron has a compromised ability to instruct a legal representative.

• Mr Cameron fluctuates in the decision to plead and is unable to state with consistency what he is going to plead.

• He does not believe that he does not have the intellectual cognitive capacity to challenge the charges against him;

• Mr Cameron does not have the capacity to cope with the pressure and duration of the Court proceedings;

• That he does not think Mr Cameron is currently fit to plead in relation to the current charges in the Court environment; and

• That he is not confident that there are modifications or ways to accommodate the deficits and that it may be impossible to achieve minimum standards of fairness.

9. Mr Breen submits that therefore there is sufficient evidence for the Court to find Mr Cameron is unfit in light of the evidence that is presented on his behalf.

The prosecution response

10. The prosecution did not respond in writing to the reports of clinical psychologist Mr McBride. It did not seek an adjournment, or seek to cross examine Mr McBride, or to have the defendant examined by a prosecution expert. Apart from the oral submissions made about the contents of the 2024 McBride report there was no expert evidence challenging the conclusion of Mr McBride that the defendant is unfit.

11. In short, the Court did not have a contradictor. This was in circumstances where since the 2021 report (where Mr McBride opined the defendant was unfit) the defendant had been convicted and sentenced to five discrete terms of full-time imprisonment. These included sentences which dated from 3 June 2021 to 2 February 2022 and 30 September 2021 to 2 February 2022. After a five-month gap, the defendant was then sentenced to full time imprisonment from 7 July 2022 to 6 July 2023 and then from 20 June 2022 to 19 September 2023. And finally from 4 July 2023 to 3 July 2024.

12. The Court enquired of Mr Breen whether it could assume that the defendant was not unfit to plead for the multitude of offences which were the subject of the 5 discrete sentences of full-time imprisonment. Mr Breen accepted the Court could do so but cautioned that some legal practitioners do not understand unfitness. He stressed that Mr McBride’s 2021 report was deficient and that the 2024 report was better and directly addressed the Presser test.

13. The position taken by the prosecution in relation to the unfitness issue had the effect that the Court was left without a contradictor and essentially unchallenged opinion evidence.

The power to conduct a fitness hearing in summary proceedings.

14. The Court raised the issue as to whether courts exercising summary jurisdiction have a jurisdiction or power to conduct a fitness hearing with reference to the High Court decision of Ebatarinja v Deland (1998) 194 CLR 44 at [31]. Mr Breen submitted that it did and he referred expressly to the New South Wales Supreme Court decision of Mantell v Molyneux (2006) 68 NSWLR 46. He submitted that the Court should apply the Presser test. And further, if the Court found the defendant was unfit it should exercise its power to permanently stay proceedings.

15. Sgt Mussing on behalf of the prosecution submitted that there was doubt as to whether the Local Court has a power to inquire into a defendant’s fitness. Section 35 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 conferred statutory powers on the District and Supreme Courts but “withheld” the power from the Local Court. This, according to the prosecution, was an express indication or an intention by the Parliament.

16. The prosecution also submitted that it was not appropriate that the Court permanently stay the proceedings because there may be steps that could be taken to ensure the trial is fair. The matters raised by Mr McBride in relation to poor memory on the part of the defendant is not enough to justify a permanent stay. The Court had to have regard to the fact that the defendant had a substance abuse disorder, the nature of the offences, and that he would be legally represented. It was submitted the defendant would understand the hearing, he would have support from the NDIS, a support worker, and his lawyer.

17. The prosecutor also opposed the third application that the defendant be diverted unconditionally under s 14(1)(c). However the prosecution did not oppose a diversionary order being made under s 14 subject to the defendant being discharged into the care of a person or place with conditions for a period of 12 months. In short there should be orders that the defendant accept treatment.

Fitness hearings and matters dealt with summarily.

18. The case of Mantell v Molyneux (2006) 68 NSWLR 46 is accepted as authority for the proposition that the Local Court must consider the issue of fitness where it arises. M Adams J said at [49]:

“…dealing with the defendant according to law requires that the question of fitness for trial, assuming the matter is raised, is to be determined prior to trial”.

19. M Adams J held that the question of fitness for a trial is fundamental and relied upon a passage of Gaudron J in the murder case of Eastman v The Queen (2000) 203 CLR 1 at 57 where Her Honour said:

The common law guarantees an accused person a fair trial according to law and one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.

20. In Mantell v Molyneux M Adams J quashed what His Honour described as the implicit order of the Magistrate that the appellant was fit to be tried. His Honour said at [53]:

…the appropriate order is that the implicit order that the appellant is fit to be tried should be quashed, so that the magistrate to whom the matter is referred will be able to consider any s 32 application and, if that application is rejected, hear and determine any application for a stay on the ground that the appellant is unfit to be tried.

21. At least since the decision of DPP v Shirvanian (1998) 44 NSWLR 129 it has been accepted that a magistrate conducting a summary hearing has the implied power to grant a permanent stay in a proper case. The Court applied the decision of Jago v District Court of New South Wales (1989) 168 CLR 23. In DPP v Shirvanian Mason P said:

Since the principle which gives rise to the power in a proper case to grant a stay is that “the public interest in holding a trial does not warrant the holding of an unfair trial (Jago at 31 per Mason CJ)”. It follows that such power resides in a magistrate of the Local Court hearing a summary trial unless excluded by clear words. The duty to observe fairness, at least in this procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial, known as the principles of natural justice, applied by force of the Common Law and the presumed intent of Parliament unless clearly excluded in a particular context.

22. Later his Honour said:

“In my view the same can be said about the power to prevent abuse of process as an incident of the duty to ensure a fair trial. And I see no principle ground for excluding a power to grant a stay to prevent or nullify other categories of abuse. I see no reason why the power must not be implied from the very nature of the exercise of the jurisdiction as a court of trial. Very clear language would be required to deprive the Local Court alone of all courts in New South Wales of this tool designed to achieve the fundamental objectives of the abuse of process doctrine.

23. Several later decisions have affirmed the decision of DPP v Shirvanian including DPP v Heagney [1999] NSWSC 303, Newson v Ly [2001] NSWSC 1117, DPP (NSW) v Hamzy [2019] NSWCA 314 and TR v Director of Public Prosecutions [2020] NSWSC 255.

Pioch v Lauder (1976) 13 ALR 266 and Ebatarinja v Deland (1998) 194 CLR 444

24. However there is a longstanding legal controversy as to whether at common law a court of summary jurisdiction has a power to conduct a fitness hearing for matters dealt with summarily. This has been the case since the Supreme Court of Northern Territory decision of Pioch v Lauder (1976) 13 ALR 266 which was approved by the High Court in Ebatarinja v Deland (1998) 194 CLR 444. In Ebatarinja v Deland Gaudron, McHugh, Gummow, Hayne and Callinan JJ in a judgment of the Court said at [31]:

In Pioch v Lauder [(1976) 13 ALR 266 at 271], Forster J held that, in the absence of a statutory power, a magistrate exercising summary jurisdiction under the Justices Act had no authority to determine whether the accused was unfit to plead. There is no reason to doubt the correctness of the decision on this point.” [emphasis added]

25. And later the court stated:

“It is perhaps unfortunate that only the Supreme Court has jurisdiction to determine questions of fitness to plead.”

26. In Ebatarinja v Deland the Magistrate was exercising statutory powers in relation to committal proceedings. Mr Breen submitted in this case that Ebatarinja v Deland had no application because it concerned committal proceedings and the exercise of Executive power. Therefore the case had no application to offences tried summarily.

27. The difficulty with that submission is that the case that the High Court expressly approved - Pioch v Lauder (1976) 13 ALR 266 at 271 – did concern an offence being dealt with summarily or described technically as a “simple offence” as that term was used in the Northern Territory jurisdiction at the time.

28. Forster J said in Pioch v Lauder at p 271:

In the case of a simple offence, however, there appears to be neither authority nor statutory provision to deal with the matter of a defendant who is insane, whether properly so called as being a person suffering from a sufficient defect of reason, disease of the mind or a person like the defendant here. [emphasis added].

29. Later on the same page of the report His Honour said:

What then is the learned stipendiary magistrate to do in this case? It is clear that the defendant is not fit to plead and should be treated as though he were insane, which he is not. No authority exists for the learned stipendiary magistrate to order the defendant’s detention to await the pleasure of the Governor General and yet plainly it seems to me it would not be proper to proceed with his summary trial.

30. Pioch v Lauder has been applied in Victoria. In the Supreme Court decision of CL (A Minor) v Lee [2010] 29 VR 570 it was submitted that the Victorian Children’s Court (and Magistrate’s Court) possess an inherent jurisdiction to conduct a fitness hearing from their statutory and judicial office to take steps to prevent an abuse of process. Lasry J rejected the submission at [67] on the basis that there was:

…a Parliamentary intention not to invest the magistrate with the power to determine fitness to plead and a clear absence of authority for the Children’s Court

31. Pioch v Lauder was accepted as holding there was no power under the Common Law – see discussion under the heading “Common Law” at pp 582 to 583 of the reported decision. Lasry J’s decision was affirmed on appeal. The Court of Appeal of Victoria approved Pioch v Lauder in CL (A minor) [2011] VSCA 227. The Court expressed its view emphatically in the context of the jurisdiction of the Children’s Court. After noting that there was no statutory basis to hold a fitness enquiry because the summary jurisdiction had not been included in the statutory provisions governing fitness hearings, Sifris AJA (with whom Warren CJ agreed) then turned to the common law at [46]:

The notices of appeal raise the issue as to whether the magistrate had jurisdiction under the common law. In my opinion, and given clear authority on the point, [footnote 9 Pioch v Lauder (1976) 27 FLR 79, 84-86 (Forster J); Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444, [31] (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) and see R v Abdulla [2005] SASC 399; (2005) 93 SASR 208] no error has been demonstrated in relation to this issue and it is not surprising that the matter was not pressed.

His Honour, in a lengthy and reasoned judgment, concluded that the magistrate erred in concluding that there was doubt over the jurisdiction of the Children's Court to hear fitness to plead issues. According to His Honour there was no doubt. [emphasis added]

32. It has been settled - at least since Lipohar v The Queen (1999) 200 CLR 485 at [44]- [45] - that there is only one common law of Australia and not as many bodies of common law as there are intermediate courts of appeal. The High Court is placed at the apex of the judicial hierarchy to give decisions upon the common law which are binding on all courts: Lipohar v The Queen (1999) 200 CLR 485 at [45], [50].

References to Pioch v Lauder and Ebatarinja v Deland in NSW cases

33. In the leading fitness decision of R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 Wood CJ at CL (Spigelman CJ and G James J agreeing) recorded the High Court’s conclusion in Ebatarinja v Deland concerning the limitation of the Magistrate’s power at [162]:

The Court indicated in Ebatarinja [v Deland] that there was no reason why the Crown should not move to lift the stay of an ex officio indictment which had been filed in the Supreme Court, so as to allow the question of fitness to heard in that Court, there being no authority residing in a Magistrate to deal with the question. That was the course subsequently taken. [emphasis added].

34. The decision of R v Mailes (2001) 53 NSWLR 251 was expressly referred to by M Adams J in Mantell v Molyneux in a passage at [25]:

The learned magistrate referred to Mailes in which Wood CJ at CL summarised the Common Law relating to fitness to plead, and as well as dealing with the statutory regime to which I have referred.

35. M Adams J again referred to the decision of R v Mailes at [30]:

In Mailes [(2001)] 53 NSWLR at 279 Wood CJ at CL described Presser as a "seminal case" on the question of fitness to plead. In passages cited with approval by Wood CJ at CL, Smith J said that "the question ... 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" going on to specify the following standards, which have been widely adopted…

36. Notwithstanding the passages cited above in R v Mailes there is no reference at all in Mantell v Molyneux to the High Court decision of Ebatarinja v Deland. And there is only a passing reference to Pioch v Lauder in the following passage:

In this case there is no relevant mental disability that would bring the appellant within the provisions of the Mental Health Act 1990 and the consequence must be that, if unfit to be tried, she must be discharged; see also Pioch v Lauder (1976) 27 FLR 79.

37. It appears that so far as the common law is concerned the Victorian superior courts’ application and interpretation of Pioch v Lauder and Ebatarinja v Deland is different from what M Adams J held in Mantell v Molyneux.

38. There are several examples at first instance where the Children’s Court and the Local Court have considered the issue of a defendant’s fitness. See Police v AR His Honour Judge Marien P of the Children's Court 18 November 2009, R v KF [2011] NSWLC 14 Heilpern LCM; NSW Police v Smith [2016] NSWLC 24 Mulroney ALCM; R v HW [2017] NSWLC 25, per Huntsman LCM and NSW Police v Williamson [2018] NSWLC 25 per M O’ Brien LCM.

New South Wales statutory schemes for fitness

39. The New South Wales Parliament has consistently excluded the Local Court from applying the statutory provisions and procedures dealing with fitness. Tasmania, ACT, South Australia, Western Australia and Queensland all have legislative schemes for the determination of fitness in summary proceedings. See Mental Health Act 2016 (Qld), ss 172-173; Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9; Criminal Law Consolidation Act 1935 (SA), s 269H; Criminal Justice (Mental Impairment) Act 1999 (Tas), s 8; Crimes Act 1900 (ACT), s 311. See also discussion in New South Wales Law Reform Commission Report 138 May 2013 at pp 346-48.

40. Since 1990 the New South Wales Parliament has enacted three versions of the statutory provisions concerning fitness. The current Act, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, neither resolved nor grappled with the issue of fitness to be tried as it relates to summary proceedings. Part 4 is headed “Fitness to Stand Trial”. Section 35 is headed “Application of this Part” and defines the jurisdictional coverage of Part 4. Section 35 provides:

“This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court”.

41. Therefore the Parliament has again excluded the Local Court from the application of the statutory scheme. This cannot be regarded as an oversight but rather deliberate. The enactment of section 35 occurred despite the recommendations in the New South Wales Law Reform Commission Report 138 May 2013. Recommendation 12.1 stated:

The Mental Health Forensic Provisions Act 1990 should be amended so that Part 2 of the Act dealing with fitness to be tried applies in the Local Court. The Mental Health Forensic Provisions Act should be amended to provide that if a question of fitness is raised in the Local Court under Pt 2 of the Act the Court must first consider whether it should make an order under s 32 or s 33”.

42. In the course of its discussion concerning the issue of fitness in the Local Court the New South Wales Law Reform Commission stated at p 348, para 12.28:

Implementing a statutory fitness regime in the Local Court received wide support from stakeholders. However, concerns were raised about the consequences of this step, for example the potential of any fitness regime to diminish the role of diversion, facilitate the extended detention of defendants who would otherwise be released, strain resources and increase forensic population.

43. For completeness as to the application of Ebatarinja v Deland (1998) 194 CLR 444 to committal proceedings, the New South Wales Parliament has however made express provision in the Criminal Procedure Act under s 93 which is headed “Fitness and committal proceedings”. Section 93 provides a Magistrate may commit an accused for trial where “the question of the person’s unfitness to be tried for the offence is raised”. Section 93 provides:

(1) The Magistrate may commit an accused person for trial for an offence if—

(a) the question of the person’s unfitness to be tried for the offence is raised by the accused person, the prosecutor or the Magistrate, and

(b) if the question is raised by the accused person or the prosecutor, the Magistrate is satisfied that it has been raised in good faith.

(2) The question of the person’s unfitness to be tried for an offence may be raised at any time in the committal proceedings.

(3) The Magistrate may require a psychiatric or other report relating to the accused person to be supplied to the Magistrate by the accused person or the prosecutor before committing a person for trial under this section

44. This discussion illustrates that the question of the power to conduct fitness hearings for matters dealt with summarily in the Local Court remains a controversy. It is difficult to reconcile the passage of the High Court in Ebatarinja v Deland (1998) 194 CLR 444 at [31] and the common law power M Adams J’s referred to in Mantell v Molyneux. (See especially the discussion of Lasry J in CL (A Minor) v Lee (2010) 29 VR 570 at [54]- [55], [69]-[70]).

45. However as the discussion of the decision of Mackie v Hunt (1989) 19 NSWLR 130 will show although the Local Court has been excluded from the statutory provisions for fitness it has been given “certain different powers of disposition” (Mackie v Hunt M Campbell J at 136) which allow the Court to “discharge” a defendant. As will become clear it is not necessary in this case for the court to determine whether the defendant is unfit, or whether a permanent stay of proceedings should be granted. This is because a diversionary application should be determined first where there is a question as to whether a defendant is unfit.

Mackie v Hunt (1989) 19 NSWLR 130

46. There is clear authority for the proposition that the Local Court can consider a diversionary application before considering the issue of fitness to stand trial. In the leading Court of Appeal decision of DPP v El Mawas (2006) 66 NSWLR 93 McColl JA (Spigelman CJ and Handley agreed) noted at [62] that in Mackie v Hunt (1989) 19 NSWLR 130 at 134 M Campbell J held that the diversionary provisions then enacted could apply to a defendant who satisfied the statutory criteria “whether or not that person was unfit to be tried and without first determining that that was the situation.”

47. In Mackie v Hunt (1989) 19 NSWLR 130 at 134 the magistrate had erroneously held that the heading “Unfitness to be tried for an offence” for the Part of the Act which also included fitness and diversionary provisions had the effect that a defendant could not be diverted unless he was found to be unfit to be tried. M Campbell J held that the heading to the Part did not enact such a pre-requisite. However M Campbell J opined that it was not surprising that Magistrates had a power to divert defendants who may be unfit given that Magistrates did not have a statutory power to determine that an inquiry should be conducted into fitness. M Campbell J said at p 135-136:

It is to be noted however that the Supreme or District Court has the power to dismiss the charge and order that the person be released and has a power, which the magistrate does not, of determining that an inquiry should be conducted into fitness to be tried with the consequences that follow from the results of that inquiry, including, where the Attorney-General considers it appropriate, a special hearing. In those circumstances it is not surprising that the magistrate be given certain different powers of disposition which may be characterised substantially as discharge of the defendant into the care of a responsible person or with the imposition of conditions… [emphasis added]

48. In DPP v El Mawas (2006) 66 NSWLR 93 at [63] McColl JA also made reference to the case of Perry v Forbes (unreported Sup Ct of NSW 21 May 1993 Smart J) at [63]:

His Honour [Smart J] accepted, as correct, a submission in that case by the plaintiff (the defendant in the summary criminal proceedings) that Pt 3 of the Act operated whether or not a plea had been entered and (following Mackie v Hunt & Anor) whether or not a defendant was fit to plead.

49. In Mantell v Molyneux (2006) 68 NSWLR 46 at [49] M Adams J accepted that: “Even where defendant is not fit to plead he or she is may still be diverted under s 32: Mackie v Hunt (1989) 19 NSWLR 130”. As stated earlier the formal orders of the court in Mantell v Molyneux at [53] were that the Magistrate to whom the matter was remitted consider any s 32 diversionary application first and then any fitness issue.

50. It is clear, particularly in light the passage in DPP v Mawas at [62]-[63], that a court can consider a diversionary order notwithstanding that a defendant may be unfit to stand trial or enter a plea. This is the course the Court will take in this case.

The s 14 diversionary application

51. Button J said in DPP v Soliman [2013] NSWSC 346 at [56], “…if a prosecutor is in full agreement with the making of the [diversionary] order, the judgment may be substantially shorter than if there is an extensive dispute”. That may be so, but this is a case which requires the court to give extensive reasons. In this case, the prosecutor only opposes the form of the order but not the diversionary application.

52. It is well settled that a magistrate considering an application to divert must first determine whether the defendant is eligible and, if so, whether it would be more appropriate to deal with the defendant in accordance with the diversionary provisions than otherwise in accordance with law (see s 12). It is a discretionary decision where the court takes into account the considerations set out in s 15 and no one consideration or combination of considerations is/are determinative. It has been described by Howie J in Confos v DPP [2004] NSWSC 1159 at [17] as an exercise where:

“…the magistrate has to perform a balancing exercise; weighing up, on the one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system.

53. So far as the issue of eligibility there is unchallenged evidence. According to Dr Gordon Elliot, a consultant forensic psychiatrist for Justice Health:

“The defendant has a diagnosis of treatment resistant schizophrenia. This is complicated by further diagnoses of an intellectual disability and multiple substance use disorders.”

54. Schizophrenia clearly falls within the definition of mental health impairment in s 4(1) and may arise from a psychotic disorder, referred to in s 4(2)(c). Intellectual disability is a cognitive impairment and is expressly referred to in s 5(2)(a). Dr Elliot opined that the defendant is not a mentally ill or disordered person for the purposes ss 14 and 15 of the Mental Health Act NSW 2007. That is a necessary precondition for the exercise of the diversionary power – see s 12(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Section 15 considerations

55. I turn now to the considerations referred to in s 15 in deciding whether it would be more appropriate to deal with the defendant in accordance with the Division than otherwise in accordance with law.

The nature of the defendant’s apparent mental health impairment or cognitive impairment.

56. The defendant has both a mental health impairment and a cognitive impairment. They are serious longstanding conditions, and, thus far, treatment resistant according to Dr Gordon Elliot.

The nature, seriousness and circumstances of the alleged offence

57. What follows is an outline of the facts alleged in the proceedings. The offences for which the defendant is charged (set out at [1] above) are serious and were all committed on strangers. The common assault involved striking a woman on the back of her head using his right hand and causing the victim to stumble forward. The intimidation and armed with intent offences were committed on a railway station employee where the defendant “got in her personal space”, yelled at her, raised his right hand holding a disposable-type razor and saying, “You know I can kill you”. That resulted in the victim fleeing into the station office whilst the defendant tried unsuccessfully to follow her into the room. The sexual touching offence allegedly occurred when the defendant was apprehended and he grabbed the crotch area of a male police officer. He grabbed hold of the officer’s genitals and squeezed them with a force that was described as uncomfortable.

58. As to the other circumstances of the offending, the defendant was, according to a hospital discharge summary:

“…constantly rambling and incoherent when he was assessed by PACER. Admitted to hospital on 4 February 2024 and discharged on 26 February 2024”.

59. The discharge summary from St George Hospital states:

“Found to be rambling, delusional, openly responding, aggressive, sexually disinhibited and agitated by the PACER nurse. He was held in seclusion overnight and transferred to Prince of Wales hospital”.

60. The state of mind of the defendant at the time of the arrest is relevant to assessing the circumstances of the alleged crimes.

The suitability of sentencing options available if the defendant is found guilty of the offence.

61. The sentencing options available could include considering full-time imprisonment. In this case in terms of sentencing and sentencing options, the Court would have to give consideration to protection of the community and the decision of R v Engert (1995) 84 A Crim R 67 where Gleeson CJ explained:

“…in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen No 2 [Veen v The Queen (No 2) (1988) 164 CLR 465]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.”

62. The defendant was on parole at the time of the offence. He has been an involuntary patient and bail refused collectively for 7 ½ months. This also bears upon the potential length of any full-time sentence of imprisonment and the issue of whether he should be diverted.

Relevant changes in the circumstances of the defendant since the alleged commission of the offence

63. The defendant has been treated and medicated whilst in custody. He is still regarded as treatment resistant.

The defendant’s criminal history

64. The defendant’s criminal history is lengthy and serious. I refer to the five discrete sentences of full-time imprisonment set out earlier. In recent times he has been imprisoned for various offences from 3 June 2021 to 3 July 2024, subject to a five-month gap between 2 February 2022 and 7 July 2022. He is clearly a recidivist offender who has a substance use disorder.

Whether the defendant had previously been the subject of an order under the Act

65. According to the criminal history tendered the defendant has been subject to three previous diversionary orders made on 17 May 2021, 12 March 2021 and 21 August 2020.

Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan.

66. A treatment plan has been recommended by consultant forensic psychiatrist Dr Gordon Elliot at p 5 of his report. However, Mr Breen has submitted the defendant should be discharged unconditionally because the defendant will not understand the conditions and, consequently, will not abide by the plan.

Whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public.

67. The expression “likely to endanger” is predictive. Dr Gordon Elliot opines that at present the defendant appears to be receiving maximal support in the community. He has a public guardian who advocates for his care. The defendant also has NDIS support, he has a support worker and a place to stay. The likelihood of endangerment is directly associated with the risk factors of his substance use disorder and the necessity for the defendant to take his prescribed medication. Dr Elliot expressed reservations as to whether the defendant could comply or be abstinent.

Other relevant factors.

68. It is clearly relevant that there is an essentially unchallenged 2024 report which concludes that the defendant is unfit to plead and stand trial. The Court must have regard to future proceedings, if any, that could occur. I refer also to the discussion about the course of proceedings and the fact that the Clinical Psychologist Richard McBride had opined the defendant was unfit in 2021 but yet the defendant was repeatedly convicted and imprisoned from 2021 to 2023.

Conclusion

69. Having regard to the balancing exercise and all these s 15 considerations, including the fact there is an unchallenged opinion that the defendant is unfit to plead or stand trial and that he has been involuntarily detained and in custody for 7 ½ months, I find that this is an appropriate case where the defendant should be diverted under ss 12 and 14.

Form of order

70. The parties are at loggerheads in relation to the form of the diversionary order. I do not accept Mr Breen’s submission that the defendant will be incapable of understanding the conditions of the diversionary order. His submission directly contradicts the forensic psychiatrist Dr Gordon Elliot who sets out a simple but clear plan. This suggests the defendant is capable of understanding and abiding by the plan and that a plan should be in place for community protection. Mr Breen has since given practical factual information about the plan.

71. In this matter the court will make an order under s 14. The s 14 application is granted. The charges are dismissed. The defendant is discharged into the care of St George Mental Health subject to the following conditions:

1. He is to take directions from Tamlyn Holtz and be picked up from the Correctional centre and taken directly to his United for Care accommodation in Rockdale.

2. He must attend all appointments with his designated psychiatrist or psychiatric Registrar, case manager and any other member of his treating team at St George Mental Health.

3. He must comply with all prescribed psychiatric medications, including long-acting injectable anti-psychotic medications.

4. He is to remain abstinent from illicit substances and comply with random urinary drug screening as directed by the treating team.

5. He is to remain in the supported accommodation and accept assistance from his disability provider.

Decision last updated: 02 April 2025