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:
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- AGLC
- R v Cameron [2024] NSWLC 12
- Case
- [2024] NSWLC 12
- Decision Date
CaseChat Overview and Summary
The court examined the common law position on whether the Local Court has the power to conduct a fitness hearing. It noted the decision in Mantell v Molyneux, which held that the Local Court does have such a power at common law, and contrasted this with the contrary holding in Pioch v Lauder and its approval in Ebatarinja v Deland. The court discussed the application of these cases in subsequent decisions and the doubt cast on Mantell v Molyneux by recent references to Pioch v Lauder and Ebatarinja v Deland in New South Wales cases. The court also considered the principle in Lipohar v The Queen that there is only one common law of Australia and the recommendations of the NSWLR Commission to create a statutory fitness regime in the Local Court. Ultimately, the court found it unnecessary to decide the common law issue in the circumstances of this case.
In relation to the power to divert and discharge the defendant, the court referred to Mackie v Hunt, where it was observed that given the exclusion of the Local Court from the statutory scheme for fitness hearings, it was not surprising that Magistrates are given certain different powers of disposition, including the power to discharge a defendant. The court applied Mackie v Hunt and DPP v El Mawas in finding that the Local Court does have the power to divert a defendant who may be unfit. Considering the defendant's time spent in custody and the unchallenged expert opinion that he is unfit, the court decided that the defendant should be diverted and discharged under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
ORDERS:
See orders at [70]
Orders
Orders of the court
See orders at [70]
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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