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R v Cameron

R v Cameron

Case [2024] NSWLC 12 20 September 2024

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Mental Health Law

Fitness to Plead

Statutory Interpretation

Common Law

Criminal Law

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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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cameron

Details

AGLC: R v Cameron [2024] NSWLC 12
Case: [2024] NSWLC 12
Decision Date: 20 September 2024

CaseChat Overview and Summary

The matter before the court was an application by the defendant, Cameron, for the Local Court to conduct a fitness hearing and, if found unfit, to permanently stay proceedings in accordance with the precedent set by DPP v Shirvanian. The alternative application was for the defendant to be diverted and discharged under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The court was required to determine whether it had the jurisdiction to conduct such a fitness hearing despite the 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. The court also needed to decide whether it had the authority to divert and discharge the defendant under the Act.

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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Citations

AGLC Citation

R v Cameron [2024] NSWLC 12

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

TR v Director of Public Prosecutions
[2020] NSWSC 255 Para 23

…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.…
Director of Public Prosecutions (NSW) v Hamzy
[2019] NSWCA 314 Para 23

…r 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.…
NSW Police v Williamson
[2018] NSWLC 25 Para 38

…11] 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.…
R v HW
[2017] NSWLC 25 Para 38

…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.…
NSW Police v Smith
[2016] NSWLC 24 Para 38

…ness. 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.…
DPP v Soliman
[2013] NSWSC 346 Para 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 t…
Cl (a minor by his Litigation Guardian) v Director of Public Prosecutions
[2011] VSCA 227 Para 31

…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…
R v KF
[2011] NSWLC 14 Para 38

…rt 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…
CL (a minor) v Lee
[2010] VSC 517 Para 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…
Mantell v Molyneux
[2006] NSWSC 955 Para 14

…998) 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 p…
DPP v El Mawas
[2006] NSWCA 154

…s 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…
R v Abdulla
[2005] SASC 399

…, 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, i…
Confos v Director of Public Prosecutions (NSW)
[2004] NSWSC 1159 Para 52

…ions 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:…
R v Mailes
[2003] NSWSC 707 Para 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]:…
Newson v Ly
[2001] NSWSC 1117 Para 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.…
R v Mailes
[2001] NSWCCA 155 Para 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]:…
Eastman v The Queen
[2000] HCA 29

…9] 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] NSWS…
Lipohar v The Queen
[1999] HCA 65 Para 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 l…
Director of Public Prosecutions v Heagney
[1999] NSWSC 303 Para 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.…
Ebatarinja v Deland
[1998] HCA 62

…ommon 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…
Jago v District Court (NSW)
[1989] HCA 46 Para 21

…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:…
Veen v The Queen (No 2)
[1988] HCA 14

…f 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…

Legislation cited in this decision · 9

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
12, 14, 15, 35, 4, 5 7 mentions (from Para 40)
Mental Health Act 2016 (Qld)
172 2 mentions (from Para 39)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
311 1 mention (from Para 39)
Criminal Justice (Mental Impairment) Act 1999 (TAS)
8 1 mention (from Para 39)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
9 1 mention (from Para 39)
Criminal Law Consolidation Act 1935 (SA)
269H 1 mention (from Para 39)
Mental Health Act 1990 (NSW)
1 mention
Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 15)

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: