R v HW

[2017] NSWLC 25

Local Court

New South Wales

Medium Neutral Citation:	R v HW [2017] NSWLC 25
Hearing dates:	20 November 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Criminal
Before:	Magistrate Huntsman
Decision:	That the defendant is not fit to plead. That a section 32 adjournment order should be made.
Catchwords:	CRIMINAL LAW - Fitness to plead or be tried - cognitive impairments - sexual offending - Local Court jurisdiction - appropriate order - permanent stay - diversion pursuant to section 32
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 66, 202 Justice Legislation Amendment Act 2017 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) ss 27, 32
Cases Cited:	DPP v El Mawas [2006] NSWCA 154 DPP v Saunders [2017] NSWSC 760 DPP v Shirvanian (1998) 44 NSWLR 129 Eastman v R (2000) 203 CLR 1 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Kesavarajah v The Queen (1994) 181 CLR 230 Mailes v DPP [2006[ NSWSC 267 Mantell v Molyneux [2006] NSWSC 955 Ngatayi v The Queen (1980) 147 CLR 1 Pioch v Lauder (1976) 13 ALR 266 Quinn v Director of Public Prosecutions [2015] NSWCA 331 R v Mailes (2001) 53 NSWLR 251 R v Presser [1958] VR 45 Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 TS v R [2014] NSWCCA 174
Texts Cited:	NSW Law Reform Commission (NSWLRC), People with Cognitive and Mental Health Impairments in the Criminal Justice System. Criminal Responsibility and Consequences, Report No. 138 (2008)
Category:	Procedural and other rulings
Parties:	NSW Police (prosecution) HW (defendant)
Representation:	Solicitors:   Police prosecutors, for the prosecution NSW Legal Aid Commission, for the defendant
File Number(s):	2017/101166; 2017/89732; 2017/93259; 217/111775; 217/247557
Publication restriction:	Name of defendant and victim supressed

Judgment

1. It is submitted on behalf of the accused in the current proceedings, HW, that he is not fit to plead. The medical evidence upon which the submission is based will be detailed below. The prosecution originally opposed the defence position, but now concede, after obtaining further medical evidence, that the accused is not fit to plead. The defence submits that the Local Court should find that the defendant is not fit to plead and on such finding make an order for a permanent stay. The prosecution submits that in the absence of any alternative order, other than an order for discharge or stay, the Court should make a section 32 order in the interests of community safety and accountability for HW’s future conduct.

2. The issues in the current proceedings are as follows:

1. Is HW fit to plead?

2. Does the Local Court have jurisdiction to determine HW’s fitness to plead?

3. If HW is not fit to plead, what order can be made in the Local Court; is the appropriate order in the Local Court one for discharge or for permanent stay of proceedings, or some other order?

4. Does the Local Court have jurisdiction to make a ‘section 32 order’ (being an order under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA)) where a defendant is found not fit to plead, on facts such as the present case?

3. Each of these issues will be dealt with below.

The offences with which HW is charged

4. HW is charged with the following matters:

1. Assault with an Act of Indecency on 11 October 2016, charged 4 April 2017, Charge Number H64157557

2. Assault with an Act of Indecency on 19 March 2017, charged 23 March 2017, Charge Number H63771613

3. Common Assault and Stalk/ Intimidate on 27 March 2017, charged 27 March 2017, Charge Number H63566337. There is a related application for an Apprehended Violence Order (AVO) (2017/00093222)

4. Destroy or Damage property (DV) and Common Assault (DV) on 12 April 2017, charged 12 April 2017, Charge Number H64416434. There is a related application for an Apprehended Violence Order (AVO) (2017/00111779)

5. Destroy or Damage Property and Common Assault on 14 August 2017, charged on 14 August 2017, Charge Number H656399649.

5. HW is currently on bail. He was also on bail for some of the above charge numbers at the time of the alleged offending for other matters. There has been no election by the Director of Public Prosecutions (DPP) in relation to the Table 1 offences with which HW is charged, and all matters have proceeded before the Local Court as summary matters.

6. Before outlining the facts relating to each matter, I note that the Police Facts sheets describe the accused as a 19 year old person with an intellectual disability “believed to have the mental capabilities of a 4-9 year old child” and that he “suffers from a significant intellectual impairment such as mild autism, language disorder and schizophrenia” (Police Facts sheet, Charge Number H65639649).

7. The accused resides in a group home, however he is the only resident in the home, and receives care 24 hours a day, seven days a week, provided by carers in the employ of Lifestyle Solutions. He is said to have a financial guardian (which appears to indicate his finances are managed by the Public Trustee). There is no evidence that he has a guardian appointed to make decisions about his accommodation, service provision or restrictive behavioural management practices.

Outline of Facts

8. By consent of the prosecution and the defence, the Police Facts for each of the offences have been tendered. An outline of the facts is required to be considered in any determination whether to deal with matters according to law or pursuant to section 32 of the MHFPA. The parties have consented to the facts being considered by me in determining all issues in the case.

9. Each of the sets of charges relating to common assault, damage property and intimidation involve incidents at the accused’s residence, and the alleged victims are carers in the employ of Lifestyle Solutions. The charges of indecent assault do not involve carers at HW’s residence; the alleged victims are women not known to the accused, one of whom is alleged to have been assaulted on the street, and the other who is alleged to have been assaulted on a train. A summary of the facts for each set of offences follows.

Charge Number H656399649 (Destroy or Damage Property and Common Assault on 14 August 2017)

10. HW is said to have thrown a spoon and a baseball bat at the victim, a carer at his residence, and to have then damaged the victim’s motor vehicle by kicking all four doors of the vehicle and then using a tree branch to smash the vehicles rear window. He is later alleged to have thrown this same tree branch at the victim grazing the victim’s arm.

Charge Number H64416434 (Destroy or Damage property (DV) and Common Assault (DV) on 12 April 2017, and related AVO))

11. HW is alleged to have attempted to hit the victim, a carer at his residence, with a fork, and to have spat and thrown a bottle at him. He is also said to have damaged the premises, making holes in gyprock walls and damaging a window screen.

Charge Number H63566337 (Common Assault and Stalk/ Intimidate on 27 March 2017 and related AVO)

12. HW is alleged to have approached a wardrobe at the residence known to contain knives, and to have threatened to cut off the head of the victim, a care worker. HW is then said to have pushed the victim onto the bed and punched the victim twice to the head and to have kicked the victim twice to the leg.

Charge Number H63771613 (Assault with an Act of Indecency on 19 March 2017)

13. The Police Facts detail the alleged offence as follows. HW approached the victim who was seated on her own in a train carriage, and sat close to her and said “you look really nice today”. He asked the victim if she had a boyfriend. He forcibly grabbed the victim’s right hand, brought it to his face and kissed her right hand, which she pulled away. The victim walked upstairs on the train as it approached a railway station. She stood in the vestibule area near the train door and saw that the accused had come to stand to her left. She looked at him and he had his left-hand down the front of his pants in the genital area moving his hand in a jerking motion as if masturbating. While doing so he continued to say to the victim that she was gorgeous and beautiful, the most beautiful in the world. The victim felt uncomfortable and scared. HW is alleged to have had his hands down his pants for almost 1 minute. As the train pulled into the station, the accused placed both his hands around the victim’s upper body in a hugging motion and then slid his left-hand from the hug to the victim’s left breast and squeezed it very hard, causing pain. The victim pushed him away, telling him not to touch her and ran downstairs to the other door to get off the train. The victim called her mother, she was crying while on the phone to her mother, who rang the police. The victim proceeded to walk away from the railway station and saw that the accused was following her, and he continued to follow her along the street through some sets of lights. At this point the victim’s brothers were running down the road from the shops and saw that the accused was in fact running after the victim, catching up to her. The Police Facts allege that the accused saw the victim’s brothers and then stopped chasing the victim. The victim’s brothers took a photo of the accused. They returned home to wait for the police. When police attended the victim was crying, scared and shaken. In a record of interview with police HW is said to have made admissions to being on the train and that the “touched a lady on the nipple” while on the train.

Charge Number H64157557 (Assault with act of indecency on 11 November 2016, charged 4 April 2017)

14. The Police Facts state that on 28 March 2017 the victim made a detailed statement to detectives about the matter. The alleged offence occurred on the street outside of HW’s residence. The facts detail that at about 2:55pm on Monday, 10 October 2016, the victim, a 36-year-old female, was walking alone on a street. The victim normally takes this route to collect her child from a local school in a residential area. The victim was approached from behind by the accused, who was not previously known to her, and he said, “you look beautiful today” and touched her shoulder. At the time, the victim did not think much of the incident, thanked the accused and continued to walk along the road. At about 2:55pm on Tuesday, 11 October 2016, the victim was again walking along the same road to pick up her daughter. The victim was again approached by the accused, outside the accused’s residence, and she recognised him to be the same male from the incident the day prior. The accused said to her “you look beautiful today”.

15. The Police Facts state that the victim tried to walk away from the accused, however, the accused walked in front of the victim and hugged her. The accused let the victim go and she walked a few steps before the accused ran up behind her and held her tight with both arms again. The accused said “are you scared of me?” To which the victim replied, “let me go, or else I will scream”. The accused thrust his hips two or three times towards the victim’s buttocks from behind, pushing his groin into her bottom. The victim was unable to break free from the accused’s grip before he pushed her to the ground and fell on top of her. The accused pressed his chest firmly against the victim’s back, preventing her from leaving and causing her to struggle. At this point, the victim screamed “help, help, help!” as loudly as she could. The accused released the victim. The victim left the location and continued along the road and as she looked back the accused said “crazy bitch”. The victim did not wish to make a formal statement in relation to this matter at the time of the incident. Police spoke with the victim on 25 March 2017 and she indicated she was willing to provide a statement, and provided a detailed statement on 28 March 2017. Police state that as a result of the incident, the victim no longer feels safe to walk on the street and is too nervous to go out alone. The Police Facts state the victim’s build is petite and the accused is significantly bigger than the victim.

Medical Evidence

16. The defence relied on two reports from Dr Christopher Lennings, psychologist, dated 12 April 2015 and 11 May 2017. Dr Lennings refers to various other documents including a report by a clinical nurse consultant at Liverpool Local Court (in 2015) and a behaviour support plan provided by Lifestyle Solutions (in 2017). Dr Lennings in his 2017 report notes his conclusion in 2015 that HW was not fit at that time, and states that there is not much significant change as at 2017 in HW’s circumstances or cognitive ability. Dr Lennings notes diagnoses of attention deficit hyperactivity disorder, autistic traits, communication problems and sensory and oral integration problems. There is a mild intellectual disability, oppositional behaviour and poor responses to authoritarian approaches. Dr Lennings states:

“There is no evidence that [HW] suffers from a psychotic disorder. Prior adaptive behaviour functioning tests revealed he remains a young man in need of significant supervision and oversight and has multiple vulnerabilities. He does not have the capacity for independent living. A guardian has been appointed to manage his finances. File records indicate his behavioural problems as consisting of absconding from his place of care; physical and sexual aggression; fire lighting (especially through 2013); self harming and property destructive behaviour; and food hoarding.…… In the past, but less so in recent times he would abscond from placement and then use the public transport system to wander long distances. When he becomes highly anxious and emotionally deregulated he may threaten to self harm or engage in self harming behaviours”.

17. The report goes on to note that HW has displayed challenging behaviours:

“Since the age of 2 years… when he first entered care he was malnourished, but even before then had a record of aggression towards adults and his mother, sexualised behaviour and had been the victim of both sexual assault and severe neglect.…… The core of [HW]’s problems lies in his history of early severe neglect and trauma, including loss experiences…”

18. The report goes on to note:

“He is a young man who is quite naive with high support needs and ready activation of the stress arousal system….his high levels of impulsivity, lack of consequential thinking, attention seeking behaviour and aggression make it highly likely that without significant care and support he will come to the attention of the justice system and represent an elevated risk of harm to self and others”.

19. The report notes that he is maintained on a variety of medications, including an antidepressant and an antipsychotic, as well as other medications. Dr Lennings recommends a residential placement in a rural setting to reduce overstimulation and opportunity for absconding or harm to others.

20. Dr Lennings’ report refers to only one of the offences currently before the Court, referring at paragraph 13 to the facts constituting Charge Number H64416434 (one of sets of charges involving a carer). Other offences which are before the Court do not appear to have been considered as part of the fitness assessment. The fitness assessment is set out at paragraphs 15 through to 20 and details HW’s understanding of various parts of the court process including the meaning of a guilty and not guilty plea, and the role of a witness. At paragraph 25 the opinion is provided:

“The assessment indicates that [HW] has made no progress since November 2015 in his understanding of what takes place when he goes to court. He remains unable to provide instructions to his solicitor. He remains unable to participate in the court process. His intellectual delay, distractibility and poor memory would mean that even with breaks and instruction he could not retain sufficient information to provide coherent instructions or understand what was happening around him. He remains unclear about the role of the judge, or indeed of the lawyers. He remains unable to provide a coherent account in my view of the actions that have brought him into the court in the first place and he is unable to reflect in any meaningful way on his behaviour. His cognitive abilities are extremely low and he lacks capacity to understand his behaviour or to provide an account of it. Under those circumstances, I believe that [HW] does not satisfy at even a minimal level, the Presser criteria. He is likely unfit”.

21. The prosecution arranged for an assessment of HW by clinical neuropsychologist, Ms Lisa Zipparo (of Dr Susan Pulman and Associates), who provided a report dated 10 October 2017. Ms Zipparo conducted a lengthy interview with HW in September 2017, and also conducted an interview with the coordinator of the residence where HW lives, and considered police statements provided. The report details the extensive neuropsychological assessments and tests which were administered. The results included that HW’s premorbid intellectual functioning was in the extremely low to borderline range, he had an extremely low level of current intellectual functioning in both verbal and non-verbal domains. He performed in the extremely low range on working memory tasks. His basic auditory attention span was in the extremely low range. The results of the tests administered to ascertain HW’s level of function in various cognitive domains are detailed. In summary, in most domains HW’s level was borderline or in the extremely low range of functioning.

22. Ms Lisa Zipparo’s clinical opinion is provided at pages 8-10 of her report:

“HW is a 20-year-old man, currently living in supported accommodation, with a history of aggressive outbursts and problematic sexual behaviours. He is currently facing a number of charges of sexual and aggravated sexual assault. From the limited information available, it would appear that HW had a very dysfunctional and disrupted upbringing with a mother who has an intellectual disability, a potentially violent father figure, and many siblings.”

23. The report states that it appears that he has lived in 24-hour support residences for some time and the current sexual assault charges of March 2017 are noted. She continues:

“On neuropsychological testing he demonstrated a significant intellectual disability in the mild to moderate range placing him in the bottom 0.1% of the population. His cognitive abilities were commensurate with his extremely low intellectual capacities, demonstrating poor memory, poor attention and concentration, poor problem-solving abilities, poor impulse control and extremely slow, information processing. He was childlike in his speech and presentation… was a very unreliable historian, providing childish and fantastical stories about his life, reminiscent of the “tall tales” one might hear from a 4-year-old child. [HW]’s tales had an adult flavour in that they are about marriage and children, likely reflecting his desire to have a “normal” adult life. However, he demonstrated no capacity to “reality test” the stories that he told about his life, such as having 21 children and having just buried his 30-year-old son in the backyard (even though he himself is only 20 years old). Based on the information gleaned from his house coordinator, it appears HW was unable to provide any accurate details about his life. He mentioned 3 siblings, when there are in fact 9, he said he was in regular contact with his mother, when in fact contact with his mother had currently ceased, and he lived on his own, not with his wife and many children as he told the assessor.

When asked about the current court matter, [HW] demonstrated no knowledge of why he was currently in trouble with the law, believing that he was in trouble for destruction of property. He demonstrated no functional knowledge of court proceedings, nor of the key people involved. In terms of [HW]’s fitness to plead and to stand trial, as set out in the Presser test, we provide the following observations:

[HW] was unable to show a basic understanding of the charges and why he was appearing in court.

[HW] was able to demonstrate a rudimentary understanding of the concepts of “guilty” but could not articulate what was meant by “not guilty”.

[HW] was unable to demonstrate even a simple understanding of the role of the judge, his lawyer, and the jury.

[HW] was unable to explain the meanings of taking an oath, and what was meant by evidence. He had a basic understanding of what a witness was.

Based on the Presser criteria, we believe HW is not fit to enter a plea, nor to stand trial.”

24. The report goes on to note that HW demonstrated a childlike understanding of matters around sexual behaviour:

“What can be surmised from the discussion with [HW] is that the sexual offending behaviour is not top of mind to him, he is unlikely to understand the seriousness of his behaviours and the consequences to himself and particularly for his victims. Because of [HW]’s extremely low intellectual capacity, it will be difficult to teach [HW] about the boundaries of appropriate sexual behaviour. As reported by his house coordinator, his emotional outbursts are well controlled with constant supervision and careful monitoring of his environment. The slightest change in routine can result in significant and violent outbursts, despite constant training and reinforcement around strategies for calming himself. Similarly, it is unlikely that [HW]’s inappropriate sexual behaviours are likely to respond quickly and easily to behavioural interventions and strategies”.

25. The report by Ms Zipparo provided the following opinions and recommendations for consideration in mitigating any future offending behaviours:

1. HW undergo a thorough and repeated education program around sexualised behaviour, focusing on behaviours which are deemed wrong and unwanted, the legal and other consequences of these behaviours for him, and the negative impact these behaviours have on victims. Any education program needs to be designed specifically for people with intellectual disabilities and it needs to be repeated and reinforced regularly. A one-off education strategy will have little if any long-term impact on his behaviour

2. HW’s past behaviours suggest he has limited internal controls. In addition, his behaviour during testing suggests he has difficulty sticking to the rules, whether due to lack of understanding of the rules or lack of impulse control, or a combination of both. It is assumed that given the right circumstances, HW is very likely to repeat the offending behaviours. It is anticipated that the most effective risk mitigating strategies will involve not allowing HW to venture out in the community without a staff person present.

3. As he has absconded in the past, measures to minimise this risk need to be considered. Consideration might need to be given to a locked facility, given past difficulties keeping HW from leaving the house unaccompanied and from breaching bail conditions. Verbal conditions are unlikely to have any significant impact on HW’s behaviour given his limited understanding of what they are likely to mean, and his poor ability to control impulses.

4. The reality of HW’s adult sexuality, which is independent of his considerable intellectual limitations, needs to be addressed in a thoughtful and safe environment. It is suggested that a psychologist seek advice from an expert in the field of sexual health and intellectual disability, to devise strategies to help HW appropriately express sexual urges in a safe environment for him and others.

Fitness to plead

26. In brief a person is not fit to plead if, “because of mental defect, he fails to meet certain minimum standards which he needs to equal if he can be tried without unfairness or injustice to him”: Mantell v Molyneux [2006] NSWSC 955 at [30], citing R v Presser [1958] VR 45. The Supreme Court in Mantell v Molyneux (at [30] – [31]) states the test for whether an accused is fit to plead, and affirms that R v Presser is considered a “seminal case”.

27. In R v Presser it is stated:

“The cases to my mind show clearly that the word "insane" in s426 does not mean "insane" in the colloquial sense. It means "of impaired mentality to such a degree as to be unfit to be tried". Whether an accused man is insane in that sense is, of course, a very different question from the question whether he is insane in the colloquial sense. A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of the section that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. Dixon, J, as he then was, mentioned in Sinclair v R (1946) 73 CLR 316, that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion

And the question, I consider, 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. He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any”.

28. R v Presser therefore sets out that an accused needs to be able to understand what he is charged with; be able to plead to the charge; understand generally the nature of the proceeding; follow the course of proceedings; understand the substantial effect of evidence and be able to make his defence to the charge. He needs to be able to instruct counsel if represented.

29. The test in R v Presser has been cited with approval in decisions of the Supreme Court of New South Wales and also the High Court. The Supreme Court in Mantell and Mailes (refer below) note the observations of Gaudron J in Eastman (refer below) that fitness to plead may arise also for reasons other than mental illness, and that fitness is a concept that derives from the common law.

30. In Mantell at [31], Adams J cites with approval the decision of Hunt CJ at CL in R v Mailes (2001) 53 NSWLR 251 noting that:

“In Mailes 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 (1958 VR at 48)…”.

31. In the High Court decision of Eastman v R (2000) 203 CLR 1, Gaudron J observed that where a person stands trial where they are not fit, then no proper trial has taken place and the trial is a nullity because there has been a fundamental failure in the trial process. The common law guarantees an accused person a fair trial and one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.

32. In Mantell (at [31], [59] and [62]-[65]) Adams J noted the approval by Wood CJ at CL in Mailles of the judgement of Gaudron J in Eastman:

“In Eastman v The Queen (2000) 203 CLR 1 the issue of fitness to be tried arose in the context of s428E of the Crimes Act 1900 (ACT) and s68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT) in relation to whether an appellate court has a duty to consider fitness to plead of its own initiative, that is, where the matter had not been raised at trial. Wood CJ at CL quoted with approval the following passage from a judgment of Gaudron J (which was not questioned in any of the other judgments, although her Honour was in the minority as to the outcome of the case), (203 CLR at 21-23)…

A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue....

The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. ... If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, 'no proper trial has taken place [and the] trial is a nullity'. To put the matter another way, there is a fundamental failure in the trial process.

The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum 'the trial [is] a nullity', the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law. That is the basis upon which this Court proceeded in Kesavarajah v The Queen where the question of fitness to plead should have been but was not submitted to the jury for determination.

Traditionally, an accused person has not been put on trial unless fit to plead because of 'the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing'. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.

It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication” (Footnotes omitted, emphasis added).

33. I note that Hunt CJ at CL in Mailles (at [32]) also noted words to similar effect in the High Court by Hayne and Callinan JJ in Eastman, stating “each underlined the fundamental importance, at Common Law, of the accused being fit to plead and to stand trial”.

34. The High Court in Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 stated the test as follows (per Mason CJ, Toohey And Gaudron JJ at [31], it is noted also that Deane and Dawson JJ did not disagree with that part of the majority judgement):

In Reg. v. Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or

injustice ((28) (1958) VR at 48.). Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v. Pritchard

((29) (1836) 7 Car and P at 304 (173 ER at 135)), require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.

Is HW fit to plead?

35. The prosecution conceded and the defence submit that the evidence before the Court indicated that HW is not currently fit to plead. I am of the view, having regard to the medical opinions detailed above, and the legal test set out above, that HW is not fit to plead.

Does the Local Court have jurisdiction to determine HW’s fitness to plead?

36. There are no statutory provisions which apply in the Local Court where a person is, on the evidence before the Local Court, not fit to plead. This differs from the situation in the District and Supreme Courts where statutory provisions of the Mental Health (Forensic Provisions) Act 1990 (MHFPA) apply.

37. It is clear from the decision in Mantell that where the issue arises in a case before the Local Court, of the fitness of an accused to stand trial, the Local Court is to determine the issue. I therefore am satisfied that the Local Court has jurisdiction to determine whether HW is fit to plead. I note this is consistent also with the views of Gaudron J, set out above, that the common law guarantees an accused person a fair trial and one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.

If HW is not fit to plead, what order can be made in the Local Court; is the appropriate order in the Local Court one for discharge or for permanent stay of proceedings, or some other order?

38. As discussed above I have found that the Local Court has jurisdiction to determine whether HW is fit to plead. The issue is then what order may or should be made. In order to determine this issue I have conducted a review of the authorities. There is significant authority for the position that if a person is not fit to plead the person should be discharged – Mantell, Eastman and Ngatayi (refer below). There is also some suggestion that the order should be an order for permanent stay of proceedings as discussed below. The defence submit that the order should be an order for permanent stay, and provide detailed written submissions to this effect.

39. In Mantell Adams J states (at [28]-[29]):

“It is convenient first to deal with the problem arising from the appellant's unfitness for trial. Even though, in the case of a charge being heard in the Local Court, there is no statutory enactment either dealing with determination of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried, it seems to me that, where a defendant is found not fit to be tried, he or she must be discharged. So much is the effect of the judgment in Ngatai v The Queen (1980) 147 CLR 1 at 7-8, per Gibbs, Mason and Wilson JJ…

If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such a case no doubt he should be discharged.

In this case there is no relevant mental disability that would bring the appellant within the provisions of the Mental Health Act and the consequence must be that, if unfit to be tried, she must be discharged; see also Pioch v Lauder (1976) 13 ALR 266”.

40. I note that Pioch v Lauder involved a mute and deaf Aboriginal defendant who did not suffer from a mental condition, was deemed not fit to plead, and the magistrate, having reached the conclusion he reached as to the defendant's capacity, should simply go no further and desist from hearing the charge.

41. In Mailes Hunt CJ at CL stated (at [149]-[154]):

“In Ngatayi v The Queen (1980) 147 CLR 1, a case involving s 631 of the Criminal Code (WA), it was confirmed that it was not necessary for the accused to understand the law which governs his or her case, as distinct from having the capacity to understand the nature of the proceedings and to make a proper defence.

That was a case where the accused, by reason of his Aboriginality, was unable to understand that, under the law of the State, gradations of homicide existed and that he may have had a defence to wilful murder based upon intoxication.

The provisions applicable were different from those contained in the Procedure Act, insofar as the requirement for a fitness hearing, under the Code arises "if, when the accused person is called upon to plead … it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial. As Gibbs, Mason and Wilson JJ observed, the Code has been set in a context in which the incapacity has no necessary reference to insanity, or to incapacity, arising from a physical or mental condition.

Notwithstanding the differences in the relevant legislation, the following extract from their judgment has some relevance for the present appeal, if it be the case that the New South Wales legislation does apply to the intellectually disabled:

"Once a real question as to incapacity is raised, the judge must follow the procedure laid down in the section. If counsel raises an issue of incapacity he should indicate the nature of the facts which in his submission will support the view that the accused is incapable of understanding the proceedings so as to be able to make a proper defence. The judge should leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make a proper defence." (at p 8)

Of interest concerning the dispositions available in relation to an accused who is found unfit, is the following passage in their judgment (at 7-8):

"If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such case no doubt he should be discharged. In fact in Reg v Willie (1885) 7 QLJ (NC) 108, Cooper J ordered the discharge of four aboriginals when no interpreter could be found competent to communicate the charge to them. The report does not however disclose the authority, statutory or otherwise, for taking this course."

Whether authority for that course, which was said to be available in R v Willie (1885) 7 QLJ (NC) 108, survived the Criminal Lunatics Act 1800, with its mandatory judicial order for detention in strict custody, is dubious: R v Judge Martin ex parte Attorney General (1973) VR 339. The question of whether a person, who would never be fit to plead, could be detained indefinitely, was considered, although not decided in Jabanardi (1983) 50 ALR 147, where the repugnancy of such a consequence was mentioned”.

42. As can be seen from the forgoing discussion of the authorities, many decisions are based on the orders which should be made, and the process which should be adopted, given applicable statutory provisions. It is clear that a trial, including a Local Court summary hearing, cannot proceed where an accused is not fit to plead. However it is by no means clear what order should be made, upon a finding that an accused is unfit, in the Local Court, given the absence of applicable statutory provisions. The authorities set out above would appear to indicate that in the absence of statutory provisions the accused should be discharged. This would not however exclude the possibility that an order for a permanent stay of proceedings should be made in a case where the evidence indicates that an accused will in all probability remain not fit to plead.

43. A review of the authorities indicates that the order may be one for discharge. But, on what basis would a Local Court make an order for discharge – there appears to be no jurisdiction to make an order that an accused be discharged because he or she unfit. The Local Court is a Court of statute. The Local Court Act 2007 provides, in relation to the Courts criminal jurisdiction, at s9(c), that the Court has “a criminal jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to criminal proceedings.” The Criminal Procedure Act 1986 provides for summary hearings in criminal matters, and section 202 provides for determination by the court of summary proceedings. Section 202 (2) provides for determination of the matter by conviction, by making an order as to the accused person, or by dismissing the matter. There is no provision for an order for discharge. I note that pursuant to s66 of the Criminal Procedure Act 1986 a magistrate may discharge an accused in committal proceedings. This provision is inapplicable to the present matter. The Local Court may make an order for a permanent stay of proceedings. This is implicit in the decision of the Supreme Court in Mantell, and is specifically stated by the Court of Appeal in DPP v Shirvanian (1998) 44 NSWLR 129 per Murphy P with whom Beazley JA agreed (Powell JA dissenting):

In my view Jago v. The District Court (NSW) resolves the question in Australian law whether a court has the power in an appropriate case to stay criminal proceedings permanently for oppression amounting to abuse of process. The narrowness of the criteria upon which the power might properly be exercised was expressed in different ways by the various justices. However each (with the exception of Brennan J) asserted the ultimate proposition: see (at 33-34), per Mason CJ; (at 58), per Deane J; (at 71), per Toohey J; (at 75), per Gaudron J. Jago involved an inferior statutory court, the District Court of New South Wales Unless something can be found in the relevant legislation to deprive a magistrate of the Local Court of similar power then there is no basis in point of principle for distinguishing between the District Court and the Local Court. This was the view taken by the Queensland Court of Criminal Appeal in Williamson v Trainor [1992] 2 Qd R 572 in relation to a Magistrates Court in that State. Since the passing of the Local Courts Act 1982 and the enactment in 1992 of Pt 9 of the Constitution Act 1902 (later doubly entrenched), magistrates of the Local Court have become constitutionally tenured judicial officers. They have power to impose substantial fines and terms of imprisonment. They are, like all judicial officers, charged with the duty to administer justice according to law.

44. 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 its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of parliament unless clearly excluded in a particular context. 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 can see no principled ground for excluding a power to grant a stay to prevent or nullify other categories of abuse of process.

45. In Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 at 552, a Full Court of the Federal Court of Australia comprising Morling J, Beaumont J and Gummow J said:

“It is clear that, in an appropriate case, the Local Court has the power to stay civil or criminal proceedings before it which are an abuse of process (see Jago (at 25-26), per Mason CJ; Spautz (at 518-521); Newby v Moodie 130E (1988) 83 ALR 523 at 526). The power of a court to stay a proceeding as an abuse of its process is an essential attribute of the exercise of the jurisdiction with which it is invested: see Spautz (at 520-521).” See also Coleman v Gray (1994) 55 FCR 412 at 437.

46. It will be plain from the foregoing that I respectfully agree.

47. It is noted that in the decision of the High Court in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Mason CJ stated (at 29):

Moreover, objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v. Cross 143 (1978) 141 CLR 54; Reg. v. Sang (1980) AC 402. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process.

48. A decision to make an order for a permanent stay involves a test of fairness in which the interests of the community that those charged with criminal offences are brought to trial are to be considered, and the interests of the accused cannot be considered in isolation. Chief Justice Mason in Jago stated (at 33):

The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at pp 102, 106; Sang, at p 437; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264.

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton, at p 111, per Wilson J.

49. In the Court of Criminal Appeal decision in TS v R [2014] NSWCCA 174, Bellew J, with whom Leemings JA and Adams J agreed, provided the following summary of relevant principles (at [61]-[64]):

In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ.

In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 in the following terms (at 720):

".... whether, in all of the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process".

The categories of circumstance which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases; Barton per Wilson J at 475; Jago per Mason CJ at 582.

The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].

50. In this context I note the discussion in Mantell that there was nothing which the Magistrate in that case could do to cure the unfairness of proceeding with the summary trial where the accused was unfit.

51. I note the authorities referred to above indicate that for a trial to proceed where an accused is unfit would constitute a fundamental failure in the trial process. I must, on this basis, conclude that an order for a permanent stay may be an appropriate order to be made. I note that the decision whether to grant a permanent stay involves a discretionary decision by the judicial officer (refer Gaudron J in Jago at [13]).

52. In the exercise of the discretion whether to order a permanent stay, I note the importance of not considering the accused’s interests in isolation, and that consideration must also be given to the interests of the community in the criminal process proceeding. Where an accused’s criminal offending places other members of the community at risk, because of its violent or sexual nature, then the community interest in a prosecution proceeding is significant.

53. If HW was before the District Court because an election had been made for the Table 1 matters with which he is charged, an order for a permanent stay would not be the outcome on a finding that he was unfit. Instead HW would be subject to the provisions of the MHFPA which apply in the District Court. Those provisions provide for referral to the Mental Health Review Tribunal (MHRT) for assessment of whether the person is likely to become fit within the next 12 months, review by the MHRT as to whether the person has become fit, and where found unfit for trial, the Court conducts a special hearing. If not acquitted at special hearing, the defendant can be found Not Guilty Mental Illness, or found unfit and not acquitted, and the likely result is the defendant will be detained, and may be referred to MHRT as a forensic patient.

54. For the result in the Local Court to be an order for a permanent stay would appear to be in conflict with the process in the District and Supreme Courts of monitoring the accused’s fitness for a period so that the trial may be held if the person becomes fit, and for orders that an unfit defendant be detained (refer provisions of MHFPA and s 27 of that Act, refer also the discussion of Justice Hulme in Mailes v DPP And 1 Or [2006] NSWSC 267).

55. However, an accused who is not fit to plead who is before the Local Court faces a further unfairness issue – there is no provision for acquittal by a process such as the special hearing which applies in the District and Supreme Courts under the statutory provisions of the MHFPA.

56. The only process which does not require a finding of guilt at law, available in the Local Court, is an order under section 32 of the MHFPA. Perhaps such an order does cure the unfairness as no finding of criminal guilt is made. However it is not an acquittal, and section 32 also provides for an accused to be called up for breach of an order under that provision and further dealt with at that time, according to law. However, it would follow that if an accused was called up for breach of a section 32 order, at the time of dealing with the matter according to law the Local Court would be required to again be satisfied whether the accused was fit to plead.

57. The NSW Law Reform Commission (NSWLRC) in its report People with Cognitive and Mental Health Impairments in the Criminal Justice System. Criminal Responsibility and Consequences, Report No. 138 (2008) noted the effect of the common law and considered the options of adjournment and stay of proceedings. An adjournment would be appropriate where the unfitness was temporary, and bail conditions could ensure treatment in the interim. The NSWLRC was of the view that a stay order was not appropriate and that the order to be made was one of discharge.

58. The legal authorities which deal with the consequences of a finding of unfitness in the absence of a statutory scheme are therefore of some guidance to the Local Court, and on review, it appears that the order may be one for discharge. However, as discussed above, the Local Court appears to have no power to make such an order for discharge of an accused on the basis of a finding that the accused is not fit to plead.

59. As discussed above the appropriate order may be for a stay. The decision of the Supreme Court in Mantell involved an appeal against a magistrate’s refusal of a section 32 application and refusal to order a stay of proceedings on the grounds that the defendant was unfit. The Supreme Court found that the Local Court had erred in its approach to the fitness issue. Given what was argued on appeal, Adams J did observe, on remitting the matter for redetermination by the Local Court, that if the Local Court did not deal with the matter under section 32 it would be required to consider any application for a stay.

60. The various authorities on stay of proceedings indicate that central considerations include abuse of process, including issues of the fairness of the trial. As was stated in the Court of Criminal Appeal decision in DPP v Shirvanian (1998) 44 NSWLR 129, per Murphy J with, whom Beasely JA agreed (at 190):

Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286-287; Ridgeway v The Queen (1995) 184 CLR 19 at 60-61, 74-75, 92-93; see also Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited” [1995] Crimple 864. Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway (at 41, 43)), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) (1989) 168 CLR 23), or are being conducted for a purpose which in the eye of the law they are not intended to serve: Jago (at 47-48); Williams v Spautz (1992) 174 CLR 509; Ridgeway (at 46, 60, 75). Abuse of process is not confined to the obstruction of fairness in procedure: Jago (at 58); R v Brown C (1989) 17 NSWLR 472 at 478-479; Ridgeway (at 75).

61. It has been submitted in the current matter that the appropriate order once a finding that the accused is not fit is made, in an order for a permanent stay. It was conceded by defence legal representative that an order pursuant to s32 of the MHFPA could be made but it is submitted that the court would need to be satisfied that this would address the unfairness issues faced by the accused due to his status of not being fit for trial. It was submitted that the proper order, given unfairness, is an order for permanent stay of the proceedings.

62. An order for a permanent stay may be appropriate where the abuse of process or unfairness is not temporary, or cannot be cured. However it is a very significant order because of the permanence. This is a relevant consideration where the Local Court is being asked to order a permanent stay of proceedings for offences which include offences of sexual violence, and the ground for the application for a stay is that the accused is not fit to plead. No other unfairness, such as delay, or other abuse of process is asserted. In deciding whether to exercise the judicial discretion to order a permanent stay the Local Court should consider the authorities set out above, as to the interests to consider, and should also properly consider whether it would be appropriate to make another order which is available to the Court, that of diversion under section 32 of the MHFPA.

Does the Local Court have jurisdiction to make a section 32 order, where a defendant is found not fit to plead, on facts such as the present case?

63. The decision in Mantell indicates that the Local Court may make a section 32 order where an accused is found to be unfit. Section 32 has been recently amended (in particular s32(1)(a) and s32(3)(b)) with the amendments commencing 28 August 2017. The amendments provide for expanded orders which can be made where an accused is cognitively impaired.

64. Section 32(1)(a) is now in the following terms:

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):

(i) cognitively impaired (NOTE: this was amended in August 2017 from the former term ‘developmentally disabled’), or

(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…

65. The amendments saw the insertion of a definition of “cognitive impairment” in section 32(6):

“cognitive impairment” means ongoing impairment of a person’s comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person’s ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person’s brain or mind, and includes (without limitation) any of the following:

(a) intellectual disability,

(b) borderline intellectual functioning,

(c) dementia,

(d) acquired brain injury,

(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f) autism spectrum disorder.

66. The wording of section 32(3)(b) was amended and now reads as follows (amendments in italics):

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:

(i) for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or

(ii) to enable the provision of support in relation to the defendant’s cognitive impairment, or

(c) unconditionally

67. Section 32(3)(b) previously stated “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..”.

68. The Second Reading Speech for the amending Act, the Justice Legislation Amendment Act 2017, states as follows:

Schedule 1.10 amends the Mental Health (Forensic Provisions) Act 1990 to update old terminology to align with current understandings of cognitive impairment and to ensure that people with cognitive impairment can be diverted into assessment, treatment and support. Section 32 of the Act allows magistrates to divert people with cognitive and mental health impairments from the criminal justice system. The amendment makes it clear that this power is not limited to developmental disabilities and includes other forms of cognitive impairment. The amendment will support a two-year pilot of the Cognitive Impairment Diversion Program commencing later this year. The program is aimed at people with cognitive impairment who appear before the Local Court for early low-level offending. The program will provide a pathway for people assessed as having a cognitive impairment, who need supports related to their disability.

69. The Second Reading Speech clearly indicates Parliament’s intention for diversion of those with cognitive impairments who are early low-level offenders. But should the Local Court divert serious offenders who are cognitively impaired and who are repeat offenders? It is recognised by appellate courts that the determination by a magistrate, whether to divert under section 32, requires a weighing of different interests, including the interest of an accused in receiving treatment and the public interest in those charged with criminal offences being dealt with according to law. Issues impacting on the magistrate’s determination include the seriousness of the offence, issues of community safety, the limited duration of a section 32 order (6 months), the efficacy and specificity of a treatment plan, and issues of deterrence in sentencing (refer DPP v El Mawas [2006] NSWCA 154; Quinn v Director of Public Prosecutions [2015] NSWCA 331; Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760).

70. It was observed by the NSWLRC in its report (cited above) that the more serious the offending behaviour, the less likely a section 32 order would be made, but if an accused is found unfit to plead on a serious offence, a consequence of such a finding in the Local Court may be that the accused is discharged without any oversight by the Court, or any requirement for treatment or supervision by any agency. Those issues are in play in the present case, and indeed in many cases where fitness to plead is raised before the Local Court.

71. The Local Court increasingly deals with serious offences of sexual and personal violence, (Table 1 offences) which if dealt with on indictment (on election by the Director of Public Prosecutions, or the accused) attract lengthy sentences. The following offences are examples of offences regularly dealt with by the Local Court (the applicable penalties if dealt with on indictment are included in parenthesis: Procure child for sexual activity (12 years or over); Produce/disseminate/possess child abuse material i.e. child pornography (10 years); Intentionally choke/strangle with recklessness (10 years); Administer poison to endanger life or cause grievous bodily harm (10 years); Recklessly cause grievous bodily harm (7 – 14 years); Indecent assault (5 years); and Aggravated indecent assault, victim under 16 years (7 years). These offences are some of the Table 1 offences which can be dealt with to finality in the Local Court, and the offences of indecent assault, and aggravated indecent assault, as well as the offence of choking, are commonly prosecuted in the Local Court. These matters are mentioned to illustrate the risks posed to members of the community by some of the offenders before the Local Court.

72. I turn now to a consideration of whether a section 32 order should be made in the present case. I have considered this issue in light of the foregoing discussion. I am satisfied that HW meets the definition of a person with a cognitive impairment, as defined in the amended section 32.The question is whether it is appropriate to divert HW, with an order for support services to be provided to him, pursuant to section 32(3)(b)(ii) of MHFPA, or to deal with him, otherwise in accordance with law. There are real questions as to the efficacy of any treatment/support services for HW’s cognitive impairment in preventing reoffending and protecting the community. This is particularly concerning in relation to the sexual offences, given the recommendations and concerns raised in Ms Zipparo’s report. Section 32 requires a magistrate to balance various interests, as set out above. It is clearly in HW’s interest that he receive an intervention/education/prevention program to assist him to avoid reoffending, and to provide support for his cognitive impairment.

73. In relation to the balancing of interests in making a section 32 determination, in addition to considering HW’s interests in receiving support/treatment, I am required to consider the public interest. In considering the public interest it is appropriate to consider community safety, and in the present case this is an important consideration given the risk HW poses to members of the community. Where the only order the Local Court can make is one of permanent stay of proceedings, resulting in no prosecution, and no intervention plan to address the offending behaviour, then community safety and the public interest would indicate that the Local Court should, if it can, make an order which reduces the prospect of HW reoffending thereby addressing community safety. On this basis the balancing of interests would indicate that a section 32 order would be appropriate. The difficulty in the current matter would be the specifics of such an order.

74. The opinions provided by both Dr Lennings and Ms Zipparo indicate that accommodation issues and behavioural management issues will be an important part of any intervention plan incorporated into the services provided to HW. On this evidence it appears to be necessary for a Public Guardian to be appointed with decision-making powers as to HW’s accommodation, appropriate restrictive practices in any behavioural management support plan, and services provision (to enable services to be provided for implementation of the recommendations in Ms Zipparo’s report, such services will support HW’s cognitive impairment to reduce the risk of reoffending). Yet, pursuant to section 32, I cannot make an order binding upon a third party. The development of a behavioural management plan and the making of an application for the appointment of a guardian would need to be undertaken by third party service providers involved in HW’s residential care. HW is incapable of applying for the appointment of a guardian, and is incapable of organising and consenting to the provision of appropriate services. The current residential care provider could make an application for the appointment of a guardian for HW and could also engage with any guardian so appointed in the development of an appropriate intervention and accommodation plan, but I cannot order them to do so. I note the evidence suggests that HW may have a financial guardian but there is no mention of a guardian who is appointed to make decisions about HW’s accommodation and services. Both Dr Lennings and Ms Zipparo indicate that there are decisions to be made about HW’s accommodation to reduce the risk of reoffending.

75. I am satisfied that it may be suitable, for all of the forgoing reasons, for a section 32 order to be made to ensure the provision of appropriate services to HW, as provided for in section 32(3)(b)(ii), which would aim to reduce the possibility of reoffending by supporting HW with appropriate services addressing his offending behaviour. The Local Court may make a section 32 adjournment order to allow a plan to be developed. In any adjournment period the Local Court may make a bail determination as to HW’s conduct in the adjournment period. I have determined for all of the foregoing reasons that the appropriate order to be made in the current case is an order pursuant to section 32 of the MHFPA for the proceedings to be adjourned.

Updated information received from defence representative on decision date as to appointed guardian

76. Mr Yee, legal representative from the Legal Aid Commission of NSW, provided advice after this decision was read on the record, that he had received advice from HW’s current residential care provider that a Public Guardian was appointed for HW. I indicated, on the record on 22 December 2017, that the decision and orders would be amended to take this into account, and I have amended this document to reflect that part of the court proceedings on 22 December 2017.

Orders

77. Pursuant to section 32 the proceedings are adjourned to 11 April 2018, part heard before me.

78. I direct that the Registrar of Liverpool Local Court provide a copy of these Reasons for Decision to the Office of the Public Guardian (for the attention of the appointed guardian) and to the current residential care provider, for their consideration of the development of an appropriate behavioural management plan, which incorporates the recommendations of Ms Zipparo as set out above, as to a sexual education program, and which includes consideration of whether secure premises might need to be provided.

79. I further order that any party, being HW, HW’s legal representatives (currently the Legal Aid Commission of NSW), or the Police through their representatives (currently the police prosecutors) have liberty to apply to restore the matter to the list for further orders within the adjournment period.

80. I will now hear any submissions from the parties as to bail conditions in the adjournment period. In the absence of any submission that bail should be changed, HW’s existing bail will continue.

Magistrate Huntsman

22 December 2017

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Decision last updated: 01 May 2018