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R v Patrech

R v Patrech

Case [2024] NSWDC 686 13 November 2024

Appeal

Jurisdiction

Mental Health Legislation

Procedural Fairness

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Patrech [2024] NSWDC 686
Hearing dates: 11, 13 November 2024
Date of orders: 13 November 2024
Decision date: 13 November 2024
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [47]-[48], [54]-[55].

Catchwords:
CRIME – APPEAL FROM LOCAL COURT – Appellant went to Local Court to seek an adjournment because of revocation of legal aid – Local Court did not want to grant an adjournment – Prosecutor believed case settled, but Appellant always sought an order under the Mental Health Legislation – Even after Local Court recorded a conviction and made an Apprehended Personal Violence Order Appellant continued to seek orders under Mental Health Legislation – “Advice” given by Local Court was incorrect – Denial of procedural fairness – Convictions set aside – Orders made under Mental Health Legislation.

Legislation Cited:
Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 14 and 19.
Legal Aid Commission Act 1979 s 57.
Crimes Act 1900, s 556A.
Crimes (Sentencing Procedure) Act 1999, ss 9, 10, 10A, 12.

Cases Cited:
White v R [2022] NSWCCA 241 at [58], [62] – [63].
Ming Yuk Wong v The DPP [2005] NSWSC 129; 155 A Crim R 37 at [15] – [19].
R v Murphy [1965] VR 187 at 191.
R v Sagiv (1986) 22 A Crim R 73 at 80.
R v Concotta (NSWCCA, 1 November 1995, unreported).
R v McLean [2001] NSWCCA 58.
R v Van [2002] NSWCCA 148.

Texts Cited:
Nil.

Category: Principal judgment
Parties: Appellant – Adam Patrech
Crown – R (NSW)
Representation:
Counsel:
Appellant – Mr Warr, T.
Crown – Mr Betts, L. (Sol. Ad.)
Solicitors:
Appellant – Legal Aid
Crown – Office of the Director of Public Prosecutions (NSW)

File Number(s): 2022/00380160; 2023/00248540
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

11 August 2023

Before:

Magistrate Barko

Judgment

HIS HONOUR: This is an appeal from a decision of Magistrate Barko sitting in the Downing Centre Local Court on Friday, 11 August 2023. The grounds given in the Notice of Appeal are these:

"I am appealing the above conviction/order because I am not guilty.
I am appealing the above sentence because the penalty is too severe.
I am appealing the above because I contest the Apprehended Violence Order made in these proceedings."

As anyone who has dealt with these matters knows, there is a formulaic Notice of Appeal form and the grounds of the appeal are usually indicated by merely ticking which ground of appeal the appellant relies upon. In the present case, all the grounds provided in the form have been ticked.
Counsel for the appellant has identified the relief sought in this fashion:

"(a) The pleas of guilty to two offences of intimidation (sequences 3 and 4) entered on 11 August 2023 be traversed and the convictions set aside.
(b) The discharge of the offences under s 14 of the Mental Health and Cognitive Impairment…

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 Patrech

Details

AGLC: R v Patrech [2024] NSWDC 686
Case: [2024] NSWDC 686
Decision Date: 13 November 2024

CaseChat Overview and Summary

In the matter of R v Patrech, the appellant appealed against the decision of the Local Court which had convicted him on a charge of assaulting an officer. The appellant sought an adjournment of the hearing due to the revocation of his legal aid, which the Local Court declined to grant. The appellant continued to seek orders under the Mental Health Legislation despite the Local Court recording a conviction and making an Apprehended Personal Violence Order. The appellant argued that the Local Court's decision was incorrect and that it had denied him procedural fairness.

The legal issues in this case centred around whether the Local Court had erred in denying the appellant's request for an adjournment and in not granting him orders under the Mental Health Legislation. The appellant contended that the Local Court had not properly considered his requests and had provided incorrect advice. The court had to determine whether the Local Court had breached the appellant's right to procedural fairness and whether the convictions should be set aside.

The court held that the Local Court had indeed erred in denying the appellant's request for an adjournment and in not granting him orders under the Mental Health Legislation. The court found that the advice given by the Local Court was incorrect and that the appellant had been denied procedural fairness. The court also noted that the appellant had consistently sought orders under the Mental Health Legislation and that the Local Court had failed to consider this properly. As a result, the convictions were set aside, and orders were made under the Mental Health Legislation.

The final orders of the court were to set aside the convictions and make orders under the Mental Health Legislation. These orders were detailed in paragraphs [47] to [55] of the judgment. The court emphasised the importance of ensuring that individuals seeking legal assistance are provided with procedural fairness and that their requests are properly considered.

Orders

Orders of the court

See pars [47]-[48], [54]-[55].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Patrech [2024] NSWDC 686

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Maxwell [2024] NSWSC 1576
Citation 1

…“15 There are a number of decisions of the Court of Criminal Appeal that have considered the basis upon which that Court will entertain such an application made by an accused person in indictable proceedings in the District or Supreme Court. The principles laid down in those cases apply equally to a…
White v R [2022] NSWCCA 241
Citation 2 (Para 29)

…lant from obtaining the benefit of an order under s 14. In his written submissions, MFI 1 Mr Warr of counsel referred me to the decision in White v R [2022] NSWCCA 241 at [58], [62] – [63]. However, that is authority for the proposition about where there is an application to withdraw a guilty plea prior to convictio…
Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129
Citation 3 (Para 30)

…This issue was considered by Howie J in Ming Yuk Wong v The DPP [2005] NSWSC 129; 155 A Crim R 37. His Honour commenced his judgment by pointing out that there were before him applications for leave to appeal against the decisions of two magistrates in effect refusing applications made by the plaintiff before his H…
R v Van [2002] NSWCCA 148
Citation 4

…Sagiv (1986) 22 A Crim R 73 at 80. R v Concotta (NSWCCA, 1 November 1995, unreported). R v McLean [2001] NSWCCA 58. R v Van [2002] NSWCCA 148. Texts Cited: Nil. Category: Principal judgment Parties: Appellant – Adam Patrech Crown – R (NSW) Representation: Counsel: Appellant – Mr Warr, T. Crown – Mr Betts, L. (Sol. A…
R v KCH [2001] NSWCCA 273
Citation 5

…r counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of justice; Regina v. KCH [2001] NSWCCA 273 involving improper pressure by counsel and Regina v. Becheru (CCA, unreported 6 April 2001) and Regina v. Toro-Martinez (2000) 114 A. Crim. R. 533.…
R v Wilkes [2001] NSWCCA 97
Citation 6

…ailure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v. M…
R v McLean [2001] NSWCCA 58
Citation 7 (Para 31)

…ta in R v Murphy [1965] VR 187 at 191 and R v Sagiv (1986) 22 A Crim R 73 at 80 and R v Concotta (NSWCCA, 1 November 1995, unreported) and R v McLean [2001] NSWCCA 58. That case was summarised in R v Van and referred to Senior Counsel's inappropriate advice on the applicant's ability to challenge a relevant matter…
R v Hura [2001] NSWCCA 61
Citation 8

…s (NSWCCA, unreported 20 February 1994); Liberti v. Regina (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regina v. Houra [2001] NSWCCA 61 at paras 32-33. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:- "• Where the appe…
R v Toro-Martinez [2000] NSWCCA 216
Citation 9

…49 To the cases cited should be added reference to Regina v. Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel t…
R v Favero [1999] NSWCCA 320
Citation 10

…(NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320."…
R v Iral [1999] NSWCCA 368
Citation 11

…49 To the cases cited should be added reference to Regina v. Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea…
R v Meissner [1999] NSWCCA 91
Citation 12

…“15 There are a number of decisions of the Court of Criminal Appeal that have considered the basis upon which that Court will entertain such an application made by an accused person in indictable proceedings in the District or Supreme Court. The principles laid down in those cases apply equally to a…
Maxwell v The Queen [1996] HCA 46
Citation 13

…plea of guilty, has been variously expressed. See Regina v. Boag (1994) 73 A. Crim. R. 35; Regina v. Meissner (1995) 184 CLR 132; Regina v. Maxwell (1995) 184 CLR 501; Regina v. Ross (NSWCCA, unreported 20 February 1994); Liberti v. Regina (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regin…
Meissner v the Queen [1995] HCA 41
Citation 14

…tion entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v. Boag (1994) 73 A. Crim. R. 35; Regina v. Meissner (1995) 184 CLR 132; Regina v. Maxwell (1995) 184 CLR 501; Regina v. Ross (NSWCCA, unreported 20 February 1994); Liberti v. Regina (1991) 55 A. Crim. R. 120 and the cases…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 10, 10A, 12, 9
5 mentions (from Para 49)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) 14, 19
3 mentions (from Para 9)
Crimes Act 1900 (ACT) 556A
2 mentions (from Para 49)
Legal Aid Commission Act 1979 (NSW) 57
2 mentions (from Para 40)

Medium Neutral Citation:	R v Patrech [2024] NSWDC 686
Hearing dates:	11, 13 November 2024
Date of orders:	13 November 2024
Decision date:	13 November 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [47]-[48], [54]-[55].
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – Appellant went to Local Court to seek an adjournment because of revocation of legal aid – Local Court did not want to grant an adjournment – Prosecutor believed case settled, but Appellant always sought an order under the Mental Health Legislation – Even after Local Court recorded a conviction and made an Apprehended Personal Violence Order Appellant continued to seek orders under Mental Health Legislation – “Advice” given by Local Court was incorrect – Denial of procedural fairness – Convictions set aside – Orders made under Mental Health Legislation.
Legislation Cited:	Mental Health and Cognitive Impairment Forensic Provisions Act 2020, ss 14 and 19. Legal Aid Commission Act 1979 s 57. Crimes Act 1900, s 556A. Crimes (Sentencing Procedure) Act 1999, ss 9, 10, 10A, 12.
Cases Cited:	White v R [2022] NSWCCA 241 at [58], [62] – [63]. Ming Yuk Wong v The DPP [2005] NSWSC 129; 155 A Crim R 37 at [15] – [19]. R v Murphy [1965] VR 187 at 191. R v Sagiv (1986) 22 A Crim R 73 at 80. R v Concotta (NSWCCA, 1 November 1995, unreported). R v McLean [2001] NSWCCA 58. R v Van [2002] NSWCCA 148.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Appellant – Adam Patrech Crown – R (NSW)
Representation:	Counsel: Appellant – Mr Warr, T. Crown – Mr Betts, L. (Sol. Ad.) Solicitors: Appellant – Legal Aid Crown – Office of the Director of Public Prosecutions (NSW)
File Number(s):	2022/00380160; 2023/00248540
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 11 August 2023 Before: Magistrate Barko