Siebert v Feasey

Case [2024] NTSC 31

CITATION:Siebert v Feasey [2024] NTSC 31

PARTIES:SIEBERT, Kelly Marie

v

FEASEY, Albert Bruce

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction

FILE NO:LCA 36 of 2023 (22317071)

DELIVERED:  17 April 2024

HEARING DATE:  15 April 2024

JUDGMENT OF:  Riley AJ

CATCHWORDS:

Criminal Code Act 1983 (NT) s 188(1), s 188(2)

Local Court (Criminal Procedure) Act 1928 (NT) s 163(1), s 163(3), s 166, s 177(2)(f)

Mental Health and Related Services Act 1998 (NT) s 77, s 77(2), s 77(4)

Bryant v Kowcun [2017] NTLC 032;

Craig v State of South Australia (1995) 184 CLR 163;

Harvey v Borfilios [2017] NTSC 68;

HT v The Queen (2019) 269 CLR 403;

Lee v The Queen (1998) 195 CLR 594;

Lorenzetti v Brennan [2021] NTSCFC 3;

Mununggurr v Gordon & Anor [2011] NTSC 82;

MZAPC v Minister for Immigration and Border Protection (2021) HCA 17

O’Neill v Lockyer [2012] NTSC 10;

Re McBain; Ex P Catholic Bishops Conference [2002] 209 CLR 372;

Returned and Services League of Australia (Vic Branch) Inc v Liquor Licensing Commission (1999) 2 VR 203;

The NT Police Association Inc v The Police Arbitral Tribunal [2000] NTSC 32

REPRESENTATION:

Counsel:

Appellant:L Auld with A Gallagher

Respondent:  T Moses with J Henderson

Solicitors:

Appellant:Director of Public Prosecutions

Respondent:  NT Legal Aid Commission

Judgment category classification:    B

Judgment ID Number:  Ril2401

Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Siebert v Feasey [2024] NTSC 31

No. LCA 36 of 2023 (22317071)

BETWEEN:

KELLY MARIE SIEBERT

Appellant

AND:

ALBERT BRUCE FEASEY

Respondent

CORAM:    RILEY AJ

REASONS FOR JUDGMENT

(Delivered 17 April 2024)

  1. This is an appeal against a decision of the Local Court made on 19 October 2023. On that day the Court, relying upon s 77(4) of the Mental Health and Related Services Act 1998 (NT) (“the Act”), dismissed seven charges relating to offences allegedly committed by the respondent on 14 May 2023. In so doing, the Court received and relied upon a certificate from the Chief Health Officer and an associated report authored by Mental Health Nurse, Mr Mark Wilson, dated 27 July 2023 which had previously been requested by the Court under s 77(2) of the Act.

  2. The grounds of appeal are that the Local Court denied the appellant procedural fairness by: (a) refusing to allow the appellant to cross-examine Mr Wilson unless and until the appellant obtained its own expert report addressing matters set out under s 77 of the Act; and (b) refusing the appellant’s application to adjourn the matter so that the appellant could obtain an expert report to deal with relevant matters under s 77 of the Act.

    The background

  3. The respondent came before the Local Court charged with a number of serious offences arising out of events which took place on 14 May 2023. In summary form the case alleged against him was that on that…

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Siebert v Feasey [2024] NTSC 31
Case
[2024] NTSC 31
Decision Date

CaseChat Overview and Summary

In the case of Siebert v Feasey, the appellant, represented by counsel, appealed against the decision of the Local Court which dismissed charges against the respondent arising from an incident on 14 May 2023. The appellant argued that the Local Court denied procedural fairness by not allowing cross-examination of the expert witness unless an expert report was obtained, and by refusing an application to adjourn the matter to obtain such a report. The appeal challenged the competence of the notice of appeal, which was filed as a single notice against the seven charges dismissed by the Local Court.

The primary legal issue was whether the notice of appeal was competently filed as a single notice against multiple charges, as opposed to separate notices for each charge. The appellant contended that the Local Court erred in denying procedural fairness by imposing conditions on cross-examination and the right to adjourn. The respondent argued that the appeal notice was incompetent because it did not file separate notices for each charge, as required by the Full Court in Lorenzetti v Brennan.

The court determined that the notice of appeal was initially incompetent as it was filed as a single notice against multiple charges. However, the court allowed the appellant to amend the notice of appeal to limit it to one file related to count 2. The court found that the Local Court's refusal to allow cross-examination unless an expert report was obtained, and its denial of the application to adjourn, constituted a denial of procedural fairness. This error was properly conceded by the respondent, who acknowledged that the condition imposed on cross-examination was an improper and unnecessary restriction on the appellant's case.

The court allowed the appeal in relation to the one amended file, directing that the matter be remitted to the Local Court to be dealt with according to law. The court dismissed the application for an extension of time for judicial review. The court reserved the matter for further orders on consequential orders and costs.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are that the Local Court denied the appellant procedural fairness by: (a) refusing to allow the appellant to cross-examine Mr Wilson unless and until the appellant obtained its own expert report addressing matters set out under s 77 of the Act; and (b) refusing the appellant’s application to adjourn the matter so that the appellant could obtain an expert report to deal with relevant matters under s 77 of the Act.The background The respondent came before the Local Court charged with a number of serious offences arising out of events which took place on 14 May 2023. In summary form the case alleged against him was that on that day he attended at an address in Stuart Park being the residence of his ex-partner SL, her partner RD and their seven children. The respondent parked his vehicle in the front driveway of the residence and commenced an argument with SL regarding money he perceived was owed to him by the father of SL. He was asked to leave multiple times. RD became aware of the conversation and approached the respondent and again asked him to leave. The respondent became increasingly angry and agitated and reached into his vehicle arming himself with a double barrel side-by-side shot gun. He stood by the open driver-side door of his vehicle and pointed the gun towards the ground and then shook it in the air telling RD “I will smash you with it”. RD called out for family members to call the police and SL told the respondent to leave. The respondent then pointed the shot gun towards the house and worked the action resulting in a shell being ejected from the firearm and landing on the roof of his car. He is alleged to have said “it works I will use it on you. I will come back, I can use it”. The respondent re-entered his vehicle and reversed it onto the road. He then took the shotgun shell from the roof of the vehicle saying “I better get my bullet, I will need that”. He then drove away. The respondent was arrested on 15 May 2023 following a nine hour siege at his home. He was conveyed to Royal Darwin Hospital where he received treatment in relation to his mental health. On 31 May 2023 he was discharged into police custody. The respondent was subsequently charged with seven offences including unlawful assault, carrying a loaded firearm, possession of a firearm, and threatening behaviour. The matter first came before the Local Court on 1 June 2023 when a report was ordered pursuant to s 77 of the Act. That section is in the following terms:Dismissal of charge(1) This section applies to a person if:(a)the person is charged with an offence in proceedings before a court (other than proceedings for a committal or preliminary hearing); and(b)the charge is being dealt with summarily.(2) The court may request from the Chief Health Officer a certificate in the approved form stating:(a)whether at the time of carrying out the conduct constituting the alleged offence, the person was suffering from a mental illness or mental disturbance; and(b)if the person was suffering from a mental illness or mental disturbance – whether the mental illness or disturbance is likely to have materially contributed to the conduct.(3) The Chief Health Officer must not give the court the certificate unless the Chief Health Officer has received and considered advice on the person from an authorised psychiatric practitioner or designated mental health practitioner.(4) After receiving the certificate, the court must dismiss the charge if satisfied that at the time of carrying out the conduct constituting the alleged offence:(a)the person was suffering from a mental illness or mental disturbance; and(b)as a consequence of the mental illness or disturbance, the person:(i)did not know the nature and quality of the conduct; or(ii)did not know the conduct was wrong; or(iii)was not able to control his or her actions.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my opinion, certiorari should not be granted in the exercise of my discretion. I have concluded that, in all the circumstances, an extension of time in which to commence proceedings should not be granted.Conclusion I declare that the notice of appeal as lodged was incompetent. However, I allow the application to amend the notice of appeal to limit the notice to one file being that related to count 2 on the information. In relation to that appeal I allow the appeal and direct that the matter be remitted to the Local Court to be dealt with according to law. In relation to the application for judicial review I dismiss the application for an extension of time. I will hear the parties as to consequential orders and costs.

Ratio Decidendi

Legal Principle Established

Finally, on 19 October 2023, the then presiding Local Court Judge observed that the “prosecution has been given the opportunity to obtain alternative expert evidence in relation to the conclusion drawn by Mark Wilson and have failed to do so”.[2] His Honour referred to the delays in the proceeding and then expressed the conclusion that: “I am satisfied pursuant to s 77(4) of the Mental Health and Related Services Act and I dismiss charges 1 through to 7 on this file”. No opportunity was provided to the appellant to cross-examine Mr Wilson and the application for a further adjournment was denied. No additional reasons for decision were provided.The operation of s 77 of the Act The operation of s 77 of the Act was helpfully discussed by Barr J in O’Neill v Lockyer.[3] His Honour observed that the certificate issued under s 77(2) of the Act is directed to a different question from that to be decided by the Court under s 77(4)(b) of the Act. The Chief Medical Officer must state whether the mental illness or disturbance is likely to have materially contributed to the person’s conduct, however, the Court must determine under s 77(4) whether, as a consequence of the mental illness or disturbance, the person (i) did not know the nature and quality of the conduct; or (ii) was not able to control his or her actions.[4] The certificate alone is not sufficient for the purpose of satisfying the Court under s 77(4)(a) and the Court should not rely exclusively upon the certificate but rather must consider all the evidence. The Court should always go behind the certificate. The purpose of the certificate is to give a preliminary indication to the Court and to the parties as to whether the defence of mental illness/mental disturbance might be available. In this case, and contrary to the observations in O’Neill v Lockyer, the Local Court Judge referred to the opportunity previously provided to the appellant to seek additional expert advice and then, without more, concluded: “That coupled with the fact that I am satisfied pursuant to s 77(4) of the Mental Health and Related Services Act, and I dismiss the charges 1 through to 7 on this file”. His Honour did not provide reasons for being so satisfied. Notwithstanding that failure, the appellant has not sought to appeal on that ground.The appeal The appellant filed a notice of appeal “against the whole of the decision of the Local Court ... dismissing seven charges allegedly committed by the respondent on 14 May 2023”. In response, the respondent contended that the appeal was incompetent because it was instituted by filing a single notice of appeal against the seven orders dismissing each of the seven charges. The respondent relied upon the reasoning of the Full Court in Lorenzetti v Brennan[5] that separate notices of appeal are required for each order dismissing a charge. In the challenge to the competence of the notice, the respondent conceded that, if the appeal was competent, the error asserted in particular (a) of the ground was made out. The respondent acknowledged that in refusing to allow the appellant to cross-examine Mr Wilson unless and until the appellant had obtained its own expert report, the Local Court denied the appellant procedural fairness. The respondent observed that, in the circumstances, to impose a condition on the right of cross-examination was an improper and unnecessary fetter on the conduct of the appellant’s case. That concession was properly made.