Citation: Anthony Nicholas Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
Court: Supreme Court of New South Wales, Common Law Division
Date: 3 December 2004
Judge(s): Howie J
Background
The plaintiff was charged with a series of summary offences arising from a road rage incident in Sydney in October 2003. The incident involved menacing and dangerous driving along New South Head Road and through the Kings Cross Tunnel, culminating in the plaintiff entering a taxi and repeatedly punching the driver while making racially abusive remarks.
The plaintiff applied to the Local Court Magistrate to have the proceedings dealt with under s 32 of the Mental Health (Criminal Procedure) Act 1990, which permits a magistrate to divert a defendant away from conventional criminal proceedings where the defendant suffers from a mental illness or condition. A psychiatrist's report confirmed the plaintiff suffered from a mental condition involving severe mood disturbance, depression, and intermittent uncontrolled anger, compounded by cannabis use.
The Magistrate refused the application, citing the serious nature of the offences and expressing doubt that the plaintiff's behaviour was attributable to his mental condition rather than his drug use. The plaintiff sought relief in the Supreme Court, asking either that the order be made in his favour or that the matter be remitted to the Magistrate for reconsideration.
Legal Issues
- Whether the Magistrate erred in refusing to deal with the plaintiff under s 32 of the Mental Health (Criminal Procedure) Act 1990.
- Whether the Magistrate gave excessive weight to the seriousness of the offences or to an irrelevant factor (the plaintiff's drug use) in exercising the discretion under s 32.
- Whether the Supreme Court had jurisdiction to interfere with the Magistrate's exercise of discretion, and on what basis.
Decision
Howie J dismissed the summons. The court noted at the outset that the proper procedural vehicle for the challenge was likely an application for leave to appeal under s 53 of the Crimes (Local Courts Appeal and Review) Act 2001, rather than the s 69 Supreme Court Act relief the plaintiff had sought. However, given the matter could be resolved without settling that jurisdictional question, the court proceeded on the substance.
The central difficulty for the plaintiff was that the decision under s 32 is a discretionary one. The established principle, as confirmed in R v Fahda, is that a superior court will only interfere with such a discretion on limited grounds, such as where the decision-maker took into account an irrelevant consideration, ignored a relevant one, or made an error of law.
Howie J found the Magistrate's concerns about the seriousness of the offences were plainly relevant to the exercise of the s 32 discretion. The question under that section is not merely whether a defendant has a qualifying mental condition, but whether it would be "more appropriate" to deal with the defendant under the section than in accordance with ordinary law. The gravity of the conduct charged is a legitimate factor in that assessment.
The court was not persuaded that the Magistrate had improperly attributed the plaintiff's behaviour to drug use rather than mental illness, or that she had otherwise acted on a wrong basis. No reviewable error was established, and the challenge to the discretion did not reach the threshold required for intervention.
Orders Made
- The summons was dismissed with costs.
- The costs order was confined, on the Director's concession, to counsel's fees only.
Key Takeaways
- Under s 32 of the Mental Health (Criminal Procedure) Act 1990, a magistrate's power to divert a defendant from ordinary criminal proceedings is discretionary. The existence of a qualifying mental condition is necessary but not sufficient; the magistrate must also be satisfied that diversion is "more appropriate" than proceeding according to law.
- The seriousness of the charges before the court is a legitimate consideration when a magistrate exercises the s 32 discretion, and significant weight may be placed on it.
- A superior court will only interfere with a magistrate's exercise of s 32 discretion on the narrow grounds applicable to discretionary decisions generally, such as taking into account irrelevant matters, ignoring relevant ones, or making an error of law.
- No reviewable error was established where the Magistrate weighed the gravity of the offending and expressed scepticism about whether the defendant's conduct was driven by mental condition rather than drug use, provided those concerns were grounded in the evidence before her.
- In dismissing the summons, the Supreme Court also confirmed that a refusal to apply s 32 is likely an interlocutory order for the purposes of s 53(3)(b) of the Crimes (Local Courts Appeal and Review) Act 2001, though it left this point expressly unresolved.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 32
- Supreme Court Act 1970 (NSW), s 69
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 53
- Road Transport (Safety and Traffic Management) Act (NSW), ss 42(1)(c), 42(2), 43(2)
- Crimes Act 1900 (NSW), s 59(1)
- Australian Road Rules, r 287
- Bail Act 1978 (NSW)
- Mental Health Act 1990 (NSW), Chapter 3
Cases:
- R v Fahda [1999] NSWCCA 267