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Supreme Court 15 March 2005

SAMI EL MAWAS v DIRECTOR OF PUBLIC PROSECUTIONS

[2005] NSWSC 243

Assault & violence
CRIMINAL LAW SUMMARY PROCEEDINGS MENTAL HEALTH

Citation: SAMI EL MAWAS v DIRECTOR OF PUBLIC PROSECUTIONS [2005] NSWSC 243
Court: Supreme Court of New South Wales (Common Law Division)
Date: 15 March 2005
Judge(s): Greg James J

Background

The plaintiff faced multiple serious charges in the Local Court at Burwood, including two counts of assault occasioning actual bodily harm, two counts of malicious wounding, property damage, and offences involving entering enclosed lands. He applied to Magistrate Mottley under section 32 of the Mental Health (Criminal Procedure) Act 1990, seeking to be diverted from ordinary criminal proceedings into a mental health treatment pathway.

The magistrate dismissed the section 32 application. The plaintiff then sought leave to appeal to the Supreme Court, arguing the magistrate had incorrectly construed and applied the relevant provisions. The Director of Public Prosecutions assumed conduct of the proceedings before the Supreme Court and was joined as a party.

  • Whether leave to appeal should be granted against a magistrate's refusal of a section 32 diversion application (given the appeal was not against a conviction or sentence, but against a procedural ruling)
  • Whether the magistrate correctly construed section 32 of the Mental Health (Criminal Procedure) Act 1990, particularly the threshold requirements and the concept of "appropriateness"
  • Whether the seriousness of the offending conduct, by itself, could disqualify a defendant from section 32 diversion
  • Whether the magistrate correctly assessed the relationship between the defendant's alleged mental condition and the offending conduct

Decision

Greg James J granted leave to appeal, finding that the case raised matters of general importance concerning the correct application of Part 3 of the Mental Health (Criminal Procedure) Act 1990 and that a demonstrable miscarriage of justice had arguably occurred.

On the substantive question, the court found that the magistrate had incorrectly construed the purpose and scope of section 32. The section applies where a defendant appears to be suffering from a mental condition for which treatment is available, and it would be "more appropriate" to deal with the defendant under the Act's provisions than in the ordinary course of law. The court rejected any approach that treated the seriousness of the offending conduct as a near-dispositive factor against diversion.

The court disagreed with the proposition that the more serious the offence, the less likely it will be appropriate to invoke section 32. Protection of the community is the underlying concern, but treatment itself serves that protective purpose. The weight to be given to various factors, including the nature and seriousness of the offending, remains a matter for the individual magistrate, and no short-form test based primarily on offence seriousness is appropriate.

Critically, the court found that the magistrate had made a factual finding, unsupported by the material before her, that the offending did not appear to relate to the defendant's condition. That error, combined with the magistrate's failure to consider the purposes of treatment under the Act, constituted an incorrect construction of section 32. The matter was remitted to the Local Court for reconsideration in accordance with the court's reasons.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Declaration numbered 2 in the further amended summons made (that the magistrate erred in law in her construction and application of section 32)
  • Matter remitted to the Local Court for determination in conformity with the Supreme Court's reasons
  • The defendant (Director of Public Prosecutions) ordered to pay the plaintiff's costs

Key Takeaways

  • Section 32 of the Mental Health (Criminal Procedure) Act 1990 provides a diversion pathway for defendants in summary proceedings who appear to suffer from a mental condition for which treatment is available, where diversion would be "more appropriate" than ordinary legal process.
  • A magistrate's refusal to invoke section 32 is not an appeal against conviction or sentence, meaning leave to appeal is required under the Crimes (Local Court Appeal and Review) Act 2001.
  • The seriousness of the offending conduct is a relevant factor in the section 32 "appropriateness" assessment, but it cannot operate as a threshold bar or near-determinative consideration against diversion.
  • Treatment under the Mental Health (Criminal Procedure) Act 1990 is itself a form of community protection, meaning the public interest is not served only by punishment of serious offending.
  • Where a magistrate makes a factual finding unsupported by the evidence before the court (such as a finding that the offending did not relate to the defendant's mental condition) and fails to consider the purposes of treatment, that constitutes an error of law in the construction of section 32.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 32, 33, Part 3
- Mental Health Act 1990 (NSW)
- Crimes Act 1900 (NSW), ss 35, 59, 105, 114
- Crimes (Local Court Appeal and Review) Act 2001 (NSW), ss 52.1, 55.3
- Director of Public Prosecutions Act 1986 (NSW), ss 9, 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Enclosed Lands Protection Act 1901 (NSW), s 4

Cases:
- The Queen v M'Naghten (1843) 8 ER 718
- Porter v The Queen (1936) 55 CLR
- Sodeman v The Queen (1936) 55 CLR
- R v Pangallo (1989) 51 SASR 254
- R v S (1979) 2 NSWLR
- Attorney General for South Australia v Brown (1960) AC 432
- Acuthan & Anor v Coates & Ors (1986) 6 NSWLR 472
- Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
- Norbis v Norbis (1986) 161 CLR 513