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Supreme Court 18 September 2006

Mantell v Molyneux

[2006] NSWSC 955

Also reported as 165 A Crim R 83
Assault & violenceDomestic & family violence
APPEAL FROM LOCAL COURT UNFITNESS FOR TRIAL RELEVANT CONSIDERATIONS RELEVANT CONSIDERATIONS

Citation: Mantell v Molyneux [2006] NSWSC 955
Court: Supreme Court of New South Wales (Common Law Division)
Date: 18 September 2006
Judge(s): Adams J

Background

The appellant was a vulnerable Aboriginal woman with a history of mental illness, intellectual disability, long-term alcohol abuse, and severe trauma. She faced charges arising from two assault incidents in April 2005 at Nowra, one involving her brother. Reports from community health workers, disability services, and psychiatric assessors consistently described her as a person at significant risk of self-harm and psychological deterioration if required to participate in court proceedings.

The matter came before Magistrate Dick in the Local Court at Nowra on multiple occasions. Her legal representative had serious concerns about the appellant's capacity to meaningfully engage with the proceedings, and applications were made under s 32 of the Mental Health (Criminal Procedure) Act 1990 for the charges to be diverted rather than dealt with through the ordinary criminal process. The Magistrate declined those applications and proceeded to deal with the matter according to law.

The appellant appealed to the Supreme Court under s 53(3) of the Crimes (Local Courts Appeal & Review) Act 2001, challenging three decisions: two refusals to divert under s 32, and a refusal of a permanent stay.

  • Whether the Magistrate erred in finding the appellant fit to stand trial
  • Whether the Magistrate erred in exercising his discretion to refuse diversion under s 32 of the Mental Health (Criminal Procedure) Act 1990
  • Whether the two questions (fitness to plead and s 32 diversion) are legally independent of one another
  • Whether the Magistrate's approach to the s 32 discretion was infected by legal error

Decision

Adams J found that the Magistrate erred in law in concluding the appellant was fit for trial. The evidence before the court, including detailed reports from multiple health and disability services, pointed strongly against the appellant's capacity to meaningfully participate in the proceedings. That finding was not open on the material available.

However, the Supreme Court upheld the Magistrate's separate decision not to divert the matter under s 32. The Magistrate had taken the view that proceeding according to law was more appropriate, having regard in part to the s 9 bond already imposed for a related matter. While the Magistrate gave limited reasons at the second hearing, Adams J found the reasoning was sufficiently apparent from the transcript as a whole, and no error in the exercise of that discretion was established.

Adams J confirmed that fitness to plead and the s 32 diversion question are legally distinct. A finding that a defendant is unfit to plead does not compel diversion under s 32, and a refusal to divert does not preclude a finding of unfitness. Even a defendant found unfit may still be diverted under s 32, and conversely a finding of unfitness does not automatically follow from a refusal to divert.

The order finding the appellant fit to be tried was quashed. The matter was referred to a different magistrate with the capacity to reconsider any s 32 application afresh and, if that application is rejected, to hear and determine a stay application on grounds of unfitness.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part: the implicit order that the appellant was fit to be tried was quashed
  • Appeal dismissed in part: the order to proceed according to law (refusing s 32 diversion) was not disturbed
  • Matter referred to another magistrate to consider the s 32 application and, if rejected, any stay application on unfitness grounds
  • No order as to costs

Key Takeaways

  • Fitness to plead and the s 32 diversion discretion are legally independent questions. A refusal to divert does not preclude a finding of unfitness, and a finding of unfitness does not compel diversion.
  • Under s 32 of the Mental Health (Criminal Procedure) Act 1990, the Magistrate's task is to assess whether it would be "more appropriate" to divert the defendant than to proceed according to law. That assessment involves a genuine discretionary judgment, and appellate courts will not interfere with it absent demonstrated error.
  • Where a Magistrate gives no formal reasons for a s 32 decision, the reasons may nonetheless be sufficiently apparent from the transcript of the proceedings taken as a whole, so that the absence of formal reasons does not necessarily constitute error.
  • A defendant who lacks the capacity to meaningfully engage with proceedings, as evidenced by consistent clinical and caseworker reports, is not fit for trial. The Supreme Court found the Magistrate's fitness determination was not open on the evidence available.
  • Adams J noted, without expressing a view on the outcome, that the time elapsed since the charges were laid was a factor that the relevant authorities ought to take into account when considering whether it remained necessary or desirable for the proceedings to continue.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 32, 33, 34
- Crimes (Local Courts Appeal & Review) Act 2001 (NSW), s 53(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes Act 1900 (ACT), s 428E
- Mental Health (Treatment and Care) Act 1994 (ACT), s 68(3)

Cases
- DPP v El Mawas [2006] NSWCA 154
- Eastman v The Queen (2000) 203 CLR 1
- House v The King (1936) 55 CLR 499
- Mackie v Hunt (1989) 19 NSWLR 130
- Ngatai v The Queen (1980) 147 CLR 1
- Pioch v Lauder (1976) 13 ALR 266
- R v Mailes (2001) 53 NSWLR 251
- R v Presser [1958] VR 45