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Supreme Court 28 November 2007

Saadat-Talab v Australia Federal Police

[2007] NSWSC 1353

Also reported as 178 A Crim R 527
Public order & justice offences
CRIMINAL LAW SUMMARY PROCEEDINGS COMMONWEALTH OFFENCE STATUTORY CONSTRUCTION ALLEGED INCONSISTENCY NO INCONSISTENCY.

Citation: Saadat-Talab v Australian Federal Police [2007] NSWSC 1353
Court: Supreme Court of New South Wales (Common Law Division)
Date: 28 November 2007
Judge(s): Rothman J

Background

The appellant was a detained asylum seeker who faced three charges under Commonwealth law arising from a scuffle with security officers at Villawood Detention Centre in September 2004. The charges included threatening to cause serious harm to a Commonwealth public official, causing harm to a Commonwealth public official, and obstructing a Commonwealth public official. A consultant psychiatrist gave evidence that the appellant suffered a Major Depressive Illness at the time of the incident, which significantly impaired his mental functioning, though he was not suffering mental illness of the same severity at the time of the Local Court hearing.

The appellant applied to the Local Court for diversionary orders under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). That provision permits a magistrate to divert a defendant who was suffering from a mental illness at the time of the alleged offence, even if they are no longer unwell at the time of the hearing.

Magistrate Huber dismissed the application, holding that s 20BQ of the Crimes Act 1914 (Cth), which provides a Commonwealth diversionary mechanism, applied to the exclusion of the state provision. The appellant appealed to the Supreme Court on that question of law.

  • Whether s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) is available to a defendant charged with a Commonwealth offence, or whether s 20BQ of the Crimes Act 1914 (Cth) operates to exclude it.
  • Whether s 68 of the Judiciary Act 1903 (Cth) confers on a state court exercising federal jurisdiction the power to apply NSW diversionary provisions to Commonwealth charges.
  • Whether there is any inconsistency between s 20BQ of the Crimes Act 1914 (Cth) and s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) such that the federal provision would prevail under s 109 of the Constitution.

Decision

Rothman J held that the Magistrate erred in law. Section 68 of the Judiciary Act 1903 (Cth) confers on state courts exercising federal criminal jurisdiction the laws of the state applicable to summary proceedings, which includes s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). That provision was therefore available to the Magistrate when dealing with the Commonwealth charges.

The court found no inconsistency between s 20BQ of the Crimes Act 1914 (Cth) and s 32 of the state Act. A critical difference existed between the two provisions: s 32 permitted diversionary orders where a mental illness existed at the time of the alleged offence, whereas s 20BQ operated only where the mental illness was present at the time of the hearing. The two provisions addressed different circumstances and could operate concurrently.

Even if the circumstances covered by both provisions overlapped, Rothman J held that s 20BQ conferred an additional source of power rather than a substitute for the state provision. The Second Reading Speech for the relevant Commonwealth legislation supported the view that Parliament intended to extend, not replace, existing options available to magistrates dealing with mentally ill offenders.

The Magistrate's decision was set aside and the matter was remitted to the Local Court for determination in accordance with law.

Orders Made

  • Time for the filing of the summons extended to include the date of filing.
  • Leave to appeal granted under s 53(3) of the Crimes (Local Courts Appeal and Review) Act 2001.
  • The Magistrate's decision of 22 December 2006 on the s 32 application set aside.
  • Matter remitted to the Local Court for determination in accordance with law.
  • The defendant (Australian Federal Police) to pay costs of and incidental to the proceedings, as agreed or assessed.
  • Liberty to apply reserved on the form of orders and on costs.
  • Proceedings otherwise dismissed.

Key Takeaways

  • Section 68 of the Judiciary Act 1903 (Cth) operates to make NSW state diversionary provisions, including s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW), available in state courts exercising federal jurisdiction over Commonwealth criminal charges.
  • No inconsistency exists between s 20BQ of the Crimes Act 1914 (Cth) and s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW): the provisions address materially different circumstances, with the state provision applying where mental illness existed at the time of the offence and the federal provision requiring mental illness at the time of the hearing.
  • Where a defendant is no longer mentally unwell at the time of a Local Court hearing, the federal provision in s 20BQ may be unavailable, while the state provision under s 32 may still apply.
  • The Supreme Court confirmed that s 20BQ is an additional source of power for magistrates dealing with mentally ill defendants, not a provision that displaces existing state mechanisms.
  • Rothman J applied established principles of statutory construction to find that Parliament's intention in enacting the Commonwealth provision was to extend the options available to sentencing courts, not to create an exclusive regime.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 32
- Crimes Act 1914 (Cth), s 20BQ
- Judiciary Act 1903 (Cth), ss 68, 79
- Criminal Code Act 1995 (Cth)
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 53(3)
- Mental Health Act 1990 (NSW)
- Migration Act 1958 (Cth), s 417
- Interpretation Act 1987 (NSW)

Cases:
- Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
- Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- Putland v R [2004] HCA 8; (2004) 218 CLR 174
- Saraswati v R [1991] HCA 21; (1991) 172 CLR 1
- Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119
- University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465