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District Court 27 May 2010

Murray v Regina

[2010] NSWDC 126

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Murray v Regina [2010] NSWDC 126
Court: District Court of New South Wales (Appellate Jurisdiction)
Date: 27 May 2010
Judge(s): Finnane QC DCJ

Background

The appellant was convicted in the Local Court of three offences: common assault (slapping a stranger twice in the face on a street in Dubbo), assault with an act of indecency (grabbing a woman by the breasts outside a McDonald's), and resisting police (sitting on a footpath, refusing to cooperate, and accusing officers of persecution). He had pleaded guilty to all three charges before the magistrate and was sentenced to imprisonment.

Before the Local Court, psychiatric evidence from Dr Anthony Samuels, a Senior Visiting Forensic Psychiatrist with Justice Health, indicated that the appellant was mentally ill at the relevant time. Despite that evidence, the magistrate proceeded to conviction and sentence without invoking the mental health diversion provisions available under the Mental Health (Forensic Provisions) Act 1990 (NSW). The appellant, represented by the Aboriginal Legal Service, appealed against those convictions to the District Court.

By the time the appeal was heard, the appellant had already served the entirety of the sentences imposed by the magistrate. He was, however, still in custody on unrelated alleged offences.

  • Whether the Local Court magistrate erred in failing to deal with the appellant under the mental health diversion provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW), given the psychiatric evidence before the court.
  • Whether the three convictions should be set aside on appeal and the charges dismissed pursuant to section 32 of that Act.

Decision

Finnane QC DCJ found that the psychiatric evidence before the magistrate clearly warranted diversion of the matter under the Mental Health (Forensic Provisions) Act 1990 (NSW). In the judge's view, the evidence that the appellant was mentally ill at the time of the offences should have led the magistrate to deal with him under that regime, rather than proceeding to conviction and imprisonment.

The court observed that the appellant's conduct, while genuinely distressing to the victims, was best understood against his psychiatric background. The judge noted that the appellant was likely still mentally ill and that much of his prior criminal record had probably accrued during periods of mental illness. The court described the situation as a tragedy and expressed the broader difficulty courts in New South Wales face in managing mentally ill defendants, noting a decline in available inpatient facilities since the Richmond Report of 1983.

The court dismissed all three charges under section 32 and discharged the appellant unconditionally. The discharge was made unconditionally because the appellant remained in custody on other matters, making referral to a treatment facility impractical at that point. The court separately invited the relevant authorities and magistrates dealing with the pending matters to consider whether those alleged offences also reflected the conduct of a mentally ill person, and to consider making a community treatment order.

Orders Made

  • Appeal upheld.
  • Convictions on all three charges set aside.
  • All three charges (common assault, resist police, and assault with an act of indecency) dismissed pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • Appellant discharged unconditionally.

Key Takeaways

  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), section 32 provides a mechanism for courts to dismiss charges and divert defendants with a mental illness, rather than proceeding to conviction and punishment.
  • Where credible psychiatric evidence of mental illness is before a court at the time of sentencing, failure to engage with the section 32 diversion regime may constitute an error warranting an appeal court's intervention.
  • The District Court treated the appellant's conduct as consistent with untreated mental illness rather than with criminal culpability in the ordinary sense, noting that a significant part of his prior record appeared to have accumulated during periods of mental illness.
  • An unconditional discharge under section 32 is available where referral to a treatment facility is impractical in the circumstances, such as when a defendant is held in custody on unrelated matters.
  • The decision also reflects ongoing systemic concerns, acknowledged by the court, about the reduced availability of psychiatric inpatient facilities in New South Wales since the 1983 Richmond Report and the consequent difficulty courts face in making effective orders for mentally ill defendants.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), section 32

Cases cited: None cited in the judgment.

Other texts referenced:
- Richmond D, Inquiry into Health Services for the Psychiatrically Ill and Developmentally Disabled (NSW Department of Health, 1983) (the "Richmond Report")