Citation: [2011] NSWDC 40
Court: District Court of NSW
Date: 15 June 2011
Judge(s): Judge Toner SC
Background
The appellant had been convicted by Magistrate Fleming in the Local Court of five offences, including two counts of stalking and intimidation under the Crimes (Domestic and Personal Violence) Act, two counts of publishing an indecent article under the Crimes Act, and one count of using a carriage service to menace or harass under the Commonwealth Criminal Code. A separate apprehended violence order had also been made against him by a different magistrate. He appealed to the District Court against both the convictions and the apprehended violence order.
Before the substantive appeals were heard, the appellant's legal representative applied for the court to deal with the matter under section 32 of the Mental Health (Forensic Provisions) Act 1990. That provision allows a court to divert a defendant away from the ordinary criminal process and into mental health treatment, where it appears the defendant suffers from a mental illness or relevant mental condition and where diversion would be more appropriate than proceeding according to law.
The proposed order would have seen the charges dismissed and the appellant directed to attend for psychiatric assessment and treatment as recommended by a forensic psychiatrist, Dr Allnutt.
Legal Issues
- Whether the District Court on appeal has the same power to make a section 32 order as a magistrate at first instance
- Whether the appellant met the threshold criteria under section 32(1), specifically whether he was suffering from a mental illness
- Whether, in the exercise of the court's discretion, it was more appropriate to divert the appellant under section 32 than to deal with the matter according to law
Decision
Jurisdiction and applicable powers: The court confirmed that, on appeal from the Local Court, the District Court holds the same powers conferred on a magistrate at first instance under the Crimes (Appeal and Review) Act 2001. A section 32 application could therefore be considered "at any time during the course of the hearing." The court also held that it was entitled to have regard to the findings of fact and credibility made by Magistrate Fleming, given that the convictions remained on foot at that stage.
The psychiatric evidence: The principal evidence came from Dr Allnutt, a forensic psychiatrist, who concluded there were reasonable grounds to consider the appellant eligible under section 32 on the basis that he was suffering from symptoms consistent with a mental illness at the relevant time. However, the court noted that Dr Allnutt's report appeared to draw primarily on the appellant's own account of events, rather than the evidence given by prosecution witnesses before Magistrate Fleming. The earlier reports from Dr Idris and psychologist Anthony Diment were also considered, but those reports were found to be either ambivalent or prepared for a different purpose.
Exercise of discretion: Drawing on the principles stated in DPP v El Mawas, the court held that the seriousness of the offences and the degree of planning and sophistication they involved were relevant factors in exercising the section 32 discretion. The court found that the nature of the offending, as determined by Magistrate Fleming, was inconsistent with a causal connection between the appellant's mental illness and the commission of the offences. The premeditation involved in the offences was incompatible with the symptoms described by Dr Allnutt. Accordingly, the court declined to exercise its discretion in favour of diversion.
Orders Made
- Application for an order pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 refused
Key Takeaways
- The District Court confirmed that it holds the same section 32 diversion powers on appeal as a magistrate at first instance, and may exercise those powers at any stage of the appellate hearing.
- Where convictions are already in place on appeal, the court may take into account the findings of fact and credit made by the trial magistrate when assessing a section 32 application.
- Under the approach endorsed in DPP v El Mawas, the seriousness of the offences and the degree of planning involved are legitimate considerations when a court exercises its discretion under section 32, and may weigh against diversion.
- A causal relationship between the defendant's mental illness and the offending conduct is a relevant consideration: where the nature of the offences is inconsistent with the symptoms of the asserted mental illness, that inconsistency can defeat a section 32 application.
- Psychiatric evidence that does not engage with the full evidentiary record, including prosecution evidence accepted at trial, may carry reduced weight in a section 32 application made on appeal after conviction.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Confos v The Director of Public Prosecutions [2004] NSWSC 1159
- DPP v El Mawas (2006) NSWLR 93
- Mantell v Molyneux [2006] NSWSC 955