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Local Court 8 March 2013

Police v Pines

[2013] NSWLC 3

Assault & violencePublic order & justice offences
CRIMINAL LAW MENTAL HEALTH ORDER MADE UNDER S 33(1)(A) PROCEEDINGS ADJOURNED

Citation: Police v Pines [2013] NSWLC 3
Court: NSW Local Court
Date: 8 March 2013
Judge: Buscombe LCM

Background

Police charged the accused with ten offences arising from an incident on 22 October 2011, including assaulting police officers, malicious damage, and offensive behaviour. When the accused appeared in court on 23 November 2011, a psychiatrist's letter indicated he was mentally ill. The court made an order under s 33(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (MHFP Act) for the accused to be taken to a mental health facility for assessment, and adjourned proceedings to 13 December 2011.

The accused was discharged from the Prince of Wales Hospital just two days later, on 25 November 2011. He was advised of his court date but failed to appear on 13 December 2011 or on the next adjourned date of 17 January 2012, when a warrant for his arrest was issued.

The warrant was not executed until 22 October 2012, more than nine months after it was issued. The accused was then brought before the court and proceedings continued until his solicitor applied, on 31 January 2013, to have the matter marked "no jurisdiction" on the basis that the charges had been automatically dismissed by operation of s 33(2) of the MHFP Act.

  • Whether s 33(2) of the MHFP Act operated to deem the charges dismissed because the accused was not brought before a magistrate within six months of the s 33(1)(a) order being made.
  • Whether the deemed dismissal provision required the accused to have been continuously detained in a mental health facility for the six-month period to apply.
  • Whether the accused's own failure to appear, rather than any failure by authorities, could affect the operation of s 33(2).

Decision

The magistrate held that s 33(2) operates automatically and without qualification. Once an order is made under s 33(1)(a) and the accused is not physically brought before a magistrate within six months of that order, the charges are taken to be dismissed by operation of the statute. No further court order is required to give effect to the dismissal.

The court rejected any reading of s 33(2) that would confine the deemed dismissal to cases where the accused had been detained in a mental health facility for the full six-month period. Importing such a requirement would amount to a fundamental rewriting of the provision, which contains no such condition. The section does not invite any inquiry into the reasons why the accused was not brought before a magistrate within the period.

The fact that the accused was discharged from hospital only two days after the order was made, and that he subsequently failed to appear in court, was held to be irrelevant to the operation of s 33(2). The provision is concerned only with whether the accused was physically brought before a magistrate within six months. On the facts, he was not, and the charges were therefore taken to be dismissed by the time he was arrested and brought before the court in October 2012.

The magistrate concluded that the court had no jurisdiction to deal with the charges, as they had been deemed dismissed by statute. The question of whether fresh charges could be laid was expressly left open.

Orders Made

• The charges are deemed to be dismissed by operation of s 33(2) of the Mental Health (Forensic Provisions) Act as the accused was not brought before a magistrate within 6 months of the order being made under s 33(1)(a).

Key Takeaways

  • Under s 33(2) of the Mental Health (Forensic Provisions) Act 1990, charges are automatically taken to be dismissed if an accused is not physically brought before a magistrate within six months of a s 33(1)(a) order, without any need for a further court order.
  • The deemed dismissal provision does not require the accused to have been detained in a mental health facility for the entirety of the six-month period. The Local Court found that reading such a requirement into the section would fundamentally alter its plain terms.
  • The reasons why an accused was not brought before a magistrate within the six months are irrelevant to the operation of s 33(2), including where the failure is attributable to the accused's own non-appearance.
  • A deemed dismissal under s 33(2) does not constitute a finding that the charges are proven or otherwise, as s 33(4) makes explicit.
  • The magistrate's reasons include a note directed to court registry practice, observing that s 33(1) orders must be recorded in the JusticeLink case management system as finalising orders so that the statutory deemed dismissal can take effect without a further court order.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 33(1)(a), 33(2), 33(3), 33(4)
- Mental Health Act 2007 (NSW), s 22
- Criminal Procedure Act 1986 (NSW), s 196
- Interpretation Act 1987 (NSW)
- Bail Act 1978 (NSW)

Cases cited: None identified in the judgment.