Citation: [2015] NSWLC 26
Court: Local Court of NSW
Date: 27 November 2015
Judge(s): Grogin LCM
Background
The defendant faced multiple charges including assault, goods in custody, shoplifting, offensive language, and knife possession. On separate occasions in 2015, Magistrates made orders under s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (MHFPA), directing that she be taken to hospital for psychiatric assessment and, if necessary, detention. On one occasion she was admitted to St Vincent's Hospital and discharged after three days, having been assessed as no longer presenting psychotic symptoms and not requiring further detention.
Following her discharge, the defendant was returned to court. She then argued, through her legal representatives, that the Local Court had no jurisdiction to continue dealing with the charges once an order under s 33(1)(b) had been made and a mental health facility had assessed her as mentally ill. Her position was that such an order is final and cannot give rise to any further court jurisdiction. The prosecution disagreed.
The core question for Grogin LCM was a purely jurisdictional one: does the Local Court retain the power to hear and determine charges after a s 33(1)(b) order has been made, where the defendant has been assessed and discharged from hospital without being detained as an involuntary patient?
Legal Issues
- Whether the Local Court retains jurisdiction to deal with charges after an order is made under s 33(1)(b) of the MHFPA and the defendant is returned to court following discharge from a mental health facility.
- Whether an order under s 33(1)(b) of the MHFPA is final and incapable of giving rise to any further court jurisdiction.
- Whether the legislative scheme under the MHFPA and the Mental Health Act 2007 (MHA) requires an authorised medical officer or police officer to return a defendant to court in the circumstances that arose here.
Decision
Issue 1: Whether a s 33(1)(b) order dismisses charges or merely suspends them
The court found that a s 33(1)(b) order does not dismiss charges but suspends them pending assessment. Charges remain on foot unless and until the defendant is admitted as an involuntary patient as a "mentally ill person" within the meaning of the MHA. The only statutory mechanism for deemed dismissal is found in s 33(2) of the MHFPA, which operates only after six months have elapsed from the making of the order (at [37]).
Issue 2: Whether the defendant's submission that the order was final was correct
The court rejected the defendant's argument that a s 33(1)(b) order is final and incapable of giving rise to further jurisdiction. Grogin LCM found this submission to be directly contradicted by the text of s 33(1)(b) itself, which expressly contemplates the defendant being brought back before a Magistrate (at [39]-[40]). The court also found that s 33(1)(b) is clear in its intention and operates in conjunction with the MHA (at [41]).
Issue 3: Whether a medical officer or police officer had any discretion when returning the defendant to court
The court found there is no discretion available to an authorised medical officer or police officer in returning a person to court after assessment under s 33(1)(b). The legislative triggers for return are s 33(1)(b) of the MHFPA and s 32(5) of the MHA, and both provisions operate as mandatory requirements (at [38]).
Issue 4: Whether the court was empowered to deal further with the defendant on the facts
The defendant was discharged from St Vincent's Hospital on 31 August 2015 after being assessed as not requiring detention, and was lawfully returned to court pursuant to s 32(5) of the MHA and s 33(1)(b) of the MHFPA (at [44]-[45]). Because the six-month period under s 33(2) had not elapsed, the court was empowered to deal further with the defendant pursuant to s 33(2) and s 33(3) of the MHFPA (at [45]). The court accordingly held that it had jurisdiction to proceed (at [49]).
Orders Made
- The Local Court has jurisdiction to further deal with the matters, as the defendant is lawfully before the court pursuant to the operation of s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990.
Key Takeaways
- A s 33(1)(b) order under the MHFPA does not dismiss charges; it suspends them pending mental health assessment, and charges remain on foot unless the defendant is admitted as an involuntary patient as a "mentally ill person" (at [37]).
- Under the combined operation of s 33(1)(b) of the MHFPA and s 32(5) of the MHA, if a defendant is assessed and found not to require detention or further detention in a mental health facility, both the authorised medical officer and police are required, without discretion, to return the defendant to court (at [38]).
- The six-month period in s 33(2) of the MHFPA is the only statutory time limit on the revival of court jurisdiction following a s 33(1)(b) order; where that period has not elapsed, the court retains power to deal further with the charges (at [45]).
- The Local Court confirmed that s 33(1)(b) and the MHA operate together as an integrated scheme, and the distinction between a "mentally ill person" and a "mentally disordered person" carries significant practical consequences for the duration of permissible detention and for the question of whether charges are brought back before a Magistrate (at [30], [41]).
- Grogin LCM drew support from the Local Court Bench Book, noting that secondary materials of this kind can assist in understanding the interaction between the MHFPA and the MHA, consistent with the approach taken in the unreported decision of Heilpern LCM in Roberts (at [46]-[48]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999, ss 9, 25
- Criminal Procedure Act 1986, s 196
- Mental Health (Forensic Provisions) Act 1990, ss 32, 33
- Mental Health Act 2007, ss 14, 15, 18, 24, 27, 31, 32
Cases
- R v Thomas Stafford Roberts (22 August 2014, Heilpern LCM, unreported)