Citation: NSW Police v Smith [2016] NSWLC 24
Court: Local Court of New South Wales
Date: 7 December 2016
Judge(s): Mulroney ALCM
Background
The defendant was a former police officer who suffered a stroke in 2004, during which scans revealed an arterio-venous malformation on his brain. Subsequent brain surgery caused organic brain damage, leaving him with neurological and neurocognitive deficits, as well as ongoing depression, anxiety, and epilepsy. He had a history of interaction with the criminal justice system and had previously been dealt with under mental health diversion provisions on multiple occasions.
Two sets of charges came before the Local Court. The first arose from events in December 2014 and involved two counts of common assault and one count of damaging property, all connected to a dispute with a taxi driver. The second charge, also common assault, arose from an incident at a hotel in December 2015 involving a security guard.
The defendant applied for all charges to be diverted under section 32 of the Mental Health (Forensic Provisions) Act 1990. Alternatively, he applied for the 2014 charges to be permanently stayed on the ground that he was permanently unfit to be tried.
Legal Issues
- Whether it was more appropriate to deal with all charges by diversion under section 32 of the Mental Health (Forensic Provisions) Act 1990
- Whether the defendant was unfit to be tried on the 2014 charges, such that a permanent stay of proceedings should be granted
- Whether permanent inability to recall the events of the 2014 offences, on its own, could establish unfitness to be tried
Decision
Issue 1: Section 32 diversion
The court accepted that the defendant satisfied the threshold requirement for section 32, finding that he suffers from a mental condition for which treatment is available in a mental health facility (at [26]). The court also found that neither set of offences was particularly serious or planned, and that each appeared to involve impulsive, irrational behaviour (at [28]-[29]).
However, the court declined to exercise its discretion to divert the charges. The defendant had been dealt with therapeutically on multiple occasions but further incidents had still occurred (at [32]). A significant failure arose when he forgot his medication for five days before the 2014 offences and took no steps to obtain substitute prescriptions, though the court accepted that his poor executive functioning partly explained this (at [33]). Alcohol was a significant factor in both sets of offending, and the court found that section 32 did not offer sufficiently intense or prolonged monitoring of treatment compliance and sobriety (at [39]). No treatment provider indicated a willingness to notify the court of non-compliance, and no responsible person was nominated to support the defendant's compliance with any treatment plan (at [37]-[38]). The court concluded that a regime permitting greater oversight and the threat of more serious sanctions for non-compliance better served both the public interest and the defendant's interests (at [40]-[41]).
Issue 2: Permanent stay of proceedings
The application for a permanent stay rested solely on the defendant's claimed inability to remember the events of the 2014 offences. Expert evidence from Dr Lennings was that the defendant could not, and would never be able to, access his memory of those events (at [48]).
The court applied the fitness criteria from R v Presser [1958] VR 45 and found that inability to remember, on its own, cannot ground a finding of unfitness to be tried (at [51]-[54]). Critically, the defendant had participated in an electronically recorded interview (ERISP) on the day of the offences, during which he gave a cogent and consistent account of events for most of the interview (at [48]). That contemporaneous record was available to assist his defence. The court found that the minimum standards for a fair trial had been met and refused to take the significant step of permanently stopping the prosecution (at [55]).
Orders Made
- Application to deal with all charges under section 32 of the Mental Health (Forensic Provisions) Act 1990 refused
- Application for a permanent stay of the 2014 charges refused
Key Takeaways
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Satisfying the threshold requirement for section 32 diversion (that the defendant suffers from a mental condition for which treatment is available) does not automatically lead to diversion. The court undertakes a value judgment that considers the seriousness of the offending, the defendant's treatment history, and whether the mechanisms available under section 32 are adequate to protect the public and manage compliance (at [26]-[41]).
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Where a defendant has been diverted therapeutically on multiple prior occasions without preventing further offending, and where structural limitations of section 32 (such as the absence of a nominated responsible person and reluctant treatment providers) reduce its practical effectiveness, the court may find that orthodox criminal proceedings better serve the public interest (at [32]-[41]).
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Under the Presser fitness criteria, permanent inability to recall the events of an alleged offence is not, without more, a sufficient basis for a finding of unfitness to be tried. The availability of a cogent contemporaneous account, such as an ERISP recorded shortly after the events, can satisfy the minimum standards required for a fair trial (at [51]-[55]).
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The Local Court has power to grant a permanent stay of proceedings where a defendant is unfit to be tried, notwithstanding the absence of a statutory scheme equivalent to that applying in the Supreme and District Courts: Mantell v Molyneux [2006] NSWSC 955, applied at (at [46]).
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Alcohol misuse in the context of an underlying neurological condition and prescribed medication can weigh against diversion under section 32, particularly where the therapeutic mechanisms of that section lack sufficient tools to monitor and enforce abstinence over an adequate period (at [39]-[40]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990, ss 32, 33
Cases
- DPP v El Mawas [2006] NSWCA 154
- Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
- Mantell v Molyneux [2006] NSWSC 955
- Police v AR 2010 CLN 1
- R v Drummond (unreported, NSW Court of Criminal Appeal, 27/5/94)
- R v Presser [1958] VR 45