Citation: [2023] NSWDC 124
Court: District Court of New South Wales
Date: 28 March 2023
Judge(s): Montgomery DCJ
Background
Following a judge-alone special hearing, the court had found beyond reasonable doubt in October 2022 that the defendant committed a number of offences listed under s 166 of the Criminal Procedure Act 1985. The matter then proceeded to a penalty hearing on 1 December 2022.
At that penalty hearing, the Crown applied to have each of the charges conditionally dismissed and the court's verdicts quashed, pursuant to s 32(3) of the Mental Health (Forensic Provisions) Act 1990. That provision allows a court (exercising the jurisdiction of a magistrate) to dismiss charges and discharge a defendant on conditions, including that the defendant enter into the care of a responsible person or attend a specified place or person.
A complicating factor arose when a forensic psychiatric report, which the court had directed under s 66(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, was not received due to an administrative error. This delayed final resolution of the s 32 application, prompting the court to publish this short procedural ruling clarifying its jurisdiction to proceed.
Legal Issues
- Whether the court retained power under s 32(1) of the Mental Health (Forensic Provisions) Act 1990 to make orders at the penalty hearing stage, given that the special hearing had already produced findings of fact (verdicts) against the defendant.
- Specifically, whether the proceedings were still "in the course of the hearing of the proceedings" within the meaning of s 32(1), so that the court's power under that section remained available.
Decision
Issue: Availability of s 32 orders after verdict but before final disposal
Montgomery DCJ held that the court's power under s 32(1) remained on foot at the penalty hearing stage. His Honour reasoned that the "hearing of the proceedings" had not been finally disposed of, because the penalty phase had not yet concluded (at [6]).
His Honour drew support from the NSW Court of Criminal Appeal's decision in Kitchingman v R [2023] NSWCCA 4, particularly at paragraphs and, where the court addressed the scope of "the hearing of the proceedings" in this context (at [6]). He also noted that magistrates regularly follow this same approach, proceeding under s 32 at the penalty stage after finding an offence was committed, and that this practice has been applied on sentence appeals from the Local Court to the District Court (at [7]).
The court confirmed it would proceed under s 32 in relation to the s 166 matters when the hearing resumed, subject to any further submissions from either party on the jurisdictional point (at [8]).
Orders Made
- The penalty hearing is to continue on 13 and 14 July 2023.
- Order 5 made on 1 December 2022 is confirmed; a report is directed pursuant to s 66(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a forensic psychiatrist, addressing the defendant's condition and whether release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.
Key Takeaways
- The District Court confirmed that s 32(1) of the Mental Health (Forensic Provisions) Act 1990 remains available at the penalty hearing stage of a special hearing, provided the proceedings have not been finally disposed of (at [6]).
- "In the course of the hearing of the proceedings" within s 32(1) extends beyond the fact-finding phase of a special hearing and continues until the proceedings are finally concluded (at [6]).
- The NSW Court of Criminal Appeal's decision in Kitchingman v R [2023] NSWCCA 4 provided direct support for this interpretation, confirming that the court's s 32 power persists until final disposal (at [6]).
- Established Local Court practice, where magistrates apply s 32 after finding an offence committed but before completing the penalty stage, was recognised as consistent with the District Court's approach in special hearing matters (at [7]).
- An administrative failure to produce a court-directed psychiatric report under s 66(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 does not extinguish the court's jurisdiction; the proceedings simply continue until the required material is available (at [4], [8]).
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Criminal Procedure Act 1985 (NSW)
Cases
- Mo v DPP [2023] NSWDC 27
- Kitchingman v R [2023] NSWCCA 4