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Local Court 20 September 2024

R v Cameron

[2024] NSWLC 12

Sexual offencesAssault & violenceFirearms & weaponsPublic order & justice offences
LOCAL COURT JURISDICTION COMMON LAW MACKIE V HUNT (1989) 19 NSWLR 130

Citation: R v Cameron [2024] NSWLC 12
Court: Local Court of NSW
Date: 20 September 2024
Judge(s): Donnelly LCM

Background

The defendant faced four charges in the Local Court: sexual touching without consent, attempt to stalk or intimidate with intent to cause fear of harm, common assault, and being armed with intent to commit an indictable offence. All offences were allegedly committed against strangers. The DPP did not elect to have any charge dealt with in the District Court.

The defendant had been involuntarily detained in a mental health facility from early February 2024 and then refused bail, amounting to seven and a half months in custody by the date of the hearing. He had also served five discrete terms of full-time imprisonment between 2021 and 2024. A clinical psychologist had opined in both 2021 and 2024 that the defendant was unfit to plead and stand trial.

Defence counsel made three applications: first, for the Local Court to conduct a fitness hearing applying the test in R v Presser; second, for a permanent stay of proceedings if the defendant was found unfit; and third, in the alternative, for the defendant to be diverted and unconditionally discharged under sections 12 and 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Legal Issues

  • Whether the Local Court has jurisdiction or power at common law to conduct a fitness hearing for matters dealt with summarily, given Parliament's express exclusion of the Local Court from the statutory fitness hearing scheme in Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
  • Whether a permanent stay of proceedings was appropriate on the basis that the defendant was unfit to plead.
  • Whether the Local Court could and should consider a diversionary application under sections 12 and 14 of the Act before determining the fitness question.
  • Whether the defendant should be diverted unconditionally or subject to conditions.

Decision

Issue 1: Local Court jurisdiction to conduct a fitness hearing

The court undertook a detailed analysis of the competing authorities. The NSW Supreme Court decision in Mantell v Molyneux (2006) 68 NSWLR 46 had accepted that the Local Court possesses a common law power to conduct a fitness hearing. However, the court identified a significant tension between that holding and the High Court's endorsement, in Ebatarinja v Deland (1998) 194 CLR 444, of the earlier decision in Pioch v Lauder (1976) 13 ALR 266, which held that no such power exists at common law for a court of summary jurisdiction (at [24]-[37]). The court noted that Victorian appellate courts in CL (A Minor) v Lee (2010) 29 VR 570 and CL (A Minor) v DPP [2011] VSCA 227 had followed Pioch v Lauder and rejected the existence of a common law power, and that under the principle in Lipohar v The Queen (1999) 200 CLR 485 there is only one common law of Australia (at [32]-[37]). The court expressed doubt about the reasoning in Mantell v Molyneux but found it unnecessary to resolve the controversy in this case.

Issue 2: Order of determination of applications

The court held that the diversionary application should be considered before the fitness issue (at [45]-[50]). This approach is supported by the Court of Appeal's decision in DPP v El Mawas (2006) 66 NSWLR 93, which confirmed the holding in Mackie v Hunt (1989) 19 NSWLR 130 that a magistrate may deal with a diversionary application whether or not a defendant has been found unfit and without first making that determination (at [46]-[50]). The court also noted the observation in Mackie v Hunt that it is "not surprising" that magistrates are given different powers of disposition, given their exclusion from the statutory fitness hearing scheme (at [45]).

Issue 3: Whether diversion was appropriate

The court found the defendant was eligible for diversion, having both a mental health impairment (schizophrenia) and a cognitive impairment (intellectual disability), each falling within the relevant statutory definitions (at [53]-[56]). The prosecution did not challenge the clinical psychologist's 2024 report concluding the defendant was unfit, did not seek to cross-examine the expert, and did not obtain its own evidence on the point (at [10]-[13]). Weighing all of the section 15 considerations, including the seriousness of the offences, the defendant's lengthy criminal history and recidivism, his treatment-resistant conditions, the seven and a half months already spent in custody, and the unchallenged expert opinion of unfitness, the court concluded that diversion was the appropriate course (at [55]-[69]).

Issue 4: Form of the diversionary order

The defendant sought unconditional discharge; the prosecution sought discharge subject to conditions including treatment. The court rejected the defence submission that the defendant would be incapable of understanding conditions, finding that submission directly contradicted the forensic psychiatrist's evidence, which outlined a clear and simple treatment plan (at [70]). The court made the diversionary order subject to a structured set of conditions.

Orders Made

  • The section 14 diversionary application was granted.
  • The charges were dismissed.
  • The defendant was discharged into the care of St George Mental Health subject to the following conditions:
  • To take directions from the nominated support worker and be transported directly from the correctional centre to supported accommodation in Rockdale.
  • To attend all appointments with his designated psychiatrist or psychiatric registrar, case manager, and treating team at St George Mental Health.
  • To comply with all prescribed psychiatric medications, including long-acting injectable antipsychotic medications.
  • To remain abstinent from illicit substances and comply with random urinary drug screening as directed by the treating team.
  • To remain in supported accommodation and accept assistance from his disability provider.

Key Takeaways

  • A significant unresolved tension exists in NSW law between the holding in Mantell v Molyneux (2006) 68 NSWLR 46 that the Local Court has a common law power to conduct fitness hearings, and the High Court's endorsement in Ebatarinja v Deland (1998) 194 CLR 444 of the contrary position in Pioch v Lauder. This Local Court decision expressly doubts Mantell v Molyneux but left the controversy open (at [44]).

  • Under DPP v El Mawas (2006) 66 NSWLR 93 and Mackie v Hunt (1989) 19 NSWLR 130, a magistrate may consider and determine a diversionary application under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 without first making a finding on fitness to stand trial (at [46]-[50]).

  • Parliament has consistently and deliberately excluded the Local Court from the statutory fitness hearing scheme in NSW, unlike several other Australian jurisdictions that have enacted summary-jurisdiction fitness regimes. This exclusion has not been rectified despite Law Reform Commission recommendations to do so (at [39]-[41]).

  • Where expert evidence of unfitness goes unchallenged and a defendant has spent a substantial period in pre-trial custody, those factors carry significant weight in the section 15 balancing exercise for a diversionary order, even alongside a serious and lengthy criminal history (at [69]).

  • The existence of a forensic psychiatrist's evidence supporting a structured community treatment plan was decisive in rejecting unconditional discharge, even where a defendant has treatment-resistant conditions and a history of non-compliance (at [70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (ACT), s 311
- Criminal Law Consolidation Act 1935 (SA), s 269H
- Criminal Justice (Mental Impairment) Act 1999 (Tas), s 8
- Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9
- Mental Health Act (NSW) 200 7
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4,5,12,14, 35
- Mental Health Act 2016 (Qld), ss 172-173
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- CL, (A Minor) v DPP [2011] VSCA 227
- CL (A Minor) v Lee (2010) 29 VR 570
- Confos v DPP [2004] NSWSC 1159
- DPP (NSW) v Hamzy [2019] NSWCA 314
- DPP v Heagney [1999] NSWSC 303
- DPP v Sami El Mawas [2006] NSWCA 154
- DPP v Soliman [2013] NSWSC 346
- Eastman v The Queen (2000) 203 CLR 1
- Ebatarinja v Deland (1998) 194 CLR 444
- Lipohar v The Queen (1999) 200 CLR 485
- Mantell v Molyneux (2006) 165 A Crim R 83 Mackie v Hunt (1989) 19 NSWLR 130
- Newson v Ly [2001] NSWSC 1117
- Perry v Forbes (unreported Sup Ct of NSW 21 May 1993)
- Pioch v Lauder (1976) 13 ALR 266
- Police v Williamson [2018] NSWLC 25
- Police v Smith [2016] NSWLC 24
- Police v AR (unrep) Children's Court 18.11.2009
- R v Engert (1995) 84 A Crim R 67
- R v HW [2017] NSWLC 25
- R v KF [2011] NSWLC 14
- R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251
- R v Presser [1958] VR 45
- TR v Director of Public Prosecutions [2020] NSWSC 255