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Supreme Court 28 August 2001

Ayoub v Stapleton & Anor

[2001] NSWSC 767

Theft & property
CRIMINAL LAW

Citation: Ayoub v Stapleton & Anor [2001] NSWSC 767
Court: Supreme Court of New South Wales (Common Law Division)
Date: 28 August 2001
Judge(s): Sperling J

Background

The defendant in Local Court proceedings faced eleven summary charges, including an alleged shoplifting offence and related goods-in-custody charges involving property of modest value. On 3 July 2001, the defendant applied to the Local Court for a diversion order under s 32 of the Mental Health (Criminal Procedure) Act 1990, which allows a magistrate to deal with a defendant outside the ordinary criminal process where mental health considerations are present. The magistrate dismissed that application, and the Local Court proceedings were adjourned for a two-day hearing on 27 and 28 August 2001.

The defendant (referred to in the Supreme Court as "the plaintiff") sought prerogative relief in the Supreme Court, filing a summons on 2 August 2001. Those proceedings were dismissed on 16 August. A further summons was then filed, seeking an order in the nature of certiorari to quash the magistrate's 3 July determination and an order directing the magistrate to determine the s 32 application according to law.

The Commissioner of Police was joined as a defendant only on 27 August, the first day of the Local Court hearing, and was notified of the Supreme Court proceedings for the first time on the morning of 28 August, leaving the Commissioner's counsel unable to respond fully to all matters raised.

  • Whether the Supreme Court should grant prerogative relief (certiorari) to quash the magistrate's dismissal of the s 32 mental health diversion application.
  • Whether the court's discretion to refuse prerogative relief should be exercised where Local Court proceedings are part-heard and any error would be available as a ground of appeal against any eventual conviction.
  • Whether the lateness of the application and the procedural disadvantage to the Commissioner of Police provided additional discretionary grounds to refuse relief.

Decision

Sperling J dismissed the summons on discretionary grounds, without making any final determination on whether the magistrate had in fact erred in dismissing the s 32 application. His Honour proceeded on the assumption, for present purposes, that an error may have occurred, but concluded that the discretionary factors against granting relief were decisive.

The court identified several reasons for declining to intervene. The Local Court hearing was already in progress, and the Supreme Court's well-established reluctance to intervene in part-heard proceedings weighed heavily. The charges were close to being resolved within the two allocated hearing days, with only a further date of 14 September set as a contingency.

Sperling J also noted that any error in refusing the s 32 application would remain available as a ground of appeal against conviction, meaning the plaintiff was not without a remedy. The late commencement of proceedings before the Supreme Court, and the unreasonableness of expecting the Commissioner of Police to address the claim adequately at such short notice, reinforced the conclusion that relief should be refused.

Orders Made

  • Summons dismissed.
  • The plaintiff ordered to pay the costs of the Commissioner of Police in these proceedings.

Key Takeaways

  • The Supreme Court confirmed its well-established reluctance to grant prerogative relief in respect of proceedings that are already part-heard in a lower court.
  • A refusal by a magistrate to make a diversion order under s 32 of the Mental Health (Criminal Procedure) Act 1990 is not necessarily beyond review, but discretionary considerations may prevent the Supreme Court from intervening even where error is assumed.
  • Where an error in lower court proceedings could ground an appeal against any resulting conviction, that alternative remedy weighs against the grant of prerogative relief.
  • Delay in bringing and progressing a Supreme Court challenge, and procedural unfairness to a newly joined defendant, are relevant discretionary factors that may defeat an otherwise arguable application.
  • Costs followed the event in the ordinary way, with no persuasive reason advanced to depart from that rule.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Cases: No cases were cited in the provided judgment text.