Supreme Court New South Wales

• Medium Neutral Citation: Edwards v DPP [2012] NSWSC 105
• Hearing dates: 17 November 2011
• Decision date: 24 February 2012
• Jurisdiction: Common Law
• Before: Hislop J

Decision

1. The amended summons is dismissed.

2. Each party to bear his own costs.

• Catchwords: Criminal law - application of s 32 of the Mental Health (Forensic Provisions) 1990 - no issue of principle
• Legislation Cited: Crimes Act 1900; Liquor Act 2007; Mental Health (Forensic Provisions) Act 1990; Crimes (Appeal and Review) Act 2001; Supreme Court Act 1970
• Cases Cited: Director of Public Prosecutions v El Mawas [2006] NSWCA 154
• Category: Principal judgment
• Parties: George Phillip Edwards (Plaintiff); Director of Public Prosecutions (NSW) (1st Defendant); Roger Alasdair Brown (2nd Defendant)
• Representation: R.J. Button SC (Plaintiff); I. Bourke (1st Defendant); Submitting appearance (2nd Defendant); Logical Legal Solicitors and Barristers (Plaintiff); Solicitor for Public Prosecutions (1st Defendant); Crown Solicitor (2nd Defendant)
• File Number(s): 2011/301405

Decision under appeal

• Jurisdiction: 9109
• Date of Decision: 2011-08-19 00:00:00
• Before: Magistrate Brown

Judgment

Introduction

1 On 17 September 2010 the plaintiff was involved in an altercation with a security officer at a tavern. He was affected by alcohol at the time. He was charged with common assault pursuant to s 61 of the Crimes Act 1900. The maximum sentence for this offence is 12 months imprisonment and/or 20 penalty units. He was also charged with "excluded person remain in vicinity of licensed premises" contrary to s 77(8)(a) of the Liquor Act 2007. The maximum penalty for this offence is 50 penalty units. The plaintiff ultimately pleaded guilty to each offence.

2 The police statement of facts was accepted by the plaintiff. The offences were not serious enough, in the opinion of the second defendant, to entail a full time custodial sentence and, of course, such a sentence was not available under s 77(8)(a).

3 The plaintiff was born in 1952. He has had a problem with alcohol for much of his life. This is reflected in a lengthy criminal record primarily for alcohol related offences, including a significant number of drink driving and driving whilst disqualified convictions. He was on probation at the time of the subject offences.

4 On 19 August 2011 the plaintiff made an application to the second defendant pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990. The application was refused.

5 The plaintiff, by amended summons filed in this court on 27 October 2011, sought the following orders:

"1. Leave to appeal with regard to an appeal against conviction that involves a question of mixed law and fact, pursuant to s 53(1)(b) of the Crimes (Appeal and Review) Act 2011.

2. An order upholding the appeal against conviction and quashing the conviction.

3. In the alternative to order 1, leave to appeal with regard to an interlocutory order made by a Local Court in relation to the Plaintiff in summary proceedings, pursuant to s 53(3)(b) of the same Act.

4. In the alternative to order 2, an order upholding the appeal against the interlocutory order and quashing that order.

5. An order remitting the matter to Blacktown Local Court to be dealt with according to law.

6. In the alternative to the above orders, an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 removing the record of proceedings at Blacktown Local Court into this Court, and quashing the refusal of the magistrate to deal with the Plaintiff under s 32 of the Mental Health (Forensic Provisions) Act 2007."

6 The orders were opposed by the first defendant. The second defendant filed an appearance submitting to the orders of the Court save as to costs.

7 The orders were sought in the alternative as there was uncertainty as to whether his Honour, the second defendant, had, on rejection of the s 32 application, implicitly convicted the plaintiff, in which event the appeal was pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001, or whether the determination of the s 32 application was an interlocutory order, in which event the appeal was pursuant to s 53(3)(b), or whether the decision of the s 32 application was merely a ruling, in which event the appropriate means of relief was provided by s 69 of the Supreme Court Act 1970.

8 Although the issue was not beyond doubt, counsel for the plaintiff and first defendant agreed, that for the purposes of the appeal, it should be accepted that the plaintiff was appealing pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001 as on an appeal from conviction and that accordingly the plaintiff required leave to appeal on a question involving mixed law and fact. In light of my determination of the matter it is unnecessary to examine the correctness of the course adopted.

Consideration

9 The Mental Health (Forensic Provisions) Act 1990 provides as follows:

" 31 Application

(1) This Part applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, and includes any related proceedings under the Bail Act 1978, but does not apply to committal proceedings.

32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

..."

10 In Director of Public Prosecutions v El Mawas [2006] NSWCA 154 at [71] the court held:

"Part 3 of the Act requires a Magistrate to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s 32(1) or mental illness (s 33) with the object of ensuring that the community is protected from the conduct of such persons...

the significance of mental illness of an offender in the sentencing exercise has long been accepted. Pt 3 is clearly intended to permit the Magistrate, if it is appropriate, to divert a defendant from being exposed to sentence, with his or her mental condition being taken into account at that comparatively late stage...

s 32...requires the Magistrate to make at least three decisions. The first is to determine, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under that section. That question clearly involves a finding of fact and is properly described as the jurisdictional question...

The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), 'it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law. That decision clearly calls for the exercise of subjective or value judgments in which "...'no one [consideration] and no combination of [considerations] is necessarily determinative of the result' ... it involves a discretionary decision in which the Magistrate is permitted latitude as to the decision which might be made, a latitude confined only by the subject matter and object of the Act...

the discretionary judgment could not be exercised properly without due regard to the seriousness of the offending conduct.

Once a Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32 the Magistrate must determine which of the actions set out in sub-s 2 or sub-s 3 should be taken.

No doubt a Magistrate considering [the availability of the diversionary remedy regime] will consider whether proceeding in accordance with s 32 will produce a better outcome both for the individual and the community..."

11 The plaintiff relied upon a report of the psychiatrist, Dr Westmore, dated 2 August 2011. Critical portions of the report were as follows:

"He does not have a mental illness as suggested by the psychologist, but he does suffer from a mental condition (alcohol related organic brain damage) and because of that the court, if it felt it were appropriate, could consider him under s 32 of the Mental Health (Forensic Provisions) Act 1990...

At the time I saw him, I thought he was reasonably motivated however to seek further assistance for some of his difficulties and if his matter is dealt with under s 32, I would recommend the following treatment plan:

1. That he attend Dr Andrew Fong, who has a surgery in the Blacktown General Practice, Westpoint, Blacktown. Dr Fong has cared for Mr Edwards for a number of years and is no doubt very familiar with his various medical problems.

2. That he attend an alcohol rehabilitation programme at the Blacktown Hospital. He needs to enter into sobriety because any alcohol consumption will aggravate his existing brain injury and his subsequent memory and general cognition problems.

3. He should be referred to the Blacktown Community Mental Health Service for continuing support. He remains a highly vulnerable man and he is currently under a great deal of stress following the sudden ending of a long-term relationship. He has probably experienced some periods of depression associated with that and depression will increase his risk of relapsing back to alcohol abuse.

His prognosis both from a psychiatric and forensic perspective will improve considerably if he can cease using all alcohol. As noted, he does not suffer from a mental condition and he is not developmentally disabled but he does have a mental condition."

12 His Honour, when the proceedings were first mentioned, read Dr Westmore's report and commented:

"I wouldn't have thought, given that diagnosis, Mr Sutherland, that he really falls within the scope of 32.

SUTHERLAND: Well Dr Westmore, in his opinion, believes that he does have a mental condition.

HIS HONOUR: The difficulty alcohol and drugs don't normally fall into this category because parliament prescribed the consequences of intoxication in the Crimes Act and frankly they don't seem to have any role here. I'll leave the matter open, obviously you've only got into it very briefly so I don't want to..."

13 Later his Honour refused the application. He gave his reasons, ex tempore, as follows:

"This is an application on behalf of George Edwards for the matter to be dealt with under s 32 of the Mental Health (Forensic Provisions)Act. The tests are fairly straightforward. Firstly, the court needs to be satisfied that the defendant is either developmental disabled, that is not suggested, suffering from a mental illness, Dr Westmore's report clearly says he is not or suffering from a mental condition for which treatment is available in a mental health facility.

Certainly the view expressed by Dr Westmore does not resolve that issue. He says on page 6 of his report 'He does not have a mental illness as suggested by the psychologist but he does suffer from a mental condition "alcohol related organic brain damage".' There is no reference to it being a condition to which treatment is available in a mental health facility and that of course is as much an essential ingredient of the court's jurisdiction to deal with the matter under s 32 as are any of the other tests.

I am not in a position and clearly have no expertise in the field to draw a conclusion whether that is an oversight that can be remedied or not or whether it is a deliberate choice of language on behalf of Dr Westmore but I assume as a senior forensic psychiatrist he chooses his words with care.

Prime facie then the first limb of s 32 is not satisfied. To complete the picture as far as the second limb, namely the provisions under s 32(1)(b) of the Mental Health (Forensics Provisions) Act are concerned there is the balancing exercise or the weighing exercise that Mr Sutherland has referred to. The court must consider whether it is more appropriate to deal with the defendant in accordance with the provisions of this part, that is essentially diversion into a treatment regime for his mental condition then otherwise in accordance with law.

As I have already noted the criminal law makes it own specific provisions with respect to criminal liability and alcohol or drug use at the time of offence commission. Certainly s 32 extends well beyond that timeframe and in fact relates to a situation as at the day of the application rather than the day of the events but nonetheless it can be related back to the day of the offence.

The situation that Mr Edwards faces is charges, neither of which is of the greatest seriousness, clearly involving again consumption of alcohol and Dr Westmore has observed that he suffers from alcohol related organic brain damage, self inflicted injury to his brain through the massive over consumption of alcohol over a long period.

Mr Edwards had his first PCA at Ryde Petty Sessions in 1972. He served a number of gaol sentences for drinking and driving the most recent of which, I think was in 2006. None of this, despite repeated bonds with conditions relating to drug and alcohol supervision substance abuse and home detention, which is of course an alcohol intolerant programme, has made any difference unfortunately to Mr Edwards' combination of drinking and driving. The most recent drinking and driving offence I think being that one in 2006.

The question ultimately is whether it is more appropriate to deal with it under s 32 than according to law. The seriousness of the offence is clearly a matter to take into account. The less serious and the more likely it would be one thing for a matter to be capable of being diverted successfully.

The real difficulty in the present situation, it seems to me, is that every means of court ordered treatment opportunities have been provided to Mr Edwards without success and diversion into a mental health facility when he does not appear, according to Dr Westmore, to have a mental condition that is able to be - I should choose the words exactly - for which treatment is available in the mental health facility simply means diverting him into a facility which is even less equipped to deal with his situation than the criminal justice system is.

Quite simply for the two reasons I have indicated, firstly that the lack of evidence that there is treatment available in the mental health facility for his condition but also on the issues of appropriateness, the application under s 32 is refused.

SUTHERLAND: If the court pleases.

HIS HONOUR: The matter is then to proceed to sentence Mr Sutherland?"

Determination

14 The plaintiff submitted his Honour made a factual error in determining that there was a lack of evidence that treatment was available in a mental health facility for the mental condition identified by Dr Westmore. The plaintiff submitted:

"The report of Dr Westmore did not explicitly say in so many words that the mental condition described by the doctor was one 'for which treatment is available in a mental health facility'. However, having stated that the court could consider the plaintiff under s 32, Dr Westmore went on to lay out a detailed treatment plan. The overwhelming inference is that Dr Westmore was saying that the plaintiff fell within the preconditions of the exercise of the discretion in s 32. It is inconceivable that he was unfamiliar with the requirements of the section contained in s 32(1) but proceeding to suggest that the option under s 32 was available, and thereafter outlining a detailed treatment plan. It is also an available inference that the treatment plan was referring to treatment in the mental health facility as defined...

Taking the report as a whole, and even accepting that the document makes no explicit reference to the precondition under discussion, the magistrate made an error of fact in finding that that precondition had not been made out. The finding of the magistrate that the author of the report was a senior forensic psychiatrist who was choosing his words with care cannot sit with the proposition of the magistrate that the whole report was suggesting that s 32 was available was founded on an enormous misconception. The finding of fact, in all the circumstances, was plainly wrong."

15 I do not agree. The plaintiff relies upon s 32(1)(a)(iii) which provides pre-conditions to the enlivening of the s 32(1)(b) discretion.

16 The pre-conditions clearly require evidence that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(a) suffering from a mental condition;

(b) for which treatment is available in a mental health facility;

(c) but is not a mentally ill person.

17 Dr Westmore expressly provides evidence in his report of facts (a) and (c). He does so in clear terms. However, he ignores the requirement that it be established that treatment is available in a mental health facility for the plaintiff's mental condition. As his Honour observed, this requirement is as much an essential ingredient in enlivening the court's jurisdiction as are any of the other tests. Dr Westmore merely says that because the plaintiff suffers from a mental condition, he could be considered under s 32 if the court felt it were appropriate.

18 If, as the parties accepted, Dr Westmore is an experienced practitioner, then the inference to be drawn is that the omission of a reference to the availability of treatment in a mental health facility for the plaintiff's condition was deliberate. Otherwise the appropriate inference is that, through an inadvertent omission, or because he had a fundamental misconception as to the requirements of the section he had not considered whether treatment was available in a mental health facility for that mental condition.

19 The absent evidence cannot be supplied by inference from the "treatment plan" suggested by Dr Westmore. The treatment plan provides no basis for any such inference. It consists of a number of components, namely a referral to the general practitioner, Dr Fong, for the plaintiff's various medical problems, a rehabilitation programme to enter into sobriety so as not to aggravate his existing brain damage and a referral to a medical health service for support due to stress, depression and the risk of relapsing back into alcohol abuse. None of these interventions, on its face, involves the provision of treatment for the mental condition of alcohol related organic brain damage.

20 In my opinion, it was well open to his Honour to conclude that there was a lack of evidence of an essential pre-condition. The application pursuant to s 32 was correctly dismissed.

21 His Honour also rejected the application on the discretionary basis under s 32(1)(b). This conclusion is interlinked with his Honour's finding in respect of the pre-condition. Accordingly, it is unnecessary to separately consider the application of s 32(1)(b).

22 I make the following Orders:

1. The amended summons is dismissed.

2. Each party is to bear his own costs.

**********

Amendments

30 March 2012 - Date of judgment corrected (year)
Amended paragraphs: Coversheet

Decision last updated: 30 March 2012