Skapik v R [2024] NSWDC 427

District Court New South Wales

Medium Neutral Citation: Skapik v R [2024] NSWDC 427 Hearing dates: 04 June 2024 Date of orders: 03 September 2024 Decision date: 03 September 2024 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The appeal against conviction is allowed. (2) I set aside the convictions and the penalties imposed by the Magistrate. (3) I find that as at 3 September 2024, the appellant is suffering from a mental illness within the civil law of New South Wales. (4) Based on the facts and the evidence it would be more appropriate to deal with the appellant in accordance with s 20BQ Crimes Act 1914 otherwise than in accordance with law. (5) I dismiss the Court Attendance Notice and discharge the appellant into the care of Mr Peter Khanna, psychologist, for a period of 12 months from 3 September 2024, concluding on 2 September 2025 on condition that he continues to participate in treatment with Mr Khanna at such times as may be arranged between them. (6) Should the appellant fail to comply with the conditions of this order he may be called to appear before the Court following notification by Mr Khanna to the Court or Community Corrections of non-compliance and the charges may be dealt with as if the appellant had not been discharged. Catchwords: CRIME – Appeal and Review – By person convicted against conviction MENTAL HEALTH – Criminal proceedings – Diversionary scheme - Diversion of person into mental health treatment – s 20BQ Crimes Act 1914 (Cth) – Definitions "mental illness" STATUTORY INTERPRETATION – Meaning of the phrase "mental illness within the civil law of the State or Territory" in s 20BQ Crimes Act 1914 (Cth) Legislation Cited: Civil Liability Act 2002 (NSW) Crimes Act 1914 Crimes (Appeal and Review) Act 2001 Criminal Code 1995 (Cth) Interpretation Act 1901 Mental Health Act 1958 (NSW) Mental Health Act 1983 (NSW) Mental Health Act 1990 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Telecommunications Act 1977 (Cth) Cases Cited: AG v Director of Public Prosecutions [2015] NSWCA 218 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131 Charara v R [2006] NSWCCA 244 Commonwealth Director of Public Prosecutions v Mahamat-Abgelgader [2017] NSWSC 1102 Commonwealth v McLean (1996) 41 NSWLR 389 Confos v Director of Public Prosecutions [2004] NSWSC 1159 DPP v El Mawas (2006) 66 NSWLR 93 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Fox v Percy (2003) 214 CLR 118 Gianoutsas v Glykis [2006] NSWCCA 137 Grassby v R (1989) 168 CLR 1 Hili v The Queen (2010) 242 CLR 520 Kelly v Saadat-Talab (2008) 72 NSWLR 305 Lumney v Director of Public Prosecutions [2021] NSWCA 186 McNab v Director of Public Prosecutions [2021] NSWCA 298 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 Page v Smith [1996] 1 AC 155 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Mailes (2001) 53 NSWLR 251 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Saadat-Talab v Australian Federal Police (2007) 178 A Crim R 527 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013 The ICD-10 Classification of Mental and Behavioural Disorders, 1992 Category: Principal judgment Parties: Daniel Skapik (Appellant) Rex (Crown) Representation: Counsel: D McMahon (Appellant)