Murray v Regina [2010] NSWDC 126

New South Wales District Court

CITATION: Murray v Regina [2010] NSWDC 126

HEARING DATE(S): 21/05/10, 27/05/10

JUDGMENT DATE: 27 May 2010

JURISDICTION: CRIMINAL - APPELATE JURISDICTION

JUDGMENT OF: Finnane QC DCJ

DECISION: Appeal uphold . Conviction set aside. All three charges dismissed pursuant to s 32 of the Mental Health Forensic Provisions Act 1990 NSW. Appelant discharged unconditionally.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - charges dismissed pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 (NSW)

LEGISLATION CITED: s 32 Mental Health (Forensic Provisions) Act 1990 (NSW)

TEXTS CITED: Richmond D. Inquiry into health services for the psychiatrically ill and developmentally disabled; Sydney: N.S.W. Department of Health, 1983.

PARTIES: Stewart MURRAY Regina

FILE NUMBER(S): 2009/7385

SOLICITORS: Aboriginal Legal Service (NSW/ACT) Ltd (Appelant) Director of Public Prosecutions (Respondent)

1. HIS HONOUR: The appellant appears before me appealing against convictions for three offences, common assault, resist police and assault with an act of indecency. He has pleaded guilty to each of these offences before the local magistrate.

2. There was evidence before the magistrate that, in the opinion of Dr Anthony Samuels, Senior Visiting Forensic Psychiatrist with Justice Health, the man was mentally ill. In my opinion that should have led the learned magistrate to take the view that he should be dealt with under the provisions of the Mental Health (Forensic Procedures) Act 1990 (NSW). However, that was not done. He was convicted and given a sentence of imprisonment. It may be that the learned magistrate was influenced by evidence before him that Mr Stewart on an earlier occasion had been sent to the Bloomfield Hospital and walked out.