DPP v Albon [2000] NSWSC 896

New South Wales Supreme Court

CITATION : DPP v Albon [2000] NSWSC 896 revised - 13/09/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 11626/00 HEARING DATE(S) : 14/08/00 JUDGMENT DATE : 14 August 2000

PARTIES : Director of Public Prosecutions (NSW) Darren John Albon JUDGMENT OF : Dowd J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT N/A FILE NUMBER(S) : LOWER COURT Ms J Keogh JUDICIAL OFFICER :

COUNSEL : Mr RD Cogswell SC- Plaintiff Mr GP Craddock- Defendant SOLICITORS : Ms BC Scheepers- Plaintiff Mr D Humphreys- Defendant CATCHWORDS : Developmentally disabled - Dismissal of charge for development disability - Error Justices Act 1902 LEGISLATION CITED : Crimes Act 1900 Mental Health (Criminal Procedure) Act 1990 CASES CITED : House v The King (1936) 55 CLR 499. Perry v Forbes (Smart J, Unreported, 21 May 1993). DECISION : 1. Determination quashed; 2. Remitted for re-hearing.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Monday 14 August 2000

N11626/00

DIRECTOR OF PUBLIC PROSECUTIONS v DARREN JOHN ALBON

JUDGMENT

1 HIS HONOUR: This is an appeal by way of summons for an order pursuant to s109A of the Justices Act 1902, quashing the order of Keogh LCM, who dismissed the information laid against the defendant for the offence of malicious wounding in breach of the Crimes Act 1900, such order being made pursuant to s32 of the Mental Health (Criminal Procedure) Act 1990 ("the Act"). A declaration is also sought to the effect that Her Worship erred in law as to the construction and application of provisions of the Act, and a declaration that Her Worship erred in law in failing to have regard to whether it was "more appropriate" for the defendant to be dealt with under Pt 3 of the Act, than in accordance with law: s32(1)(b). An order is also sought that the matter be remitted to be dealt with in accordance with the orders and reasons for judgment in this Court, and an order for costs is also sought. 2 On 26 March 2000, the defendant appeared before the Learned Magistrate at Parramatta Local Court, and pleaded not guilty to a charge of malicious wounding in breach of s35A of the Crimes Act. In evidence before me, there had been previously, on this charge, a determination on 17 January 2000, that an order be made under s33 of the Act, such order being pursuant to a power for a Magistrate to determine a defendant as being mentally ill within the meaning of Chapter 3 of the Mental Health Act 1990, which then sets out certain powers vested in the Court to deal with that defendant. 3 Subsequently on 13 March 2000, an application for an order under s32 of the Act was refused. 4 The subject offence, that facts of which arise from the expert's reports and from the police statements adduced in support of the prosecution case before Her Worship, relate to an incident whereby the defendant was charged, at about 11.30p.m. on Sunday 6 January 2000, he then being in the company of one James Knight Walker watching television, the defendant was quite happy, particularly when Steve Waugh hit some winning runs. Walker went to go to the toilet. 5 When he came back, the defendant was holding a kitchen knife and said "I am going to stab you to death", and endeavoured to stab Mr Walker. Mr Walker received a cut to his first finger of his left hand, which he tried to staunch with water. Mr Walker was cut again on the left hand of the little finger. He then ran out waving a stick in the direction of the defendant. He was treated for the injury. The defendant made admissions to police as to the injury, and certain aspects of the incident. I have had exhibited before me photographs of quite serious injuries to the hands of Mr Walker. 6 At the hearing before Her Worship, there were issued a number of reports from experts in psychiatry. A Dr Olav Nielssen gave oral evidence before the Court at p 7 of the transcript, to the effect that the defendant could not live independently, and that he required some sort of institutional care, and that there are few institutions available to look after him. Dr Nielssen, who is head of the Corrective Services Psychiatry Division, said that none of the institutions available for him in gaol would be suitable because of the risk of similar injury. Dr Nielssen said that the defendant presents a difficult management problem for Community Services if he were to be released into the community. Dr Nielssen's evidence at p 7 of the transcript, line 29, when asked whether he was aware of any particular program that might be put in place, was to the following effect: "A. No I am not. I am not an expert in this area but I have taken a bit of guidance from Doctor McCarthy who is and they have put an enormous amount of effort into trying to support Darren independently in the community without success and the fact that he survived this long without some similar incident is also you know more by good luck than anything else. Doctor McCarthy suggested that one of the places that they considered was a secure nursing home at Katoomba called The Ritz but then he is a very young man to go into that kind of accommodation which is, I know some of the other people who have gone there are punch drunk, retired boxers and things like that, I mean it is, there is no guarantee that they would accept him." 7 And again at p 8, line 50: "A. Well again I am not a real expert in all the services available I mean I have just got to sort of had it explained to me by people who are. The comparison I could think of is people with developed mental disabilities who are released to the community and a lot of them have a very problematic behaviour which often requires for example an application for special funding to have perhaps a half time worker looking after that person alone for a period. Something similar would happen here perhaps that he would be housed if he were for example to receive a short sentence in the developmental disability area and perhaps the people who work there might devise a similar discharge plan for Mr Albon.