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. Q. Would you concede with me at this stage that those things that you suggest are supposition and there is no detailed treatment plan at this stage? A. Not at this stage no, that would be the preferred way of arranging discharge and bearing in mind that no plan is ever going to be perfect." 8 In her remarks at p13 of the transcript, Her Worship articulated the following (line 16): " ... in considering all the circumstances even a gaol sentence is not going to prevent this happening again so that is not a deterrence that if something that just isn't going to operate for this particular defendant. His situation really is never going to change and he cannot be detained, as I see it, any longer in prison for punishment or deterrence, it would only be if you like for rehabilitation and he is someone who s32 applies to. I mean he is developmentally disabled and the court isn't here to provide a service through the Corrective Services Department and unfortunately that is a problem that the community has to cope with ..." And later at line 30: "... The court system cannot be used as a stop gap and neither can Corrective Services ..." 9 Her Worship noted that the defendant had already spent ten months in custody. Her Worship then, at p14, said that she had decided to deal with the matter under the Act, and said that the defendant was going to be released and was not going to be held in custody any more. Her Worship noted that the defendant has some problems, and told him that he could not act in this way, and that if he did so again he would get into a lot of trouble. Her Worship then directed that he keep in touch with the case worker, and whatever the Public Guardian directed him to do, and then said (at line 21): " ... although you are being released today there is a condition that you have got to keep in contact with your case worker and with your guardian ..." 10 Then, after the defendant asked a question of her, Her Worship said: "... you may be able to be put in contact with the Salvation Army through your case worker but I will make a condition that you keep in contact with your guardian and with your case worker ..." 11 The matter was dismissed under s32(3) of the Act, with the condition that the defendant keep in touch with the public guardian and any case worker, and the order note was that the matter had been dismissed unconditionally with the Office of the Public Guardian to be notified of the determination. 12 The plaintiff, pursuant to the Act, puts it through his counsel, the Crown, Mr Cogswell SC, that two orders were made, firstly, an unconditional order, and secondly, one adding a condition. 13 I think it might fairly be said, however, that a formal order had not been made at the time of the first order, and, the adding of the condition to that order if it had been otherwise effectual and in accordance with law, it was within Her Worship's power. 14 It is put by the Crown that Her Worship failed to comply with s32(3) of the Act, and further in the exercise of the discretionary powers as enunciated in House v. The King (1936) 55 CLR 499, that there being no treatment plan in place, that Her Worship either failed in the exercise of the discretion or failed to comply with the requirements of s32(3) of the Act. It is further put that Her Worship failed to take into account the objective seriousness of the offence and that she did not direct herself to the relevant factors, namely, the sentencing of the offender and the evidence in relation to the knife. It was further submitted that Her Worship, at p13 of the transcript, omitted reference to the question of retribution or protection, which is illustrative of the earlier error of the failure to correctly exercise Her Worship's power under s32. The Crown further puts it that there was no management plan put forward. 15 Section 32 of the Act is a difficult section, particularly in relation to a person such as the defendant. Dr Nielssen's evidence at p 6 of his report is: "... he is eligible to have his matter dismissed under s32 of the Mental Health (Criminal Procedures) Act 1990. However it is unlikely that he would be able to fully understand or remember any conditions imposed, such as abstaining from alcohol or avoiding conflict, let alone adhering to those conditions. He is not at all distressed at having been placed in prison, which is the cheapest and most accessible form of institutional care available to him. ..." Dr Nielssen then goes on to say: "... He is permanently unfit for trial, but does not have the defence of mental illness open to him. ..." 16 There is also evidence from the other reports before the Court from Dr McCarthy, that the defendant has sustained a traumatic brain injury with such severe cognitive deficits, and that he is incapable of independent living in the community. He cannot instruct a solicitor. He is incapable of appreciating the consequences of his actions in a rational and coherent manner. His capacity to control his anger and aggression is severely impaired, and he cannot prevent himself from acting on an aggressive impulse: "... I believe Mr Albon is at substantial documented risk of exploitation by others and through his own risk-taking behaviour. This has been a large part of his inability to maintain independent living with community resources ..." 17 Dealing with the order actually made, it is clear that the order made by Her Worship did not comply with s32(3) of the Act. I set out the terms of s32(1), (2) and (3): 32(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 developmentally disabled, is suffering form mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; 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). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings; (b) grant the defendant bail in accordance with the Bail Act 1978; (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may dismiss the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions; or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both; or (c) unconditionally. 18 Under s32 of the Act, Her Worship had to have it appear to her that the defendant was either developmentally disabled or suffering from mental illness, or suffering from a mental condition for which treatment is available in a hospital but is not a mentally ill person within the meaning of Ch 3 of the Mental Health Act 1990. 19 Her Worship made a determination that the defendant was developmentally disabled. It is, however, a second condition of s32(1) that Her Worship must determine on the facts alleged or on such other evidence as Her Worship may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of s32, rather than in accordance with law. In my view, Her Worship articulated an outline for reasons for applying the section, rather than dealing with the charge in accordance with law. 20 It was submitted by the Crown that Her Worship did not determine the seriousness of the offence. I do not accept this submission. Her Worship did consider taking into account the time served, and the fact that a prison sentence which would otherwise be appropriate, was not in the circumstances and on the evidence a proper sentence to impose, and that Her Worship clearly determined that she should determine the matter using the powers set out in s32 of the Act. Her Worship did not exercise the powers in s32(2), and therefore was limited to the powers under s32(3) of the Act. Section 32(3) gives a power to: (a) dismiss a charge and to discharge the defendant unconditionally or, alternatively, into the care of a responsible person unconditionally or subject to conditions; or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment, or both; or (c) unconditionally. 21 The second of these two conditions clearly can only relate to a person who has a mental condition or who requires treatment. Her Worship had already made a finding that the defendant was developmentally disabled, and thus Her Worship was obliged to place the defendant into the care of a responsible person, either unconditionally or subject to conditions, or discharge unconditionally. 22 Additionally, Her Worship did initially indicate that the defendant was discharged unconditionally. Her Worship then found that an order had been made placing the defendant under the care of the Public Guardian the previous year. Her Worship thus impliedly vacated the order of the dismissal unconditionally, and then purported to dismiss under s32 with a condition that the defendant keep in touch with the Public Guardian and any case worker. 23 Under s32(3), her Worship was obliged, whether there were conditions or not, to ensure that the defendant was placed in the care of a responsible person, not only as a matter of law under the section but particularly in the circumstances of the seriousness of this case, it was inappropriate to abandon the defendant to the community generally. The circumstances were such that Her Worship erred in the nature of the seriousness of what had occurred, and in the light of the development disability of the defendant to allow him to be at large without making someone responsible for him. 24 Her Worship cast on the defendant the obligation to keep in touch with the Public Guardian and did. This does not carry out the intention of the Act which is that some person had to be responsible for the defendant in the circumstances of the charge. 25 This section has been examined by this Court in Perry v. Forbes (Unreported, Supreme Court of NSW, 21 May 1993, Smart J), in which His Honour was dealing with a quite troubled and difficult person. In that case, there needed to be placed before the Magistrate, who was making a determination under s32 of the Act: "Once she was likely to ensure there was not a repetition of the incident in question or the occurrence of some unfavourable incident. Realistically such a plan had to be organised by the solicitor acting in consultation with the psychiatrists involved. The Crown could not be expected to do it." 26 It is my view that before there can be an exercise of discretion under s32(3)(a), the Court is obliged to arrange for there to be evidence of some sort of plan, or to obtain evidence whereby some appropriate person, be it the Public Guardian, or evidence of some available institution, before an order can be made. This, of course, underlines the fact that in our society we do not make proper provisions for people such as the defendant, and busy Magistrates are constantly being placed in a situation of having to deal with impossible cases with inadequate evidence, and in having to deal with matters that society itself has not been adequately prepared to deal with, in terms of appropriate legislation or appropriate institutions. 27 I consider, however, that in terms of the obligations under s32 of the Act, that Her Worship, in the exercise of her discretion, has erred in the exercise of that discretion in the circumstances. Her Worship has therefore erred in dismissing, either unconditionally or on a condition that the defendant merely keep in contact with the persons who she specified, and that Her Worship should have been ensured that the matter was adjourned if there was not enough evidence before her until that evidence could be placed before her. 28 Alternatively, Her Worship should have worked out with the case worker before she made the appropriate conditions, to place the defendant in the care of the Public Guardian, and to enunciate the conditions to ensure that the defendant was not at large, leaving it to his initiative to make contact. 29 The absence of appropriate evidence, as I have indicated, placed Her Worship in a difficult position. However, the Act contemplates the placing of conditions on people such as the defendant under someone's responsibility, before a charge can be dismissed. 30 In my view, therefore, the appropriate order of the Court is that the determination of Her Worship be quashed and that the matter be remitted to the Local Court to be dealt with according to law. oOo Last Modified: 11/21/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.