Anthony Nicholas Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159

New South Wales Supreme Court

CITATION : Anthony Nicholas Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 HEARING DATE(S) : 04/11/2004 JUDGMENT DATE : 3 December 2004

JUDGMENT OF : Howie J at 1 DECISION : The summons is dismissed with costs.

CATCHWORDS : Criminal Law - Proceedings before Magistrate - Mental Health - whether Magistrate erred in refusing to deal with a defendant under s 32 of Mental Health (Criminal Procedure) Act Mental Health (Criminal Procedure) Act (1990) - s 32 Supreme Court Act 1970 - s 69 LEGISLATION CITED : Crimes (Local Courts Appeal and Review) Act 2001 - s 53 Road Transport (Safety and Traffic Management) Act - ss 42(1)(c), 42(2), 43(2) Crimes Act - s 59(1) Australian Road Rules - Rule 287 CASES CITED : R v Fahda [1999] NSWCCA 267 PARTIES : Anthony Nicholas Confos v Director of Public Prosecutions (NSW) FILE NUMBER(S) : SC 12378/2004 COUNSEL : G. Stanton - Plaintiff R. Lancaster - Defendant SOLICITORS : Otto Stichter & Associates - Plaintiff S. Kavanagh - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 3 DECEMBER 2004

12378/2004 ANTHONY NICHOLAS CONFOS v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

JUDGMENT 1 HIS HONOUR: The plaintiff seeks relief from this Court in respect of a refusal of a magistrate to make an order under s 32 of the Mental Health (Criminal Procedure) Act 1990 (the Act). In summary that section permits a magistrate, when hearing proceedings involving a defendant who is suffering from a mental illness, to deal with the defendant in accordance with the provisions under the section rather than in accordance with normal sentencing practice. The plaintiff asks this Court to quash the Magistrate's ruling and, as a consequence, either to make the order that the Magistrate should have made or, alternatively, to require the Magistrate to exercise her jurisdiction afresh. 2 There was no issue raised as to this Court's jurisdiction to entertain the summons nor the nature of that jurisdiction. The summons appears to seek relief under s 69 of the Supreme Court Act. However, it seems to me that the proper basis for the proceedings was as an application for leave to appeal under s 53 of the Crimes (Local Courts Appeal and Review) Act 2001. An order refusing to apply s 32 would appear to me, without hearing argument on the matter, to be an interlocutory order for the purposes of s 53(3)(b). However, it is unnecessary to resolve this question in order to determine these proceedings. 3 The plaintiff was charged with a number of summary offences arising out of an incident that occurred in New South Head Road and William Street, Sydney. The plaintiff appeared before the Magistrate on the following matters: