Edwards v DPP [2012] NSWSC 105

Supreme Court New South Wales

Medium Neutral Citation: Edwards v DPP [2012] NSWSC 105 Hearing dates: 17 November 2011 Decision date: 24 February 2012 Jurisdiction: Common Law Before: Hislop J Decision: 1. The amended summons is dismissed. 2. Each party to bear his own costs. Catchwords: Criminal law - application of s 32 of the Mental Health (Forensic Provisions) 1990 - no issue of principle Legislation Cited: Crimes Act 1900 Liquor Act 2007 Mental Health (Forensic Provisions) Act 1990 Crimes (Appeal and Review) Act 2001 Supreme Court Act 1970 Cases Cited: Director of Public Prosecutions v El Mawas [2006] NSWCA 154 Category: Principal judgment Parties: George Phillip Edwards (Plaintiff) Director of Public Prosecutions (NSW) (1st Defendant) Roger Alasdair Brown (2nd Defendant) Representation: R.J. Button SC (Plaintiff) I. Bourke (1st Defendant) Submitting appearance (2nd Defendant) Logical Legal Solicitors and Barristers (Plaintiff) Solicitor for Public Prosecutions (1st Defendant) Crown Solicitor (2nd Defendant) File Number(s): 2011/301405 Decision under appeal Jurisdiction: 9109 Date of Decision: 2011-08-19 00:00:00 Before: Magistrate Brown

Judgment

Introduction 1On 17 September 2010 the plaintiff was involved in an altercation with a security officer at a tavern. He was affected by alcohol at the time. He was charged with common assault pursuant to s 61 of the Crimes Act 1900. The maximum sentence for this offence is 12 months imprisonment and/or 20 penalty units. He was also charged with "excluded person remain in vicinity of licensed premises" contrary to s 77(8)(a) of the Liquor Act 2007. The maximum penalty for this offence is 50 penalty units. The plaintiff ultimately pleaded guilty to each offence. 2The police statement of facts was accepted by the plaintiff. The offences were not serious enough, in the opinion of the second defendant, to entail a full time custodial sentence and, of course, such a sentence was not available under s 77(8)(a). 3The plaintiff was born in 1952. He has had a problem with alcohol for much of his life. This is reflected in a lengthy criminal record primarily for alcohol related offences, including a significant number of drink driving and driving whilst disqualified convictions. He was on probation at the time of the subject offences. 4On 19 August 2011 the plaintiff made an application to the second defendant pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990. The application was refused. 5The plaintiff, by amended summons filed in this court on 27 October 2011, sought the following orders: "1. Leave to appeal with regard to an appeal against conviction that involves a question of mixed law and fact, pursuant to s 53(1)(b) of the Crimes (Appeal and Review) Act 2011. 2. An order upholding the appeal against conviction and quashing the conviction. 3. In the alternative to order 1, leave to appeal with regard to an interlocutory order made by a Local Court in relation to the Plaintiff in summary proceedings, pursuant to s 53(3)(b) of the same Act. 4. In the alternative to order 2, an order upholding the appeal against the interlocutory order and quashing that order. 5. An order remitting the matter to Blacktown Local Court to be dealt with according to law. 6. In the alternative to the above orders, an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 removing the record of proceedings at Blacktown Local Court into this Court, and quashing the refusal of the magistrate to deal with the Plaintiff under s 32 of the Mental Health (Forensic Provisions) Act 2007." 6The orders were opposed by the first defendant. The second defendant filed an appearance submitting to the orders of the Court save as to costs. 7The orders were sought in the alternative as there was uncertainty as to whether his Honour, the second defendant, had, on rejection of the s 32 application, implicitly convicted the plaintiff, in which event the appeal was pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001, or whether the determination of the s 32 application was an interlocutory order, in which event the appeal was pursuant to s 53(3)(b), or whether the decision of the s 32 application was merely a ruling, in which event the appropriate means of relief was provided by s 69 of the Supreme Court Act 1970. 8Although the issue was not beyond doubt, counsel for the plaintiff and first defendant agreed, that for the purposes of the appeal, it should be accepted that the plaintiff was appealing pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001 as on an appeal from conviction and that accordingly the plaintiff required leave to appeal on a question involving mixed law and fact. In light of my determination of the matter it is unnecessary to examine the correctness of the course adopted.