Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 Hearing dates: 11 December 2012 Decision date: 16 April 2013 Jurisdiction: Common Law Before: Button J Decision: (1) Appeal allowed. (2) The order of the Magistrate dismissing the matter is set aside. (3) The matter is remitted to the Local Court for further hearing. Catchwords: CRIMINAL LAW - Appeal by DPP pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 - matter dismissed pursuant to s 32 of Mental Health (Forensic Provisions) Act 1990 - insufficient reasons contained in judgment - appeal allowed - matter remitted to Local Court Legislation Cited: Bail Act 1978 Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Commonwealth Director of Public Prosecutions v Seymour [2009] NSWSC 555 Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 Director of Public Prosecutions (NSW) v Dewes [2008] NSWSC 1141 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Fang v R [2010] NSWCCA 254 Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092 Mantell v Molyneux [2006] NSWSC 955; (2006) 165 A Crim R 83 Perry v Forbes (unreported, Supreme Court of NSW, 21 May 1993) Category: Principal judgment Parties: Director of Public Prosecutions (plaintiff) Andrew Soliman (first defendant) The Local Court of New South Wales (second defendant) Representation: Counsel: I Bourke (plaintiff) C Smith (defendant) Solicitors: Solicitor for Public Prosecutions (plaintiff) Legal Aid (NSW) (defendant) File Number(s): 12/310875 Decision under appeal Jurisdiction: 9109 Date of Decision: 2012-06-19 00:00:00 Before: Coombs LCM File Number(s): 2011/217122, 2011/21736 JUDGMENT 1The plaintiff has appealed pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 against a dismissal of a number of charges alleged to have been committed by the first defendant. That dismissal was effected pursuant to s 32 ("the section") of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). The foundation of the appeal is the proposition that the reasons given for the dismissal by the learned Magistrate were inadequate. The orders sought are that the order dismissing the matters be quashed, and that the matter be returned to the Local Court for further hearing. Prerogative relief is sought in the alternative. 2The second defendant has entered a submitting appearance. For ease of comprehension, I shall refer to the plaintiff as the prosecutor, and the first defendant as the defendant. 3At the hearing, it was made clear that costs were not sought by the prosecutor. Threshold question 4Counsel for the defendant accepted that at least one error had been made by the Magistrate, and that the orders sought by the prosecutor should be made. He disagreed, however, with some of the specific written submissions of counsel for the prosecutor. 5In that context, I queried with the parties whether it would be appropriate for me to deliver a judgment. I was concerned not only about the appropriate use of court resources in a matter that had been "settled", but also whether there was in truth a dispute before the Court requiring resolution by me. 6Counsel for the prosecutor referred me to a number of decisions of this Court in appeals brought from the Local Court pursuant to the Crimes (Appeal and Review) Act in which, despite the concurrence of the parties as to disposition and orders, nevertheless a judgment had been delivered. He referred in particular to the decisions of Adams J in Director of Public Prosecutions (NSW) v Dewes [2008] NSWSC 1141 and Simpson J in Commonwealth Director of Public Prosecutions v Seymour [2009] NSWSC 555. He also invited my attention to the decision of the Court of Criminal Appeal in Fang v R [2010] NSWCCA 254. He submitted that that case is an example of that Court delivering a judgment with regard to a ground of appeal against conviction that had been the subject of a concession by the Crown. 7He also submitted that it would be odd for the matter to be remitted to the Local Court for further hearing without any guidance from this Court as to the error that is said to have been made. 8Counsel for the defendant did not wish to be heard on the issue. 9I accept the submissions of counsel for the prosecutor. I consider it appropriate that, despite the concurrence of the parties, I deliver a judgment expressing my own determination. In light of the fact that error is accepted and the orders sought in the appeal are not opposed by counsel for the defendant, my judgment will of course be shorter than if there had been a full-blown controversy between the parties. Chronological background 10The allegation of the prosecutor is that, on 28 June 2011, the defendant was stopped by police after driving at 123 km/h in a 70 km/h zone. There ensued a high-speed chase. Eventually he was arrested at his home, and thereafter it is alleged that he behaved abusively and violently towards the police. 11As a result of those allegations, the defendant was issued with court attendance notices for: one charge of exceeding the speed limit by more than 45 km/h; one charge of driving without a license; one charge of not stopping a vehicle when directed to do so by police; two charges of assaulting police officers; one charge of offensive language; and one charge of resisting a police officer. 12The proceedings were adjourned a number of times. On 23 January 2012, the matter came before the Magistrate who ultimately determined the matter. On that occasion, the solicitor then appearing for the defendant indicated there would be an application pursuant to the section with regard to some of the charges. With regard to others, a voir dire was sought with an eye to exclusion pursuant to s 138 of the Evidence Act 1995. That voir dire was conducted on that date, but the application to exclude the evidence was rejected. 13Subsequently, the proceedings were adjourned on a number of further occasions, including before a different magistrate. 14The application to dismiss pursuant to the section was ultimately made on 19 June 2012. Hearing on 19 June 2012 15A transcript of the proceedings on 19 June 2012 formed part of the material before me on the appeal. 16Proceedings commenced with counsel then acting for the defendant handing up "some documents". Although the transcript does not record which documents they were, it seems from an examination of the file undertaken by the solicitor for the prosecutor that they were a report from Dr Edwards, psychiatrist; two letters from Mr Brown, social worker; and one letter from Dr Erian, general practitioner. 17To state their import with great succinctness, in a report dated 4 June 2012, Dr Edwards, who treated the defendant as a consulting psychiatrist, diagnosed the defendant as suffering from schizophrenia, depression and substance dependence. Dr Edwards noted that the stabilisation of the defendant had been somewhat complicated by poor compliance with treatment plans on the part of the defendant. Furthermore, Dr Edwards suggested that, due to a concerted effort on the part of the defendant's case manager, treating psychiatrist and the staff at the Drug Health Service, the condition of the defendant had shown some improvement over the previous 12 months. 18A report prepared by Mr Brown, the social worker, referred to discussions with Dr Edwards confirming the necessity of continued medication in stabilising the mental health of the defendant. Mr Brown further noted that the defendant had been dealing with his condition by way of continued counselling. 19Finally, a report dated 15 May 2012 and prepared by Dr Erian discussed a history of heroin and cannabis abuse that had improved. With regard to mental health conditions, Dr Erian noted that the defendant was suffering from anxiety and depression, but was not able to confirm whether the defendant suffered from drug induced psychosis or schizophrenia. 20After the receipt of the documents, the transcript then records the following: "HIS HONOUR: What we've got here doesn't really get us over the hurdle-- KRISENTHAL [counsel for the defendant]: Well a combination of things. It has gone over for a number of times and I've had difficulties in obtaining a report from the treating specialist but the report from Dr Edwards, he is a treating specialist in my submission. He's treated my client for the last four years and he confirms that my client suffers from schizophrenia, depression, as well as substance abuse and that at the relevant period, that is June 2011, that he was-- HIS HONOUR: Dr Edwards begins his remarks by saying he's not the treating psychiatrist and secondly, I'd be the first to say, this is probably a case where a s 32 might apply but what we need is to do the drill which is to have a treatment plan which says who he is going to see and what drugs he is going to be on although it says that he does take some drugs in that report and then an undertaking by somebody engaged in the treatment to report a breach of the order. KRISENTHAL: And that is there, the third last page, from Ian Brown dated 3 April this year, that Andrew is a client of his. He is the case manager and that he is willing to accept care and follow-up of him on a s 32 and to report to the court if there is no compliance. HIS HONOUR: What do you say? Do you say the treatment plan is in fact Ian Brown's statement on the first page of his letter? KRISENTHAL: Yes your Honour. HIS HONOUR: What's happened to the application for a community treatment order? KRISENTHAL: There's no community treatment order in place at present but he sees Ian Brown and is in receipt of medication and that is confirmed by Dr Edwards when he talks about, in the paragraph, there's been a concerted effort on the part of his case manager, treating psychiatrist and the staff at Drug Health Services and he has managed to improve somewhat in the last 12 months. I agree that it's not all on one document. HIS HONOUR: Is there any way you can get it all together? KRISENTHAL: I've had difficulties your Honour in obtaining that information. We've approached Dr Nataraj, we've approached the Fairfield Community Health Centre and I've got what I've got at this stage. But in my submission the combination of the material before you shows that there is a treatment plan, that he's receiving medication. Mr Brown is prepared to accept him on a s 32 and to notify the court if he doesn't accept it. Additional, Dr Samiarian(?), and that's the-- HIS HONOUR: I'll write the treatment plan. He is one, to continue-- PROSECUTOR: Your Honour, the prosecution are opposed. The ..(not transcribable).. required a detailed treatment plan. This isn't detailed, it's just to follow up at a later date. That's not a treatment plan your Honour. I also say that two of these documents aren't signed and your Honour could have no regard for them. And these are serious driving matters that have put the public at serious risk. A s 32 isn't going to diminish that risk considering he's already been on treatment for some time." 21Thereafter the matter was stood in the list. 22When the matter was revisited, the following exchange took place between his Honour and the prosecutor in the Local Court: "HIS HONOUR: Well sergeant, in the matter of Soliman, if I make the treatment order, that is to undertake counselling with the Corella Drug and Alcohol team and the Fairfield Mental Health team plus he continues the medication which is Effexor and Solian and that we accept the undertaking of Mr Brown. PROSECUTOR: But isn't the point that psychologists are meant to come up with a treatment plan that's to address the re-offending. With respect, your Honour is not a psychologist so doesn't know what's required for the treatment plan. HIS HONOUR: Well the treatment plan is he gets counselling and he attends on the Fairfield Mental Health team and that he complies with the medication which is Effexor and Solian. PROSECUTOR: As the court please. HIS HONOUR: That should do and in any event it looks as though there will be a community treatment order as well in which case the matter will probably come out of our hands in the end. PROSECUTOR: As the court please." 23At the end of the matter, his Honour made the following order: "THE TREATMENT PLAN IS TO CONTINUE, COUNSELLING AT CORELLA AND FAIRFIELD MENTAL HEALTH TEAM AND HE IS TO COMPLY WITH HIS MEDICATION AND I NOTE THE UNDERTAKING OF IAN BROWN." 24Finally, a written order issued from the Local Court Registry in compliance with the terms of s 32 of the Act. 25I am informed by the parties that the defendant has been subject to those orders of his Honour since that time. Legislation 26It is convenient at this stage to set out the provision said to provide the power of the prosecutor to appeal, along with the provision that provides a magistrate with the power to dismiss a matter in certain circumstances. 27Section 56 of the Crimes (Appeal and Review) Act is as follows: "56 Appeals as of right (1) The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by the Local Court in any summary proceedings, or (b) an order made by the Local Court that stays any summary proceedings for the prosecution of an offence, or (c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or (d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or (e) an order for costs made by the Local Court against the prosecutor in any summary proceedings, other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court." (emphasis added) 28Section 32 of the Act is as follows: "32 Persons suffering from mental illness or condition (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 (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, 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 make an order dismissing 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. (3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant's arrest. (3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. (4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3). (4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section. (5) The regulations may prescribe the form of an order under this section." Grounds 29Originally, the following six grounds were notified: (1)"Failure to make any findings as to whether and why the First defendant was eligible to be dealt with under s 32 of the MHFP Act 1990; (2)Failing to make any findings as to whether it was more appropriate to deal with the First defendant under the provisions of Part 3 of the MHFP Act 1990; (3)Failing to have regard to the seriousness of the offences; (4)Failing to provide adequate reasons for his determination to deal with the First defendant in accordance with the provisions of Part 3 of the MHFP Act; (5)Failing to provide adequate reasons for his determination to dismiss the charges pursuant to s 32 of the MHFP Act; and (6)Dismissing the charges pursuant to s 32 of the MHFP Act 1990." 30At the hearing, counsel for the prosecutor submitted that, in the circumstances, there were three asserted errors with which my judgment should deal. They were ground one (the asserted failure of his Honour to make a finding as to whether and why the defendant came within the section as a threshold question); ground two (the asserted failure to make finding as to whether it was more appropriate to deal with the defendant under the section); and ground four (an asserted failure to give adequate reasons). Submissions by the prosecutor 31Generally, counsel for the prosecutor submitted that the determination of the matter undertaken by his Honour did not comply with the steps called for by the section, as elucidated by the judgments in Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93. He respectfully submitted that the transcript demonstrates that there was no real judgment at all delivered in the matter, merely a series of exchanges between the Bench and the Bar table. 32He emphasised the opposition expressed by the then prosecutor to the making of an order. That was founded on three bases: the seriousness of at least some of the offences, which were said to "have put the public at serious risk"; the submission that an order under the section would not help; and the submission that there was no suitable treatment plan. He submitted that, in those circumstances there should not only have been a judgment, but also one that resolved, even if briefly, the contentions of the parties. 33He submitted that it is not appropriate, in the absence of a judgment, for an appellate court to be required to analyse the exchanges between the Bench and Bar table in order to understand what was in the mind of a judicial officer. He referred to the judgment of Johnson J in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402. 34He also submitted that the giving of reasons for orders, be they ever so brief, is an essential part of the exercise of judicial function. He referred to the well-known statement of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279A: "[W]ithout the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as 'a necessary incident of the judicial process'". 35Quite apart from this particular case, I sought his submissions as to what a judgment with regard to the section should generally contain. 36He accepted the great time pressures under which magistrates sitting in the criminal jurisdiction operate. He also accepted that it is not appropriate to be overly prescriptive as to the bare minimum of what such a judgment should contain, in light of the multitude of circumstances that could give rise to an application for dismissal under the section. And he accepted that much will depend upon the matters that are truly in dispute between the parties when such an order is sought. 37However, he submitted that it will very often be necessary for a magistrate to express a satisfaction that a defendant, whether at the time of the alleged offence or at the time of the hearing, possesses one of the three attributes identified in s 32(1)(a). 38Secondly, he submitted that it will also very often be necessary for a magistrate to express a satisfaction that the test contained in s 32(1)(b) has been made out. In other words, it would at least be appropriate to express a satisfaction that a defendant would more appropriately be dealt with pursuant to the section rather than by way of ordinary operation of the criminal law, even if a magistrate does not explain why. 39Thirdly, he submitted that in light of the judgment of Howie J in Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159, it will very often be appropriate for a magistrate to demonstrate that the seriousness of the alleged offences has been taken into account in that balancing exercise. 40Fourthly, he submitted that it will, in some circumstances, be appropriate to indicate why orders pursuant to s 32(2), as opposed to s 32(3), are to be made. 41In short, whilst accepting the pressures under which magistrates sitting in the criminal jurisdiction operate, and acknowledging the body of law in support of the proposition that analysis of the sufficiency of a judgment provided in such circumstances should be undertaken in a commonsense way, he nevertheless submitted that what occurred in this matter was erroneous. More generally, he submitted that it would be appropriate for me to provide respectful guidance to magistrates as to the sufficiency of judgments in applications for orders pursuant to this section. Submissions of defence counsel 42As I have indicated, counsel for the defendant did not dispute that error had been established, and that the orders sought by the prosecutor should be made. In particular he generally accepted that there was nothing to indicate that the balancing exercise in s 32(1)(b) had been undertaken. 43With regard to more general considerations, he generally agreed with the submissions of counsel for the prosecutor as to the essential requirements of judgments with regard to such applications. However, he sounded a number of notes of caution. 44First, he submitted that, with regard to the jurisdictional question, (namely whether the a defendant falls within s 32(1)(a)), on the evidence it may be so overwhelmingly clear that that is so, that a failure to express a satisfaction about it would not constitute an error on the part of a magistrate. 45He suggested that the current case provided an example, in that there was no evidence to the contrary of the proposition that the defendant was suffering from depression and schizophrenia, and the prosecutor in the Local Court did not oppose the making of the order on that basis. 46Secondly, he submitted that, in many cases, it would not be incumbent upon a magistrate to indicate why orders were to be made under s 32(3) as opposed to s 32(2). 47Thirdly, he submitted more generally that each case will turn on its own facts, not only with regard to evidence, but also with regard to the matters, if any, in dispute between the parties. As a result, he also submitted that anything I say should not be overly prescriptive. Determination 48I respectfully agree with counsel for the parties that an order dismissing a matter under s 32 of the Act is an order for the purposes of s 56 of the Crimes (Appeal and Review) Act. 49I also consider that the asserted inadequacy of reasons given by a judicial officer is a question of law that gives rise to the power of appeal relied upon by the prosecutor. 50I also respectfully agree that error has been established by the prosecutor. I consider that in this case there was a requirement to deliver a judgment, albeit a brief one, that engaged with the tests contained in the section. That was especially the case in light of the clear opposition by the then prosecutor to the making of the order, and the fact that that opposition was based upon three discrete aspects of the evidence. 51Furthermore, I consider that the proceedings generally suffer from the vice identified in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited, in that in order to attempt to construe what was taken into account by the learned Magistrate, one is required to peruse the transcript of submissions and discussion. 52I respectfully consider, in particular, that the reasons given with regard to the balancing test in the section were inadequate. 53It follows that I shall make the two orders sought by the prosecutor and agreed to by the defendant. 54I accept the submission of counsel for the prosecutor that it is appropriate for me to say something about judgments with regard to applications under the section. 55As I indicated in ACP v Munro [2012] NSWSC 1510 at [109], I am aware from my own experience of the pace and pressure that attaches to the disposition of criminal matters in the Local Court. And I can say from my own judicial experience that, if judges of this Court sitting in the bails list were required to deliver disquisitions on the regime of presumptions for or against bail, or the multitude of factors enumerated in s 32 of the Bail Act 1978, that part of the machinery of criminal justice would simply seize up. 56Furthermore, I respectfully agree with both counsel that the requirements of a judgment in an application under the section will very much depend upon the circumstances, and therefore one should be careful not to be overly prescriptive. For example, if the prosecutor is in full agreement with the making of an order, then the judgment may well be substantially shorter than if there is extensive dispute. If the evidence is overwhelming with regard to the jurisdictional question, then a magistrate may need to take very little time with it. And if an offence is self-evidently trivial, there may be little need to analyse its seriousness at length. 57Bearing those two notes of caution in mind, I consider that, in many applications pursuant to this section, it would be appropriate for a magistrate to express very briefly his or her finding as to whether a defendant falls within s 32(1)(a). It will also often be appropriate to indicate within which subparagraph a defendant falls. 58I also consider that, in many if not most applications under the section, it would be appropriate for a magistrate to indicate that he or she has considered the balancing test contained in s 32(1)(b). 59And in light of what was said by Smart J in Perry v Forbes (unreported, Supreme Court of NSW, 21 May 1993) at [48] of the judgment; by Howie J in Confos v Director of Public Prosecutions (NSW) at [17]; by Spigelman CJ in Director of Public Prosecutions v El Mawas at [17]; by McColl JA in the same case at [77]; by Adams J in Mantell v Molyneux [2006] NSWSC 955; (2006) 165 A Crim R 83 at [40]; and by Hall J in Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092 at [85(7)], I consider that a magistrate should indicate in a judgment that refers to that balancing exercise that the seriousness of the offence has been taken into account. 60Finally, in the judgment as to whether or not to make an order, I consider that it often would be appropriate to discuss, albeit briefly, what is proposed by way of assistance and treatment with regard to a defendant, and the reason why such a course is to be adopted or rejected. 61To be clear, I am thinking in the usual course of a judgment that is to be measured in several sentences, not several paragraphs or several pages of transcript. Orders 62I make the following orders: (1)Appeal allowed. (2)The order of the Magistrate dismissing the matter is set aside. (3)The matter is remitted to the Local Court for further hearing. ********** 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. Decision last updated: 16 April 2013