Children's Court New South Wales Medium Neutral Citation: Police v Beth [2014] NSWChC 8 Hearing dates: 23 October 2014 Decision date: 18 December 2014 Jurisdiction: Criminal Before: Children's Magistrate Graham Blewitt AM at Nowra Decision: Application for permanent stay refused Catchwords: Criminal Law – Young Persons – Mental Health Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] ARL 248; [1958] VR 45 Police v DK NSW ChCt, unreported 17 December 2010, Magistrate Mulroney Category: Procedural and other rulings Parties: Police Young Person Representation: Sgt Patterson for the Prosecution Mr A Robinson for the Young Person File Number(s): 2014/209366 Publication restriction: A pseudonym has been used to anonymise the young person Judgment Reasons for decision 1. The Young Person, Beth (not her real name), is currently before this Court having been charged with a total of thirteen offences committed during a four week period between 27 June and 26 July this year. There are five charges of common assault, one charge of assault police, one charge of causing intimidation, four of damaging property, one violation of an AVO and one larceny. The Young Person is 11 years of age. 2. It is not necessary to go into detail in relation to the facts giving rise to these charges. 3. The Court understands that the Young Person is under the parental responsibility of the Minister. The Young Person has suffered severe trauma in the care of her parents, being exposed to significant neglect, emotional and psychological abuse, exposure to domestic violence and possible sexual abuse. The result has been that the Young Person became engaged in extreme and uncontrolled behaviours, characterised by the use of violence and behaviour that placed her and others at significant risk. She has been described as being uncontrollable, and she is currently placed in secure residential accommodation under the care of the Department of Family and Community Services for her own safety, and the safety of others. 4. The Supreme Court, exercising its parens patriae jurisdiction, has made a secure accommodation order. The Court understands that the Young Person is currently placed in suitable accommodation, and is responding positively to her current reparative and therapeutic care arrangements. 5. In relation to the Young Person's mental capacity and behaviours, assessments were undertaken in July and August this year by Dr Dee Neveling, Clinical Psychologist, with the latter report addressing, inter alia it would appear, the issue of doli incapax. Dr Neveling had been working with the family since 2010. The Court has access to Dr Neveling's reports prepared in relation to Beth on 30 July and 15 August 2014. The July report recounts concerning behaviours of the Young Person secreting dangerous weapons to use in attacks on refuge staff when she lures them into her room. Dr Neveling describes instances of the Young Person dissociating. The same report details the Young Person's family history between 2003 and 2014 and contains some frightening accounts of the Young Person's aggressive, threatening and dangerous behaviours, both to herself and to others. 6. Dr Neveling concurs with the diagnosis by other medical experts that the Young Person meets inter alia the criteria for Post Traumatic Stress Disorder and Reactive Attachment Disorder. Application for a permanent stay of the proceedings 1. When the criminal proceedings came before this Court on 23 October 2014, Mr Robinson, on behalf of the Young Person, made what he described as a Presser application, namely an application for a permanent stay of the proceedings in light of the Young Person's unfitness to be tried. 2. The decision of Smith J in the case of R v Presser [1958] ARL 248, in dealing with the issue of fitness to be tried, sets out the test or minimum standards required before an accused can receive a fair trial. 3. It is convenient to set out the decision of Smith J in relation to the test. His Honour said: "(An accused) needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charges and to exercise his right of challenge He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this though his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 1. The High Court has approved the Presser test. Relying on the test set out in that case, and also making reference to the decision of Magistrate Mulroney in the case of Police v DK, an unreported Children's Court decision dated 17 December 2010, Mr Robinson submitted that given the circumstances of this case, it was appropriate for the Court to grant a permanent stay of the proceedings. 2. In the case of Police v DK, Magistrate Mulroney was satisfied that the defendant came within the ambit of the Presser test, and finding that the defendant could not give appropriate instructions, could not understand or follow the proceedings, and could not comprehend the consequences of any court order, Magistrate Mulroney concluded that the defendant would be exposed to unacceptable unfairness or injustice. Accordingly Magistrate Mulroney granted a permanent stay of the proceedings. 3. It is relevant and important to note that Magistrate Mulroney was dealing with an application for an apprehended violence order, and noted that "if this was a criminal prosecution the court may have considered making an order pursuant to section 32 of the Mental Health (Forensic Provisions) Act, but that is not available in this situation". The prosecution response to the application 1. In response to Mr Robinson's application, the prosecution opposed the application that the matter be subjected to a permanent stay order, and submitted that the matter may be more appropriately dealt with under s32 of the Mental Health (Forensic Provisions) Act. 2. Mr Robinson subsequently submitted that if the Court was not satisfied that it was appropriate to grant a permanent stay, the Court might also consider applying the provisions of s 33 of the Mental Health (Forensic Provisions) Act. Decision 1. Dealing first with the application for a permanent stay of the proceedings, it is my view that having regard to the availability and applicability of the Mental Health (Forensic Provisions) Act, which is specifically designed to divert persons with mental health issues away from the criminal justice system, it is not appropriate to consider granting a permanent stay of the proceedings involving the Young Person. 2. In my view, this is an appropriate case for the application of that Act, and that given the age of the Young Person and the apparent successful response to the current care arrangements, notwithstanding the serious nature of the charges, it is appropriate to divert the Young Person away from the criminal justice system. 3. The Court notes, as an observation only, that if the seriousness of the charges resulted in the Court refusing to exercise its discretion to deal with the matter under the Mental Health (Forensic Provisions) Act, but rather decided to deal with the matter according to law, there may be some scope, under those circumstances, for the Children's Court to consider the applicability of the Presser test and the appropriateness of granting a permanent stay. Order 1. Accordingly, the application for a permanent stay is refused. ********** 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: 12 June 2015