Local Court New South Wales Medium Neutral Citation: NSW Police Force v Katrina Golding [2015] NSWLC 26 Hearing dates: 23 September 2015 Decision date: 27 November 2015 Jurisdiction: Criminal Before: Grogin LCM Decision: This Court has jurisdiction to further deal with these matters as the Defendant is lawfully before the Court pursuant to the operation of s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 Catchwords: CRIMINAL PROCEEDINGS – mental health diversion – s 33(1)(b) Mental Health (Forensic Provisions) Act 1990 – Mental Health Act 2007- Local Court jurisdiction Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 9, 25 Criminal Procedure Act 1986, s 196 Mental Health (Forensic Provisions) Act 1990, ss 32, 33 Mental Health Act 2007, ss 14, 15, 18, 24, 27, 31, 32 Cases Cited: R v Thomas Stafford Roberts (22 August 2014, Heilpern LCM, unreported) Texts Cited: Local Court Bench Book Category: Procedural and other rulings Parties: NSW Police Force Katrina Golding (Defendant) Representation: Solicitors: Sergeant O'Donnell Mr Rees, Aboriginal Legal Service (for the Defendant) File Number(s): 2014/54631, 2014/127044, 2015/155552, 2015/209102, 2015/233372, 2015/250197 Judgment 1. This matter concerns an issue raised on behalf of Ms Katrina Golding (the Defendant) as to whether the Local Court has jurisdiction to hear proceedings once an order has been made under s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 ('MHFPA') and where a finding is made under the Mental Health Act 2007 ('MHA') that the person is mentally ill. The defendant argues that the Court has no jurisdiction in such circumstances. The prosecution does not agree with these assertions. 2. The defendant has an extensive criminal history and has had a number of charges dealt with pursuant to both s 32 and s 33 of the MHFPA. The charges which are the subject of this decision are: * H57871004: offensive manner; * H58140705: custody of a knife; * H59339769: offensive language and goods in custody; * H54197519: assault police (s 9 bond call up); * H54576721: assault occasioning actual bodily harm (s 9 bond call up); * H58715045: offensive manner, assault police and malicious damage. 1. It is necessary to reproduce the relevant legislative sections throughout this judgment in order to understand the operation and link between both the MHFPA and the MHA. HISTORY OF OFFENCES 14 August 2015 1. The offences of goods in custody and shoplifting (H59048465) and assault occasioning actual bodily harm, malicious damage and failing to appear (H58722989) were dealt with by her Honour Magistrate Skinner pursuant to s 33(1)(b) of the MHFPA and the defendant was taken by Police to the Prince of Wales Hospital. Prince of Wales Hospital admission – 14 August 2015 1. A discharge referral was on the Court file showing the Defendant was admitted on 14 August 2015 and it appears that she was discharged ten days later on 24 August 2015. This discharge referral contained, inter alia, the following: Visit Information Katrina is a 20 year old lady, brought in by police on a Section 33 for assessment. Background Signs of Possible Psychosis for ~ 3 years - Multiple admission at POW and SVH and 1 x CTO - Involvement with EPP for 2 years but discharged March 2015 as they consistently unable to follow her up - Most recent medications (March 2015) - Paliperidone 100mg monthly IM - Olanzapine 5mg mane 10mg nocte - Lithium 2250mg BD Forensic history including assault and weapons possession. … Forensic Issues: Arrested for breach of bail conditions, as admitted under s.33 no need for discharge into police custody. Impression There appears to be a significant Cluster B antisocial element to her personality, polysubstance abuse in addition to a schizoaffective disorder. Risks: suicide/DSH low; chronic moderate risk of assault to others, which increases if psychotic, or affected by substances. Plan Follow up at La Perouse Aboriginal Medical Centre at 1pm on Wednesday Continue Olanzapine 15mg nocte Police notified of discharge. 1. The Defendant was not returned to Court in relation to these matters. 18 August 2015 1. On 16 June 2015, the Defendant had matters of offensive manner (H57871004) and having custody of a knife (H58140705) dealt with at the Downing Centre Local Court pursuant to s 196 of the Criminal Procedure Act 1986 and warrants were issued for her arrest. These were then listed at Central Local Court on 18 August 2015. 2. The Defendant also had charges of offensive language and goods in custody (H59339769), assault police (H54197519 – s 9 bond call up) and assault occasioning actual bodily harm (H5456721 – s 9 bond call up) listed at Central on this day. 3. The Defendant did not appear at Central Local Court on 18 August 2015. All matters were adjourned to 8 September 2015 but were relisted on 27 August 2015 following the arrest of the Defendant on 26 August 2015. 26 August 2015 1. The Defendant was arrested on 26 August 2015 and charged with the following fresh offences (H58715045) which were allegedly committed on that day: * Behaving in an offensive manner in a public place; * Assault Police; and * Destroying or damaging property. 1. The Court file indicates that bail was refused by Police. 27 August 2015 1. The defendant then appeared before the Central Local Court in custody on 27 August 2015 before his Honour Magistrate Buscombe. Orders were made pursuant to s 33(1)(b) of the MHFPA. St Vincent's Hospital admission – 27 August 2015 1. The Defendant was then admitted to St Vincent's Hospital. 2. A Discharge Summary has been tendered. This document indicates, inter alia, the following: Problems/Diagnoses Relevant To This Visit Principal Diagnosis Drug Induced Psychosis Past Medical History Previous history of Polysubstance abuse (mainly amphetamines) Cluster B personality vulnerability Managed previously for schizoaffective disorder Progress in Hospital/Summary of Stay Ms Katrina Golding is a 20 year old indigenous lady, DSP (disability support pension) living with grandmother, known to the community health team in POW…and previously been admitted to Caritas for a Drug Induces psychosis. Ms Golding was discharged from POWH on 24 August this year (3 days prior to presentation) on 15mg Olanzapine nocte. She failed to attend her follow up appointment and is advised to contact the team at Prince of Wales to reschedule this appointment. Ms Golding was brought to Caritas by police under section 33 for mental health assessment. During police custody, she was labile in affect, disorganised in behaviour, agitated on arrival in ED requiring IV sedation. On admissions she expressed delusional thought content, remained labile in affect. She stated "I am Eve", "I am married to Adam", "I have a plan to end the world". During admission, Katrina admitted she had used THC. She also became increasingly aggressive and she needed to be sent to seclusion as she was agitated and verbally abusive towards staff, she stayed in seclusion for 2 hours. After 3 days, Katrina was compliant with medication, and was interacting appropriately with fellow patients and nursing staff. On review she denied her presenting symptoms but did admit to cannabis use. She was logical, polite, co-operative and expressed no delusions, and had no apparent perceptions. She easily became rude and demanding when her needs were not met instantly, but was agreeable to discharge into Police custody. She is no longer presenting any psychotic symptoms and does not present any suicidal ideation or risk to others. 1. The Defendant was discharged from St Vincent's on 31 August 2015. 1 September 2015 1. The Defendant appeared in person in Central Local Court in custody. All matters except for H59048465 were re-listed before the Court on this day after the Defendant was released from St Vincent's Hospital pursuant to an order under s 33(1)(b) of the MHFPA. The matters were then adjourned to 8 September 2015 for a plea to be entered. 8 September 2015 1. The Defendant failed to appear before the Court on this day and all remaining matters were dealt with pursuant to s 196 of the Criminal Procedure Act. The Defendant was convicted and warrants were issued for her arrest pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act. 10 September 2015 1. The Defendant appeared before the Central Local Court whilst in custody via AVL following the execution of the warrants. The matters were then adjourned to 21 September 2015 for sentence or for an application to set aside the convictions. The Defendant was remanded in custody. 21 September 2015 1. The Defendant appeared before the Central Local Court whilst in custody via AVL and the Court was informed that there would be an application concerning a jurisdictional issue on the next occasion and the matter was adjourned to 23 September 2015. 23 September 2015 1. Once again, the Defendant appeared before the Central Local Court whilst in custody via AVL and oral submissions were made concerning the operation of s 33(1)(b) and the finality or otherwise of matters once the section was utilised. RELEVANT LEGISLATION The Mental Health (Forensic Provisions) Act 1990 1. The MHFPA is intended to provide a legislative scheme for diverting defendants out of the criminal process and into treatment for mental health problems where treatment is urgently required. 2. Sections 32 and 33 deal with the diversionary processes available to the Local Court. This matter however concerns the operation of s 33(1)(b) predominantly. 3. Section 33 of the MHFPA: (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 that the defendant is a mentally ill person, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 2013 or otherwise): (a) may order that the defendant be taken to, and detained in, a mental health facility for assessment, or (b) may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the person be brought back before a Magistrate or an authorised officer, or (c) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person. (2) If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate or authorised officer in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge. (3) If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a mental health facility as a consequence of an order made under this section. (4) The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise. The Mental Health Act 2007 1. Part 2 of the MHA deals with the involuntary detention and treatment of persons in mental health facilities. Division 2 of the MHA deals with admission to and initial detention in mental health facilities. The division contains a number of sections which are directly relevant to the powers of the Court and members of the Police Force concerning the detention, arrest, discharge or return to Court of a person subject to assessment following Court orders. 2. Section 18 states (emphasis added): 18 When a person may be detained in mental health facility (1) A person may be detained in a declared mental health facility in the following circumstances: (a) on a mental health certificate given by a medical practitioner or accredited person (see section 19), (b) after being brought to the facility by an ambulance officer (see section 20), (c) after being apprehended by a police officer (see section 22), (d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23), (e) on the order of a Magistrate or bail officer (see section 24), (f) after a transfer from another health facility (see section 25), (g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26). (2) A person may be detained, under a provision of this Part, in a health facility that is not a declared mental health facility if it is necessary to do so to provide medical treatment or care to the person for a condition or illness other than a mental illness or other mental condition. (3) In this Act, a reference to taking to and detaining in a mental health facility includes, in relation to a person who is at a mental health facility, but not detained in the mental health facility in accordance with this Act, the detaining of the person in the mental health facility. 1. The Court's power to order the detention of a person is outlined in s 18(1)(e) and s 24 of the MHA, as well as s 33 of the MHFPA. 2. Section 24 of the MHA states: 24 Detention on order of Magistrate or bail officer A person may be taken to and detained in a declared mental health facility in accordance with an order made under section 33 of the Mental Health (Forensic Provisions) Act 1990. 1. When a person is detained under Division 2 of the MHA, certain procedures or steps must be taken to ensure that the person is examined. These steps are outlined in s 27 of the MHA. 2. There is an important distinction to note in relation to whether a person is detained as a 'mentally ill person' or a 'mentally disordered person'. Both conditions are defined in the MHA as follows: 14 Mentally ill persons (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account. 15 Mentally disordered persons A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person's own protection from serious physical harm, or (b) for the protection of others from serious physical harm. 1. The distinction is important to note because s 33(1)(b) of the MHFPA mentions both classifications. A mentally disordered person must not be detained in a mental health facility for a continuous period of more than 3 days: s 31(1) of the MHA. 2. If a person is not to be detained or further detained in a facility following an order of a Magistrate, s 32 of the MHA dictates what actions may be taken: 32 Detention on order of Magistrate or bail officer (1) This section applies to a person detained in a mental health facility under this Part who is required not to be detained or further detained in the facility and who was taken to the facility: (a) by a police officer under this Division after being apprehended by a police officer because the officer believed the person to be committing or to have recently committed an offence, or (b)on the order of a Magistrate or an authorised officer under section 33 of the Mental Health (Forensic Provisions) Act 1990. (2) An authorised medical officer must release the person into the custody of any relevant person who is present at the mental health facility to ascertain the results of any examination or examinations of the person. (3) If a relevant person is not so present when the authorised medical officer becomes aware that the person must not be detained or further detained, the authorised medical officer must, as soon as practicable, notify a police officer at the appropriate police station that the person will not be further detained. (4) The authorised medical officer may take any of the following actions in relation to a person (other than a person referred to in subsection (5)), after considering any matter communicated by a police officer as to the intended apprehension of the person by a police officer: (a) detain the person for a period not exceeding 2 hours pending the person's apprehension by a police officer, (b) admit the person in accordance with this Act as a voluntary patient, (c) discharge the person, in so far as it may be possible to do so, into the care of a designated carer or the principal care provider of the person, (d) discharge the person. (5) If the person is a person ordered to be brought back before a court under section 33 (1) (b) of the Mental Health (Forensic Provisions) Act 1990: (a) it is the duty of the police officer notified by the authorised medical officer to ensure that a police officer attends the mental health facility and apprehends the person as soon as practicable after notification, and (b) the authorised medical officer must detain the person pending the person's apprehension by a police officer. (6) A police officer may apprehend a person under this section without a warrant. (7) In subsections (2) and (3): "relevant person" means: (a) if the detained person was taken to the mental health facility on an order under section 33 of the Mental Health (Forensic Provisions) Act 1990, any person (including a police officer) charged by the order with taking the person from the facility, or (b) in any other case, a police officer. 1. From the time an order under s 33(1)(b) of the MHFPA is made, a person remains in continuous detention. If the person is admitted for treatment, their detention continues under the provisions of the MHA. This is clear by the use of the words 'further detained' in s 32(1) of the MHA. 2. Through the operation of both Acts, and in particular s 32(5) of the MHA, if a Court makes an order pursuant to s 33(1)(b) of the MHFPA and the person is not detained in a mental health facility after assessment, Police are required to take the defendant back to court and the matter is then to be further dealt with: s 32(5)(a) MHA. It is the duty of the authorised medical officer in the mental health facility to 'detain the person pending the person's apprehension by a police officer': s 32(5)(b) MHA. 3. Police officers are authorised to take persons subject to these provisions 'to or from' mental health facilities pursuant to clause 13 of the Mental Health (Forensic Provisions) Regulations 2009: 13 Transport of defendants in Local Court proceedings For the purposes of section 33 of the Act, the following persons are prescribed as persons who may take a defendant to or from a place: (a) if the defendant is on remand or serving a sentence of imprisonment (other than a defendant detained in a detention centre)—a correctional officer or other officer employed in the Department of Corrective Services or a police officer, (b) if the defendant is a juvenile and is detained in a detention centre—an officer employed in the Department of Juvenile Justice, (c) in any other case—a member of staff of the NSW Health Service, a police officer, a correctional officer or other officer employed in the Department of Corrective Services, an officer employed in the Department of Juvenile Justice or a person who provides a transport service approved for that purpose by the Director-General. Consideration of the Mental Health (Forensic Provisions) Act 1990 1. If a person has been detained under s 33(1)(b) of the MHFPA and the person is brought back before Court, s 33(3) of the MHFPA provides that any period of time spent in the mental health facility as a consequence of the order must be taken into account when dealing with the charge. 2. If the person is dealt with by way of admission, s 33(2) of the MHFPA provides the following: If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate or authorised officer in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge. 1. The phrase 'unless…the defendant is brought before a Magistrate to be further dealt with in relation to the charge' is indicative of the intention of the Parliament that the making of an order pursuant to s 33(1)(b) of the MHFPA does not dismiss the charges. The charges are still on foot until and unless the defendant is admitted as an involuntary patient as a mentally ill person. There is no time limitation contained within s 33(1)(b) of the MHFPA for the assessment process. It may takes hours, days, weeks or even months. The only limitation contained in the section is found in s 33(2) which provides for the deemed dismissal of all charges subject to the order once a period of 6 months from the making of the order has lapsed. 2. The legislative triggers to bring a person back before the Court after an order under s 33(1)(b) of the MHFPA and being assessed as not requiring to be detained or further detained in a mental health facility are s 33(1)(b) and s 32 (5) of the MHFPA. It is my opinion that there is no discretion to be exercised by either an authorised medical officer or a police officer in the circumstances outlined in the section. Defendant's Submissions 1. The Defendant submits that the court has no jurisdiction to further deal with the matters on its own motion. In this matter, the court is dealing with the matters after the defendant has been arrested and appeared before the court. The Defendant further argues that the order made pursuant to s 33(1)(b) of the MHFPA is 'final and not capable of giving rise to any further jurisdiction'. 2. This submission, I find, is contrary to the legislation and in particular, is contradicted by the very words of s 33(1)(b), i.e., the defendant be brought back before a Magistrate or an authorised officer. 3. Whilst the Defendant's submissions argue that there was some ambiguity in relation to the interpretation of s 33(1)(b), I find that the section is clear in intention and operates in conjunction with the Mental Health Act. Proceedings in the Central Local Court on 1 September 2015 1. The discharge summary of St Vincent's Hospital noting discharge on 31 August 2015 indicates that the Defendant, after 3 days, was 'compliant with medication…was agreeable for discharge into Police custody…(was) now safe for discharge as she is no longer presenting any psychotic symptoms and does not present any suicidal ideation or risk to others.' 2. A document dated 31 August 2015 under the hand of Dr Sarah Berger, Psychiatry Registrar, St Vincent's Hospital was tendered in these proceedings. It states: Katrina [Golding] was reviewed this morning by the treating psychiatry team including Dr Wilson, who felt she was not displaying any psychotic symptoms. She was polite, cooperative and logical with no obvious abnormal thought form or perceptions, but easily became angry and rude toward staff when demands not met. It is the view of the treating team that Katrina has presented with an episode of drug-induced psychosis which has now resolved. She is unable to be held under the Mental Health Act and is fit for discharge from the mental health ward at St Vincent's Hospital as of 31/8/2015. 1. The Defendant therefore came before the court on 1 September 2015 following discharge from St Vincent's Hospital having been found not requiring detention or further detention in a facility pursuant to s 32(1) of the MHA. 2. I find that it is clear that the Defendant was brought back before court pursuant to s 32 (5) of the MHA and s 33(1)(b) of the MHFPA. The Court was then empowered to deal further with the Defendant pursuant to s 33(2) and s.33 (3) as the period of 6 months had not elapsed. Had a period of 6 months elapsed, the charges could not be brought back before the court as they would have been taken to have been dismissed pursuant to s 33(2) of the MHFPA. The Local Court Bench Book 1. In the matter of R v Thomas Stafford Roberts (Lismore Local Court, 22 August 2014, unreported), his Honour Magistrate Heilpern referred to the Local Court Bench Book and its use as an important secondary source. In his decision, His Honour indicated: … I have reluctantly concluded that the established practice outlined in the Bench Book is the appropriate practice in this case and in this course. There has been no intervention by the superior courts or parliament. The Bench Book represents highly persuasive material in an effort to ensure consistency in the court which deals with most criminal law matters in the State. It follows that my conclusion must be that I have no jurisdiction to relist the s.33 (1) (b) matters before me. 1. In September 2015, the Bench Book chapters concerning the Mental Health (Forensic Provisions) Act 1990 were rewritten. The Bench Book still retains its importance as secondary material. The new material provides, inter alia: If an order is made under 33(1)(b) the outcome of the assessment will determine whether the proceedings continue at a later date. If after an assessment the defendant is found to be neither mentally ill person nor a mentally disordered person the police are required by the s 33(1)(b) order to apprehend the defendant under s 32(5) Mental Health Act 2007 and to take the defendant back to court. The original court papers can be relisted for the defendant to be dealt with further. 1. This accords with my conclusions in this matter. Conclusion 1. I find that this Court has jurisdiction to further deal with these matters as the Defendant is lawfully before the Court pursuant to the operation of s 33(1)(b) of the MHFPA. Magistrate G Grogin Central Local Court 27 November 2015 ********** 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: 23 March 2016