Children's Court New South Wales Medium Neutral Citation: Police v DMO [2015] NSWChC 4 Hearing dates: 8 October 2015 Date of orders: 21 December 2015 Decision date: 21 December 2015 Jurisdiction: Criminal Before: Children's Magistrate Sheedy Decision: The proceedings in relation to the young person DM [H57623664] are to be relisted before the Children's Court on a date to be fixed before 8 March 2016 Legislation Cited: Crimes Act 1900 Criminal Procedure Act1986 Interpretation Act 1987 Mental Health Act 1987 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 Police v Pines [2013] NSWLC 3 Police v Thomas Stafford Roberts (unreported) Category: Procedural and other rulings Parties: Police Young Person Representation: Sergeant Wayne Law for the Prosecution Ms Elizabeth Nicholson, Counsel for the Young Person File Number(s): 2015/000882856 Publication restriction: Pseudonyms have been used in order to anonymise the child JUDGMENT The Agreed Facts 1. The young person was charged with three offences, namely: 1. Intimidate police officer in execution of his duty pursuant to s 60(1) of the Crimes Act 1900; 2. Assault officer in execution of his duty pursuant to s 58 of the Crimes Act 1900; and 3. Stalk or intimidate intending to cause fear pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 1. The young person pleaded guilty to the intimidate police officer in execution of his duty and not guilty to the charges of assault officer in execution of his duty and stalk or intimidate to cause fear. 2. The matter was set down for a defended hearing on 8 September 2015. 3. Prior to the commencement of the defended hearing, Ms Nicholson of Counsel, who was representing the young person, made an application for an order under s 33 of the Mental Health (Forensic Provisions) Act 1990 (the MHFP Act). At the time of the application the young person was expressing suicidal thoughts and an intention to cause harm to others. 4. On 8 September 2015 the Magistrate made an order pursuant to s 33(1)(b) of the MHFP Act that the young person be taken to, and detained in a mental health facility for assessment and that, if the young person was found on assessment not to be a mentally ill person or a mentally disordered person then the young person was to be brought back before a Magistrate. 5. The young person was taken to Cumberland Hospital, (a mental health facility as contemplated by the MHFP Act), assessed and then admitted. He was discharged from Cumberland Hospital on 11 September 2015. 6. On discharge, the police re-listed the substantive matters before the weekend bail court on 12 September 2015. The matter was adjourned to the Children's Court at Parramatta on 21 September 2015, when the matter was set for hearing on 8 October 2015. 7. Counsel for the young person submits that the Court has no jurisdiction as both charges have been finalised by the making of the s 33(1)(b) order. The Issue 1. Whether the admission of the young person to a mental health facility pursuant to the order under s 33(1)(b) of the MHFP Act operates to finalise the charges. The parties' contentions 1. The prosecution contends that the making of an order under s 33(1)(b) does not operate to automatically bring the charges to finality notwithstanding the young person's admission to hospital. If a person is admitted to a mental health facility pursuant to s 33(1)(b), any charges laid against the person can be relisted before the Court and are not dismissed by operation of the MHFP Act unless the person is not brought back before the Court within 6 months when s 33(2) of the MHFP Act deems the charges dismissed. 2. The defence's contention is that s 33(1)(b) provides for an interlocutory order in the case where there is no admission to a mental health facility but a final order when there is an admission to a mental health facility, thus making the person subject only to the Mental Health Act 2007 (the Mental Health Act). The legislative framework 1. The long title of the MHFP Act, which is intended to describe in a general way the purpose or object of the Act is, "an Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions." Section 33(1)(b) which is contained in Part 3 of the MHFP Act applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, including any related proceedings under the Bail Act 1978, but not to committal proceedings: (see s31(1)). Mental Health (Forensic Provisions) Act 1990 33 Mentally ill persons (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. (1A) Without limiting subsection (1) (c), at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, the Magistrate may make a community treatment order in accordance with the Mental Health Act 2007 for implementation by a declared mental health facility in relation to the defendant, if the Magistrate is satisfied that all of the requirements for the making of a community treatment order at a mental health inquiry under that Act (other than the holding of an inquiry) have been met in respect of the defendant. (1B) The provisions of the Mental Health Act 2007 (other than section 51 (1) and (2)) apply to and in respect of the defendant and that order as if the order had been made by the Tribunal under that Act. (1C) A Magistrate must, before making an order under subsection (1A), notify the Director-General of the Department of Health, or a person authorised by the Director-General of the Department of Health for the purposes of this section, of the proposed order. (1D) If, at the commencement or at any time during the course of the hearing of proceedings under the Bail Act 2013 before an authorised officer, it appears to the authorised officer that the defendant is a mentally ill person, the authorised officer (without derogating from any other order under the Bail Act 2013 that the officer may make in relation to the defendant): (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 defendant be brought back before a Magistrate or an authorised officer. (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. (4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1) or (1A). (4B) An authorised officer is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1D). (4C) A failure to comply with subsection (4A) or (4B) does not invalidate any decision of a Magistrate or authorised officer under this section. (5) The regulations may prescribe the form of an order under this section. (5A) An order under this section may provide that a defendant: (a) in the case of a defendant who is a juvenile, be taken to or from a place by a juvenile justice officer employed in the Department of Human Services, or (b) in the case of any defendant, be taken to or from a place by a person of a kind prescribed for the purposes of this section. (6) In this section, a reference to an "authorised officer" is a reference to an authorised officer within the meaning of the Criminal Procedure Act 1986. 1. From the time the order under s 33(1) (b) of the MHFP Act is made, until the conclusion of the assessment process, the person remains in continuous detention. If after the assessment has concluded the person is admitted for treatment, detention continues under the provisions of the Mental Health Act. 2. Sections 18 and 24 of the Mental Health Act provide that a person may be detained in a mental health facility in accordance with an order made under s 33(1)(b) of the MHFP Act. 3. Section 33 of the MHFP Act refers to sending a person to a mental health facility for "assessment". The word "assessment" does not appear in Part 2 of the Mental Health Act which is headed 'Involuntary detention and treatment in mental health facilities'. It is however clear that the "assessment" is the process set out in s 27 of the Mental Health Act. 4. When the person is detained in the mental health facility, including when detained pursuant to an order made under s 33(1)(b), in order to further detain the person the steps provided for in s 27 of the Mental Health Act must be followed. The steps can be summarised for the purpose of addressing the issue in this case as follows: 1. An authorised medical officer must examine the person as soon as possible, (and in any event within 12 hours after arrival at the mental health facility) and the person can only be further detained if, in the officer's opinion, the person is either mentally ill or mentally disordered. If the officer's opinion is that the person is not mentally ill or mentally disordered then the person can no longer be detained. 2. If the person has been examined by the authorised medical officer as mentally ill or mentally disordered and is thereby further detained then the person must be examined by another medical officer (such medical officer must be a psychiatrist if the authorised medical officer is not a psychiatrist) as soon as possible after the examination in (a) above. If the medical practitioner is of the opinion that the person is a mentally ill or mentally disordered person then the person can be further detained. 3. If the medical practitioner in (b) above is not of the opinion that the person is mentally ill or mentally disordered then the person is to be examined by a third medical practitioner, who must be a psychiatrist. If that psychiatrist forms the view that the person is a mentally ill or a mentally disordered person the person can be further detained. If this third medical practitioner is of the opinion that the person is not mentally ill or mentally disordered then the person can no longer be detained. 1. If the person is found to be mentally ill by the process outlined in s 27 of the Mental Health Act then the person must be brought before the Mental Health Review Tribunal as soon as practicable and the Tribunal will decide whether the person can be further detained. 2. If the person is found to be mentally disordered on assessment under s 27 of the Mental Health Act then s 31 of that Act provides that the person can be detained for up to 3 days. 3. Section 12 of the Mental Health Act provides that a person cannot continue to be detained in a mental health facility if that person is no longer mentally ill or mentally disordered. This is so even if there is an order from the Mental Health Review Tribunal that the mental health facility can detain the person for a period of time, and within that time frame that person is no longer found to be mentally ill. 4. Where, on the order of a Magistrate under s 33 of the MHFP Act, a person has been detained in a mental health facility but is not required "to be detained or further detained" s 32 of the Mental Health Act takes effect. MENTAL HEALTH ACT 2007 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. The Local Court Bench Book 1. The NSW Judicial Commission publishes the Local Courts Bench Book and it provides a comprehensive commentary in relation to s 33(1)(b) of the MHFP Act. It states that: "If an order is made under s 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 and to take the defendant back to court. Notwithstanding the terms of s 33(1)(b), the text of s 33(1) "without derogating from any other order the Magistrate may make in relation to the defendant" indicates that the selection of an order under s 33(1)(a), (b) or (c) does not limit the powers of the court. It assumes that the court may make any other order(s) as required by the case. The original court papers can be relisted for the defendant to be dealt with further." The Case Law 1. There are no decisions of intermediate or higher courts dealing with the interpretation of s 33 of the MHFP Act. 2. A decision of the Local Court regarding s 33(1)(a) and s 33(2) of the MHFP Act, Police v Pines [2013] NSWLC 3 gives some consideration to s 33(1)(b). 3. In an unreported decision of the Local Court regarding s 33(1)(b), Police v Thomas Stafford Roberts it was held that the order under s 33(1)(b) operated as a final order when the defendant was admitted to a mental health facility. In doing so the Magistrate felt compelled to conclude the matter in this way as this was consistent with the guidance given in the NSW Local Court Bench Book. The Bench Book has since been amended. 4. I consider it instructive to examine these decisions in some detail. Police v Pines [2013] NSWLC 3 1. In this matter the defendant, Mr Pine, was the subject of an order pursuant to s 33(1)(a) of the MHFP Act, made on 23 November 2011. The matter was adjourned to 13 December 2011. 2. It seems Mr Pine was taken to Prince of Wales Hospital on 23 November 2011, admitted, and then discharged on 25 November 2011. 3. At Court on 13 December 2011, Mr Pine was legally represented but he did not attend. His bail was continued and the matter was adjourned to 17 January 2012. When Mr Pine did not attend on 17 January 2012, there was no action taken under s 196 of the Criminal Procedure Act 1986 and a warrant was issued. 4. On 22 October 2012 Mr Pines appeared at Court having been arrested under the warrant issued on 17 January 2012, this date being more than 6 months after the making of the order pursuant to s33(1)(a) on 23 November 2011. 5. The question for the Court was whether, in such circumstances, the charges were dismissed by operation of the statute. 6. Magistrate Buscombe, as he then was, first considered whether s 33(1)(a) was a final order or an interlocutory order. 7. In determining this issue the Magistrate considered that he must have regard in his determination to s 32 of the Mental Health Act as it interacts with s 33 of the MHFP Act. 8. His Honour concluded that s 32 of the Mental Health Act provides a mechanism whereby a person dealt with under s 33(1)(a) of the MHFP Act may be brought back before the Court. 9. It was decided that, when an order is made under s 33(1)(a) of the MHFP Act, the authorised medical officer, upon determining the person may no longer be detained as a mentally ill person, is to release the person into the custody of a police officer if that person is at the mental health facility. 10. If the police are not present at the mental health facility when the authorised officer becomes aware that the person must not be further detained, the authorised medical officer must, as soon as practicable, notify a police officer that the person will not be further detained (see s32(3)). If the person was sent to the mental health facility under s 33(1)(a) of the MHFP Act then that person can be detained for a further short period under s 32(4) pending the arrival of police to apprehend the person. His Honour wrote: "27. Section 32 of the Mental Health Act provides a mechanism whereby a person dealt with under s 33(1) (a) or (b) of the MHFP Act may physically be taken back before a magistrate. That provision is clearly concerned with the physical return of the person so that the person is before a magistrate." 1. His Honour concluded that: "34 In my opinion an order made under s 33(1) (a) is not a final order in relation to a charge against an accused. The analysis I set out earlier of s 32 of the Mental Health Act demonstrates that the section does provide a mechanism for the return to Court of a person who is subject to an order but is not found to be mentally ill. The mechanism is such that it may be that such a person is not returned to a magistrate, but a mechanism is provided. This is particularly so because where the order is under s 33(1) (a) the medical officer can only detain the person for an hour [1] and there is no duty on a police officer who may be contacted to attend the hospital" 1. The argument advanced on behalf of Mr Pines was that he was not brought before a magistrate within the six month period referred to in s 33(2) of the MHFP Act and therefore the charges to which the order pursuant to s 33(1)(a) were made are taken to have been dismissed. 2. Magistrate Buscombe decided that the words in s 33(2) of the MHFP Act requiring the person to be "brought before a magistrate" meant that the defendant had to be physically brought before a magistrate, and it was not sufficient to have just listed the proceedings. In this case, as Mr Pines was not physically taken before the magistrate within 6 months therefore the charges were dismissed by operation of the statutory provision. Police v Thomas Stafford Roberts (unreported) 1. Mr Roberts appeared in the Local Court on 10 December 2013 on a charge of contravene prohibition/restriction in AVO. The Magistrate made an order under s33 (1)(b) of the MHFP Act on that day. 2. Mr Roberts was taken to hospital, assessed as being mentally ill, admitted for treatment and then released. 3. The charge was then relisted before the Magistrate and the defendant argued that, by operation of s 33(1)(b), given the defendant was assessed as mentally ill and admitted for treatment that the charges were finalised or dismissed. 4. The Magistrate found there were two available interpretations of s 33(1)(b), when the defendant was sent to hospital and admitted, as follows: 1. The matter can be relisted. The Magistrate envisaged that the matter be adjourned for a short period to have the defendant's status clarified. If the defendant is detained then the matter can be adjourned regularly until the person is discharged or until the expiration of 6 months. In all cases proceeding to sentence the time in which the defendant was detained would be taken into account. The Magistrate noted that on this view of s 33(1) (b) there is nothing to prohibit a defendant from making an application under s 32 of the MHFP Act to have the matters dealt with in that way or to raise fitness issues in appropriate cases. 1. The moment that a defendant is assessed as mentally ill and admitted for treatment, diversion to health is completed and the criminal justice system has no further role to play. In this scenario, it matters not when the defendant is discharged from hospital that is a medical decision with the scope of the Mental Health Act. The Magistrate saw the disadvantage of this interpretation as the courts being reluctant to deal with defendants under s 33(1) (b) except for the most minor of offences. The Magistrate also observed that in relation to this interpretation of s 33(1)(b) "it is hard to see what work s33(3) has to do, except for taking into account the time it takes for the defendant to be transferred to the hospital, assessed and returned." 1. The Magistrate preferred the view that the charges could be re-listed however he reluctantly concluded that he had no jurisdiction to relist the s 33(1)(b) matters because that was the established practice in the Local Court as outlined in the Bench Book. (This version of the Bench Book was replaced by the version set out above which was published in September 2015). The Prosecution's submissions 1. The Prosecution made the following submissions: 1. It is not open on the language of s 33(1) (b) of the MHFP Act to conclude it operates to automatically bring the charges to finality, notwithstanding the young person's admission to hospital. 2. If the legislature had intended that s 33(1)(b) was to discharge the defendant from any criminal liability once admitted to hospital then it would have made that intention clear as it did in s 32 of the MHFP Act. 3. The only mechanism for dismissing the charges in s 33 of the MHFP Act is contained in subsections (1)(c) and (2). 4. Section 33(3) is designed for sentencing and its purpose is to have regard to the period of time the defendant spent in hospital so that the defendant is not penalised more than necessary. Section 33(3) would only have work to do if the defendant had been admitted. It would deprive the subsection of all utility if the charges are taken to be dismissed after admission to hospital. 5. Police v Pines supports the prosecution's contention that the charges are not finalised despite the defendant's admission to the hospital and although the case was focussed on s33 (1)(a) his Honour Magistrate Buscombe made general observations covering both s33(1)(a) and s 33(1)(b). 6. In Police v Thomas Stafford Roberts the Court supported the prosecution contention and only reached a contrary view because it felt compelled to adopt the reasoning contained in the Local Court Bench book. The Defence submissions 1. The defendant submits that the construction of s.33(1)(b) is a deliberate legislative choice resulting in two possible outcomes: 1. The person is assessed as being not mentally ill and returned to Court to be dealt with had have matters finalised; or 2. The person is assessed as being mentally ill and is admitted to a mental health facility and is then subject to the provisions of the Mental Health Act. 1. There are two reasons that it is submitted that this is a clear legislative choice. 1. In circumstances where a person has been found to be a mentally ill person under the Mental Health Act and admitted to a mental health facility under s 33(1)(b), that person is then subject to the provisions of the Mental Health Act, including as to release. The Mental Health Act governs the manner in which such persons are to eventually be released. That deprivation of liberty is not insignificant and it also supports a construction of s.33(1)(b) whereby proceedings are finalised if the person is admitted for treatment and release subject to the Mental Health Act provisions. 2. The section clearly distinguishes between a power to return the person to Court if not admitted. It is inherent in that distinction that the proceedings are finalised if the converse is the case, i.e. that the person is admitted. 1. Therefore, it must be the case that the legislation read as a whole and interpreted in accordance with s 33 of the Interpretation Act 1987 (as to the purposive construction of the section) suggests that s 33(2) operates in respect of s 33(1)(a) and s 33(1)(c), and s 33(1)(b) in circumstances where there has not been an admission to a mental health facility. 2. Similarly, the power to adjourn proceedings and make bail orders when making an order pursuant to s 33(1) MHFP Act is relevant to s 33(1)(a) and, possibly, s 33(1)(c). 3. Section 33(1)(b) must be considered in the context of s 33 generally and in particular s 33(1)(a). If the position that the prosecution contends is correct, that s 33(1)(b) does not dispose of proceedings finally even if there is an admission, it is submitted that there would be no distinction between s 33(1)(a) and s 33(1)(b). 4. On the prosecution's contention: 1. If a person is dealt with pursuant to s 33(1)(a) the proceedings are not finally disposed of and the matter can be relisted in 6 months, or 2. If a person is dealt with pursuant to s 33(1)(b) and is not admitted he is brought back before a Magistrate (immediately if bail refused or with a future date if on bail) 3. If a person is dealt with pursuant to s 33(1)(b) and is admitted then the proceedings are not finally disposed of and the matter can be relisted within 6 months 1. The defence submits that this interpretation would result in no difference between (i) and (iii) above, effectively rendering s 33(1)(a) of the MHFP Act completely duplicitous with s 33(1)(b) and this cannot have been the intention of the legislature. The Court's Reasons The Legislative Framework 1. The conclusion of the Court in Police v Pines, that s33(1)(a) did not operate to dismiss the charges, was not called into question in this case either by the prosecution or the defence. Similarly the guidance provided by the Bench Book reflects the Court's reasoning in Police v Pines. 2. I respectfully agree with the conclusion in Police v Pines, that, in order to interpret s33 of the MHFP Act regard must be had to its interaction with s 32 of the Mental Health Act. His Honour's analysis demonstrates that s 32 of the Mental Health Act provides a mechanism for the re-listing of the charges before the Court of a defendant who was the subject of an order pursuant to s 33(1)(a). The result may be that such a person is not returned to a magistrate, but a mechanism is provided. 3. The conclusion in Pines is as follows: "The analysis of s 33 of the MHFP Act means that police and prosecuting authorities, in relation to defendant persons charged with summary offences or indictable offences to be tried summarily, and in relation to whom an order is made under s 33, in particular s 33(1) (a), will need to monitor the assessment and treatment of such a person. They will need to liaise closely with the mental health facility to which the person has been taken for assessment to ensure that if the person is no longer to be detained by that facility, they are brought before a magistrate in the 6 month period." 1. Section 32 of the Mental Health Act provides a mechanism to bring back defendants to Court after an order is made under s 33 of the MHFP Act. 2. Section 32(1) of the Mental Health Act provides that s 32 applies to a person detained in a mental health facility under Part 2 of that Act who is required not to be detained or further detained. 3. Section 32(1)(b) of the Mental Health Act provides that if a person was sent to a mental health facility pursuant to either s 33(1)(a) or s 33(1)(b) of the MHFP Act then s 32 of the Mental Health Act applies to that person. 4. Section 32(2) of the Mental Health Act provides for the release by the authorised medical officer of the person into the custody of the relevant person (whom I will refer to for ease as a police officer) who is present at the mental health facility to ascertain the results of an examination. 5. Section 32(3) of the Mental Health Act provides that if there is no police officer present when the authorised medical officer becomes aware that the person must no longer be detained or further detained the authorised medical officer must notify police as soon as practicable of this fact. 6. Section 32(5) of the Mental Health Act provides that "IF the person is a person ordered to be brought back before a court under s 33 (1)(b) of the MHFP Act" then when the police are notified pursuant to s 32(3) the police must attend as soon as practicable and must apprehend the person. The authorised medical officer must detain the person until the police apprehend the person (my emphasis). 7. It is clear from the words of s 33(1)(b) of the MHFP Act that the order that the person be brought back before the Court is only triggered "if the defendant is found on assessment at the mental health facility not to be a mentally ill person or a mentally disordered person." 8. In my view, given s 32(5) of the Mental Health Act begins with the word 'if" it draws a distinction between a person in relation to whom an order is made under s 33(1)(b) of the MHFP Act AND is found to be mentally ill or mentally disordered and a decision is made under the Mental Health Act to detain the person under that Act on the one hand and a person who is not found to be either mentally ill or mentally disordered. Section 32(5) of the Mental Health Act clearly applies only to the latter. That is, only if the person is found not to be mentally ill or mentally disordered can s32(5) operate and it operates to compel the person be taken back to court. 9. If the person is found to be mentally ill or mentally disordered and is further detained under the provisions of the Mental Health Act then the provisions of s32(5) MHFP Act do not apply. 10. Section 32(4) of the Mental Health Act states that it applies to any person to whom s 32(5) of that Act does not apply. This must mean that s 32(4) applies to a person who is found to be a mentally ill or mentally disordered person and who is further detained under the provisions of the Mental Health Act after having been taken to the mental health facility following an order pursuant to s 33(1)(b) of the MHFP Act. 11. Section 32(4) of the Mental Health Act states that the authorised medical officer may take any action permitted by the subsection in relation to a person "other than a person referred to in subsection (5)" but that action can only be taken "after considering any matter communicated by a police officer as to the intended apprehension of the person by a police officer". 12. Section 32(4) also gives the authorised medical officer the power to detain the person for 2 hours pending the apprehension by police despite the fact the person has been found to be a person who can no longer be detained. 13. The mechanism provided by s 32 of the Mental Health Act applies to s 33(1)(b), to a person found to be mentally ill or mentally disordered, in the same way it does to s 33(1)(a). It follows therefore that because s 32(4) of the Mental Health Act provides a mechanism for returning the person to Court then an order pursuant to s 33(1)(b) where the person is detained in the mental health facility under the Mental Health Act does not operate to finalise the charges. 14. The defence submits that this interpretation would result in no difference between s 33(1)(a) and s 33(1)(b) when a person is admitted and this effectively renders s 33(1)(a) of MHFP Act completely duplicitous with s 33(1)(b) and this cannot have been the intention of the legislature. 15. This argument is rejected. Section 33(1)(a) and s 33(1)(b) are not duplicitous because when the person is not found to be mentally ill or mentally disordered after examination at the mental health facility there is a clear difference between s 33(1)(a) and s 33(1)(b). The relevance of S 33(1D) of the MHFP Act 1. In my view when s 33 of the MHFP Act is considered in its entirety it is also clear that s 33(1)(b) does not operate to finalise the charges before the Court. 2. Section 33(1D) of the MHFP Act provides: If, at the commencement or at any time during the course of the hearing of proceedings under the Bail Act 2013 before an authorised officer, it appears to the authorised officer that the defendant is a mentally ill person, the authorised officer (without derogating from any other order under the Bail Act 2013 that the officer may make in relation to the defendant): (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 defendant be brought back before a Magistrate or an authorised officer. 1. Section 33 (6) provides that a reference to "an authorised officer" in s 33 is the same as a reference to an authorised officer within the meaning of the Criminal Procedure Act1986. Authorised officer in that Act is defined in s 3 as: A registrar of a court, or An employee of the Attorney General's Department authorised by the Attorney General as an authorised officer for the purposes of this Act. 1. Section 33(1D) is in identical terms to s 33(1) save that it applies to an authorised officer making a decision under the Bail Act and there is no equivalent to s 33(1)(c). 2. Section 32(1)(b) of the Mental Health Act states that s 32 of that Act applies equally to an order of a Magistrate under s 33 of the MHFP Act and a decision of an authorised officer under s 33 of the MHFP Act. 3. It is a rule of statutory construction that where a word or set of words is used consistently in legislation it should be given the same meaning consistently. This rule is well stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 by Hodges J: "I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section." 1. If the defence's contention is accepted that charges are finalised once a person is admitted to a mental health facility, having being sent to that facility pursuant to s 33(1)(b) of the MHFP Act, then applying the above rule of statutory construction, a public servant's decision, pursuant to s 33(1D) to send a person to a mental health facility when conducting a bail review could also serve to finalise the charges. 2. In my view it is unlikely the legislature would have intended that on a bail application for offences, including serious offences, a non-judicial officer could divert a defendant to a mental health facility, where they may be discharged under the Mental Health Act the following day and have the charges not proceeded with. This is particularly so given there is no requirement that there be a link between the mental illness and the charge and given s 33 of the MHFP Act is available when a person has been arrested for a serious offence alleged to have been committed some years ago when there was no suggestion the person was mentally ill at the time. 3. The powers of the authorised officer in s 33(1D) also suggest to the Court that s 33(1)(a) and s 33(1)(b) do not involve a dismissal or finalisation of the charges. 4. Section 33(1D) gives the authorised officer the power to be taken to a mental health facility for assessment, equivalent to the Magistrate's power in s 33(1)(a) and to order the defendant to be assessed at a mental health facility and if not admitted to be brought back to Court, equivalent to the Magistrate's power contained in s 33(1)(b). In my view it is a relevant consideration in construing this legislation that the authorised officer is not given a power equivalent to that which the Magistrate has arising from s 33(1)(c) which is to discharge the defendant. This suggests that the legislature did not consider it appropriate that non-judicial officers should be able to finalise charges once laid. This lends further support to the conclusion that neither s 33 (1)(a) nor s 33(1)(b) operate to finalise matters before the Court. Legislative Intention 1. When faced with a young person who appears to have a mental illness the Court will always be concerned about the health and welfare of that young person. The Court may also be concerned about the ability of the young person to give instructions, and in some cases may be concerned about the risk of serious harm the young person may pose to himself/herself or others. 2. Section 33 of the MHFP Act provides the Court with a mechanism to have persons who appear to be suffering from mental illness to be assessed by an authorised medical officer at a mental health facility. An order pursuant to s 33 can be made by the Court at any stage during the proceedings. The young person may be appearing before the Court in response to a Future Court Attendance Notice or on an adjourned date. The young person may be on bail. The young person may have only recently been arrested or may be appearing in court having been in custody for some time. 3. The provisions of the MHFP Act only apply to summary offences or to indictable offences triable summarily. The range of offences that come before the Children's Court vary widely, from graffiti related offences to serious assaults and robbery in company to name a few. 4. The defence's contention as to the operation of s 33(1)(b), that is once the person is admitted the charges cannot be relisted, in my view, could not have been the legislature's intention. It seems to me unlikely that the legislature would have considered that a young person charged with a serious offence who was considered to pose a significant risk to public safety due to offending, would have intended that that person could be handed over to the mental health system, in the knowledge that the young person could be discharged from the mental health facility as early as the following day, with the charges finalised. 5. I am buoyed in this view when considering that there is no requirement in the MHFP Act that any link be established between the offences charged and the mental illness. It may be that the young person is facing recently laid charges for serious offences committed years ago. If that person appears to the Magistrate to be mentally ill, it would seem unlikely the legislature intended that an admission to a mental health facility should result in those charges being dismissed. The Bench Book 1. The defendant argues that the Court should follow the Bench Book and suggests the guidance therein is that there will be a different outcome in relation to whether the matter can be re-listed depending on whether the person is found to be mentally ill or mentally disordered after an assessment and those who are not. I am not certain that this is the guidance the Bench Book is seeking to provide. The conclusion contained in the Bench Book is that because s 33(1)(a) and (b) and (c) are subject to the preceding words "without derogating from any other order the Magistrate may make in relation to the defendant" the court may make any other order(s) as required by the case and thus the original court papers can be relisted for the defendant to be dealt with further. 2. The Bench Book is of course only a guide and is not binding. If the Bench Book's guidance is as the defence submits then it is not a view I can adopt given my interpretation of the legislation. 3. I do however agree with the reasoning in the Bench Book that because s 33(1)(a) and (b) and (c) are subject to the preceding words "without derogating from any other order the Magistrate may make in relation to the defendant" this assumes that the Court may make any other order(s) as required by the case. These words also lead the Court to conclude that the charges are not finalised if an order is made pursuant to s 33(1)(b) and the only mechanism for dismissing the charges under the MHFP Act are contained in s 33(1)(c) and s 33(2). Serious or Minor Charges 1. During the course of the hearing and in considering academic and other commentary relating to s 33 of the MHFP Act it was apparent to me that distinctions were drawn between s 33(1)(a) and s 33(1)(b) by reference to their application to either serious or minor offences. Some commentary suggested that s 33(1)(b) of the MHFP Act should be applied to more serious offences and s 33(1)(a) reserved for minor offences. 2. The defence accepted that the Court would be reluctant to make an order pursuant to s 33 if the charges were serious or there were concerns about the safety of victims or members of the public and an order resulted in the charges being finalised. 3. The defence agreed with the conclusion in Police v Pines that s 33(1)(a) was an interlocutory order. The defence argued that if it appeared to the Court that the defendant appeared mentally ill but the charge was a very serious one and should not be dismissed then it could make an order under s 33(1)(a). 4. Counsel suggested to the Court that section 33(1)(b) might then be reserved for the minor offences or those offences where the Court would be unlikely to proceed to a conviction. 5. The Court cannot accept these arguments. The making of an order pursuant to s 33(1)(b) undoubtedly involves the use of considerable resources. The police will take the person from court, may wait at the mental health facility for the assessment and then may have to bring the person back to Court. The Court may be dealing with the same defendant twice in the one day. The Court cannot accept that the legislature intended for such a resource intensive response be reserved for minor offences. It seems more likely that the legislature would reserve this more intrusive and resource intensive alternative when the offence was a serious one and or where the Court considered there was a risk to the safety of the defendant or other persons. 6. Notwithstanding this the Court does not consider the legislation permit a distinction to be made between s 33(1)(a) or s 33(1)(b) on the basis of seriousness of the charge. The words in the legislation make no such distinction though it would have been a simple matter for the legislature to do so if such a distinction was intended. There are no criteria expressed in the Act to direct the Court in its decision, whether to make an order pursuant to s 33(1)(a) or s 33(1)(b). In my view this means the Court is required to take into account and weigh all of the circumstances it considers relevant, including the nature and seriousness of the charges and any risk to the public, before determining whether an order should be made and if so, under which part of s 33(1). Conclusion and Order 1. Section 33(1)(b) of the MHFP Act does not operate to preclude charges being re-listed. 2. The proceedings in relation to the young person DM [H57623664] are to be re-listed to a date to be fixed before 8 March 2016. ********** Endnote 1. The legislation has been amended to increase the period of detention permitted to two hours 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: 11 April 2016