NSW Police v Smith [2016] NSWLC 24

Local Court New South Wales

Medium Neutral Citation: NSW Police v Smith [2016] NSWLC 24 Hearing dates: 21 October 2016 Decision date: 07 December 2016 Jurisdiction: Criminal Before: Mulroney ALCM Decision: Application for the charges to be diverted with under s 32, Mental Health (Forensic Provisions) Act refused. Application for the charges regarding an event in 2014 to be permanently stayed refused. Catchwords: CRIMINAL PROCEEDINGS – mental health – application for diversion – application for permanent stay of proceedings Legislation Cited: Mental Health (Forensic Provisions) Act 1990, ss 32, 33 Cases Cited: DPP v El Mawas [2006] NSWCA 154 Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 Mantell v Molyneux [2006] NSWSC 955 Police v AR 2010 CLN 1 R v Drummond (unreported, NSW Court of Criminal Appeal, 27/5/94) R v Presser [1958] VR 45 Category: Procedural and other rulings Parties: NSW Police (prosecution) Mark Smith (defendant) Representation: Solicitors: Mr Nicholas (for the prosecution) Mr Heenan (for the defendant) File Number(s): 2015/44766, 2016/262928

Judgment

Introduction 1. Mark Smith was born in 1976. In 2004 Mr Smith suffered a stroke whilst driving a car. During treatment for the stroke scans revealed an arterio-venous malformation (AVM) on his brain. Treatment of this required serious surgery on his brain. The result of the brain surgery was organic brain damage that has resulted in neurological and neurocognitive deficits. [1] 2. Mr Smith has required ongoing treatment for these conditions from a team of specialists including a neurosurgeon, a neurologist and a forensic psychiatrist. 3. During the period since 2004 Mr Smith has been charged with various offences. For a number of these matters he has been found not guilty. A number of the matters have been dealt with under the provisions of what is now the Mental Health (Forensic Provisions) Act 1990. 4. Mr Smith joined the New South Wales Police Force in 1997. He attained the rank of Senior Constable. A report from Dr Pickles states that he was dismissed in 2007 but that there are ongoing proceedings challenging this decision.