Director of Public Prosecutions v Wallman [2017] NSWSC 40

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Wallman [2017] NSWSC 40 Hearing dates: 3 February 2017 Date of orders: 08 February 2017 Decision date: 08 February 2017 Jurisdiction: Common Law Before: Fagan J Decision: 1. The orders of the Local Court at Tamworth made on 22 August 2016 by Local Court Magistrate Prowse in respect of Matter No H62245066, Offence Reference Nos 6899171 and 6785030, further identified by Court Proceedings Nos 2016/00236717 – 001 and – 002, namely orders pursuant to s 33(1)(a) Mental Health (Forensic Provisions) Act 1999 (NSW) that the first defendant "be taken by police and detained in the mental health facility for assessment in accordance with the Mental Health Act" are set aside.

2. Declare that the charges laid in Matter No H62245066 as further identified in order 1 remain outstanding against the first defendant and have not been determined or otherwise disposed of by the Local Court and that the Local Court continues to have jurisdiction to hear and determine the said charges.

3. Order that the Local Court hear and determine the charges in Matter No H62245066 as further identified in order 1 according to law.

4. The first defendant is to pay the plaintiff's costs of the summons.

5. The first defendant is granted an indemnity certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW) in respect of the appeal which is the subject of the proceedings on the summons. Catchwords: ADMINISTRATIVE LAW – judicial review – whether orders under Mental Health (Forensic Provisions) Act 1990 (NSW), s 33(1)(a), made under jurisdictional error – failure to find that defendant appeared "mentally ill"