Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Robertson v Director of Public Prosecutions (NSW) & District Court NSW [2017] NSWCA 180 Hearing dates: 30 June 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Before: Bathurst CJ at [1]; Meagher JA at [30]; Wilson J at [31] Decision: Application dismissed Catchwords: ADMINISTRATIVE LAW – judicial review – generally – s 32 of Mental Health (Forensic Provisions) Act 1990 – whether applicant eligible under s 32 – whether failure to make finding as to jurisdiction – whether denial of procedural fairness Legislation Cited: Crimes Act 1900 (NSW) ss 58, 61, 195 Crimes (Appeal and Review) Act 2001 (NSW) s 11 Liquor Act 2007 (NSW) s 77 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 31, 32 Summary Offences Act 1988 (NSW) s 4 Supreme Court Act 1970 (NSW) s 69 Cases Cited: Director of Public Prosecutions v Lopez-Aguilar [2013] NSWSC 1019 DPP v El Mawas [2006] NSWCA 154 Gommesen v The Queen (2012) 62 MVR 196; [2012] NSWCCA 226 Monte v Director of Public Prosecutions (NSW) [2015] NSWSC 318 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 Rajendran v The Queen [2014] NSWCCA 113 Category: Principal judgment Parties: David John Robertson (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: K Averre (Applicant) A M Mitchelmore (First Respondent) Solicitors: Brenda Duchen Solicitor (Applicant) Office of the Director of Public Prosecutions (First Respondent) File Number(s): 2017/00007283 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 December 2016 Before: Conlon SC DCJ File Number(s): 2016/00244350 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The applicant applied in the Local Court to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) rather than in accordance with law in relation to six offences to which he pleaded guilty. The application was dismissed by the Local Court and the applicant was sentenced in accordance with law. An appeal against sentence was dismissed by the District Court. The applicant sought judicial review of that decision. The issues on appeal were whether the District Court judge failed to apply the statutory test under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and whether the applicant was denied procedural fairness. The applicant submitted that his Honour failed to consider whether the applicant was in fact suffering from a mental condition before then considering whether the discretion ought to be exercised to dispose of the matter under s 32. The applicant also submitted that he was denied procedural fairness, because his Honour rejected the uncontested evidence in a tendered psychological report indicating that he was suffering from three mental conditions. The Court held (Bathurst CJ; Meagher JA and Wilson J agreeing), dismissing the application: (i) It is plain from a fair reading of the reasons for judgment that his Honour was satisfied that the applicant was suffering from three mental conditions as diagnosed by the psychologist. There was no denial of procedural fairness: [25]-[28] (Bathurst CJ); [30] (Meagher JA); [31] (Wilson J). Judgment 1. BATHURST CJ: On 13 December 2016, Conlon DCJ dismissed an appeal against the sentences imposed by the Local Court on David John Robertson (the applicant), in respect of six offences following guilty pleas. By amended summons filed on 1 May 2017, the applicant seeks judicial review of that decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW). 2. The appeal before Conlon DCJ related to the magistrate's refusal of an application by the applicant to be dealt with under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MH Act). 3. Section 32 of the MH Act provides a mechanism for magistrates to deal with persons with mental illnesses or conditions otherwise than in accordance with law. The provisions only apply to summary offences, or to indictable offences triable summarily (see MH Act s 31). Section 32(1)-(3) are in the following terms: "32 Persons suffering from mental illness or condition (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: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both, or (c) unconditionally." The facts and procedural background 1. The present proceedings relate to a number of offences committed by the applicant on the morning of 13 August 2016. The facts, as described by Conlon DCJ, were not in dispute between the parties on appeal. They can be summarised as follows. 2. The applicant was, on 13 August 2016, at a premises called "Bar Cleveland" in Redfern, in the company of another male person. He had been served with beers between 2:30am and 3:30am. A security guard approached him and advised that he was "cut off" due to his level of intoxication and that the bar would close at 4.00am but he could finish the game of pool he was playing. Shortly before 4.00am, the security guard advised that they needed to finish the game of pool. The applicant stated "go fuck yourself" in response, to which the security guard responded "excuse me". The applicant replied "you heard, go fuck yourself", to which the security guard said "that's it, the game's over, its time to go", swept the remaining pool balls into the pockets, and asked the applicant for the pool cue he was holding. The applicant failed to hand over the pool cue. The security guard then grabbed the cue, stating "let go, let go, let go now". The applicant continued to hold the pool cue, so the security guard pushed against him, forcing him backwards towards the exit door, with the applicant then falling backwards and landing on the ground on his back. From the ground, the applicant kicked out at the security guard, still holding the pool cue. The bar manager then assisted the security guard to wrench the pool cue from the applicant, and dragged him outside onto the footpath. 3. The security guard and bar manager then re-entered the bar, closed the doors and locked them. The applicant attempted to force the doors open, and then kicked the door, breaking the left glass door panel and demanding his bag and wallet which remained inside. The applicant was advised that the police had been called and he would be given his possessions when they arrived. The applicant continued to argue, and shattered a second glass door panel with his right arm. He was eventually led away by his friend. Police located the applicant about 30 metres away from the bar, with significant bleeding on his right arm. 4. An ambulance was arranged and police attempted to provide first aid. The applicant stated that if he was not under arrest he was leaving. At that point the police cautioned the applicant and placed him under arrest. They then attempted to render first aid, but the applicant began to walk away. Police then attempted to handcuff the applicant. The applicant attempted to pull away and was told to stop resisting. Once the applicant was handcuffed, police again tried to render first aid, but were unable as the applicant attempted to roll away. Paramedics attended and determined the applicant required treatment at hospital. On arrival at St Vincent's Hospital, the applicant resisted treatment, swearing loudly in the accident and emergency ward, saying "fuck you cunts. You're all fucking cunts". 5. Medical staff determined that the applicant required sedation to ascertain the extent of his injuries. Hospital security staff was required to restrain the applicant in order to administer the medication. Whilst restrained the applicant spat saliva on the left cheek of a hospital security officer. The applicant underwent surgery and was then discharged, at which point he was arrested. 6. The applicant was subsequently charged with six offences, and was sentenced in the Local Court as follows: 1. Excluded person fail to leave premises when required (s 77(4) Liquor Act 2007 (NSW): $500 fine; 2. Common assault (s 61 Crimes Act 1900 (NSW)): s 9 bond with conviction – 3 years; 3. Resist an officer while in the execution of his or her duty (s 58 Crimes Act 1900): s 9 bond with conviction – 12 months; 4. Use offensive language in/near/within hearing from a public place/school (s 4A(1) Summary Offences Act 1988 (NSW)): s 10A conviction – no penalty imposed; 5. Common assault (s 61 Crimes Act): s 9 bond with conviction – 3 years; 6. Intentionally or recklessly destroy/damage property (s 195(1)(a) Crimes Act): s 9 bond with conviction – 12 months. 1. The applicant applied in the Local Court to have his matter dismissed pursuant to s 32(3)(a) of the MH Act and to be discharged into the care of a responsible person. That application was refused and the applicant was sentenced according to law. The appeal to the District Court was brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). The primary judgment 1. The matter was listed before Conlon DCJ for hearing on 13 December 2016. Counsel for both the applicant and the first respondent made submissions and his Honour delivered ex tempore reasons dismissing the appeal that same day. The facts as described above were set out, and his Honour noted the applicant had three other matters on his record, being resist officer in execution of duty, use offensive language and assault officer in execution of duty. In respect of the first two matters, it was noted that he was dealt with by way of a conviction with no further penalty and in respect of the assault officer in execution of duty, he was dealt with by way of a $1,000 fine. 2. The judge set out s 32 of the MH Act, noting that it enables a magistrate or judge (in certain circumstances) to deal with persons suffering from a developmental disability, mental illness or mental condition otherwise than in accordance with law. His Honour then had regard to material tendered by the applicant, including a report written by Dr Emma Collins, a psychologist. It is useful to set out the whole of his Honour's comments after this point, as they formed the basis of the applicant's complaint to this Court: "In respect of this particular issue, as I have indicated, I have had regard to the material that is contained in the defence folder of documents, and in particular, the document under the hand of Emma Collins, psychologist. Dr Collins' opinion was arrived at principally following a history that was taken from the appellant. She said this: 'By way of history, Mr Robertson described his childhood experiences as problematic and emotionally unsupportive, and which may have led to the current difficulties he has with his emotional functioning. His self-perception since childhood has been critical and marked by feeling of inadequacy and worthlessness. He became suicidal and depressed in 2008 … and he engaged in regular treatment in addition to psychotropic treatment. However, Mr Robertson's account, highlights ongoing symptoms of anxiety and depression that have [been] complicated, and masked, by an alcohol use disorder. He is engaged in heavy patterns of alcohol use to ease his social preoccupations, manage ruminating thoughts, as [it] is eviden[t] that he was suffering from depression, anxiety and alcohol dependenc[y] at the time of the current offences.' So her opinion is, at the time of the present offences, he was suffering from a depression, anxiety, and alcohol dependency. The appellant himself, in his letter to the Court, dated 9 December 2016, has acknowledged, in effect, a self-medication by alcohol to overcome his social anxiety problems. In the [sic] DPP v El Mawas [2006] NSWCCA 154 at para 71, McColl JA stated: 'Part III of the Act requires a magistrate to balance the public interest in those charged with a criminal offence, facing the full weight of the law, against the public interest, in treating or regulating, to the greatest extent practical, the conduct of individuals suffering from any of the mental health conditions referred to in section 32(1), or mental illness (section 33), with the object of ensuring that the community is protected from the conduct of such persons.' McColl JA then went to set out a number of principles and they appear in para 72 and 74, and 75. In para 76, she went on to say: 'The magistrate must next determine whether having regard to the acts alleged in the proceedings, or such other evidence that the magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this part than otherwise in accordance with the law. That decision clearly calls for the exercise of subjectivity or value judgments in which, 'no one consideration and no combination of considerations is necessarily determinative of the result…'. In my view, as Howie J concluded, in Confos, it involves a discretionary decision in which the magistrate is permitted latitude as to the decision which might be made. A latitude confined only by the subject matter and object of the Act.' In Confos v DPP, Howie J stated: 'When the Court is considering whether to proceed pursuant to the provisions of section 32, it is appropriate that the Court to have regard to the seriousness of the offence.' Whilst it may be said that in the time leading up to the commission of these offences, he was suffering from a depression, whether that be of a longstanding nature is difficult to judge, that he was suffering from anxiety and he was suffering from alcohol abuse disorder – whilst that may all be said, these facts indicate that there appeared to be no social anxiety on this occasion. He was out socialising with a friend in the early hours of the morning, playing pool and drinking alcohol, and it was no doubt because of his affectation by alcohol that he became belligerent and committed all of these offences. In my view, I am not satisfied that this matter should be dealt with under the provisions of s 32. It is totally inappropriate in my view that it should be. It is appropriate that the magistrate dealt with it according to the law. Accordingly, the appeal is dismissed and the convictions and orders of the Local Court confirmed." The appeal 1. The amended summons raises two grounds for judicial review in relation to the decision of Conlon DCJ, which are as follows: 1. Conlon SC DCJ erred in that he failed to apply or to properly apply the applicable statutory test in relation to s 32 of the Mental Health (Forensic Provisions) Act 1990 in that he failed to consider whether the applicant was eligible under the provisions of that section before then considering whether he ought exercise a discretion to dispose of the matter under the provisions of that section and/or; 2. Conlon SC DCJ erred in a determination that the plaintiff [sic: applicant] was not suffering from a mental condition as defined in s 32(1) of the Mental Health (Forensic Provisions) Act 1990 in that he denied the applicant an opportunity to be heard in circumstances where there was undisputed evidence that the plaintiff was suffering from such a mental condition (Emphasis in original). Ground 1 1. In relation to Ground 1, the applicant referred to Director of Public Prosecutions v Lopez-Aguilar [2013] NSWSC 1019, in which Harrison J referred to a decision of this Court, DPP v El Mawas [2006] NSWCA 154, at [8]: "In DPP v El Mawas [2006] NSWCA 154 McColl JA said that there were at least three decisions to be made by a magistrate in dealing with a s 32 application. First, whether the defendant was eligible to be dealt with under the section, which involves a finding of fact and is properly described as the jurisdictional question - that is to say, what is the relevant mental condition: see [75]. Secondly, whether having regard to the facts alleged in the proceedings or such evidence as the magistrate may consider relevant, it would be more appropriate to deal with the defendant pursuant to s 32 rather than in accordance with the law: see [76]. Thirdly, if it is more appropriate to deal with the defendant pursuant to s 32, which of the actions set out in s 32(2) or (3) should be taken: see [80]." 1. Relying on this formulation, the applicant submitted that there was evidence of jurisdiction being made out, namely, in the report of Dr Collins. In that report, Dr Collins stated that in her opinion the applicant "meets the criteria for an alcohol use disorder, persistent depressive disorder and there are additional features of generalised anxiety disorder (although it is difficult to make a formal diagnosis due to the masking pattern of his alcohol abuse)". 2. The applicant pointed to the comments of the primary judge set out at [12] above, and submitted that there was no determination, as was required, as to whether it appeared to the judge that the applicant was suffering from a mental condition for which treatment was available in a mental health facility. The applicant submitted that his Honour stated it appeared to him the applicant was not suffering from social anxiety, and there was no determination as regards the two other mental conditions relied upon in the application, namely depression and alcohol abuse disorder. 3. Counsel for the applicant referred to his Honour's observations in relation to social anxiety, stating that the comments throw some doubt on the finding in relation to jurisdiction. In that respect it was submitted that the comments could be read as a rejection that at the time of the offences the applicant was suffering from anxiety, as diagnosed by the psychologist. 4. The first respondent submitted that the decision of the primary judge must be read making due allowance for the submissions that were made and the fact that the judgment was given ex tempore at the conclusion of argument, referring to Gommesen v The Queen (2012) 62 MVR 196; [2012] NSWCCA 226 at [37], Rajendran v The Queen [2014] NSWCCA 113 at [74] and Monte v Director of Public Prosecutions (NSW) [2015] NSWSC 318 at [48]. 5. The first respondent submitted that the transcript of the proceedings in the Court below indicates that the applicant's eligibility to be dealt with under s 32(1)(a) of the MH Act was not in issue between the parties, with counsel making submissions with respect to s 32(1)(b) only. It was submitted that although his Honour made no express finding that the jurisdictional condition was satisfied, the passage extracted above at [12] indicated that he accepted Dr Collins' diagnosis, pointing specifically to the remarks "[w]hilst it may be said that in the time leading up to the commission of these offences, he was suffering from a depression, whether that be of a longstanding nature it is difficult to judge, that he was suffering from anxiety and he was suffering from alcohol abuse disorder – whilst that may all be said, these facts indicate that there appeared to be no social anxiety on this occasion". It was submitted that the remarks indicate that his Honour did not consider the applicant's offending behaviour could be attributed to the conditions which Dr Collins diagnosed him as suffering. It was submitted that in that context, his Honour was addressing the question arising under s 32(1)(b), namely, that he was not satisfied the matter should be dealt with under s 32. 6. Counsel for the respondent submitted that the terms of his Honour's conclusion that it was inappropriate that the matter be dealt with under s 32 indicated an acceptance that the matter could be dealt with under that section. She submitted that the fact his Honour did not state "in terms" that he had jurisdiction, does not give rise to a jurisdictional error warranting the intervention of this Court. Ground 2 1. The applicant submitted in relation to Ground 2 that he was denied procedural fairness, in rejecting the "uncontested expert opinion evidence of Dr Collins, and not giving the applicant notice that this particular question would be in issue". The applicant pointed to Dr Collins' opinion that the applicant "was suffering from these conditions at the time of the current offences, and there is a nexus between his depression, anxiety and alcohol abuse and his offending behaviour". It was submitted that it was "implicit" from the reasons for decision that his Honour was "unwilling to find that the applicant was suffering from a 'mental condition' at the time of the alleged offending conduct", pointing to the comment made that "these facts indicate that there appeared to be no social anxiety on this occasion". 2. The first respondent submitted that the contentions as to procedural fairness proceeded on the premise that his Honour concluded that s 32(1)(a) was not made out in the case of the applicant, and pointed to the submissions on Ground 1 as showing this to not be the case. It was submitted that despite the comment that "there appeared to be no social anxiety on this occasion", his Honour nonetheless determined the question in s 32(1)(a) in the applicant's favour, such that he was not denied the opportunity of which he complained. 3. The first respondent further submitted that even if the Court were to find the applicant had established either of the grounds of review, the Court should refuse relief in the exercise of its discretion, as the Court is unable to exercise its jurisdiction to ensure compliance with any treatment condition in s 32 in circumstances where the applicant returned to the United States on 5 September 2016 (where he is presently studying), and remains there. 4. It was submitted that a similar difficulty attended the ongoing supervision of the s 9 bonds imposed, and that this Court might consider whether it was open to the District Court to confirm a sentence that required the applicant's presence in the jurisdiction and remit the matter to the District Court to address the question of the appropriate penalty in relation to the offences for which the applicant has received a bond. Consideration 1. In relation to Ground 1, in my opinion, it is plain from a fair reading of his Honour's reasons for judgment that his Honour was satisfied that the applicant was suffering from the three mental conditions diagnosed by Dr Collins, being depression, anxiety and alcohol abuse disorder. So much is plain from the reasons as set out above at [12], and from his Honour going on to consider the second step under s 32, namely that it was "inappropriate" that the matter be dealt with under s 32. 2. In my opinion, the comment that "there appeared to be no social anxiety on this occasion" does not have the effect suggested by the applicant. It is important to note that Dr Collins made no finding that the applicant was in fact suffering from social anxiety disorder, specifically stating in her report that there were "additional features of a generalized anxiety disorder" but it was "difficult to make a formal diagnosis due to the masking pattern of his alcohol abuse". 3. Viewed in that context, his Honour's statement that he did not consider there was "social anxiety" present on this occasion cannot properly be seen as throwing doubt on his acceptance of Dr Collins' evidence as to the presence of a "generalised anxiety disorder" and that the jurisdictional step in s 32(1)(a) was made out. Rather, it is evident that his Honour was referencing the applicant's own evidence that he was suffering social anxiety at the time of the offence. The applicant made such suggestions in a letter dated 9 December 2016 that was put before Conlon DCJ in the proceedings below. 4. The reasons above are sufficient to dispose of the complaint made in Ground 2. It is plainly evident that the primary judge did in fact find that the applicant was suffering from the three conditions at the time of the offence. There was no denial of procedural fairness. Orders 1. In the result, the application should be dismissed. 2. MEAGHER JA: I agree for the reasons given by the Chief Justice that neither of the errors as to jurisdiction said to justify the quashing of the decision of Conlon DCJ is made out: Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 at [32] (Gleeson JA, Ward JA and Johnson J agreeing). Accordingly the application for judicial review should be dismissed. 3. WILSON J: I agree with the Chief Justice. ********** Amendments 26 July 2017 - Headnote: typographical error amended 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: 26 March 2018