Supreme Court New South Wales Medium Neutral Citation: Commonwealth Director of Public Prosecutions v Mahamat-Abdelgader [2017] NSWSC 1102 Hearing dates: 20 June 2017 Decision date: 22 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Summons dismissed Catchwords: APPEALS – defendant charged with escaping from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) – where Magistrate dealt with defendant under s 20BQ of the Crimes Act 1914 (Cth) – whether Magistrate applied the wrong test – whether open to conclude the defendant was suffering from a mental illness – consideration of the court's power under s 20BR to inform itself as the court thinks fit – entitlement to have regard to the probability that the chronic condition from which the defendant undoubtedly suffered in early 2014 was one that continued as at the date of the hearing in the Magistrate's Court Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 56, 59 Crimes Act 1914 (Cth), ss 20BQ, 20BR Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Migration Act 1958 (Cth), s 189(1), s 197A Cases Cited: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Director of Public Prosecutions (NSW) v Tilley [2016] NSWSC 984 Kelly v Saadat-Talab [2008] NSWCA 213 Peiris v R [2014] NSWCCA 58 The Roads and Traffic Authority of New South Wales v Bourke [2010] NSWSC 559 Category: Principal judgment Parties: Commonwealth Director of Public Prosecutions (plaintiff) Abdelaziz Ali Mahamat-Abdelgader (defendant) Representation: Counsel: L Crowley (plaintiff) I McLachlan (defendant) Solicitors: Commonwealth Director of Public Prosecutions (plaintiff) CM Hunter, Solicitor (defendant) File Number(s): 2016/00384717 Judgment (PUBLISHED ORALLY - REVISED) 1. HER HONOUR: Abdelaziz Ali Mahamat-Abdelgader arrived in Australia by aircraft in June 2012 from Chad. He was refused immigration clearance and was taken into immigration custody pursuant to s 189(1) of the Migration Act 1958 (Cth). He applied for a protection visa claiming refugee status but was refused at all levels of the legal process. 2. In early 2014, Mr Abdelgader was informed that his rights of appeal were exhausted and that the process was underway to have him deported. By that time he had spent 19 months in immigration detention and on any view of the evidence was in a poor mental state. 3. After being informed that he was to be deported, Mr Abdelgader stopped eating, saying that he would rather die than be returned to Chad, where he believed he would be killed. His condition deteriorated and on 21 January 2014 he was transferred from Villawood Immigration Detention Centre to a private psychiatric hospital in Toowong in the State of Queensland. Five days later he left the hospital. He was apprehended nine months later back in New South Wales. 4. In July 2016, some 20 months after his apprehension, Mr Abdelgader was charged with escaping from immigration detention contrary to s 197A of the Migration Act. The prosecutor's delay in bringing that charge is not explained in the material before me. The charge was heard in the Local Court at Parramatta in December 2016. The Magistrate took the view that Mr Abdelgader was suffering from a mental illness and that it was appropriate to deal with him under s 20BQ of the Crimes Act 1914 (Cth), which creates a regime under which persons suffering from mental illness may be diverted from the criminal justice system to be dealt with according to their medical needs. His Honour dismissed the charge and discharged Mr Abdelgader into the care of the Department of Immigration and Border Protection, as allowed under s 20BQ(1)(c)(i) of the Act. 5. The DPP appeals against that decision pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), which provides that the prosecutor may appeal as of right to this Court against an order of the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law alone. 6. Section 59(2) of the Act provides: 59 Determination of appeals (2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c), (d) or (e) or 57 (1) (b) or (c): (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal. 1. Mr Abdelgader has filed a Notice of Contention raising the issue whether the Magistrate's decision should be affirmed on the alternative basis that at the time of his departure from Toowong Psychiatric Hospital Mr Abdelgader was not in "immigration detention" within the meaning of the Migration Act. 2. At the hearing of the appeal I raised an issue as to whether, even if error were established in the Magistrate's decision, it would nonetheless be open to me not to remit the matter to the Local Court for a further hearing. The parties agreed that, on the current state of authority, that is an open question. It was submitted on behalf of Mr Abdelgader that, in the event that the Court came to consider that question, he should have an opportunity to put psychiatric evidence before this Court. His legal representatives had attempted to obtain a report in advance of the hearing for that very purpose. Unfortunately, for reasons not explained in the material before me, those attempts were not facilitated by the relevant agents of the Commonwealth. 3. In those circumstances counsel for Mr Abdelgader, Mr McLachlan, invited me to rule first on the question whether error was established. The merit in taking that approach is that if no error is established there is no need to consider the legal question whether the Court has authority or a discretion to decline to remit the matter to the Local Court even in the presence of error. That approach also avoids the inevitable delay that would be entailed in allowing Mr Abdelgader to obtain a psychiatric report. 4. Mr McLachlan indicated that there is in some sense a degree of urgency or at least warrant for dealing with the matter promptly since at the moment, as a result of the events giving rise to these proceedings, Mr Abdelgader is regarded as a maximum security detainee which imposes various constraints upon the conditions of his detention. 5. I had some reservations about adopting the approach suggested by Mr McLachlan. Ordinarily it is appropriate for the Court to determine all issues in the proceedings, against the risk of error in the determinative conclusion. In the present case, if I were to conclude that there was no error, it would ordinarily have been appropriate nonetheless to proceed to consider the proper scope of s 59(2) (in particular whether, under that section, the Court has a discretion where error of law is established nonetheless to dismiss the appeal rather than to remit the proceedings to the Local Court) and the factors relevant to the exercise of any such discretion. Without purporting to have undertaken an exhaustive search, it appears that in each of the cases in which the existence of such a discretion has been considered, the Court ultimately did not find it necessary to determine the question. [1] 6. In the present case there appear to be good reasons why the Court might be persuaded to exercise a discretion not to remit the proceedings, if such a discretion exists. In particular, there is the unexplained delay on the part of the prosecution in bringing the charge, coupled with the fact that during the period of that delay Mr Abdelgader has remained in immigration detention. Secondly, there is the obvious proposition that if, as at the time of this hearing, Mr Abdelgader is suffering from mental illness (as apprehended by his legal representatives), that might be a powerful reason not to remit the matter, consistent with the object of s 20BQ. 7. Notwithstanding those reservations, however, the matters put forward by Mr McLachlan persuaded me that, in the unusual circumstances of this case, and noting that the DPP did not oppose the course proposed, I should take the course proposed (of first determining whether error is established). I have concluded that the decision did not entail error and that the DPP's appeal should accordingly be dismissed, for the following reasons. 8. The Summons identifies three grounds of appeal as follows: His Honour Magistrate George applied the wrong test under section 20BQ(1)(a) Crimes Act 1914 (Cth) in determining that the defendant was eligible to be dealt with under Division 8 Crimes Act 1914 (Cth). His Honour Magistrate George erred in disregarding, or, not giving proper regard to, facts alleged in the proceedings as required under section 20BQ(1)(b) Crimes Act 1914 (Cth). His Honour Magistrate George erred in determining pursuant to section 20BQ(1)(b) that it was more appropriate to deal with the defendant under Division 8 Crimes Act 1914 (Cth) than otherwise in accordance with law. 1. Mr Crowley, who appears for the DPP, acknowledged that those three grounds are all aspects of the same complaint, which focuses on the approach the Magistrate took to the application of s 20BQ of the Crimes Act. In short, the DPP contends that the Magistrate erroneously confined attention to Mr Abdelgader's state of mind at the time the offence is alleged to have been committed, whereas the section directs attention to the position as at the date of the hearing. Section 20BQ provides: 20BQ Person suffering from mental illness or intellectual disability (1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court: (a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and (b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law; the court may, by order: (c) dismiss the charge and discharge the person: (i) into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or (ii) on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first‑mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or (iii) unconditionally; or (d) do one or more of the following: (i) adjourn the proceedings; (ii) remand the person on bail; (iii) make any other order that the court considers appropriate. (2) Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence. (3) Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB or 21B in respect of the person in respect of the offence. 1. Before turning to consider the Magistrate's reasons for concluding that it was appropriate to deal with Mr Abdelgader under that section, it is appropriate to have regard to the course of the hearing in the Local Court. Most of the prosecution case was presented in the form of statements tendered by consent. A small number of witnesses were required for cross-examination; one was a Mr Sanders, whose statement asserted that when Mr Abdelgader was apprehended after his alleged escape he was found hiding behind the door in the upstairs bathroom. That was contrary to the instructions received from Mr Abdelgader by the solicitor who appeared for him at the hearing. She wished to cross-examine Mr Sanders on that issue. Ultimately, however, as Mr Sanders was not available that day, she consented to waive that opportunity in the interests of having the hearing conclude within the day. Other witnesses were cross-examined in terms broadly directed to the issue raised by the notice of contention in this Court, namely, whether Mr Abdelgader was in immigration detention at the time of his alleged escape. 2. It is apparent from the transcript of the proceedings that the Magistrate read the exhibits during the lunch adjournment. One, being exhibit 11, was a collection of notes made by various people within the migration system (including health practitioners) regarding Mr Abdelgader's mental state in the period leading up to his being transferred to Toowong Hospital. After the lunch adjournment the Magistrate raised the content of that exhibit with the Crown, asking why he should not deal with Mr Abdelgader under "the Commonwealth law equivalent to s 32 of the mental health criminal proceedings legislation": at T13 (evidently a reference to the Mental Health (Forensic Provisions) Act 1990 (NSW)). 3. It may be noted that there is an important difference between s 32 of that Act and its Commonwealth equivalent. Whereas the State provision permits the Court to consider an accused person's mental state at the time of the offence, the Commonwealth provision focusses exclusively on the accused person's state of mind at the time of the hearing. 4. There was an exchange about the issue raised by his Honour. Counsel for the DPP submitted that it would be necessary, before proceeding under that section, to have an expert witness give evidence on the issue. The Magistrate expressed his preliminary disagreement with that proposition. After a further witness was called and cross-examined, the Crown case closed, whereupon the solicitor appearing for Mr Abdelgader invited the Magistrate to deal with the matter on the basis suggested by his Honour. 5. It is quite clear that by that time the Magistrate had consulted the terms of the Commonwealth provision and that he had it before him during argument. That is revealed by the fact that his Honour made express reference to both limbs of the section and also to the terms of s 20BR, which provides that, for the purposes of the division that contains s 20BQ, "a court of summary jurisdiction may inform itself as it thinks fit, but not so as to require the person charged to incriminate himself or herself". 6. After hearing further submissions from the DPP, the Magistrate proceeded directly to give a short oral judgment. The focus of the DPP's submissions at that point of the hearing was, as to the first limb, that the material before the Magistrate did not reach the threshold requirement (that the person charged is suffering from a mental illness within the meaning of the civil law of the State) and, secondly, as directed to the second limb of the section, factors which the DPP submitted would persuade the Magistrate not to deal with Mr Abdelgader otherwise than in accordance with law. 7. The critical material on the strength of which the Magistrate raised the potential application of the section was exhibit 11 tendered by the Crown. The exhibit makes for distressing reading. As already noted, observations concerning Mr Abdelgader's state of mental health commenced in circumstances where he had recently been told that his appeal rights in respect of his desire to remain in Australia had been exhausted. It appears that, on about 2 January 2014, he made the decision not to eat, telling various nurses and other practitioners that he would prefer to die. He was for a period of time under observation every 15 minutes. The observations were that, for lengthy periods, indeed almost constantly, all he did was lie on his bed either awake or asleep, refusing any form of sustenance and not moving away from his room. 8. Disturbingly, the notes reveal that the health service charged with providing health services to immigration detainees in fact has an acronym for the refusal of sustenance, being FFR, standing for fluid and food refusal. Several notes refer to various medical practitioners explaining to Mr Abdelgader the adverse impact of "FFR". 9. The Magistrate focused particularly on a note by a psychiatrist made before Mr Abdelgader commenced refusing food and fluid. The note, dated 29 December 2013, said: Mr Abdelgader is very paranoid. His level of psychosis fluctuates depending on the level of stress he experiences. My provisional diagnosis is a long-term psychosis (paranoid schizophrenia). However I would like to exclude major depression with psychotic features or paranoid personality, risk of self-harm due to high stressful situation and being very paranoid. 1. The psychiatrist expressed a desire to arrange for Mr Abdelgader's voluntary admission to a psychiatric hospital. Later notes reveal that did not occur within the time frame thought desirable by the psychiatrist due to the unavailability of a bed. Notes made by various mental health nurses from 6 January 2014, when it was first observed (by a fellow detainee) that Mr Abdelgader had not left his room since 2 January and had stated he intended to die by refusing all foods and fluids, record Mr Abdelgader's continuing determination politely to decline any form of sustenance until ultimately he was seen again by the psychiatrist on 10 January 2014. On that date the psychiatrist wrote: Mr Abdelgader was seen by me on 29 December 2013. He remained depressed with psychotic symptoms (mainly paranoid) and suicidal ideation. I suggested voluntary admission to a hospital but I had to delay it due to lack of bed in public hospitals during New Year holiday. 1. The note proceeds to record that Mr Abdelgader had since received the bad news about being unable to stay in Australia. It records very dark thoughts expressed by Mr Abdelgader as to what would happen to him if he were returned to Chad and as to the safety of his family. The note also records that Mr Abdelgader was very suspicious about the proposal to transfer him to the Queensland hospital, which he was concerned may be a plot to take him to Chad. Ultimately the psychiatrist concluded under the heading "Impression": Major depression with incongruent psychotic symptoms. Paranoid schizophrenia and paranoid personality should be ruled out. Poor compliance with medication. Moderate to high risk of suicide. His mental state won't improve if he stays in his current environment. There is a high risk of suicide. He refuses medication in detention centre because he is suspicious that food and meds are poisoned. [Emphasis in original]. 1. Other notes confirm Mr Abdelgader's concern at that point that the transfer to Queensland might be a trick and that he might be returned to Chad rather than being admitted to Toowong. 2. Returning to the course of the hearing, it may be noted that the focus of the submissions put on behalf of the DPP as to the first limb of s 20BQ was whether the material in exhibit 11 provided a sufficient basis for a finding as at the date of the offence. In fairness to the person who represented the DPP on that date, the application to be dealt with under s 20BQ had come as a surprise to him or was at least raised without notice, but it is important to observe that that was the focus of his submissions. The issue of continuity of an illness of the kind suffered by Mr Abdelgader was raised, but primarily with focus on the question whether his condition would have changed between the date of the psychiatrist's note and the date of the offence, rather than with focus on the likelihood of his condition having changed between the date of the note and the date of the hearing. The hearing was some three years later, owing in part to the delay in bringing the charge. 3. The Magistrate's reasons were brief. He referred first to the December note of the psychiatrist set out above. He made a plain finding that the preponderance of opinion surrounding Mr Abdelgader was that he was mentally ill during that period. The Magistrate then turned to consider relevant discretionary factors under the second limb of the section. He also referred to the need for future treatment as at the time of the hearing. Although there was no express finding, in terms, that Mr Abdelgader was suffering from a mental illness at the time of the hearing, in my view it is clear that the Magistrate was satisfied in those terms, evidently finding that the condition referred to by the psychiatrist was chronic. 4. Mr McLachlan submitted that even if that were not clear from the decision, this is a case in which the court could appropriately have regard not only to the terms of the reasons given for the decision but also to the relevant exchanges during the course of the hearing. The permissibility of taking that approach was considered by Leeming JA in Peiris v R [2014] NSWCCA 58 at [67]. His Honour noted that, while the Court would not ordinarily have regard to exchanges between the Court and counsel during the course of submissions, in some circumstances such exchanges may be of some utility, including when they can "assist in elucidating abbreviated statements appearing in remarks on sentence". I am satisfied that it is appropriate in the present case, having regard to the brevity of the Magistrate's ex tempore reasons, to have regard to the exchanges referred to by both Mr McLachlan and Mr Crowley. 5. I have read the whole of the record of the hearing several times. Two things emerge from a consideration of the transcript. One is that, as I have already observed, the DPP's submissions focussed primarily on the inadequacy of the available material to shed light on Mr Abdelgader's state of mind at the time of the offence (whereas the section focusses on mental state at the time of the hearing). The second is that the Magistrate was not, in my assessment, misled by that erroneous approach. His Honour was, rather, focused on the chronic nature of the condition recorded in the medical notes. 6. At the hearing before me, both counsel focused on a particular exchange at p 16 of the transcript, as follows: HIS HONOUR: No. I'm afraid you missed the point. It's today that matters. Not what happened after the date of the alleged offence. It's what appears before me today. You submit to me evidence that says this man has a long-term psychosis paranoid schizophrenia. His conduct at the time is consistent with that. Whether it's fabricated or not your belief [sic] but at the end of the day it's what I think about it today that matters. KELLAWAY: The point I was making is today, if there was an application, an outline for-- HIS HONOUR: I don't need an application. I've said that to you. I'm absolutely certain that's the case. I've been doing this job since 1992 and if it appears to the Court in the statement as under s 32 then matters are diverted because that's the whole point. That the individual is better dealt with by psychiatric intervention than being detained in prison. 1. On behalf of the DPP, Mr Crowley submitted that, in that passage, where his Honour referred to "today", his Honour was referring to the requirement of s 20BQ that "it appears" on the evidence. In other words, Mr Crowley was submitting that his Honour was focussing on what the evidence was at the time of the hearing, but not on what that evidence established as to Mr Abdelgader's mental state at the time of the hearing. Conversely, Mr McLachlan referred to the exchange which appears several paragraphs later in the transcript, where his Honour referred to the object of the section being to acknowledge that an individual suffering from mental illness is better dealt with by psychiatric intervention than being detained in prison. Mr McLachlan submitted that was plainly a reference to Mr Abdelgader's needs as at the date of the hearing. 2. It may be accepted that, throughout those exchanges, the focus of both the Magistrate and the legal representatives appearing before him moved over various periods. Considering the transcript as a whole I am left in no doubt that the Magistrate was appropriately focused on the correct test, namely, whether as at the time of the hearing before his Honour Mr Abdelgader was suffering from a mental illness. While his expression of reasons in respect of that conclusion was brief, at times even cryptic, considering the material as a whole, it is plain that his Honour was of the view that the condition referred to in the notes of the psychiatrist was a chronic one which would have obtained as at the date of the hearing. 3. For those reasons, I am not persuaded that the Magistrate applied the wrong test. A separate question is whether, assuming he applied the correct test, it was open on the evidence to his Honour to be satisfied in the terms of that test. As noted by Mr McLachlan, although the DPP's arguments sailed into that territory at various times, it was not articulated as a separate ground of appeal. It is nonetheless appropriate to address the arguments raised. 4. I have already noted that the Magistrate expressly referred to the terms of s 20BR, which permitted his Honour to inform himself as he saw fit. The DPP's arguments on this issue proceeded as if the only evidence relevant to the satisfaction of the first limb of s 20BQ was the medical notes set out above. Certainly it may be accepted, having regard to the terms of s 20BR, that the Magistrate was entitled to have regard to the contents of those notes, but there was more. 5. The notes provided an understanding of the circumstances established by all of the evidence, including the fact that as at January 2014 Mr Abdelgader had been in immigration detention for 19 months; that he had very much hit rock bottom in terms of his attempts to obtain a visa such as would entitle him to remain in Australia and be released into the community; the notes also record that late in 2013 Mr Abdelgader's father, whom he had not seen since leaving Chad, had died; he had after all of those events and a relatively brief period of freedom in the community been apprehended again and had remained in detention for a period exceeding two years as at the date of the hearing. 6. His Honour was entitled to have regard to the language of the notes themselves which describe the condition referred to, be it that described in the December note or the January note, as chronic. A proper approach to that material entitled his Honour not to insist upon a punctilious compliance with the requirements of expert evidence but to form a conclusion based on the whole of the material before him. 7. An issue of a similar kind (as to the adequacy of medical evidence) was considered by the High Court in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538. The facts of that case were different and the issue was raised in a different way but the decision provides a useful analysis of the way in which a finder of fact is entitled to approach inferences where medical evidence is unclear. Mr Forst was a stevedore who had died shortly after performing work of a higher level of physical exertion than was ordinarily required of him. The medical evidence as to whether the unusually strenuous duties he was required to perform that day had contributed to his death due to coronary thrombosis was mixed. At first instance a connection with his employment was rejected. On appeal, the Court was satisfied that there was such a connection. The High Court, by majority, upheld the decision on appeal. Justice Rich said at 563: I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. [Emphasis in original]. 1. Regard might also be had to the judgment of Justice Starke at 567 and Justice McTiernan, who said at 575: If the expert evidence shows, as we think it does, that physical effort is commonly – although not invariably – the inciting cause of that phenomenon [coronary thrombosis], we think that we are entitled to draw the inference that Professor Cleland felt unable to draw. We fully accept his view that the evidence is in some measure inconclusive. For the purpose of a scientific deduction it may be insufficient, but we repeat that courts of justice are entitled and bound to act upon the probabilities of the case. 1. In my view, particularly having regard to the terms of s 20BR, the Magistrate in the present case was entitled to act on the probability that the chronic condition from which Mr Abdelgader undoubtedly suffered in early 2014 was one that continued as at the date of the hearing in the Magistrate's Court. It may be noted that the term "mental illness" in s 20BQ relates to any underlying condition and that a person would "not cease to be mentally ill because of a stable regime of medication": see Kelly v Saadat-Talab [2008] NSWCA 213 per Allsop P at [30]. 2. Mr McLachlan accepted that one would certainly want more evidence on that issue. However, I am not persuaded that there was no evidence that could sustain the Magistrate's conclusion. 3. For those reasons, I have concluded that the DPP's appeal must fail. The order is that the summons be dismissed. ********** Endnote 1. The authorities referred to (briefly) in argument in the present case are summarised in the decision of Bellew J in Director of Public Prosecutions (NSW) v Tilley [2016] NSWSC 984 at [53]-[54]. The preponderance of opinion appears to be that, where error is established, this Court should remit the matter. In The Roads and Traffic Authority of New South Wales v Bourke [2010] NSWSC 559 at [28], Rothman J tentatively contemplated that the Court "may" have a discretion not to do so but would not have exercised it in the circumstances of that case. 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: 05 September 2017