Director of Public Prosecutions (NSW) v Sheen and The Local Court of NSW

THE FACTS

1. The facts giving rise to the proceedings brought by the Director are not in dispute and may be summarised as follows.

The charges brought against the first defendant

1. On 13 July 2016 the first defendant was charged with the following offences: 1. intimidation, contrary to s. 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); 2. damaging property, contrary to s. 195(1)(a) of the Crimes Act 1900 (NSW); and 3. destroying property, contrary to the same provision in (ii) above.
2. It is not necessary for present purposes to canvass the factual basis of the charges brought against the first defendant. It is sufficient to note that they arose out of an incident on 13 July 2016 in which the first defendant is alleged to have intimidated his mother, and damaged property located within the home in which they both resided.

The proceedings on 13 July 2016 before Magistrate Clisdell

1. Following his arrest on 13 July 2016, the first defendant was taken before Magistrate Clisdell at the Penrith Local Court, at which time his Honour was asked to release the first defendant on bail. His Honour had before him a report of Pamela Allen, a Clinical Nurse Consultant (Mental Health). Ms Allen recorded that her clinical impression was that at the time of the alleged offending, the first defendant was suffering from a psychotic episode which had possibly been drug induced. She concluded that there were reasonable grounds to believe that the first defendant would be found to be a "mentally ill person" or a "mentally disordered person" within the Mental Health Act 2007 (NSW) ("the MHA") and that for that reason, he required care, treatment and control.
2. In terms of the ongoing management of the first defendant, Ms Allen's report stated the following: "Should the Court feel this matter warrants a Section 33(1)(b) Mr Sheen would be transported to Nepean Hospital for further psychiatric assessment. Should he not meet the criteria for admission he will be transported back to Court. I will liaise with the assessing Psychiatric registrar/psychiatrist."
3. The reference to "a Section 33(1)(b)" was a reference to an order pursuant to s. 33(1)(b) of the MHFPA. As discussed further below, the proper construction of that section is the primary issue in the present proceedings.
4. After hearing argument his Honour made an order under s. 33(1)(b) of the MHFPA. In doing so, he said (commencing at T4 L33): "What I do have at least is a bail application so I can do something about a s. 33(1)(b). I do on the (sic) think it is safe for him to go back with his mother, I do not propose to make bail conditions that he can live with his mother until such time as he has been seen by mental health professionals who determine that he is now safe. I am not going to let someone go home who has acted in such a violent way and what appears to be largely out of character given his previous record. I propose that he be taken to hospital under s. 33(1)(b) by the police. At this stage I propose to grant unconditional bail for that to take place. He will of course be in police custody if he is released and he will then be brought back to court where there can be a detention application. IT IS JUST UNCONDITIONAL BAIL AT THIS STAGE FOR THE PURPOSE OF ASSESSMENT AT HOSPITAL. … He is to be taken to Nepean Hospital for assessment and be brought to court if he is not mentally ill.
5. Annexed to the affidavit of Mr Johnson which was read in the first defendant's case before this Court were two documents, the first of which is headed "Summary of reasons for bail decision of Court". At the bottom of the page there is provision in the following form for the presiding Magistrate to indicate the decision reached regarding bail: [ ] Bail is granted without conditions for purposes of assessment at Hospital. [ ] Bail is dispensed with.
6. Both of the boxes were checked. The italicised portion next to the first box was accepted by the parties to be in the handwriting of Magistrate Clisdell.
7. The second document annexed to Mr Johnson's affidavit is headed "Order for assessment". It states (inter alia) the following: It appears that the defendant is a mentally ill person within the meaning of the Mental Health Act 2007. As a result the court made the following Order: The defendant is to be taken by police, or a prescribed person as ordered by the Court, and detained in the Mental Health facility for assessment in accordance with the Mental Health Act 2007. If on assessment the accused is found not to be a mentally ill or mentally disordered person within the meaning of the Mental Health Act 2007, he/she is to be brought by prescribed person back before a Magistrate or an authorised officer (emphasis in original).
8. This document was signed by Magistrate Clisdell.

The first defendant's mental health assessment

1. Pursuant to the orders made by Magistrate Clisdell, the first defendant was taken to Nepean Hospital on 13 July 2016 where he was seen by Olav D'Souza. Dr D'Souza furnished a report which stated (inter alia) as follows: "This report is made as a certificate of the opinion of an authorised medical officer after examination of a person under section 27(a) of the (Mental Health Act 2007) (initial examination).
2. Dr D'Souza expressed the opinion that the first defendant was, at the time of the examination, a mentally ill person. Having noted the first defendant's reported behaviour, and his own observations of the first defendant on examination, Dr D'Souza stated the following under the heading "Conclusion": Drug induced psychosis Needs admission to prevent significant harm.

The first defendant's detention at Nepean Hospital

1. The first defendant was detained at Nepean Hospital until 21 July 2016. On that day, he was examined by Dr Burley, a Psychiatric Registrar, who provided a report in the following terms: To whom it may concern, This is to certify that Mr Mark Sheen has been assessed in a mental health facility (Nepean Hospital) after being referred under section 33 from the court. He was found to be ill under the meaning of the MHA, however as of 21/7/16 he is assessed as being no longer suffering from a mental illness under the meaning of MHA. After due discussion with Medical Superintendent and Consultant Psychiatrist, Mr Mark Sheen is discharged to the care of the police.

The proceedings on 22 July 2016 before Magistrate McGlynn

1. Following the report of Dr Burley, the first defendant was released into police custody. Notwithstanding the bail determination of Magistrate Clisdell, the first defendant was apparently detained in custody on the night of 21 July before being taken back before the Local Court on the following day, 22 July 2016, at which time he appeared before Magistrate McGlynn. An application for his release was made, which was opposed by the prosecution. The application was refused by Magistrate McGlynn and the proceedings were adjourned until 10 August 2016.

The proceedings on 10 August 2016 before Magistrate Stafford

1. The first defendant appeared before Magistrate Stafford on 10 August 2016, at which time a further application was made for his release. Having acquainted herself with the history of the proceedings, her Honour said (at T2 L6 and following): "Yes. That says he was found to be ill under the meaning of the Mental Health Act, however as of 21 July, he's said to have been no longer suffering from a mental illness and was then released to the police. But what we've got to check is what the date of the section 33 order was because my understanding is once they are admitted and found to be mentally ill that's the end; he has been diverted from the criminal justice system and I know Mr Sheen was released back to the police to be brought to court, but the Court has no jurisdiction once they're found to be mentally ill (my emphasis).
2. Lengthy debate followed between her Honour, the prosecutor, and the first defendant's solicitor, at the conclusion of which her Honour found that the Court did not have jurisdiction to deal with the first defendant in respect of any of the charges laid against him on 13 July 2016.

The Magistrate's reasons

1. The Magistrate's reasons commence at T9 L21 of the transcript of the proceedings on 10 August 2016. Her Honour said the following: "Mark Sheen was on bail for charges from 11 July, when, on 13 July, he was arrested by police and charged with further offences. Those offences were said to have been committed between the 12th and 13 July. He was brought before Magistrate Clisdell at Penrith Local Court on 13 July. Magistrate Clisdell formed the opinion that it appeared to Magistrate Clisdell that Mr Sheen was a mentally ill person, and Magistrate Clisdell made an order under s 33(1)(b) of the Mental Health (Forensic Provisions) Act that Mr Sheen be taken by police to Nepean Hospital for assessment and, if not found not to be mentally disordered or mentally ill, to be brought back to the court, that was done. He was taken by police to Nepean Hospital where Mr Sheen was assessed by the psychiatrist, Dr Oleb (sic) De Souza. Dr Oleb (sic) De Souza prepared a report for the Court and that report stated that he made the report as a certificate of the opinion of an authorised medical officer after examination of a person under s 27(a) of the Mental Health Act on initial examination, that: "In my opinion Mr Sheen is a mentally ill person. The basis for my opinion is as follows: damage to property, verbal aggression, agitation, delusions. Observations by me of the patient: guarded, suspicious, [I think it's] persecutory delusions, distress with delusions and limited insight." Dr De Souza's conclusion was drug induced psychosis. There is a word I cannot translate. Admission to, it may be "forced" or it might be "invol" I cannot quite read it "Admission to prevent significant harm" and that report is dated 13 July. In finding drug induced psychosis and noticing involuntary admission to prevent significant harm, that certainly seems to fall within the definition of the Mental Health Act of a mentally ill person. In any event, that is the psychiatrist's opinion. Mr Sheen was detained at Nepean, and that detention is pursuant to s. 24 of the Mental Health Act, which states that person may be taken to and detained in a declared mental health facility in accordance with an order made under s 33. Section 14 of the Mental Health Act provides that a person is mentally ill if suffering from a mental illness and owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others, and that is certainly the basis of Dr De Souza's opinion. Reading s 14 together with s 24, my view is that his continuing detention at Nepean was to allow for care, treatment and control of Mr Sheen, and that he was not being continuously detained for the purpose of making an assessment. What then occurred was after that continuing detention for treatment, in my view, a second discrete assessment was made by Dr Mark Burley on 21 July (my emphasis).
2. Having quoted from Dr Burley's report which is set out at [18] above, her Honour continued: The police did take him into their control and Mr Sheen was taken back to Penrith Local Court where he appeared before Magistrate McGlynn, and the matter proceeded by way of bail release application. The matter then came before me today, 10 August, at Parramatta Local Court because that is the date adjourned for sentencing under the offences from 12th and 13 July, and it is also the first return date of the charges that were initially laid, for which bail was granted, those charges arising from an incident on 11 July. When I had a closer look at the Bench papers, it became apparent that to me that the s 33(1)(b) order had been made on 13 July and I formed the view that an assessment having been made by Dr De Souza that Mr Sheen was a mentally ill person, that assessment being made on 13 July, both myself, and even back on 22 July when Magistrate McGlynn heard the matter, that the court has no jurisdiction. I gave the police prosecutor the opportunity over the luncheon adjournment by staying my decision, to see if there was any authority to assist his submission made that by reason of the provision s 33(2), the legislature must have provided that if someone is reassessed as being no longer mentally ill, then the person must be brought back to court and the court still has a jurisdiction. He has very helpfully provided me with a print out of the updated Bench Book and two decisions by other Magistrates; Magistrate Buscombe, who is now Buscombe J, of Police v Pines in 2013 and a more recent decision by Magistrate Grogan (sic) in Police v Golding. That is reported at [2015] NSWLCR 26. Magistrate Grogan (sic) refers to the changes to the Bench Book and noting that they were rewritten - well, certainly the chapter concerning the mental health provisions were rewritten in September 2015, and that is significant because there is decision of Magistrate Heilpern. It was a decision that was unreported, but from 22 August 2014 of Police v Thomas Stafford-Roberts and it is certainly a decision I was aware of as well being a decision that says that once an order is made under s 33(1)(b) and once an assessment is made by the proper medical officer that the defendant is mentally ill within the meaning of the Mental Health Act, then that is the end of the charges, and the Court no longer has jurisdiction. Turning back then to Magistrate Grogan's (sic) decision from September last year. He has set out the new material in the Bench book which states this: 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 a mentally ill person nor a mentally disordered person, the police are required by the s 33(1)(b) to apprehend the defendant under s 32(5) of the Mental Health Act and to take the defendant back to court. The original court papers can be relisted for the defendant to be dealt further. Magistrate Grogan (sic), also in his decision, sets out in full the s 32, which is the detention on order of the Magistrate; s 33(1)(b) of the Mental Health (Forensic Provisions) Act, and then of course, subs (5) of s 32 of the Mental Health Act, which mandates that the police must bring the person back to court, and the submission then being made that this then gives the meaning to s 33(2) of the Mental Health (Forensic Provisions) Act, which provides that unless the person is brought back within six months after the 33 order, then the charges are deemed to be dismissed after that six month period has expired. I agree with the submission of Mr Harris that this case can be distinguished on its facts from the case of Katrina Golding, and that is for the following reason. Ms Golding, when she was admitted to St Vincent's on 27 August, there was a principle (sic) diagnosis made of drug induced psychosis, however it appears that after three days after being on medication and interacting appropriately, the psychiatrist was of a view that she was no longer presenting any psychotic symptoms and discharge (sic) her on 31 August. It appears, to my reading of that authority of Golding, that an assessment had not been made until the assessment on 3 August that she was not a mentally ill person and that then she should be put in the custody of the police and then brought back to court in accordance with the s 33(1)(b) order. In contrast to this case, I agree with Mr Harris' submission, is that there had already been an assessment made of Mr Sheen, and that assessment was made on 13 July that he was a mentally ill person. Although it is true that the conclusion was that there was drug induced psychosis, certainly Dr De Souza's assessment was that he was a mentally ill person and he was being admitted to prevent significant harm. In my view, in this case, there were two assessments, and the second assessment was by Dr Burley on 21 July. That was a discrete assessment made following care and treatment of Mr Sheen and that is distinguished from Ms Golding's case, where the first assessment was made, being that she was not a mentally person; and that assessment was made on 31 August and then, quite properly, she was put into police custody and quite properly again, the police brought her back before the court. I also agree with Magistrate Grogan's (sic) finding that there is no time limitation contained within s 33(1)(b) of the Mental Health (Forensic Provisions) Act for the assessment process, and that it may take hours, days, weeks or even months. That then ties in, to my mind, with s 33(2), which, to my mind, speaks to an assessment that may well take up to six months from the making of the s 33(1)(b) but s 33(2), in my view, does not apply to a situation, as in this case, where an assessment had been made on 13 July that he was mentally ill person, and then because of the ongoing care and treatment, a second assessment was made that he was no longer assessed to be a mentally ill person. The whole purpose of s 33, to my mind, is the purpose to divert people who are mentally ill, out of the criminal justice system to have them dealt with under the mental health system and in fact, Magistrate Grogan (sic) speaks to s 32 and 33 as diversionary processes available to the Local Court. My view, taking into account the purpose of diverting people who are mentally ill and already found to be mentally ill does not then give the police a discretion, even if they are acting, in their view, quite properly, to bring the person back to court and therefore reinstate the charges where there really is no jurisdiction. In this case, by reason of the fact that there had been, on 13 July an assessment that he was mentally ill, whatever happened after that date, I remain of the view that while there may have been power to hold him in the hospital, at least to release him to the police, there was no mandate for the police to bring him back to court at any time after that initial assessment was made on 13 July, because the s 33 order had been executed to finality because the assessment had already been completed. I REMAIN OF THE VIEW THAT ONCE THE ASSESSMENT WAS DONE ON 13 JULY THAT MR SHEEN WAS MENTALLY ILL, THE S 33 ORDER HAD BEEN FULLY EXECUTED; IT HAD COME TO FINALITY AND THE COURT THEREFORE HAS NO JURISDICTION IN RELATION TO THE CHARGES LAID UNDER H158. I will just add for the record, of course, as is probably glaringly obvious, these are ex tempore remarks made at the end of a list day (my emphasis in each case).

Additional evidence adduced at the hearing of these proceedings

1. Annexed to the affidavit of Ms Kelly is correspondence which passed between the Director and the Registrar of the Mental Health Review Tribunal following Magistrate Stafford's determination. On 12 January 2017, the Director wrote to the Registrar and, having set out the background to the first defendant's appearances before the Local Court, stated the following: "Could you please advise whether Mr Sheen was, in the period from 13 to 21 July 2016, brought before the Tribunal? If that did occur could you please advise the result? Also this office only has copies of the assessments by doctors D'Souza and Burley referred to above. If Mr Sheen was brought before the Tribunal in the period from 13 to 21 July 2016 and the Tribunal currently holds in its file a copy of the second assessment report as required under s. 27(1)(b) of the Mental Health Act then I would be very grateful if you could also please provide me with a copy of that second assessment.
2. By letter of 13 January 2017 the Registrar responded as follows: In response to your specific questions I advise: 1) The Tribunal did not conduct a mental health inquiry for Mr Sheen during the time he was detained at Nepean Mental Health Centre in July 2017. He had been listed to be presented for a mental health inquiry on 21 July 2017. However, the Tribunal was advised on that day that he had been reclassified as a voluntary patient and was therefore no longer an assessable person for whom a mental health inquiry could be conducted. 2) Although the Tribunal holds a file for Mr Sheen, as the mental health inquiry was not conducted, no documents relating to this admission were provided to the Tribunal. We therefore do not have copies of the assessment reports. By way of background I advise that mental health inquiries are generally conducted after sufficient time had elapsed to allow the treating team to properly assess whether the person should continue to be detained in the facility or discharged and to develop an appropriate community treatment or discharge plan and for the necessary information to be obtained for the Tribunal to make the appropriate decision. In most cases, this will take about 1 week and inquiries are held on the next rostered sitting day for the mental health facility. This means that people are usually presented for a mental health inquiry in the 2nd or 3rd week after they are detained as people's mental health conditions improve with treatment it is not uncommon for people to be discharged or reclassified as a voluntary patient without having been presented for a mental health inquiry."

THE ISSUE

1. At issue in the present proceedings is the proper construction of s. 33(1)(b) of the MHFPA. The Director contends that the Magistrate erred in concluding that in the circumstances I have outlined, the Local Court did not have jurisdiction to deal with the charges against the first defendant.

THE RELEVANT LEGISLATIVE PROVISIONS

1. There are various provisions of the MHFPA and the MHA which have some bearing upon the resolution of the present issue, and which should be set out in full.

Mental Health (Forensic Provisions) Act 1990

1. Section 3(1) of the MHFPA contains the following relevant definitions: "Magistrate" means: (b) a Magistrate, or (c) a Children's Magistrate. "mental health facility" has the same meaning as it has in the Mental Health Act 2007 . "mentally ill person" has the same meaning as it has in the Mental Health Act 2007 .
2. Section 31(1) of the MHFPA provides that Part 3 (ss. 31-36), which is entitled "Summary Proceedings before a Magistrate relating to persons affected by mental disorders": "… applies to proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, and includes any related proceedings under the Bail Act 2013, but does not apply to committal proceedings.
3. Section 33 of the MHFPA provides as follows: 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 Secretary of the Ministry of Health, or a person authorised by the Secretary of the Ministry 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 Justice, 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 .
4. Section 36 of the MHFPA provides as follows: 36 Means by which Magistrate may be informed For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself.

Mental Health Act 2007

1. Section 4(1) of the MHA contains the following relevant definitions: 4 Definitions "authorised medical officer" of a mental health facility means: (a) the medical superintendent of the mental health facility, or (b) a medical officer, nominated by the medical superintendent for the purposes of this Act, attached to the mental health facility concerned. "mental health facility" means a declared mental health facility or a private mental health facility. "mental illness" means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d). "mentally disordered person" -see section 15. "mentally ill person" -see section 14.
2. Chapter 3 of the MHA is entitled "Involuntary admission and treatment in and outside facilities". Part 1 of Chapter 3 (ss. 12-16) is entitled "Requirements for involuntary admission, detention and treatment. Section 12 is in the following terms: 12 General restrictions on detention of persons (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that: (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person. (2) If an authorised medical officer is not of that opinion about a patient or other person at a mental health facility, the officer must refuse to detain, and must not continue to detain, the person. (3) An authorised medical officer may, immediately on discharging a patient or person who has been detained in a mental health facility, admit that person as a voluntary patient.
3. Section 14 is in the following terms: 14 Mentally ill persons (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
4. Section 17 provides that in Part 2 of the MHA (ss. 17-49), which is entitled "Involuntary detention and treatment in mental health facilities", an "assessable person" means a person detained in a declared mental health facility for whom a mental health inquiry is required to be held under this Part.
5. Section 18(1) of the MHA is in the following terms: 18 When a person may be detained in mental health facility (1) A person may be detained in a declared mental health facility in the following circumstances: (a) on a mental health certificate given by a medical practitioner or accredited person (see section 19), (b) after being brought to the facility by an ambulance officer (see section 20), (c) after being apprehended by a police officer (see section 22), (d) after an order for an examination and an examination or observation by a medical practitioner or accredited person (see section 23), (e) on the order of a Magistrate or bail officer (see section 24), (f) after a transfer from another health facility (see section 25), (g) on a written request made to the authorised medical officer by a designated carer, the principal care provider, a relative or friend of the person (see section 26).
6. Section 24 of the MHA is in the following terms: 24 Detention on order of Magistrate or bail officer A person may be taken to and detained in a declared mental health facility in accordance with an order made under section 33 of the Mental Health (Forensic Provisions) Act 1990.
7. Section 27 of the MHA is in the following terms: 27 Steps for medical examination requirements for ongoing detention in mental health facility (1) The following steps must be taken in relation to a person who is detained in a mental health facility under this Division: Step 1 Initial examination by authorised medical officer (a) An authorised medical officer must examine the person as soon as practicable (but not later than 12 hours) after the person arrives at the facility or after the person is detained after being a voluntary patient. he person must not be detained after the examination unless the officer certifies that, in the officer's opinion, the person is a mentally ill person or a mentally disordered person. Step 2 Examination by second medical practitioner (b) The authorised medical officer must cause the person to be examined by another medical practitioner as soon as possible after giving the certificate in step 1. The second examiner must be a psychiatrist if the authorised medical officer is not a psychiatrist. The second examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person or if not able to form such an opinion. Step 3 Examination by third medical practitioner if second examiner does not find person to be mentally ill or mentally disordered (c) If the second examiner is not of the opinion that the person is a mentally ill person or a mentally disordered person, the authorised medical officer must cause the person to be examined by a medical practitioner who is a psychiatrist, as soon as practicable after being notified of that opinion. The third examiner must notify the authorised medical officer if of the opinion that the person is a mentally ill person or a mentally disordered person. Step 4 Mental health inquiry or discharge (d) An authorised medical officer must notify the Tribunal and bring the person before the Tribunal for a mental health inquiry if: (i) the person is found to be a mentally ill person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person or a mentally disordered person on examination in step 2 or step 3, or (ii) the person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and to be a mentally ill person on examination in step 2 or step 3. The person must be brought before the Tribunal as soon as practicable after admission (subject to meeting the requirements set out above). If the third examiner does not find that the person is a mentally ill person or a mentally disordered person, the person must not be detained after the third examination. Step 5 Mentally disordered persons (e) If a person is found to be a mentally disordered person by an authorised medical officer on initial examination in step 1, and is found to be a mentally disordered person on examination in step 2 or step 3, the person may be detained in the mental health facility as a mentally disordered person. (2) Any certification under subsection (1) (a) or notification under subsection (1) (b) or (c) of the opinion that a person is, after an examination under this section or section 27A, a mentally ill person or a mentally disordered person, is to be in the form prescribed by the regulations. (3) Any form used for the purposes of this section or section 27A (as in force immediately before the commencement of this subsection) is, until such time as a form is prescribed for the purposes of subsection (2), taken to be the form so prescribed.
8. Section 32 of the MHA is in the following terms: 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.
9. Division 3 of Part 2 of the MHA (ss. 33-45) is entitled "Continuing detention in mental health facilities". Section 34(1) provides that the Mental Health Review Tribunal must hold an inquiry about an assessable person under step 4 in s. 27(d). Section 35 provides as follows: 35 Purpose and findings of mental health inquiries (1) The Tribunal when holding a mental health inquiry is to determine whether or not, on the balance of probabilities, the assessable person is a mentally ill person. (2) For that purpose, the Tribunal is to do the following: (a) consider the reports and recommendations of the authorised medical officer and other medical practitioners who examined the person under section 27 after the person's detention, (b) consider any other information before the Tribunal, (c) inquire about the administration of any medication to the person and take account of its effect on the person's ability to communicate, (d) have due regard to any cultural factors relating to the person that may be relevant to the determination, (e) have due regard to any evidence given at the inquiry by an expert witness concerning the person's cultural background and its relevance to any question of mental illness. (2A) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ask the assessable person whether the person: (a) has been given a written statement, in the prescribed form, of the person's legal rights and other entitlements, as required by section 74, and (b) has been informed of the duty imposed under section 76 on the authorised medical officer relating to the giving of the notice specified in that section. (2B) As soon as practicable after the beginning of a mental health inquiry, the Tribunal must ascertain from the authorised medical officer whether the written statement and notice referred to in subsection (2A) have been given or all such things as are reasonably practicable have been done to give that statement or notice, as the case requires. (3) If the Tribunal is not satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal must order that the person be discharged from the mental health facility. (4) The Tribunal may defer the operation of an order for the discharge of a person for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the person to do so. (5) If the Tribunal is satisfied, on the balance of probabilities, that an assessable person is a mentally ill person, the Tribunal may make any of the following orders: (a) an order that the person be discharged into the care of a designated carer or the principal care provider of the person, (b) a community treatment order, (c) an order that the person be detained in or admitted to and detained in a specified mental health facility for further observation or treatment, or both, as an involuntary patient, for a specified period of up to 3 months, if the Tribunal is of the opinion that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available or that for any other reason it is not appropriate to make any other order under this subsection.

Submissions of the Director

1. It was submitted on behalf of the Director that any task of statutory construction must necessarily begin with a consideration of the text of the provision itself. The meaning of the text may, in turn, require consideration of the context in which it is used: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. It was further submitted on behalf of the Director that in construing the provisions of s. 33(1)(b) of the MHFPA, it is necessary to have regard to relevant provisions of the MHA, because the two enactments formed part of the one legislative scheme, which was to be applied in a consistent and co-ordinated fashion: Director of Public Prosecutions v Wallman [2017] NSWSC 40 at [39]; State of NSW v Roberson (by his tutor Roberson) (2016) 338 ALR 166; [2016] NSWCA 151 at [17].
2. It was submitted that her Honour had erred in concluding that the assessment process in s. 33(1)(b) of the MHFPA may take hours, days, weeks or even months. It was submitted that such a conclusion was erroneous in light of the particular steps prescribed in s. 27 of the MHA, and that it was evident that such a conclusion had played a significant part in her Honour's reasoning process.
3. It was further submitted that her Honour's conclusion that the first defendant "was not being continuously detained for the purposes of making an assessment" was erroneous. It was submitted that the order made by Magistrate Clisdell pursuant to s. 33(1)(b) of the MHFPA provided the necessary legal authority for the first defendant to be taken to, and detained, in a mental health facility, not only for the purposes of an assessment under s. 27 of the MHA but also for the purpose of any necessary mental health inquiry by the Mental Health Review Tribunal ("the Tribunal") pursuant to s. 34 of the MHA. It was submitted that the order made in the present case authorised the first defendant's detention until 21 July 2016, at which time he was assessed as no longer being mentally ill. It was further submitted that, had it been necessary, Magistrate Clisdell's order would have provided the requisite authority to detain the first defendant until any inquiry had been completed by the Tribunal.
4. It was further submitted that, fundamentally, her Honour's construction of s. 33(1)(b) of the MHFPA was at odds with the text of the provision. It was pointed out, in particular, that under s. 33(3) of the MHFPA a Magistrate is required, in dealing with a charge in circumstances such as the present, to take account of any period during which a defendant has been in a mental health facility as a consequence of an order made under that section. It was submitted that such a provision was inconsistent with the proposition that the Local Court did not have jurisdiction to deal with the charges against the first defendant and that properly read, s. 33(1)(b) did not limit, or affect in any way, such jurisdiction.
5. It was also pointed out that the threshold for making an order under s. 33(1)(b), the effect of which was to divert a defendant from the criminal justice system, was that he or she "appeared" to be a mentally ill person. It was submitted that as a matter of practicality, when a Magistrate is asked to make an order under s. 33(1)(b) of the MHFPA, he or she is likely to have had only a limited opportunity to observe the defendant, perhaps without the benefit of any documentary evidence at all. It was submitted that it would be surprising, in those circumstances, if a final order could be made which may be based (even in part) on little more than an assessment of a defendant's appearance.
6. Finally, it was submitted that the construction adopted by the Magistrate would have the obviously unintended consequence that criminal charges could be finalised on the basis of a decision of someone other than a Magistrate. That, it was submitted, was highly unlikely to have been the Parliament's intention, and was a factor which tended wholly against the construction adopted by the Magistrate.
7. In all of these circumstances, it was submitted that at all times her Honour remained seized of jurisdiction, and that her Honour fell into error by denying the existence of that jurisdiction.

Submissions of the first defendant

1. Senior counsel for the first defendant submitted that the provisions of s. 32 of the MHA lent no support to the construction advanced by the Director. It was submitted, in particular, that there was no power in s. 32 of the MHA to detain, and return to court, a person who was found to be mentally ill person. It was submitted that an order under s. 33(1)(b) of the MHFPA which resulted in a finding that a person was a mentally ill person did not have the effect of ordering that the person be returned to court, such that the powers in s. 32 of the MHA were not enlivened. These circumstances, it was submitted, were strongly suggestive of a conclusion that the Parliament did not intend that such a person be so returned. It was submitted that this important limitation in s. 32 of the MHA had been obscured as a result of the position taken by the Director.
2. Senior counsel further submitted that, contrary to the position advanced by the Director, s. 32(4) of the MHA did not provide a police officer with a statutory authorisation to detain a discharged person and return them to court. It was submitted that the "apprehension" which was referred to in s. 32(4) was that which was referable to person covered by s. 32(1)(b) of the MHA, that is, a person taken to a facility by police under s. 22. It was submitted that if such a person was to be apprehended it would be pursuant to the powers contained in s. 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and that no such power existed in respect of a person ordered to be taken to a facility under s. 33(1)(b) of the MHFPA and found to be a mentally ill person. This analysis, it was submitted, revealed a fundamental error in the Director's reasoning.
3. In broader terms, it was submitted on behalf of the first defendant that when an order is made under s. 33(1)(b) of the MHFPA, and the person is found to be a mentally ill person upon assessment and admitted for treatment, the return of that person to court in custody is unlawful. This, it was submitted, was because the original order requiring detention for assessment was either still operative or, in circumstances where a discharge had occurred, was spent and, in becoming spent, had operated to finally determine the proceedings.
4. It was submitted that s. 33(1)(b) was enacted to facilitate the diversion, from the criminal justice system, of certain defendants, in circumstances where a Local Court was conditionally of the view that diversion was appropriate, and where it was confirmed on medical assessment that the person was a mentally ill person. It was submitted that this explained the difference in the terms of s. 33(1)(a) on the one hand, and s. 33(1)(b) on the other, and that the latter existed for the purposes of ensuring that there was an immediate (and more summary) mechanism for the speedy diversion of such persons in circumstances where it was considered appropriate. It was further submitted that the construction of s. 33(1)(b) which was consistent with both its wording and its underlying legislative purpose, was one which recognised that the section created a power complementary to that created by s. 32 of the MHFPA, to be exercised where appropriate and necessary, in a summary and expeditious manner, and in order to minimise the involvement, within the criminal justice system, of persons unsuited for that involvement.

CONSIDERATION

1. In Favetti Bricklaying Pty Limited v Benedek & Anor [2017] NSWSC 417 I summarised (at [74]) the principles to be applied to the task of statutory construction: (i) the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381; [69] (per McHugh, Gummow, Kirby and Hayne JJ); (ii) the task of statutory construction begins and ends with a consideration of the (statutory) text: Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ; (iii) the text must not be read in isolation from the enactment of which it forms a part. To do so offends against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48 at 315 per Mason J (as his Honour then was). (iv) accordingly, the meaning of the provision must be determined by reference to the language of the instrument when viewed as a whole: Project Blue Sky at 381; [69]; (v) a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, such conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to their purpose and language, while maintaining the unity of the provisions as a whole: Project Blue Sky at 382; [70]; (vi) legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself: Consolidated Media Holdings at [39]; (vii) it is preferable to adopt a construction of legislation that will avoid a consequence which appears irrational or unjust: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at 509; [48] per French CJ, Hayne, Crennan and Kiefel JJ; (viii) it is also preferable to adopt a construction that will avoid an absurd outcome or consequences: Minister for Immigration and Citizenship v Szizo & Ors (2009) 238 CLR 627; [2009] HCA 37 at 640; [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ.
2. In the present case, her Honour essentially concluded that: 1. the purpose of s. 33 of the MHFPA is diversionary; 2. once a person is so diverted by an order under s. 33(1)(b), and is found to be mentally ill, the order is (to use her Honour's words) "executed to finality"; and 3. as a consequence, the Local Court had no jurisdiction to hear and determine the charges against the first defendant.
3. As set out above, the process of statutory construction must necessarily begin with a consideration of the text of the provision. This is for the simple reason that the language employed in the text is the surest guide to legislative intention: Alcan (NT) Alumina at [47]. Bearing this in mind, I have come to the view that for a number of reasons the determination made by the Magistrate is reflective of error.
4. To begin with, there is nothing within the text of s. 33 of the MHFPA which has the effect of limiting, let alone extinguishing, the powers of a Local Court in proceedings in which an order under that section is made. In fact, there are number of factors which point in the opposite direction.
5. The terms of s. 33(1)(b) confer a power to make an order "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". In Roberson Basten JA said (at [29]): In its terms, s 33(1) expressly confers a power on the magistrate to make an order for detention in a mental health facility without derogating from any other order (which must mean power to order) "whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise".
6. The fact that the power to make the order is conferred in terms which do not derogate from the power to make any other order is at odds with the proposition that the jurisdiction of the Court is extinguished in circumstances such as the present.
7. Further, s. 33(1)(b) of the MHFPA expressly contemplates that if a person is found not be a mentally ill person - which is what ultimately happened in the present case - he or she may be "brought back before a Magistrate or authorised officer". Similarly, s. 33(2) of the MHFPA expressly provides that if a person is dealt with under the section, the charge(s) which gave rise to the proceedings will be taken to have been dismissed at the expiration of a period of six months "unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge". Provisions which expressly facilitate a person being brought back before a Court to be dealt with after the making of an order under s. 33(1)(b) are, in my view, fundamentally at odds with a conclusion that, once an order is made and the person is diverted and assessed, the Local Court is no longer seized of jurisdiction. In these circumstances, the fact that s. 32 of the MHA makes no reference to a person being returned to Court is of little or no consequence.
8. Moreover, the practical effect of the Magistrate's determination is that the charges against the first defendant are to be regarded as somehow being dismissed. The provisions of s. 33(2) specifically address the question of when a charge or charges are to taken to have been dismissed following the making of an order under s. 33(1)(b). There is nothing in the text of s. 33 which suggests that charges will be regarded as being dismissed in circumstances other than those contemplated by s. 33(2). Even if it is accepted that the purpose of s. 33 of the MHFPA is a diversionary one, the submissions advanced on behalf of the first defendant do not explain how, in the circumstances of the present case, the original order becomes "spent" and operates to somehow bring the proceedings to an end.
9. Quite apart from the fact that the plain meaning of the text of s. 33(1)(b) is at odds with the Magistrate's conclusion, her Honour's construction of the section would, if adopted, bring about results which, in my view, could not have been intended by the Parliament. In this regard, there are two matters of particular importance.
10. Firstly, even if an order is made under s. 33(1)(b) of the MHFPA, s. 18(1)(e) of the MHA provides that a person may be detained in a declared mental health facility. There is no basis upon which to read the word "may" as conferring a power, coupled with a duty to detain: Roberson at [43]. Accordingly, it is possible that a person who is the subject of an order under s. 33(1)(b) of the MHFPA will not be detained. On the Magistrate's construction, the Local Court would have no jurisdiction to further deal with the charges in those circumstances. That, in my view, could not have been the intention of the Parliament.
11. Secondly, the power to make an order under s. 33(1)(b) of the MHFPA is enlivened when it "appears to the Magistrate that the defendant is a mentally ill person". The reality is such that it is not uncommon for a Magistrate to be required to make an assessment as to whether a person so appears in the absence of any formal medical evidence, and perhaps even in the absence of a diagnosis. In Police v Pines [2013] NSWLC 3, Magistrate Buscombe (as his Honour then was) observed (at [35]) that it would be "surprising if a final order could be made on the basis of simply how an accused appeared". I respectfully agree with his Honour's observation. It could not have been Parliament's intention for a final order to be made, based upon an assessment which is likely to be largely, if not wholly, impressionistic.
12. Further in my view, her Honour's conclusion that the first defendant "was not being continuously detained for the purpose of making an assessment" was reflective of error. The order made under s. 33(1)(b) by Magistrate Clisdell constituted the necessary authority for the first defendant to be taken to, and detained at the Nepean Hospital: 1. for the purposes of s. 27 of the MHA; and 2. for the purposes of any mental health enquiry under s. 34 of the MHA.
13. That this is so is confirmed by the judgment of Macfarlan JA in Roberson (a decision to which her Honour was apparently not referred in argument) at [92]: 92. ….. the "assessment" referred to in (s. 33) is to be understood as including not only the examination by the authorised medical officer and another medical practitioner, for which s. 27 of the Mental Health Act provides, but also the mental health inquiry by a Magistrate for which s. 34 provides. On this extended meaning of "assessment", the s. 33 order operates as an order that the defendant be detained, not only during examinations at the mental health facility, but also for what may be a lengthy period during which the mental health inquiry is conducted.
14. For all of these reasons, I am satisfied that her Honour erred in her construction of s. 33(1)(b). I am fortified in that view by the judgment of Fagan J in Wallman (a judgment which was handed down after her Honour dealt with the present matter) at [39]-[41]: 39. The provisions of the Mental Health Act and of the Mental Health (Forensic Provisions) Act, as referred to above, are required to be applied in a co-ordinated fashion as part of a legislative scheme. It cannot be said that the Local Court's jurisdiction with respect to pending charges comes to an end upon the making of an order under s 33(1)(a) Mental Health (Forensic Provisions) Act given that one possible outcome, as envisaged by s 31(4) and s 32 Mental Health Act, is that there would be found no basis for detaining the defendant on mental health grounds and that he would be re-apprehended by police - implicitly, on the original charges. 40. If a person examined pursuant to an order of the Local Court under s 33 of the Mental Health (Forensic Provisions) Act should be found to be mentally ill at step 4 of s 27 and if the Tribunal upon inquiry under s 34 Mental Health Act should order continuing detention under s 38(4), then clearly it would not be immediately possible for the local Court to proceed to deal with the pending charges. Should that situation continue for 6 months after the date of the order under s 33 of the Mental Health (Forensic Provisions) Act then the charges would be deemed to be dismissed. This is provided for in s 33(2), reproduced at [14]. 41. Section 33(2) Mental Health (Forensic Provisions) Act makes it clear that an order such as that which the Magistrate made on 22 August 2016 under subs (1)(a) for assessment of a defendant does not of itself terminate the Local Court's jurisdiction with respect to charges against the defendant. The order does not have that effect even if, following assessment, the defendant is dealt with under the Mental Health Act, unless his detention thereunder continues for 6 months without him being brought back before a Magistrate in the meantime.
15. True it is that his Honour was dealing with an order which had been made pursuant to s. 33(1)(a) of the MHFPA, and not s. 33(1)(b). However for present purposes, there is no relevant distinction between the two provisions.

ORDERS

1. The Director should be granted the relief sought. Accordingly, I make the following orders: 1. The decision of Magistrate Stafford of 10 August 2016 in the proceedings brought against the first defendant in the Local Court against the first defendant is set aside. 2. The proceedings brought against the first defendant in the Local Court are remitted to the Magistrate to be further dealt with according to law.
2. Consistent with the agreement which has been reached between the parties, I make no order as to costs.

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: 15 May 2017