Mantell v Molyneux

(4) A decision under this section to dismiss charges against a defendant 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 under subsection (2) or (3).

(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.

(5) The regulations may prescribe the form of an order under this section."

The early proceedings 3 The plaintiff was charged with assault involving the wielding of a knife on 29 April 2005 (the second assault). The alleged victim was the plaintiff's brother. The circumstances were suggestive of a significant mental problem. On 2 May 2005 Ms Pikett, a solicitor employed with the South Eastern Aboriginal Legal Service, spoke with the appellant at Nowra Local Court but could not get any information from her. His Honour Magistrate Dick made an order under s33 of the Mental Health (Criminal Procedure) Act 1990 and she was taken to Shellharbour Psychiatric Centre for assessment, where she remained until 13 May 2005 when she was returned to Nowra Police Station. On that day Ms Pikett saw the appellant in the cells at the Court. 4 The appellant had earlier been arrested on 19 April 2005 for assault and resisting arrest. She had punched her brother in the presence of police officers who had been called to the scene and resisted police attempting to restrain her and when she was arrested. It was in respect of this charge the appellant was in Court. The appellant was distressed and, although the conference took some time, Ms Pikett was not able to get a consistent story from her. However, she understood that the general thrust of what the appellant said was that she had not intended to harm her brother. Ms Pikett was of the view that it would not have been possible to get even this far in a courtroom environment. For reasons which will become clear it is, I think, uncertain that the appellant was really fit to plead but Ms Pikett permitted this course since she was concerned that, if a plea was not entered in the matter (which was relatively trivial), bail would not be granted for the assault charge that arose on 29 April 2005. His Honour Magistrate Dick imposed a bond under s9 of the Crimes (Sentencing Procedure) Act 1999. 5 The second assault was before the Court and successively adjourned on 27 May, 1 July and 29 July 2005. On the first and last of these occasions the appellant was represented by Ms Pikett. During this period, local services were working with the appellant and reports from them were provided to the Magistrate as follows - 1. Waminda, Aboriginal Women's Health Service, 2. Department of Aging, Disability and Home Care, 3. Notes from caseworkers' meetings; and 4. Reports from Correction's Health Clinical Nurse consultant based at Nowra Courthouse. 6 The substance of these reports revealed the appellant as a vulnerable person with a history of mental health issues compounded by long-term alcohol abuse and intellectual disability, at significant risk of self-harm. The picture was complicated by a long history of severe sexual abuse said to be perpetrated by the appellant's foster father. The appellant had periodic involvement with Disability Services over a period of about ten years. She had been admitted a number of times to the Shellharbour Hospital Psychiatric Unit and was plainly distressed on many occasions when workers had attempted to counsel and assess her. Caseworkers were of the view that it was inappropriate for the appellant to appear in relation to her court matter as there was a substantial risk of increased symptoms of anxiety, self-harm and relapse into alcohol consumption. 7 On 28 July 2005 orders were made by the Guardianship Tribunal giving the Guardian custody of the appellant to the extent necessary to determine where the appellant could reside, what health care and medical treatment she may need and make decisions on her behalf concerning major services to which she should have access. 8 On 12 August 2005 Ms Pikett again appeared before his Honour Magistrate Dick and applied for an order pursuant to Part 3 of the Act. She tendered on that occasion a report from Mr Hudman and a report from Mr John Bolt, an aboriginal health worker from the Nowra Mental Health Team. For present purposes, perhaps the most significant report is that of Mr Hudman, a psychologist and term Leader, Community Support Team, South Coast with the Department of Aging, Disability and Home Care. 9 Mr Hudman had the benefit of consultations with and reports from relevant and qualified personnel who had been dealing with the appellant over a considerable period of time. Mr Hudman himself had interviewed the appellant on a number of occasions. His report contained the following - "Interviews with [the appellant] regarding an assessment of her understanding of court processes (in particular her foundational and decisional competence) were conducted over several sessions to allow time for rapport to be established. Several interviews also provide a better indication of her ability to retain new information over time. During the sessions, [the appellant] demonstrated some knowledge as to her solicitor's name, but did not understand the roles of the basic elements of the court, such as the prosecutor, judge, jury or what a plea was. Nor was she able to demonstrate an understanding of the words guilty or innocent. Furthermore, [the appellant] was not able to discern between a truth and a lie. It is considered unlikely that Jewel would be able to use reasoning to either relate relevant information to her legal counsel or make informed choices about alternate courses of action in making decisions in her defence. Decisions may have been further impeded if she was intoxicated at the time of the offence. [The appellant] has little appreciation of her current legal predicament and was unable to state what outcomes may occur from her impending court appearance. [The appellant] was able to understand the conditions of a bond after it was explained to her. As a further aid to assessing [the appellant's] comprehension of the basic elements of court, she was shown a video entitled "So you have to go to Court" that has been developed for people with learning difficulties. After viewing this video, [the appellant] was questioned again about the material that was presented and she did not demonstrate any significant comprehension of the basic elements…" 10 Mr Hudman also made an assessment of the appellant's adaptive behaviour, based on four different areas of functioning: motor skills; social interaction and communication skills; personal living skills and community living skills. He concluded that the appellant's functional independence was limited to very limited, with her performance comparable to that of an average person aged between nine and ten years. Similar assessments were made of her motor skills, her social interaction and communication skills and her personal and community living skills. 11 Mr Bolt's report stated, amongst other things, that the appellant had been housed in fully-supervised mental health accommodation and that she had been very good in participating in the programmes offered to enhance her coping and living skills. She was medicated with Celepram and Largactol daily. Overall, this report was positive. 12 Ms Pikett also produced the limited guardianship order. However, at that stage, a guardian had not yet been appointed. Ms Pikett's submitted - "The bottom line is, really, that this very thorough report from Mr Hudman indicates that [the appellant] has got no understanding of the legal system, she is not in a position to provide instructions and she certainly comes well within the ambit of s32." 13 The prosecutor submitted, on the other hand, that the appellant should not be dealt with under s32. He pointed out that she had earlier been dealt with under that provision on two other occasions which, he contended, demonstrated that she had not "benefited through being dealt with through the mental health system rather than the criminal justice system" since she had continued to commit offences involving violence. He also submitted that the community care in which she had been placed was inadequate for the purpose of ensuring that she did not commit any further offences. The prosecutor also submitted that the nature of the offences required criminal sanctions, as did the protection of the public. 14 The learned Magistrate considered that, whilst all the relevant matters, including the medical and psychological evidence, required consideration, "a point of focus must be the criminal history". The learned Magistrate noted that there were five convictions for anti-social offences, two for assault, one for assault occasioning actual bodily harm, one for malicious wounding, two for resisting police, three for assaulting police, three of malicious damage, and one of malicious damage by fire. Five matters had previously been dealt with by way of s32. Of these two involved assaults, two involved resisting arrest and one assaulting police. Almost all of the assaults were on her brother, with whom, as the reports showed, she had an enmeshed and troubled relationship. The learned magistrate noted that the maximum term for which he could discharge the appellant under s32 of the Act was only six months and it is clear that longer-term treatment was required. He described the s32 course of action as a "six month bandaid". His Honour noted - "It's apparent at this point that the accused is responding well and that's as a result of the operation of the criminal law [in enabling the imposition of a section 9 bond] and that operation of the criminal law sits comfortably with the report of Mr Hudman, and that course has a proven success rate in the past, particularly in relation to offences involving the same victim." 15 The learned Magistrate considered that the short period of control permitted under s32 could not achieve the long-term results which were required and, although he found the decision distasteful, thought that he was obliged to proceed with the matter according to law. Ms Pikett then sought an adjournment so that she could consider the position for her client. 16 It will be seen that the learned Magistrate did not consider the question whether the appellant was fit to plead. In my view, this was appropriate. His Honour took the course of refusing the application to deal with the appellant under the provisions of s32 of the Act and then adjourned the matter on the application of Ms Pikett. It is only when the court charges the defendant and requires a plea that the question whether the defendant is fit to plead needs to be determined. That time had not yet arrived.

The final hearing on the second assault 17 On 29 September 2005 the matter came on for hearing once more. On that occasion Mr Haesler SC (a Public Defender) appeared for the appellant. He sought a stay of proceedings, submitting - "…It's our submission that [the appellant] is unfit to take part in criminal proceedings in this Court and it would appear that there is a hiatus in the legislation. If that is the case then this Court would have no option but to stay the proceedings. It's not quite true in the sense that the option of s32 always remains, but we say they are the two options and we seek to proceed with the stay proceedings." 18 The hiatus to which Mr Haesler referred is the limitation of Part 2 of the Act, creating a specific procedure where questions of unfitness to be tried, arise to criminal proceedings in the Supreme and District Courts. Mr Haesler submitted that, where a person is unfit to be tried, in the absence of any other mode of dealing with the case, the trial cannot proceed and a stay of proceedings is necessary. 19 In support of his application, Mr Haesler SC called Mr Hudman, whose report of 27 July 2005, which had already been tendered to his Honour, was supplemented by an additional report of 28 September 2005. That report deals in detail with the particular matters mentioned in R v Presser [1958] VR 45 at 48. Briefly, Mr Hudman was of the view that whilst the appellant understood what she was charged with, she did not understand what it meant and did not understand the possible outcomes; she did not understand the difference between a serious offence and a minor one, having a view that all offences are serious and everything at court would lead to her being imprisoned; although the appellant would say guilty or not guilty she would not know what such a plea meant; she did not understand the difference between the truth and a lie; it is very likely that she would simply be mute. Mr Hudman thought that, due to the appellant's low level of cognitive ability the appellant would not understand the nature of the proceedings and pointed out that, in the proceedings before the Guardianship Tribunal, where DADHC workers explained to her several times what was happening, it was clear that she did not. Mr Hudman thought that the appellant would not be able to follow the course of proceedings as she was unable to follow abstract ideas or events and could not follow sequences, with a poor ability to recall new information or even things that are shown to her. Nor would the appellant follow the substantial effect of the evidence given against her, in particular evaluating it in the light of her own experience of events. Although the appellant could say what did or did not happen she could not, in Mr Hudman's opinion, evaluate the significance of what happened and, in particular, her own intentions or motivations at the time, for example the effects of intoxication, any fear of being beaten herself or whether she could have simply departed from the scene. Indeed, Mr Hudman thought that she could not give evidence in chief without being prompted. Mr Hudman thought that she would not be able to give her version of events to the court, would probably be unable to decide what defence to rely on and would have significant difficulties in following cross-examination. 20 As to her physical well-being and cognitive capacity, Mr Hudman stated - "[There has been an improvement] in her physical well-being and also from what we have seen in her presentation, both from what she usually discusses, a lot more open, a better, I would say, cognitive ability or capacity also. At some of those stages she was initially quite withdrawn. After leaving her previous domestic situation, she has begun to open out more and certainly is more receptive and accepting of services. [She] has more motivation also to want to move forward, look at restitution towards her children, wishing to take up vocational opportunities and pursue also further education to develop independent living skills. …[There were] social interventions and I think these to a large extent have made all the difference and that they certainly follow or match those sanctions that have [been] outlined by the court, but [the appellant] is certainly more of a willing participant and is motivated to move towards the successive goals, the disability services, Aboriginal services, and mental health services are working around." 21 Overall, Mr Hudman saw the changes in the appellant as positive and "a step again moving towards [the appellant] living in more independent accommodation". Mr Hudman also agreed that the conditions of the bond, which was imposed on 13 May 2005, were not dissimilar to the matters that all the collaborative services consider to be in the appellant's best interests, the distinction being, of course, that the bond is directed at the appellant and does not compel the provision of those services. 22 Ms Hunt, a community worker with the Nowra Community Support Team, who was the person principally responsible for coordinating the provision of services directed at assisting the appellant gave evidence of improvement in the appellant's attitude to the provision of assistance and, in particular, to obtaining accommodation independently of her brother. Ms Pikett gave evidence concerning her communication with the appellant concluding that the appellant did not understand her role as her lawyer, or the roles of the prosecutor or the magistrate, how the court functioned, what "guilty" and "not guilty" mean and what happens in court. Ms Pikett said that if the appellant was required to give evidence, she would be stressed, frightened, intimidated and in all likelihood remain mute; she would also be likely to agree with everything put in a leading question and would disagree with anything that her brother said in the witness box. Having regard to the length of Ms Pikett's connection with the appellant, I think that the opinions to which I have referred should be given considerable weight. 23 No attempt was made to qualify or contradict any of this evidence by the prosecution. No evidence was called by the prosecution. 24 The learned Magistrate rejected the application for a stay. His Honour noted that, although there was no doubt that the Local Court had the power to grant a stay in such proceedings as the appellant's, a stay would be granted only in rare and exceptional circumstances. His Honour noted the requirements to which Presser refers and then went on to say - "A permanent stay is an extreme remedy and it would be very rare on the basis of the matters that I have heard today. In Jago [v the District Court of NSW & Ors (1989) 168 CLR 23 at 33] Mason J said - 'In the safeguarding of the interests of the accused … the touchstone in every case is fairness. … The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial'. …" 25 The learned Magistrate referred to R v Mailes (2001) 53 NSWLR 251 in which Wood CJ at CL summarised the common law relating to fitness to plead and as well as dealing with the statutory regime to which I have already referred. The learned Magistrate then went on to say - "I have heard from Mr Hudman. He gives testimony of great improvement in [the appellant] in the areas of her life following an increase in her ability to open up, to become more receptive, to achieve goals in living independently. She's been making many decisions regarding her future lifestyle. In Hakim's Case [(1989) 41 A Crim R 372] it [was] said there is a combination of matters which the Court must have regard to. In that respect, the Court must address the capacity of the accused to understand the proceedings, to give instructions to a lawyer and to give a responsible account of past events and proper answers. It's not an unusual occurrence for the court to hear a matter on the basis that an accused cannot enter a plea, for a myriad of reasons including loss of memory, incidence of trauma or substance abuse etc. And those observations seem to be consistent with the NSW Court of Criminal Appeal decision in Drummond [unreported NSWCCA 27 May 1994]. I have had the opportunity to read exhibit 4 [the statement of Ms Pikett]. Clearly [the appellant] shows some ability to understand the proceedings. She has given a version of events. The court, of course, would have to take into account her impairment in considering any evidence that she gives and also assess, of course, the other evidence which is given in the proceedings. …[This] is a case where any unfairness should be able to be overcome by an appropriate order of the court during the proceedings. Generally speaking, the matters of abuse will fall into the considerations which have been the subject of submissions I've heard today. But, prima facie, the court must exercise its jurisdiction and the onus will be on the party asserting an abusive process to satisfy the court of the stay of proceedings. I am not so satisfied today and the matter will proceed according to law." 26 Mr Haesler SC then sought to renew the s32 application and pointed out that there was material additional to that which had previously been placed before the Court that was tendered on the hearing. Mr Haesler submitted that a different magistrate might reach a different conclusion as to the application of s32 of the Act. The learned Magistrate then disqualified himself and listed the matter the following week before another magistrate, continuing bail.

Discussion 27 The disqualification of the learned Magistrate was, I think, in accordance with s34 (since repealed) of the Act which is relevantly in the following terms - "Persons suffering from mental illness or condition (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990 and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3)."

The learned magistrate noted, for the purposes of the fresh hearing on s32, that "the application for a stay has been refused". 28 It is convenient first to deal with the problem arising from the appellant's unfitness for trial. Even though, in the case of a charge being heard in the Local Court, there is no statutory enactment either dealing with determination of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried, it seems to me that, where a defendant is found not fit to be tried, he or she must be discharged. So much is the effect of the judgment in Ngatai v The Queen (1980) 147 CLR 1 at 7-8, per Gibbs, Mason and Wilson JJ- "…If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such a case no doubt he should be discharged." 29 In this case there is no relevant mental disability that would bring the appellant within the provisions of the Mental Health Act and the consequence must be that, if unfit to be tried, she must be discharged; see also Pioch v Lauder (1976) 13 ALR 266. 30 In Mailes 53 NSWLR at 279 Wood CJ at CL described Presser as a "seminal case" on the question of fitness to plead. In passages cited with approval by Wood CJ at CL, Smith J said that "the question … is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him" going on to specify the following standards, which have been widely adopted (1958 VR at 48) - "He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and his counsel, if any." 31 In Eastman v The Queen (2000) 203 CLR 1 the issue of fitness to be tried arose in the context of s428E of the Crimes Act 1900 (ACT) and s68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT) in relation to whether an appellate court has a duty to consider fitness to plead of its own initiative, that is, where the matter had not been raised at trial. Wood CJ at CL quoted with approval the following passage from a judgment of Gaudron J (which was not questioned in any of the other judgments, although her Honour was in the minority as to the outcome of the case), (203 CLR at 21-23) - "'[59] A number of matters should be noted with respect to what was said in Presser . The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue…. [62] The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. … If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, 'no proper trial has taken place [and the] trial is a nullity'. To put the matter another way, there is a fundamental failure in the trial process. [63] The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum 'the trial [is] a nullity', the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law. That is the basis upon which this Court proceeded in Kesavarajah v The Queen where the question of fitness to plead should have been but was not submitted to the jury for determination. [64] Traditionally, an accused person has not been put on trial unless fit to plead because of 'the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing'. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead. [65] It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Act is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication." (Footnotes omitted, emphasis added). 32 It is evident that the prosecution and, for that matter, the learned Magistrate accepted that the evidence of both Mr Hudman and Ms Pikett was both accurate and reliable. In dealing with that material, as appears from the extract of the learned Magistrate's judgment which I have set out above, his Honour concluded that the appellant had some ability to understand the proceedings, noted that she had given a version of events and, I think, accepted that she was handicapped both in giving evidence and responding to other evidence given in the proceedings, these being matters which the court "would have to take into account". 33 It seems to me, with respect, that the learned Magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. If a defendant is not fit to stand trial in the Presser sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way. Some elements of unfairness may be able to be overcome by, for example, requiring the cross-examiner not to put leading questions to the appellant, but such an order strikes me as involving an inappropriate interference with the conduct of the trial by the prosecution. It is difficult to think of any other orders that might compensate for the fundamental limits in understanding and ability to communicate, especially an ability to communicate in the court environment, which were identified by Ms Pikett and Mr Hudman. 34 As the Crown Advocate pointed out during submissions in this Court, the learned Magistrate did not make any finding that the appellant was unfit for trial. His Honour approached the question facing him as being whether he could, by making some adjustments in the way in which the proceedings were undertaken, ensure that the trial was fair. 35 In my view, the question of fitness for trial is fundamental. In some cases, adjustments can be made to overcome the defendant's unfitness, as by providing a deaf person with a signing interpreter. But this is not to make the trial of a person who is unfit for trial a fair one: it is to remove the unfairness. 36 In my respectful opinion, there were no orders that the Court could have made that were capable of overcoming the appellant's unfitness. Where a defendant does not understand the nature of a plea, the elements of the charge and the essential nature of the proceedings, it does not make such a trial fair even though he or she is able to give a version of events. At all events, a fundamental problem identified both by Mr Hudman and Ms Pikett was that the appellant was simply not in a position to give that version of events in the court environment and deal with even an entirely proper cross-examination. Sympathetic allowance for the appellant's problems in this regard does not overcome the fundamental unfairness which her unfitness in respect of these matters demonstrates. This is not less so because it appears, as it happens, that the appellant has a good defence to the charge which might well result in her acquittal. 37 It is not, of course, appropriate for me simply to substitute my view of the facts for that of the learned magistrate. However, I am satisfied that his Honour erred in law in his consideration of the question of whether the appellant was unfit to stand trial. 38 As I have mentioned, the appellant also seeks to appeal from the order of the Magistrate declining to proceed under s32 of the Act. In order to establish this ground, it is necessary to demonstrate an error in the sense articulated by the High Court in House v The King (1936) 55 CLR 499. The decision whether or not to proceed under s32 depends upon a conclusion by the magistrate that "it would be more appropriate to deal with the defendant in accordance with the provisions of [Part 3] than otherwise in accordance with law": para 32(1)(b). In making such a decision the magistrate can consider not only an outline of the facts alleged but also any other evidence considered by the magistrate to be relevant. 39 This provision was recently considered by the Court of Appeal in DPP v El Mawas [2006] NSWCA 154. McColl JA (with whom the other members of the Court agreed) pointed out that the magistrate was required "to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s32(1) or mental illness (s33) with the object of ensuring that the community is protected from the conduct of such persons". In this respect, the provision has a diversionary purpose. I am not sure quite what her Honour meant by the phrase "full weight of the law", since it is clear that, in many cases, an alleged offender might well be innocent of any charge. But I do not apprehend that her Honour intended any more than a reference to the sentencing options available upon conviction or a finding that the offence has been proved. Such options include, of course, fulltime imprisonment but also a number of other possible courses of action designed to ensure that the sentence of the court is consonant with a just outcome that takes into account the objective circumstances of the offence and the particular subjective circumstances of the offender. 40 It is self-evident that a significant feature of any consideration of whether or not to proceed under Part 3 is the nature and hence, amongst other things, the seriousness of the alleged offence. Furthermore, in considering whether diversion is "more appropriate" than proceeding according to law, the magistrate is entitled indeed, in my view, bound to consider as a relevant matter the realistically available sentencing outcomes in the event of conviction. It would be entirely proper, on the assumption that sufficient pertinent material was placed before his or her Honour, even decisive significance on the sentencing options realistically available and appropriate in the event the offence were proved. By way of example, if the magistrate thought that it was very likely that a non-custodial option would be appropriate, then the balancing exercise would necessarily take that into account; a fortiori, if seemed that such an option was inevitable. Of course, the ability to realistically assess such a question would depend upon the extent of the available material. The powers of the magistrate in exercising the jurisdiction are wide. They were described by McColl JA as "powers of an inquisitorial or administrative nature…[demonstrating] the breadth of the enquiry the magistrate is entitled to undertake in determining whether to send a defendant along the diversionary route, or leave him or her to be dealt with in accordance with law": El Mawas at [74]. 41 In this case the learned Magistrate had, as I have indicated, a great deal of information about the appellant and the substantial assistance she had been and was being afforded by various community and government agencies, together with an outline of the alleged facts. His Honour's decision of 12 August 2005, as I have pointed out, gave significance to the criminal history of the appellant. In this respect, I think his Honour was considering not only the retributive and deterrent aspects of sentence but also the apparent failure of diversionary measures in the past to effectively change the appellant's conduct. His Honour pointed out that "the reports which have been tendered strongly suggest that long term treatment is essential" and pointed out that the effect of Part 3 was to limit supervision by the court to a period of six months. 42 This limit is, in substance, correct if the magistrate makes an order dismissing the charge under s32(3). However, the magistrate can also take action under s32(2) adjourning the proceedings, granting bail with or without conditions or making "any other order that the magistrate considers appropriate". 43 I interpolate that it is obvious that the last power is necessarily ancillary to the exercise of the magistrate's functions under s32, for example, imposing positive conditions as to residence, conduct, supervision or assessment during the adjournment or perhaps requiring further reports or information. The precise meaning of s32(2) is not easy to determine, having regard to the undoubted powers at all events available to a magistrate to adjourn proceedings, grant bail and make ancillary orders relating to the conduct of the proceedings. It is difficult, therefore, to see the purpose of inserting s32(2) in Part 3 unless it were intended as widening in some way the general powers of the magistrate, perhaps by permitting an interim position to be brought about before determining whether to make the order referred to in s33(3). It is important to note that the power given by s32(2) can only be exercised when the magistrate has made the decision required by s32(1)(b) so that, for example, an adjournment under s32(2)(a) could not be made for the purpose of considering whether it was more appropriate to divert a defendant rather than dealing with him or her in accordance with law. At the same time, the general power to adjourn proceedings must permit a magistrate to do so before making any decision under s31(1). I note also that it appears from the terms of s32(3) that the magistrate is not bound to make an order dismissing the charge although, having decided that the conditions of s32(1) are satisfied and having decided not to take action under s32(2), it seems inevitable that an order must be made under s32(3). I mention these matters simply to demonstrate that it might have been open to the learned Magistrate to have adjourned the proceedings in exercise of his Honour's general power to see how the appellant was coping with the regime then in place pursuant to the bond. 44 As has been mentioned, the appellant was already subject to a bond under s9 of the Crimes (Sentencing Procedure) Act 1999. In effect, the appellant was placed under the supervision of the Aboriginal Family Health worker and required to accept directions as to residence, non-consumption of intoxicating liquor and the like. She was also required strictly to comply with a current apprehended violence order that prevented contact with her brother. It is evident from the material that was tendered before the learned magistrate that the appellant was complying with the terms of the bond, and with the requirements of the AVO. 45 It seems that, for the reasons given, the Magistrate may have been able (if he had made a determination that diversion was appropriate under s32(1)) to deal with the appellant under s32(2) and then, when satisfied that the discretion under s32(3) should be exercised, doing so at that point. This could have extended by a considerable margin the six months' limit to which his Honour referred. It is fair to say, however, that this possibility was not put to his Honour and that the sole order sought was one under s32(3). In that respect, the learned Magistrate's concern that the effective period of supervision was six months was, in my view, undoubtedly relevant. His Honour concluded, as he was entitled to do, that if he were to make an order under s32(3), it would not "be fruitful in delivering the results identified in the experts' reports" and went on to say - "The prosecution strenuously opposed s32 discharge for what must be considered as valid reasons. I am satisfied that the criminal law can respond in an appropriate way. In relation to an AVO by consent…that may well keep the accused and the victim apart but that does not guarantee treatment. The experts are all of one mind: a long-term rein is required. It's apparent at this point that the accused is responding well and that is as a result of the operation of the criminal law and that operation of the criminal law sits comfortably with the report of Mr Hudman, and that course has a proven success rate in the past, particularly in relation to offences involving the same victim [i.e. the appellant's brother]." 46 His Honour therefore concluded that, although he accepted the thrust of the submissions made by Ms Pikett he thought that the short period of a s33 discharge meant that taking that course was not "more appropriate" than dealing with the defendant "otherwise in accordance with law". In this context, it is obvious that the learned Magistrate had in mind a non-custodial disposition that would give a longer period of Court supervision than would be the case had he made an order under s32. 47 It is principally submitted on the appellant's behalf that the learned Magistrate erred "by going outside the ambit of what the Act allowed… taking into account the legislative requirement that orders pursuant to the Act can only last for six months". This submission must be rejected. In my view, not only is that not an error but it was an essential matter to take into account. It seems to me obvious that, in exercising the discretion under s32 of the Act, a court must take into account the whole of the legislative scheme that it embodies, one part of which, clearly enough, is the effect of any orders that might be made under s32(3). 48 It is also submitted that the learned Magistrate erred by treating a decision to deal with the defendant according to law "as if that equated to punishment". I do not agree. It was, of course, necessarily implicit that, if the appellant were dealt with according to law, it would first be necessary to establish her guilt of the charge. But, in considering the appropriateness of diversion, it was entirely proper for the Magistrate to consider the range of outcomes that would be appropriate or likely to be appropriate in the event of conviction. In that respect, it is clear enough that his Honour had in mind a bond not dissimilar to that which he had already imposed on the appellant. Of course, his Honour would not have been bound to impose a bond upon conviction but this is not to suggest that the fact that his Honour had in mind that he would do so in the event of conviction was an irrelevant consideration for the purpose of exercising his jurisdiction under s32. 49 It is submitted that the learned Magistrate erred in not considering the question whether the appellant was unfit to plead at all events. As I understand the submission, it is that if a defendant is unfit to plead then it is clearly inappropriate that they should be dealt with according to law and it follows that this should be factored in to a decision whether to proceed under s32. I do not agree with this contention. As I have already said, dealing with a defendant according to law requires that the question of fitness for trial (assuming the matter is raised) to be determined prior to trial. It is not precluded by a refusal to divert under s32. Moreover, even where a defendant is unfit to plead, he or she may still be diverted under s32: Mackie v Hunt (1989) 19 NSWLR 130. 50 When the matter returned to the learned Magistrate on 28 September 2005 a further application to consider the diversion of the appellant was made, as I have mentioned. The learned Magistrate declined to make orders under s32 but gave no reasons for doing so, observing however, "that the criminal law has worked in the past and continues to work today in the form of a s9 bond imposed upon [the appellant] for another offence". It is clear to my mind that his Honour adhered to the view that he had expressed on the earlier occasion that it was not more appropriate to make orders under s32 than deal with the appellant according to law. In my view, the reasons for which the learned Magistrate made his second order appear sufficiently from the transcript of the proceedings as a whole.

Conclusion 51 The learned Magistrate erred in law in finding that the appellant was fit for trial. His Honour did not err in the exercise of his discretion not to proceed under s32. 52 The Magistrate implicitly made orders refusing discharge on the grounds of unfitness and refusing the application under s32 of the Act. I therefore grant leave to appeal. So far as the appeal concerns the order as to the appellant's fitness to plead it is allowed; so far as it concerns the order to proceed according to law it is dismissed. 53 I note that this matter is now set down to be heard by another magistrate, though it appears from the form of the order made by Magistrate Dick that this is only for the purpose of revisiting the application for diversion under s32. In the circumstances, I think that the appropriate order is that the implicit order that the appellant is fit to be tried should be quashed, so that the magistrate to whom the matter is referred will be able to consider any s32 application and, if that application is rejected, hear and determine any application for a stay on the ground that the appellant is unfit to be tried. 54 In light of the period that has elapsed since the appellant was charged, consideration should be given to whether it is necessary or desirable in the due administration of justice that the charges should now proceed. This, of course, is a matter for the authorities and not one as to which I express any opinion one way or another. 55 In the circumstances, I think I should make no order as to costs. **********

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