Mununggurr v Gordon & Ors [2011] NTSC 82

Plaintiff/Appellant: North Australian Aboriginal Justice Agency

Defendants/Respondent: Office of the Director of Public Prosecutions

Mununggurr v Gordon & Anor, Mununggurr v Balchin & Anor and Mununggurr v Gordon & Anor, Mununggurr v Gordon, Mununggurr v Gordon and Mununggurr v Balchin [2011] NTSC 82

No. 23 of 2011 (21108267), 24 of 2011 (21108270), 25 of 2011 (21108269) and JA 62 of 2010 (20818062), JA 63 of 2010 (20836006) and

[1] The plaintiff/appellant Mr Mickey Mununggurr appeared in the Court of Summary Jurisdiction charged with a number of offences. A question arose as to his mental condition at the time of the alleged offences and on 1 October 2010 the Court ordered that he be assessed and a report prepared by Top End Mental Health Services (TEMHS) pursuant to s 74 of the Mental Health and Related Services Act ("the Act").

[2] On 6 October 2010 the Court received a report from TEMHS expressing the opinion that Mr Mununggurr had a mental illness but did not require immediate involuntary treatment for that illness.

[3] On the same date the Court ordered that Mr Mununggurr be assessed and a certificate prepared pursuant to s 77 of the Act which provides as follows.

(1) This section applies to a person if:

• (a) the person is charged with an offence in proceedings before a court (other than proceedings for a committal or preliminary hearing); and

• (b) the court is exercising summary jurisdiction in the proceedings.

(2) The court may request from the Chief Health Officer a certificate in the approved form stating:

• (a) whether at the time of carrying out the conduct constituting the alleged offence, the person was suffering from a mental illness or mental disturbance; and

• (b) if the person was suffering from a mental illness or mental disturbance - whether the mental illness or disturbance is likely to have materially contributed to the conduct.

(3) The Chief Health Officer must not give the court the certificate unless the Chief Health Officer has received and considered advice on the person from an authorised psychiatric practitioner or designated mental health practitioner.

(4) After receiving the certificate, the court must dismiss the charge if satisfied that at the time of carrying out the conduct constituting the alleged offence:

• (a) the person was suffering from a mental illness or mental disturbance; and
• (b) as a consequence of the mental illness or disturbance, the person:

  • (i) did not know the nature and quality of the conduct; or

  • (ii) did not know the conduct was wrong; or

  • (iii) was not able to control his or her actions.

[4] Mr Mununggurr's matter was back before the Court on 18 November 2010 at which time the learned Magistrate had before him:

• (a) a certificate of the Chief Health Officer which recommended that the charges not be dismissed pursuant to s 77 of the Act;

• (b) a report by TEMHS employed psychologist Ms Kate Crawley upon whose opinion the Chief Medical Officer relied in producing the certificate; and

• (c) a report by psychiatrist, Dr Olav Nielssen, tendered by the defence, which disagreed with the opinion of Ms Crawley.

[5] The Court adjourned the matter for Dr Nielssen's report to be provided to TEMHS to see if agreement could be reached between the experts as to whether the charges against Mr Mununggurr should be dismissed pursuant to s 77.

[6] The matter was before the Court again on 25 November 2010 at which time the Court had before it a report of Mr Peter Mals, psychologist and Team Leader of TEMHS. Mr Mals had reviewed the reports of Ms Crawley and Dr Nielssen and found that neither could be preferred. The matter was set down for a hearing to determine whether the charges should be dismissed. The learned presiding Magistrate, Ms Morris SM, indicated that the question was to be decided following oral evidence from the three report writers.

[7] The matter came on for hearing before Mr Carey SM on 17 December 2010 at which time the Crown prosecutor and defence counsel made a joint submission as to the proper interpretation of s 77 of the Act, namely that before dismissing charges pursuant to s 77(4), the Court must have a certificate from the Chief Health Officer stating the matters set out in s 77(2) and, in addition, must be satisfied of the matters set out in s 77(4). Both parties submitted that the Court should hear evidence from the three experts and then make a decision whether or not to dismiss the charges.

[8] The learned Magistrate did not accept that joint submission. He held that he was bound by the certificate of the Chief Health Officer prepared pursuant to s 77(2) and could not go behind that certificate. The parties made joint application to his Honour to reserve that question of interpretation as a question of law for the consideration of the Supreme Court pursuant to s 162 of the Justices Act. That application was refused, and the matter was adjourned so that the Chief Health Officer could consider the report of Dr Nielssen and prepare a new certificate.

[9] The matter was before the Court again on 22 December 2010 at which time the Court had before it a further certificate of the Chief Health Officer again recommending that the charges not be dismissed. Joint application was again made to the Court to reserve a question of law for the consideration of the Supreme Court, and that application was again refused. His Honour ruled that he was bound to accept the contents of a certificate of the Chief Health Officer under s 77(2) as determinative of the matters of which the court must be satisfied under s 77(4). Relevantly, his Honour said:

"... in my view, I should act on the certificate, particularly given that its considered all of the available medical material and it's been considered by the Chief Medical Officer, an expert in the field, in my view I must rely on the certificate."

[10] The matter was adjourned to 23 December 2010 for defence counsel to take further instructions.

[11] On 23 December 2010 three notices of appeal were filed appealing to the Supreme Court pursuant to s 163 of the Justices Act against the decision not to hold a hearing - one notice of appeal in relation to each of the three complaints that were before the Court of Summary Jurisdiction.

[12] Three originating motions were filed on 21 February 2011 (again one for each complaint) seeking prerogative relief.

[13] The justices appeals and originating motions were all heard together by me on 8 April 2011. Counsel for Mr Mununggurr and the Crown prosecutor filed joint submissions. I agreed with those submissions and on 8 April I made an order in the nature of mandamus pursuant to Rule 56 of the Supreme Court Rules directing the Court of Summary Jurisdiction to proceed with a hearing for the purposes of determining whether or not an order should be made under s 77(4) of the Act in relation to each of the three matters before the Court in relation to Mr Mununggurr, and dismissed each of the three appeals. On that date I indicated that I would publish my reasons at a later time. These are those reasons.

[14] The power to dismiss a charge is contained in s 77(4). That subsection provides that the Court must dismiss the charge if satisfied that at the time of carrying out the conduct constituting the alleged offence:

• (a) the person was suffering from a mental illness or mental disturbance; and
• (b) as a consequence of the mental illness or disturbance, the person:

  • (i) did not know the nature and quality of the conduct; or

  • (ii) did not know the conduct was wrong; or

  • (iii) was not able to control his or her actions.

[15] That power can only be exercised after the Court has received a certificate from the Chief Medical Officer stating:

• (a) whether at the time of carrying out the conduct constituting the alleged offence, the person was suffering from a mental illness or mental disturbance; and

• (b) if the person was suffering from a mental illness or mental disturbance - whether the mental illness or disturbance is likely to have materially contributed to the conduct.

[16] That certificate cannot be determinative of the question for decision by the Court under s 77(4) for two reasons. First, the certificate is directed to a different question from that to be decided by the Court under s 77(4). Both the Chief Medical Officer and the Court must determine whether at the time of carrying out the conduct constituting the alleged offence the person was suffering from a mental illness or mental disturbance. Thereafter the enquiries differ. The Chief Medical Officer must state whether the mental illness or disturbance is likely to have materially contributed to the conduct. That is a different matter from that which the Court must determine under s 77(4), namely whether, as a consequence of the mental illness or disturbance, the person:

• (i) did not know the nature and quality of the conduct; or

• (ii) did not know the conduct was wrong; or

• (iii) was not able to control his or her actions.

[17] I was not provided with copies of the certificates issued by the Chief Medical Officer in this case, but the joint submissions filed by counsel stated that the certificates had "recommended the charges not be dismissed". That is not the proper function of a certificate under s 77. It must state the matters (and only the matters) set out in s 77(2).

[18] A certificate under s 77(2) can only be given after the Chief Health Officer has received and considered advice from an authorised psychiatric practitioner or designated mental health practitioner [s 77(3)]. That advice will normally be in the form of a report - which may address the matters to be stated in the certificate as well as the matters to be considered by the Court for the purposes of the decision to be made under s 77(4), and if it is placed in evidence before the Court, the Court may take that report into account in making its decision under that sub-section.

[19] The second reason why the certificate cannot be determinative of the decision to be made by the Court under s 77(4) is that that sub-section plainly requires the Court to be satisfied of the relevant matters. In order to do that, the Court must undertake its own assessment of those matters, which it can only do by considering relevant evidence.

1. The joint submission pointed out that if the learned Magistrate were correct, and the section required the Court to act in accordance with the certificate of the Chief Health Officer, that would raise issues as to the validity of s 77 on the grounds that it "authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court's institutional integrity".[1] However, that does not arise, as the subsection plainly requires the Court to be satisfied of the relevant matters; it does not require, or authorise, the Court to accept the certificate of the Chief Health Officer as determinative of those questions.

1. [1] South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1, per French CJ at [82], Gummow J at [149], Crennan and Bell JJ at [436] and Kiefel J at [481].