s 334 - appellate jurisdiction of Supreme Court beyond Magistrates Court Act 1930 (ACT)

pt 3.10 - whether jurisdiction may derive from Supreme Court Act 1933 (ACT) s 20 or Australian Capital Territory (Self-Government) Act 1988 (Cth) s 48A - Kelly v Apps considered - no right of appeal against decision under s 334 - prerogative relief may be available.

CRIMINAL LAW - diversion to mental health tribunal - disposition of criminal charges under Crimes Act s 334 - section operates at every stage of a summary trial - plea of guilty not a prerequisite - diversion a discretionary decision - test for exercise of discretion "appropriateness" - relevant factors to determine appropriateness - possible criminal justice proceedings relevant - subjective factors relevant - meaning of "seriousness of the alleged offence" in context - seriousness determined by reference to maximum penalties and circumstances of alleged conduct - no appellable error in discretionary decision.

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

Crimes Act 1900 (ACT), ss 26, 309(1), 331, 334. 336, 428W

Crimes Act 1900 (NSW), s 428W

Magistrates Court Act 1930 (ACT), ss 207, 208, pt 3.10

Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Mental Health and Related Services Act 1998 (NT), s 77

Mental Health (Treatment and Care) Act 1994 (ACT), ss 29, 30

Supreme Court Act 1933 (ACT), ss 20, 34B

ACT Mental Health Review Committee, Legislative Assembly of the Australian Capital Territory, Balancing Rights (1990)

Explanatory Statement, Crimes (Amendment) Bill 1994 (ACT)

Lewis Carroll, Alice's Adventures in Wonderland (Lee and Shepard, 1st ed, 1869)

Falstein, M F, Falstein, S E, McHugh, P R, 'Mini-Mental State: A practical method for grading the cognitive state of patients for the clinician' (1975) 12 Journal of Psychiatric Research 189

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616

Commissioner for Housing v Ganas [2003] ACTSC 34; (2003) 150 ACTR 1

Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159

De Domenico v Marshall [2001] ACTSC 52; (2001) 146 ACTR 30

Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93

Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124

Evans v Shiels [2004] ACTSC 19; (2004) 185 FLR 1

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101

Mackie v Hunt (1989) 19 NSWLR 130

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Minister for Corrective Services v Harris (Unreported, Supreme Court of NSW, Brownie J, 10 July 1987)

Mununggurr v Gordon (2011) 30 NTLR 45

O'Neill v Lockyer (2012) 260 FLR 124

Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993)

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Rose v Snape [2000] ACTSC 115

Sleiman v Murray [2009] ACTSC 82; (2009) 231 FLR 224

Thiele (1986) 19 A Crim R 105

Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. In 1994, the ACT Government substantially revised the system of mental health regulation in the ACT following a wide-ranging review by the ACT Mental Health Review Committee.

2. In their Report to the Legislative Assembly of the Australian Capital Territory, Balancing Rights (1990), the Review Committee recommended (at 10):

Recommendation 42

In the case of offenders who are mentally dysfunctional and who have been found fit to plead or whose mental illness or condition has not been found relevant to the offence, the Court be empowered to discharge the person or refer the person into the mental health system for care, treatment and protection. Consequently, legislation similar to S32/S33(1) of the NSW Mental Health (Criminal Procedure) 1990 Act [sic] be adopted in the ACT.

3. That recommendation apparently was accepted, for a provision - s 428W - was inserted in the Crimes Act 1900 (ACT) (ACT Crimes Act) by the Crimes (Amendment) Act 1994 (ACT), that provision being similar to s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) (which was, in 2008, renamed the Mental Health (Forensic Provisions) Act 1990 (NSW)). In an interesting irony, the New South Wales provision had originally appeared also as s 428W of the Crimes Act 1900 (NSW) (NSW Crimes Act) before being relocated.

4. The Explanatory Statement to the Bill that became the Crimes (Amendment) Act gave no particular explanation of the new ACT section but merely gave a précis of it. The Presentation Speech made some reference to the provision as follows (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 June 1994, 2026, 2257-8 (Terry Connolly, Attorney-General)):

At present if a mentally dysfunctional person comes into contact with the courts it will usually be the Magistrates Court in relation to a summary offence. A Magistrate may conclude that, having regard to the person's mental dysfunction and the minor nature of the alleged offence, it is appropriate that the charge be dismissed and the person be referred to the mental health authorities.

The Bill confers the power to make such orders on Magistrates and ensures they retain the flexibility to make other appropriate orders in these cases. Magistrates will be able to seek advice from the Tribunal as to whether a person is mentally dysfunctional and recommendations as to how the person should be dealt with. The Magistrates Court will be able to refer mentally dysfunctional persons who have been convicted of a summary offence to the Tribunal for the making of a mental health order.

5. The provision was subsequently amended to expand its provisions somewhat and, in 2002, renumbered on republication as s 334. It is now in the following terms:

334 Powers of Magistrates Court

(1) This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that -

(a) the accused is mentally impaired; and

(b) on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division.

(2) If this section applies, the Magistrates Court may by order -

(a) dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order; or

(b) dismiss the charge unconditionally.

(3) In determining whether to make an order under subsection (2) (a) or (b), the Magistrates Court shall have regard to -

(a) the nature and seriousness of the mental impairment; and

(b) the period for which the mental impairment is likely to continue; and

(c) the extent to which by reason of the accused's mental impairment the accused is likely to do serious harm to himself or herself or others; and

(d) whether the ACAT could make an order under the Mental Health (Treatment and Care) Act 1994, section 26 (What ACAT must take into account) or section 27 (ACAT may not order particular drugs etc); and

(e) the seriousness of the alleged offence; and

(f) the antecedents of the accused; and

(g) the effectiveness of any order previously made under subsection (2) (a) or (b), including to the extent to which -

(i) the order assisted the accused to obtain appropriate treatment and care for his or her mental impairment; and

(ii) access to that treatment and care has enabled the accused to modify his or her behaviour, being behaviour of a kind that has previously resulted in the accused having been charged with an offence.

(4) Despite subsection (2), the Magistrates Court may only make an order under that subsection in relation to proceedings with respect to an indictable offence that may be heard and determined summarily with the consent of the director of public prosecutions.

(5) If the Magistrates Court makes an order under subsection

(2) (a), the order operates as a stay of proceedings, or of further proceedings, against the accused in relation to the offence.

(6) If the Magistrates Court makes an order under subsection (2), it must not make an order under any of the following provisions of the Crimes (Sentencing) Act 2005 for the offence:

(a) section 13 (Good behaviour orders);

(b) section 17 (Non-conviction orders - general);

(c) section 19 (Reparation orders - losses and expenses generally);

(d) section 20 (Reparation orders - stolen property).

(7) An order under subsection (2) does not constitute a finding that an offence has or has not been committed.

(8) In proceedings to which this section applies, to determine whether an accused has a mental impairment, the Magistrates Court may make any orders it considers appropriate, including the following:

(a) that the accused submit to the jurisdiction of the ACAT;

(b) that the proceedings be adjourned ...

6. Under s 336 of the ACT Crimes Act, the Magistrates Court, in conducting an inquiry for the purposes of s 334, may inform itself as it considers appropriate.

7. Section 334 of the ACT Crimes Act is substantively and procedurally different in some respects to the NSW provision so, while authorities on s 32 of what is now the Mental Health (Forensic Provisions) Act can be helpful and offer useful insights, they must be approached with caution.

8. A similar provision, s 77 of the Mental Health and Related Services Act 1998 (NT), also provides a useful comparison, though it is procedurally farther removed from the ACT provision. Nevertheless, decisions such as Mununggurr v Gordon (2011)

30 NTLR 45 and O'Neill v Lockyer (2012) 260 FLR 124 repay careful but selective consideration.

9. On 7 August 2011, the appellant, Lemuelle Nelson, was arrested and charged with four offences of assault contrary to s 26 of the ACT Crimes Act, allegedly committed on 3, 4, 6 and 7 August 2011 against the same complainant.

10. He appeared in the Magistrates Court on 8 August 2011 and an order was made under s 309(1) of the ACT Crimes Act that he be taken to the Canberra Hospital for examination by a medical practitioner.

11. The material available to me does not enable me to say what then happened other than that Mr Nelson was apparently remanded in custody. The proceedings were adjourned on a number of occasions because of issues with his legal representation. On 16 November 2011, the Court was advised that an application would be made for Mr Nelson to be dealt with under s 334 of the ACT Crimes Act or a plea of not guilty would be entered and, of course, a hearing would then have to be held.

12. On 25 October 2011, Mr Nelson was examined by Dr Graham George, Consultant Psychiatrist. Dr George reported a diagnosis of chronic paranoid schizophrenia and that, when not taking his medication, Mr Nelson "relapses ... and he becomes psychotic". Dr George noted that Mr Nelson "makes a good response to antipsychotic medication". He was concerned that Mr Nelson's symptoms may be contributed to by his substance abuse, but was satisfied of the diagnosis of paranoid schizophrenia.

13. He noted, too, that, on being taken into custody, which was on the day of the last alleged assault, Mr Nelson

was actively psychotic. He said he was 'hearing voices' at the time. He also indicated an element of paranoia. In that context, he said that on occasions, he was fearful of members of the public. This meant that, sometimes, he would arm himself with a knife in order to protect himself, if need should arise.

14. Whether this would be sufficient to show a defence of mental impairment which would lead to an acquittal on that ground is not for me to say, but may be relevant to any further proceedings.

15. In any event, Dr George expressed the following opinion:

Whilst taking antipsychotic medication [Mr Nelson's] health has improved and currently, at this point in time, he did not present with acute symptoms. However, he does suffer a chronic mental illness which affects his insight and judgment when he is not medicated. For this reason, he requires to be on a Psychiatric Treatment Order, probably indefinitely and in addition to this, assiduously followed by Mental Health Services. His prognosis is quite guarded.

THE APPLICATION

16. On 7 December 2011, the application under s 334 of the ACT Crimes Act was made, relying on Dr George's report. The prosecution opposed the application.

17. It was submitted on behalf of Mr Nelson that he was mentally impaired, a proposition clearly supported by the report.

18. Rather oddly, the prosecution seemed to challenge the diagnosis on the basis that Dr George's report was "largely based on self-reporting. He does state that no mini-mental state exam was conducted."

19. That is not quite correct. It is true that a mini-mental state examination was not conducted, but it is by no means clear that, given that Mr Nelson was at the time medicated, this was at all relevant to the purposes of Dr George's report. Such an examination is used to screen for cognitive impairment: Marshal F Falstein, Susan E Falstein, Paul R McHugh, 'Mini-Mental State: A practical method for grading the cognitive state of patients for the clinician' (1975) 12 Journal of Psychiatric Research 189.

20. In any event, and more importantly, Dr George expressly noted that he had available to him an "oral report from Mr Nelson's treating psychiatrist", a sure basis for his finding that Mr Nelson had a diagnosis of schizophrenia, his treatment, the effects of it and the prognosis, all of which Dr George had, by clinical examination, satisfied himself was confirmed. There was, in any event, no attempt to have Dr George cross-examined so that the challenge could properly be put to him.

21. Fortunately, the learned Chief Magistrate did accept that Mr Nelson was suffering a mental impairment.

22. The application was then based on the submission that it was appropriate that Mr Nelson be required to submit himself to the ACT Civil and Administrative Tribunal (the ACAT) so that, as recommended by Dr George, a psychiatric treatment order could be made. Indeed, it was noted that, if Dr George's recommendation was followed, "that order will follow [Mr Nelson] all his life".

23. It was submitted that all the matters referred to in s 334(3) supported the making of such an order: Mr Nelson is seriously mentally ill; the illness is unlikely to abate; by virtue of his condition, he is likely to be a danger to himself and others (as his history of violence and property offences show); the treatment order can enforce medication and a treatment regime; the offences are summary assaults, not more serious assaults such as those occasioning actual bodily harm; and there were no prior treatment orders made.

24. The prosecution accepted that the diagnosed condition would last indefinitely but submitted that Mr Nelson posed a "significant risk" to the community, which would make a disposition under s 334 "a somewhat lenient disposition" but also, in some unspecified way, afford "limited" protection to the community. It would also mean that Mr Nelson would not be held accountable for his offending. The assaults were, it was submitted, serious; "a prolonged course of assaults ... over several days. Some of a lower level, but some certainly of this more higher level, such as the placing of pressure on the victim's [sic] throat, causing her to feel as though she would be strangled. There were occasions where a neighbour intervened, but it did not deter Mr Nelson from attacking the victim [sic] on other - subsequent occasions."

25. The learned Chief Magistrate considered, over objection from Mr Nelson's counsel, that it was relevant for her Honour's consideration whether the offence was related to the mental illness. With respect to Mr Nelson's counsel, such an issue must ordinarily be included in a consideration of the seriousness of the offence. Her Honour, in any event, pointed out that the s 334(3) criteria were not specified in the section to be an exclusive list of matters for consideration but of the matters to which the Court, asked to proceed under the section, must have regard, in addition to others, so long, of course, as any other such matters were relevant.

26. Mr Nelson's counsel also submitted to her Honour that the reference in s 334(3)(e) to the seriousness of the offence was a reference only to the maximum penalty provided for the offence, rather than the nature of the actual allegation. Her Honour, in my view correctly, rejected that submission. Indeed, as pointed out by the prosecutor,

s 334(1)(b) requires the Court to have regard to "an outline of the facts to be alleged", which clearly is a basis on which the Court can determine the seriousness of the alleged offence in this sense.

27. The prosecutor also pointed out that Dr George had not concluded that at the time of the alleged offending behaviour, Mr Nelson, who was not then taking his medication, had acted as he did because of that and that, therefore, a treatment order requiring him to take his medication could not necessarily be said to be likely to prevent a repetition of the offences. I am not sure that this is a fair assessment of Dr George's approach.

28. Reference was also made by the prosecutor to Mr Nelson's long history of violent offences. She referred, too, to the presence of drug and alcohol use at the time of the alleged offending.

29. The prosecutor further referred to the distinct possibility of a finding at trial of not guilty by reason of mental impairment, permitting a reference to the ACAT which could, in turn, make a mental health order.

30. The learned Chief Magistrate referred to the material before her and, as noted above (at [21]), accepted that Mr Nelson was mentally impaired. Her Honour accepted that it was a "serious mental impairment" and was "likely to continue for the foreseeable future ... a chronic condition".

31. Her Honour concluded that Mr Nelson was at risk of doing serious harm to others and, while less certain, that "there must be some risk of harm [to himself] during periods of psychosis." Her Honour also concluded that the ACAT could make an order of the kind recommended by Dr George.

32. As to the seriousness of the offence, her Honour considered that the offences, which allegedly occurred over three days and included kicking, throttling and choking, were serious and put the complainant "at risk of harm". Her Honour also considered the antecedents of Mr Nelson, which she described as "extensive", including a number of convictions for offences of violence, and referred to the penalties that had been imposed in the past, including disposition subjecting Mr Nelson to mental health interventions which, however, were not "exactly comparable to that pursuant to section 334".

Balancing all of those factors, I form the view that it is not appropriate on this occasion to dispose of the matter pursuant to section 334 of the Crimes Act. The reason for that is this: clearly Mr Nelson has a significant issue with violence in the community and whilst I accept on the submissions made that it would be highly beneficial to Mr Nelson and to the community for a treatment order to be put in place, it seems to me that it's also necessary for these criminal allegations to be properly dealt with before the court so that there can be a recognition and an acceptance of responsibility of any actions which have been taken and an understanding by the courts which are required to deal with Mr Nelson as to his offending behaviour.

I do note that if convicted ultimately it is open to the court to refer the matter to ACAT prior to sentencing, pursuant to section 331 of the Crimes Act and it may well be ultimately that that is an appropriate disposition. I wouldn't seek to bind any future court and of course, it may well be that Mr Nelson is not convicted of these matters, noting that pleas of guilty have not been entered. All of that said, it brings us back now then to listing these matters for hearing.

34. Mr Nelson sought to appeal against the decision.

35. On 22 December 2011, a Notice of Appeal was filed on behalf of Mr Nelson. It sought to appeal against the order of the Magistrates Court to refuse to make an order under s 334(2)(b) of the ACT Crimes Act. Though her Honour did not articulate an order in these terms, it seems to me that this is accurately the effect of what her Honour did. The Bench Sheet records, in her Honour's hand "s 334 Application heard - and dismissed".

1. That in exercising her discretion the Chief Magistrate took into consideration matters which were irrelevant to the determination of the application;
2. That in exercising her discretion the Chief Magistrate failed to take into account matters which were relevant to the determination of the application; and
3. That the Chief Magistrate misconstrued section 334(3)(e) and (g) of the Crimes Act 1900 (ACT).

37. As Smart J said, of s 32 of the Mental Health (Criminal Procedure) Act, in Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993) at 8, the provision introduces "a more flexible scheme which recognises the variety of mental states which may exist and ... overcome[s] some of the rigidity which had previously existed" in relation to persons affected by mental impairment who are subject to the criminal law. It should be construed and applied in this context.

38. The section operates whether or not a plea has been entered and, as also noted by Smart J in Perry v Forbes at 10, allows "a person to be dealt with in special ways appropriate to their condition and obviates the need for a court to embark upon a full hearing on the merits and to proceed to a conviction.

39. The section is clearly available at every stage of a summary trial and applies in a wide range of circumstances. In addition to being available whether or not a plea has been entered it is, as Campbell J noted of s 32 in Mackie v Hunt (1989) 19 NSWLR 130 at 134-5, also available whether or not a person is fit to plead or not. It is, as the Court there noted, a diversionary measure.

40. Section 334, however, is a little more circumscribed than s 32 for, in particular, the interlocutory options available, as described in Minister for Corrective Services v Harris (Unreported, Supreme Court of NSW, Brownie J, 10 July 1987) in respect of s 428W of the NSW Crimes Act (now s 32 of the Mental Health (Forensic Provisions) Act), are somewhat more limited.

41. Nevertheless, it needs to be remembered that while the diversion which the final order mandates may not have the possible custodial effect that proceedings according to law may ultimately require, the conditions under a mental health order may restrict the defendant's freedom of movement and action, as is clear from the content of a psychiatric treatment order set out in s 29 of the Mental Health (Treatment and Care) Act 1994 (ACT). Indeed, when a person is before the ACAT, it may also make a restriction order under s 30 of that Act which permits a person to be detained at a stated place.

42. In Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 (El Mawas) at 109-10: [79], McColl JA, with whom Spigelman CJ and Handley JA agreed, held that a provision such as s 32 of the Mental Health (Forensic Provisions) Act is available to serious offenders, so long as the Magistrate considers it is more appropriate than the alternative, namely, to proceed according to law.

43. McColl JA in El Mawas considered in detail the nature of the exercise that a Magistrate was required to undertake in that case. It is similar under s 334 of the ACT Crimes Act. In particular, her Honour said (at 108; [71]), that the section

requires a magistrate to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to ...

44. This is, her Honour found, after a careful review of the authorities, a discretionary decision, though involved in making a value judgment. It is not necessary to repeat what her Honour there said, but I respectfully adopt it. Her Honour (at 109; [76]-[78]) approved the description of the task by Howie J in Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 at [16]-[18] as follows:

1. It is clear that s 32 requires the magistrate to make a discretionary judgment as to the appropriateness of proceedings under the section rather than under the general criminal law. But the section requires a magistrate to arrive at a positive finding of fact before proceeding to deal with the defendant under the provisions of Part 3 of the Act. The magistrate can only proceed under s 32(3) to dismiss the charge or discharge the defendant where, in accordance with s 32(1)(b), the magistrate has determined that;

... it would be more appropriate to deal with the defendant in accordance with the Provisions of this Part than otherwise in accordance with law.

1. In order to determine whether it is more appropriate to deal with the applicant under Part 3 the Magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act. It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.
2. Because the magistrate's jurisdiction under the Act involves a discretionary judgment, what weight is to be given to the various factors that touch upon that judgment will be very much a matter for the particular magistrate. It would be very difficult, if not impossible, for a defendant to convince this Court to intervene in the exercise of that discretion simply on the basis that the magistrate appeared to give more weight to one factor than another. As with any appeal against a discretionary judgment, the basis upon which this Court can intervene in the exercise of the power under s 32 is very limited.

45. Thus, the decision is one that, on review, is subject to the limitations that are set out in the well known passage from House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. It is, no doubt, for this reason that the Notice of Appeal referred to relevant and irrelevant considerations and to misconstrual of paragraphs of s 334 by the learned Chief Magistrate.

46. For reasons not entirely clear to me, written submissions were not filed by either party. This is very undesirable and impedes the effective and timely disposal of proceedings.

a) Her Honour erred in deciding that the allegations should be heard according to law for the reason that there would be recognition and accountability for his actions. That was said to be an error because it assumes a finding of guilt.

b) Her Honour erred in subverting the purpose of the section when her Honour accepted that, after a finding of guilt, were one to be made, the appellant could be diverted to the mental health system under s 331 of the ACT Crimes Act in any event.

c) Her Honour erred in having regard to the facts of the offence when considering the seriousness of the offence under s 334(3)(e), for that provision only referred to the seriousness of the offence by reference to the maximum penalty.

d) Her Honour erred by having regard to matters that would only be relevant on sentencing.

48. The case for the respondent was, in fact, quite different to that made before the learned Chief Magistrate, which I have set out above (at [24] and [27]). It was, instead, that the diversion under s 334 can only be used where there has been a plea of guilty. As the appellant had indicated an intention to plead not guilty, it was submitted on appeal that the diversion was not available. This submission had never been put to her Honour. It was, however, also submitted that her Honour had taken into account all the relevant circumstances. The respondent further argued that Mr Nelson could obtain medication and treatment independently of the court system so that if, as now appeared, his mental health was already medically controlled, diversion was not required.

49. The decision of her Honour was a discretionary one. It is always difficult to appeal against a discretionary decision. It is not the function of an appellate court simply to substitute its own discretion for that which the legislature reposes in the court of first instance.

Whether diversion under s 334 is only available following a plea of guilty

50. I turn first to the first submissions of the respondent that the benefit of the section was only available to a defendant who pleads guilty. I reject the contention.

51. There is nothing in the section which requires that. Indeed, references in it to "facts to be alleged" (s 334(1)(b)), "alleged offence" (s 334(3)(e)) and that a finding under s 334(2) does not constitute a finding that an offence has or has not been committed (s 334(6)) all point away from that interpretation.

52. In addition, it is clear from the authorities in NSW that this is not required. In Mackie v Hunt, no plea had been entered when the defendant embarked upon her application. In Perry v Forbes, the defendant had not entered a plea and Smart J commented

(at 11) that Ms Perry's counsel "also submitted correctly that Pt 3 of the Act [which includes s 32] has operation in proceedings whether or not a plea is entered or whether or not the defendant is fit to plead". Finally, McColl JA cited this reference with apparent approval in El Mawas at 106; [63].

53. I accept that a court would have to be circumspect when dealing with a defendant under this provision. For example, it would be inappropriate to deal with a defendant if there was no real likelihood that the defendant was the person who committed the alleged offence. This, however, is different from requiring a plea of guilty before the diversion under the section is available. For example, the defendant may be unfit to plead or have a defence of mental impairment available, neither of which situation would justify the entry of a plea of guilty, but both of which may well justify action under this section.

54. In my view, the first submission of the respondent is unsupported and cannot be accepted.

55. The first of the appellant's submissions appears as a challenge to the principle on which the learned Chief Magistrate acted but seems to me simply to be a challenge to the weight her Honour gave to a relevant factor. In this, it is closely related to the fourth ground.

56. While the option afforded by the section is a diversion and, as I have found, able to be afforded a defendant without a plea being entered, part of the balancing exercise has to be to weigh up the possible (or even likely) outcome were the defendant dealt with in accordance with the ordinary criminal justice system.

57. While, unlike s 32 of the Mental Health (Forensic Provisions) Act, which uses the words "more appropriate" as the test, s 334 does not use the word "more" but only "appropriate", it seems to me that the effect is similar, though it may not be exactly the same. Thus, if it is "appropriate" (a discretionary finding: El Mawas) to deal with a defendant under s 334, then it may not matter much whether it is appropriate or even more appropriate that he or she be dealt with under the ordinary criminal justice system. To find whether it is appropriate, however, the Court must give some consideration to the possible proceedings under the ordinary criminal justice system.

58. In that context, it seems to me that accountability may very well be a pertinent issue in deciding whether it is appropriate that the defendant be diverted at this early stage. That is particularly so when s 331 of the ACT Crimes Act permits diversion after conviction, where issues of accountability and criminal record can be met without preventing proper reference to the criminal justice system.

59. This is reinforced by the mandatory consideration of the seriousness of the offence and the defendant's antecedents, both of which are highly relevant to these considerations, to which the section requires the Court to have regard.

60. It is not, unlike the submissions of the prosecution before her Honour, a question of whether the diversion is a "lenient option", though that may be part of the consideration, but rather what is appropriate. That must entail some reference to considerations that would be also relevant to a sentencing exercise. Nevertheless, for reasons set out above (at [41]), such diversion may well not be lenient. That does not seem to me to be a proper or relevant consideration. The question is "appropriateness".

61. Thus, it may be highly relevant as to whether the defendant's mental impairment was treatable or otherwise amenable to management within the mental health system; if it were not, diversion to the ACAT may be pointless. It would also be relevant as to whether the defendant's mental impairment contributed to the commission of the offence, even if not to the degree to permit an acquittal on the grounds of mental impairment, for treatment may protect the community from further offending. It would also be relevant as to whether the defendant was floridly ill, though not unfit to plead, so that for an offence that was not sufficiently serious the process of the ordinary criminal justice system can, in the exercise of some common humanity, be circumvented.

62. I do not consider that, so far as the first and fourth grounds argued by the appellant, as I have set them about above (at [48]), her Honour erred and these grounds must be dismissed.

Her Honour's contemplation of a future s 331 disposition

63. The second ground is not easy to address. The appellant appears to submit that since, if the defendant were to be found guilty, the learned Chief Magistrate contemplated the possibility of a disposition under s 331 of the ACT Crimes Act, her Honour should have proceeded under s 334 for that was, in reality, to the same ultimate effect, just bypassing the trial, with its attendant delay, cost and stress for Mr Nelson and, of course, the complainant. There is some force in that.

64. At the risk, however, of referring to what the Queen of Hearts said in Lewis Carroll's Alice's Adventures in Wonderland (Lee and Shepard, 1st ed, 1869) at 187, namely, "sentence first - verdict afterward", it seems to me that what the appellant submits is too simple an approach. It is inadequate to say merely that, since the outcome may turn out to be the same, the process should be abandoned. There are reasons why the ordinary processes should be followed: they provide a protection to defendants, especially those who are vulnerable; the defendant may wish to be exonerated by a trial; and the alleged offences may be so serious that it is appropriate that a finding of guilt be recorded.

65. Were the position as submitted by the appellant, that would denude the provisions of the option of a trial which they clearly contemplate. It seems to me that the statutory provisions should be given meaning and content. See the relevant principle as articulated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382; [71].

66. I am also not attracted to the argument made by the appellant that, were there to be a trial, the defendant may be acquitted and then his mental impairment may never be addressed as even the s 331 disposition would not be available. This cannot be a valid basis for proceeding under s 334; it makes it potentially a covert mechanism for introducing persons into the coercive part of the mental health system when an overt mechanism is not available.

67. Nevertheless, the Magistrates Court should not be too quick to ignore the very valuable provision of diversion under s 334 because of the desirability of the mental health system managing persons who are mentally impaired rather than the criminal justice system, which has no great reputation for success in doing so.

68. In my view, her Honour had a discretion to proceed under s 334 or not, notwithstanding that she had in contemplation that ultimately an order may be made under s 331. I may well have proceeded differently, but that is not determinative. There was no error and the ground is not made out.

69. Finally, it was submitted for the appellant that the reference in s 334(3)(e) to "seriousness of the alleged offence" is to be assessed merely by reference to the maximum penalty provided for the offence.

70. This was partly related to the fourth ground, that the consideration of the factual circumstances of the offending really entered into a sentencing exercise. That does not, as I have found, render such matters irrelevant.

71. It was further submitted that the reference to "outline of the facts to be alleged" in s 334(1)(b), contrasted with "seriousness of the alleged offence" in s 334(3)(e), supported this submission. I am not impressed with this argument. I see no inconsistency in construing "offence" as meaning the way in which or the circumstances under which the behaviour which constituted the offence was carried out.

72. The High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]-[31] referred to the seriousness of an offence being measured from the maximum penalties, but that is not a static assessment. As was there said, the maximum penalties "invite comparison between the worst possible case and the case before the court". It is clear that while the penalties set by the legislature do mark out seriousness, the actual seriousness of the offence in a meaningful sense can only be measured by the actual behaviour.

73. To take a clear example, manslaughter is an offence for which the maximum penalty provided is 20 years imprisonment, a very serious offence indeed. It can, however, be committed in such a variety of ways that, for example, justify a good behaviour order with probation, such as in Thiele (1986) 19 A Crim R 105. To exclude such offending behaviour simply on the basis of the maximum penalty when the range of offending behaviour is wide does not seem to me represent the intent of the section.

74. In my view, none of the grounds of appeal are made out.

75. I have not addressed the jurisdiction of this Court to entertain the appeal. An appeal is a creature of statute and there must be a statutory basis for an appeal: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 619.

76. The jurisdiction of this Court as to appeals in criminal matters from the Magistrates Court is found in pt 3.10 of the Magistrates Court Act 1930 (ACT), which, in

s 207, states that appeals extend to those referred to in that Part "and no others".

77. Section 208 sets out the range of appeals to which the Part applies and an appeal from a finding under s 334 does not appear in the section.

78. The appellant referred to Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101 as providing that s 20 of the Supreme Court Act 1933 (ACT) is a source of such power. This has been interpreted as extending to s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act), in cases such as De Domenico v Marshall [2001] ACTSC 52; (2001) 146 ACTR 30 and Commissioner for Housing v Ganas [2003] ACTSC 34; (2003) 150 ACTR 1.

79. The approach has been trenchantly criticised in Evans v Shiels [2004] ACTSC 19; (2004) 185 FLR 1 at

5-8; [11]-[25]. I followed that decision in Sleiman v Murray [2009] ACTSC 82; (2009) 231 FLR 224 at 230; [32]-[34] in also expressing strong reservations about Kelly v Apps. I remain of the views I there expressed. That is to say, I do not consider that the decision in Kelly v Apps is a basis for correctly construing s 48A of the Self-Government Act (or, indeed, s 20 of the Supreme Court Act), to give jurisdiction to the Supreme Court to sit as an appellate court in respect of every decision of any inferior court or tribunal on any ground whatsoever.

80. The potential width of this provision was canvassed in decisions such as Rose v Snape [2000] ACTSC 115 at [47]-[48]. That, in itself, must require a more careful consideration of whether the provision is really as interpreted by Kelly v Apps. Another important reason is that the provision is completely unhelpful in determining critical issues about the appellate process it supposedly authorises.

81. It is clear that there are many issues about an appeal that need to be decided and can only be decided from the authorising legislation as pointed out in Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at 90; [50]. For example, is it an appeal stricto sensu, or by rehearing or de novo? Is fresh evidence to be admitted? These and other questions can only be determined by the statute (Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at 128-9; [2]), and neither s 48A of the Self-Government Act nor s 20 of the Supreme Court Act address this in a context where, it appears, the provision is being interpreted by Kelly v Apps to give this Court jurisdiction, apparently, from any decision of any court, tribunal, perhaps even an official exercising quasi-judicial powers in the Territory. To state this is to show how unlikely it is that this is what is meant by the provision.

82. It may be, of course, that if an appeal from the decision of the learned Chief Magistrate is not available the Court may still exercise a supervisory jurisdiction through prerogative review. It may be that, in a suitable case, such a decision could be quashed by an order in the nature of a writ of certiorari under s 34B of the Supreme Court Act where, for example, the Magistrates Court made jurisdictional error.

83. Given that I do not consider that the challenges to this decision of the Magistrates Court is susceptible of being set aside for error, I do not need to consider this matter further.

84. Having regard to my view of the jurisdiction of the Court, but also of the merits of the challenge to the decision of the Magistrates Court, the appeal must be dismissed.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.

Solicitor for the appellant: Legal Aid ACT

Solicitor for the respondent: ACT Director of Public Prosecutions