Preston v R

The Relevant Law

1. The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

1. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
2. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
3. Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
4. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
5. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
6. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
7. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
8. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
9. Section 20 Crimes (Appeal and Review) Act 2001 provides that the District Court may dispose of an appeal against conviction by setting aside the conviction or dismissing the appeal. There is no power to remit the matter to the Local Court.
10. Section 28(2) Crimes (Appeal and Review) Act 2001 provides that in determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.

The diversionary regime

1. Section 14 of the Forensic Provisions Act provides: (1) A Magistrate may make an order to dismiss a charge and discharge the defendant-- (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or (c) unconditionally. (2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.
2. Section 15 of the Forensic Provisions Act provides: In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following-- (a) the nature of the defendant's apparent mental health impairment or cognitive impairment, (b) the nature, seriousness and circumstances of the alleged offence, (c) the suitability of the sentencing options available if the defendant is found guilty of the offence, (d) relevant changes in the circumstances of the defendant since the alleged commission of the offence, (e) the defendant's criminal history, (f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990 , (g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan, (h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public, (i) other relevant factors.

Consideration

1. This matter proceeded in a slightly unusual way. The Magistrate was not required to determine the guilt of the appellant before proceeding to deal with the s 14 application. I assume that she did so at the request of the appellant to preserve the opportunity of an acquittal if self-defence was established.
2. Having conducted an independent review of the evidence, I am not satisfied that the Magistrate's conclusion that the prosecution had negatived self-defence was wrong. I do not agree with some of the factual findings based on the footage, but these are matters on which reasonable minds may differ.
3. I am not satisfied that the footage established that the appellant punched the complainant in the head during the altercation. Whilst he may have intended to do so, I am not satisfied that the footage demonstrated that he did.
4. In my view, the incident consisted of push and shove, instigated by the appellant, followed by a flurry of blows from both men that landed on their respective upper arm areas.
5. The footage demonstrated that the appellant was aggressive towards the complainant from the time when the dispute first arose until the altercation and this was the best evidence of the appellant's state of mind at the time of the altercation.
6. I have taken into account that physical contact in the altercation was instigated by the complainant, but I find that he did so in an effort to secure payment and in a relatively unthreatening manner.
7. The prosecution submitted that before I could re-exercise the discretion under s 14 that I must first be satisfied that the Magistrate committed an error of the kind referred to in House v The King. I do not accept that submission for the following reasons.
8. The reference to McNab at [88] to the types of error required to be established in a "court of error" incorporates the discussion of what constitutes appealable error in Costa v Public Trustee of NSW [2008] NSWCA 233. In Costa, the Court of Appeal stated the established principle that in an appeal against the exercise of a discretionary judgement, the appellate court cannot substitute its own judgement for the judgement of the trial judge unless it is satisfied that there was an error in exercising the jurisdiction: House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).
9. The reference in McNab to Costa is to contrast the jurisdiction of a court of error and the District Court exercising its jurisdiction pursuant to s 18 Crimes (Appeal and Review) Act 2001.
10. At [89] Basten and McCallum JJA in McNab state that because the District Court can make any finding that could have been made in the Local Court but cannot order a retrial, demonstrates that the District Court is not a "court of error" in the strict sense. McNab is authority for the proposition that there must be some error established, in that the decision of the Local Court will not be overturned unless the District Court judge is satisfied that the decision was wrong in some respect.
11. Based on McNab, I am not required to find a House v The King type error in the Magistrate's judgment before turning to re-exercise the discretion pursuant to the power provided by s 28(2) Crimes (Appeal and Review) Act 2001.
12. If I am wrong on this conclusion, I am satisfied that the Magistrate made two errors that caused the discretion to miscarry.
13. First, I do not agree with the Magistrate's findings of fact based on the video footage, a matter on which I am in the same position as the Magistrate to assess. This leads me to have a different view on the objective seriousness of the offence. The Magistrate found it to be above the mid-range, whereas I am satisfied that it is in the low range.
14. Second, whilst the Magistrate referred to the matters in s 15 of the Forensic Provisions Act, she failed to apply them in determining if it was more appropriate to deal with the appellant pursuant to s 14, rather than dealing with him according to law. This required a balancing of the public interests of punishing the appellant according to law and the public interest in diverting mentally disordered offenders away from the criminal justice system: Confos v Director of Public Prosecutions [2004] NSWSC 1159 at [17] (Howie J). In this case, the Magistrate weighed the public interest in punishment against the appellant's private interest in rehabilitation and in my view the discretion miscarried.
15. Turning to exercising the discretion under s 14 of the Forensic Provisions Act, I am satisfied that it is appropriate to divert the offender away from the criminal justice system for the reasons that follow, considering the matters set out in s 15.
16. It was common ground that the appellant suffered from a mental health impairment.
17. The appellant suffered from significant psychiatric symptoms from about 2015 onwards as a result of his employment in the NSW Police Force. His symptoms got worse when he left general duties and took up covert surveillance work in the area of child abuse and sex crimes. He was suspended from duty in September 2019. He has been diagnosed with major depressive disorder with prominent anxiety, alcohol abuse (in remission) and gambling disorder (in remission). Dr Synnott, psychiatrist, found that he is psychiatrically incapable of any kind of employment, from which I infer involves a very high degree of disability arising from his condition. Dr Allan, psychiatrist, has diagnosed the appellant with post traumatic stress disorder and otherwise agrees with Dr Synnott's diagnosis. Dr Allan opined that the appellant's condition was directly referrable to his work as a police officer and had resulted in significant difficulties with impulse control.
18. Dr Nicholas, psychologist, has been seeing the appellant since September 2019. Dr Nicholas opined that the appellant had relied on alcohol, substance use and gambling to avoid his serious psychological condition including severe symptoms of post traumatic stress disorder and co-morbid depression. Dr Nicholas recommended that the appellant continue with psychological intervention consisting of symptom management and psychoeducation about post traumatic stress disorder. The proposed symptom management included strategies to manage anger, anxiety and depression, strategies to address gambling, alcohol abuse and substance use, exposure therapy, cognitive restructuring and emphasis on relapse prevention. There was evidence that the appellant has attended 36 treatment sessions with Dr Nicholas since he was first engaged.
19. For the reasons given, the assault was a relatively minor one which falls in the low range of objective seriousness. I have taken into account that the victim was vulnerable in his work as a taxi driver in coming to that assessment together with the nature of the conduct and what is depicted in the video footage. Nevertheless, the seriousness of an offences should not dictate whether or not a person is diverted. The diversionary regime is available to serious offenders, so long as it is the more appropriate alternative: Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93.
20. There are a number of sentencing options that could be tailored to require the appellant to continue with psychological treatment if he was to be found guilty of the offence.
21. The incident occurred on 10 May 2019. At that point the appellant had not been diagnosed as suffering from a mental condition. At that point, he was still in the Police Force and being subjected to the stressors that ultimately caused his post traumatic stress disorder and co-morbid depression. A fair reading of the medical reports indicate that his life was spiralling downwards and out of control at the time of the incident. In other words, it is likely that he was significantly impacted by his mental condition at the time of the incident and there was a significant causal connection between his mental condition and his behaviour. He first sought treatment in September 2019 and has continued with regular psychological treatment since that time. He has also consulted a number of psychologists in the course of his separation from the Police Force. In the four years after the incident, the appellant has demonstrated that he is committed to getting assistance and treating his psychological condition.
22. The appellant does not have any relevant criminal history. He has been the subject of a s14 discharge for a drug possession matter.
23. Dr Nicholas has prepared a comprehensive treatment plan, which the appellant has been engaging with. It would be appropriate for the appellant to continue compliance with that plan.
24. Taking into account all of the circumstances, I am satisfied that the appellant is unlikely to re-offend and does not present a risk to the community.

Orders

1. The orders I make are as follows: 1. The appeal against conviction is allowed. 2. I set aside the conviction and the penalty imposed by the Magistrate. 3. I find that the appellant has a mental health impairment. 4. Based on the facts and the evidence it would be more appropriate to deal with the appellant in accordance with the provisions of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act than otherwise in accordance with law. 5. I dismiss the Court Attendance Notice and discharge the appellant into the care of Dr Anthony Nicholas, psychologist, for a period of 12 months from 8 September 2023, concluding on 7 September 2024 on condition that he continues to participate in treatment with Dr Nicholas at such times as may be arranged between them. 6. Should the appellant fail to comply with the conditions of this order he may be called to appear before the Court following notification by Dr Nicholas to the Court or Community Corrections of non-compliance and the charge may be dealt with as if the appellant had not been discharged.

Amendments 13 September 2023 - Paragraph 3: Line 1 sentence 1 and Line 3. Paragraph 4: Line 10. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2023