Saadat-Talab v Australia Federal Police

(iii) The decision of her Honour Magistrate Huber LCM given on 22 December 2006 in relation to the application of Mr Saadat-Talab under s 32 of the Mental Health (Criminal Procedure) Act be set aside;

DECISION : (iv) The matter be remitted to the Local Court for determination in accordance with law;

(v) The defendant shall pay the costs of and incidental to these proceedings, as agreed or assessed;

(vi) Any party has liberty to apply on the form of these orders or on the question of the issue of costs;

CATCHWORDS : CRIMINAL LAW - summary proceedings - Commonwealth offence - availability of diversionary orders under state legislation - STATUTORY CONSTRUCTION - alleged inconsistency - s 20BQ of Crimes Act 1914 (Cth) and s 32 of Mental Health (Criminal Procedure) Act 1990 (NSW) - operation of s 68 of Judiciary Act 1903 (Cth) - no inconsistency.

Crimes Act 1914 (Cth) Crimes (Local Courts Appeal and Review) Act 2001 Criminal Code Act 1995 (Cth) LEGISLATION CITED : Interpretation Act 1987 Judiciary Act 1903 (Cth) Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990 Migration Act 1958 (Cth)

Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 CASES CITED : Putland v R [2004] HCA 8; (2004) 218 CLR 174 Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 23-24 Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119 University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES : Shahrokh Saadat-Talab (Plaintiff) Australian Federal Police (Defendant)

COUNSEL : S Prince (Plaintiff) B Ingram (Defendant)

SOLICITORS : Parish Patience Immigration Lawyers (Plaintiff) Commonwealth Director of Public Prosecutions (Defendant)

LOWER COURT FILE NUMBER(S) : 20265962/05/2; 20371933/06/2; 20371941/06/2

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13072/2007 Saadat-Talab v Australian Federal Police

JUDGMENT 1 HIS HONOUR: Mr Saadat-Talab appeals the decision of a Local Court magistrate dismissing an application by him under s 32 of the Mental Health (Criminal Procedure) Act 1990 ("the State Act" and s 32 may be referred to as "the State provision") for diversionary orders on account of his mental illness. 2 The learned magistrate was dealing with three charges against Mr Saadat-Talab that he threatened to cause serious harm to a Commonwealth public official; that he caused harm to a Commonwealth public official; and that he was obstructing a Commonwealth public official. These are offences under the Criminal Code Act 1995 (Cth). The learned magistrate determined that the State provision did not apply to crimes under the Commonwealth Code and could not, therefore, be utilised. 3 The learned magistrate took the view that the provisions of s 20BQ ("the Federal provision") of the Crimes Act 1914 (Cth) ("the Federal Act") applied to the situation with which he was dealing to the exclusion of the State provision. The guilt or innocence of Mr Saadat-Talab and most of the facts with which the learned magistrate must deal are irrelevant to this appeal. This appeal is confined to the issue of law involving the relationship between the State provision and the Federal provision, being whether both provisions apply or only the Federal provision applies. It is necessary to give some factual background. Facts 4 The necessary facts may be stated briefly. Mr Saadat-Talab alleges that he converted from Islam to Christianity while in Iran, as a consequence of which he says he fears persecution in Iran. He applied for a Protection Visa in Australia, which was refused. He applied on a number of occasions to the relevant Minister of the Commonwealth for intervention pursuant to s 417 of the Migration Act 1958 (Cth). The Minister either refused to intervene or refused to consider intervention (the distinction being irrelevant for present purposes). He was detained at Villawood Detention Centre. 5 The above occurred between 2000 and 2004. In 2002, Mr Saadat-Talab sewed his lips together and participated in a hunger strike. He was eventually medicated with anti-depressants. At the time he wrote to the relevant Commonwealth Department referring to his situation and his loss of everything as having turned him "mentally ill". In May 2002 the Departmental officer at Villawood Detention Centre remarked: "he seemed a little depressed." This was four months after sewing his lips together and engaging in the hunger strike. 6 Mr Saadat-Talab participated in proceedings in the Federal Court of Australia and was unsuccessful. Notwithstanding its success in the proceedings, the Australian Government allowed Mr Saadat-Talab to re-apply for a Protection Visa, which he did. 7 For the purpose of such a visa, a medical clearance and interview were necessary and granted or undertaken. The medical clearance was granted on 20 July 2004. The interview occurred on 27 July 2004. On 10 September 2004 Mr Saadat-Talab's representative wrote to the Department seeking the urgent issue of a visa (at least a temporary visa) on account of his deteriorating mental health. 8 On 27 September 2004, the incident giving rise to the charges occurred. It was a scuffle. It is not suggested that any serious harm was occasioned. There were some scratches to the faces and arms of two security officers, who were comfortable to finish the shift and, it seems, required only minor attention and no leave. 9 It seems Mr Saadat-Talab was injured in the incident from which he was taken in a wheelchair and attention given to his shoulder. 10 The day after the incident ASIO notified the Department that Mr Saadat-Talab had a security clearance to remain in Australia and the day after that (29 September 2004) the Minister granted him a Temporary Protection Visa. As a consequence Mr Saadat-Talab is not currently in detention. 11 A consultant psychiatrist, Dr Ryan, attested before the learned magistrate that Mr Saadat-Talab had a Major Depressive Illness at the time of the incident. Based upon his expertise and clinical notes (and other objectively proven facts) Dr Ryan concluded that his mental illness at the time of the incident "was of such severity that his mental functioning was impaired by virtue of a severe disturbance of mood and seemingly irrational behaviour" and that he would have, at the time, benefited from admission to hospital. 12 Dr Ryan also noted that, at the time of the hearing, Mr Saadat-Talab was not suffering mental illness of the same or similar severity and it did not impair his mental functioning. 13 Evidence was adduced before the learned magistrate of significant community support for Mr Saadat-Talab and of his employment prospects. 14 It was conceded by Mr Saadat-Talab that he did not, at the time of the hearing before the Local Court, suffer a mental illness. 15 One of the alleged differences between the operation of the State provision and the Federal provision is that the State provision allows diversionary orders where a mental illness was suffered at the time of the incident, whereas, it is submitted that the Federal provision applies only in circumstances where the mental illness is suffered at the time of the hearing. It is necessary to set out the relevant provisions. The Legislation 16 There are four most relevant provisions. They are the State provision (s 32 of the State Act), the Federal provision (s 20BQ of the Federal Act), and ss 68 and 79 of the Judiciary Act 1903 (Cth). They are relevantly in the following terms:

State Act: Mental Health (Criminal Procedure) Act 1990 (NSW) "32(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 199 0 , 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). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 197 8 , (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the 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 of the defendant's mental condition or treatment or both, or (c) unconditionally…. (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."

Federal Act: Crimes Act 1914 (Cth) "20BQ(1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court: (a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and (b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law; the court may, by order: (c) dismiss the charge and discharge the person: (i) into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or (ii) on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or (iii) unconditionally; or (d) do one or more of the following: (i) adjourn the proceedings; (ii) remand the person on bail; (iii) make any other order that the court considers appropriate. (2) Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence. (3) Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB or 21B in respect of the person in respect of the offence."

Judiciary Act 1903 (Cth) "68(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section. (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

(5) Subject to subsection (5A): (a) the jurisdiction conferred on a court of a State or Territory by subsection (2) in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth; and (b) the jurisdiction conferred on a court of a State or Territory by virtue of subsection (7) in relation to the conviction and sentencing of persons charged with offences against the laws of the Commonwealth in accordance with a provision of the law of that State or Territory of the kind referred to in subsection (7); is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory

79 The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." 17 The Commonwealth Director of Public Prosecutions submitted below that s 20BQ of the Federal Act operates to exclude the operation of s 32 of the State Act and, inter alia, because Mr Saadat-Talab was not, at the time of the hearing before the learned magistrate, suffering from a mental illness (within the meaning of the civil law) no diversionary order could be made. Mr Saadat-Talab, as earlier stated, submits here, and submitted below, that both the State provision and the Federal provision relevantly operate and provide an available discretion to be exercised by the learned magistrate. 18 The judgment below determined that s 32 of the State Act did not provide an available discretion and that Mr Saadat-Talab was not, at the time of sentencing, suffering from a mental illness within the meaning of the civil law of the State. The learned magistrate confined the meaning of mental illness to the meaning ascribed to that term in the Mental Health Act 1990 and described the submission, made on behalf of Mr Saadat-Talab, that the term included the meaning within the common law as "fanciful". Does the State Provision Apply? 19 The commencement of any analysis is the terms of s 32 of the State Act. In its current form, the State provision applies to allow a magistrate not to convict and sentence a person who has (or had at the time of the alleged commission of the offence) a mental condition (i.e. something broader in scope than a mental illness). In that regard the magistrate has the power to deal with the person "otherwise [than] in accordance with law" and is for that reason referred to as a diversionary order. 20 Mr Saadat-Talab submits that s 32 of the State Act of its own force operates to provide the magistrate with jurisdiction. This submission, also made below, was put formally but no elaboration of the proposition occurred. 21 The Director of Public Prosecutions submits that s 32 of the State Act must be understood as relating only to State offences and not federal offences. It is, the Director submits, "a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State is a reference to courts, matters, things and persons in that State": Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119 at 138 [37] per McHugh J. 22 That general proposition is promulgated in the Interpretation Act 1987, s 12(1). But the general proposition needs some consideration in its application to this provision. The State provision deals with the discretion of a magistrate. The application of the general proposition would mean that it was referring only to magistrates "in and for New South Wales". But it is New South Wales magistrates that are exercising the relevant federal jurisdiction. Further the "mentally ill" person is also a person in and of New South Wales. It seems, therefore, that the Director of Public Prosecutions is suggesting that the limitation derives either from the use of the term "offence" or that the limitation operates as if it read "in and of the judicial power exercised by virtue of the jurisdiction conferred by New South Wales". This is a refinement of the general rule of some moment. It applies a rule derived from the presumption of territorial limits to a rule presuming that general powers given to officers of the State (judicial or otherwise) do not relate to any exercise beyond the "body politic". This is not the same as a presumption, or rule of construction, limiting or construing powers granted to those within legislative power. 23 There may be such a limitation. If there were not, then the State provision would apply and questions would arise under s 109 of the Constitution. It may be, because of the manner in which the matter has been agitated, that I misunderstand the submission. There has been no or no substantial argument on this question and, in those circumstances, I ought not decide the question. Because of that which follows, it is unnecessary to decide it. 24 One of the reasons that the above argument seems academic is that there is federal legislation: both the Federal Act and the Judiciary Act. Section 68(1) of the Judiciary Act has the effect of "picking up" the State provision and applying it to persons charged with offences against the Commonwealth. 25 It is not in issue, the Commonwealth Director of Public Prosecutions quite properly conceding the point, that s 32 of the State Act is a provision (leaving aside the effect of s 20BQ of the Federal Act) that is applied by s 68 of the Judiciary Act. Nevertheless, in order to deal with the effect of s 20BQ of the Federal Act, it is necessary to examine how s 68 operates. 26 Section 68 of the Judiciary Act applies certain laws of the State. Those laws are laws respecting arrest and custody of offenders or persons charged with offences. It applies laws of that kind respecting the procedure for summary conviction (which this proceeding was). This must include, as the Director of Public Prosecutions concedes, the procedure for not proceeding to conviction under s 32 of the State Act. 27 By operation of s 68(2) of the Judiciary Act, the Local Court of New South Wales has jurisdiction with respect to the summary conviction of persons under laws of the Commonwealth. 28 Returning to the provisions of s 68(1), the laws described in [26] above, apply and are applied, "so far as applicable" "to persons" charged, inter alia, with the offences and proceeded against in the Local Court. 29 The expression "as far as possible" is the subject of authority. The High Court has discussed it in a number of cases, the most recent and most relevant discussion being in Putland v R [2004] HCA 8; (2004) 218 CLR 174. There the High Court said: "[4] Section 68 of the Judiciary Act provides, so far as presently relevant, that the laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their trial and conviction on indictment, shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by the section. The operation of related provisions of s 68 concerning appeals was recently considered by this Court in R v Gee . The background to the section is the obvious circumstance that State and Territory laws concerning the matters to which the section relates may differ. The necessary consequence is that, in certain respects, those differences will apply as between federal offenders, depending upon where they are tried. In the present case, the sentencing judge was exercising jurisdiction conferred by s 68(2). Northern Territory laws respecting the procedure for trial and conviction on indictment were at least potentially picked up and applied as federal law by s 68(1). Sentencing laws come within that description. In Leeth v The Commonwealth , Mason CJ, Dawson and McHugh JJ referred to an observation by Dixon J that s 68 disclosed a policy 'to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State' and that it was 'no objection to the validity of such a provision that the State law adopted varies in the different States'. They continued:

'Thus the administration of the criminal law of the Commonwealth is organised upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s 120 of the Constitution.'

[7] The laws of a State or Territory to which s 68(1) refers apply 'so far as they are applicable' Although there is not in s 68, as there is in s 79 of the Judiciary Act , an express qualification to the operation of the provision by the use of the words 'except as otherwise provided by the Constitution or the laws of the Commonwealth' in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification. The meaning of 'otherwise provided' was considered in Northern Territory v GPAO . Relevantly for present purposes, s 52 of the Sentencing Act would not be picked up and applied by s 68 if a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme relating to the sentencing of the appellant which was 'complete upon its face' and can 'be seen to have left no room' for the operation of s 52. Since the appellant relies upon both kinds of other provision, it is necessary to examine in some detail the Commonwealth laws that are said to have that effect." ( Putland , supra, per Gleeson CJ at 178-179) 30 Likewise the joint judgment of Gummow and Heydon JJ in Putland accepted the understanding of the parties that s 68(1) is to be read as if "as a matter of express statement rather than implication, there was a qualification for provision otherwise made from time to time by the laws of the Commonwealth": (Putland at [41], per Gummow and Heydon JJ with whom Callinan J agreed). 31 By operation of s 68(1) of the Judiciary Act, the relevant state laws become laws of the Commonwealth. There is no room for the operation of s 109 of the Constitution. Therefore any repugnancy or inconsistency must be approached from the aspect that it is s 68 and the other Commonwealth law that is inconsistent and not from the standpoint that the other Commonwealth law prevails because there is an inconsistency with a State law: see University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 at 463 per Mason J. Are section 68 of the Judiciary Act and section 20BQ of the Crimes Act (Cth) inconsistent? 32 Insofar as s 68(1) of the Judiciary Act purports to make s 32 of the State Act a law of the Commonwealth, it does so by governing a class of persons, to whom it then applies the regime in s 32 of the State Act. That class is any person who is or was suffering a mental illness but "is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990". 33 On the other hand, s 20BQ of the Crimes Act (Cth) applies only to a person who "is suffering from a mental illness within the meaning of the civil law of the State". A person who is mentally ill within the meaning of Chapter 3 of the Mental Health Act is, at least, part of the class of persons defined by the term "mentally ill" "within the meaning of the civil law of the State". 34 What is "the civil law of the State"? If, as decided by the learned magistrate, the term were confined to persons governed by the Mental Health Act, then, expressly, s 20BQ of the Crimes Act (Cth) applies only to such persons and s 68(1) of the Judiciary Act, in applying s 32 of the State Act, expressly, does not apply to such persons. 35 Therefore, if the learned magistrate be correct in her construction of the meaning of "civil law" in this context, there can never by an inconsistency between any operation of s 20BQ of the Crimes Act (Cth) and s 32 of the Mental Health (Criminal Procedure) Act. The former applies to defined mentally ill persons; the latter applies to those who are not. The world, in logic, consists of "X" and "not X", which are opposites. In this case the class of "mentally ill persons" consists of those governed by the Mental Health Act and those that are not. The sub-classes are mutually exclusive and the sections, in questions here, deal with each sub-class. 36 But is the learned magistrate correct in limiting "mentally ill" in that way? And does it make a difference? The term "civil law" may have a number of meanings depending on the context. It may describe the system of law, other than the common law system, deriving from Roman Law. Given that no Australian State operates under the civil law system, it cannot have that meaning. The term "civil law" may be, and in my view on this occasion is, used to describe the law of private or civil rights, as opposed to the criminal law. In this use, depending on context, it may or may not include public rights and duties in administrative law. It is unnecessary to deal with that question. 37 Mr Saadat-Talab submits that, if, as I have determined, the proper construction of s 20BQ of the Crimes Act (Cth) is that the term "civil law" includes the common law as well as statutory provisions, then Mr Saadat-Talab fits the meaning of "mentally ill" within the common law. Counsel cites, as an example, a person suffering a mental condition as a result of a traumatic event caused by the negligence of another. 38 For the reasons that follow, it is unnecessary to determine the extent of the definition. However, I make the following comments. It is, in my view, very different to refer, in legislation of this kind (s 20BQ of the Crimes Act (Cth)) to "mental illness" than to refer to an injury including a disease. A traumatic injury may cause a "mental illness". Certainly, for example, some negligently caused birth defects may be so described. But it is an altogether different proposition to that which is advanced on behalf of Mr Saadat-Talab. "Mental illness", even under the common law, seems a narrower concept than mental or psychiatric injury. The latter may or may not seriously impair mental functioning and that "mental impairment" criterion seems at the core of "mental illness". I do not finally determine this issue. 39 Lastly, and most importantly in determining the issues in these proceedings, I deal with whether, as the Director of Public Prosecutions (Cth) submits, s 20BQ of the Crimes Act (Cth) is a "code". This submission is essentially that the Commonwealth, having prescribed a method of diverting punishment in some cases, should be taken to have excluded diversionary orders in others: see Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 23-24; Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7; Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 678. 40 The difficulty with such a submission is that the term diversionary order is a common abbreviation of the effect of the order. But orders under these sections (ss 20BQ and 32) are not the only means whereby a person suffering a mental disorder (whether at the time of sentencing or commission of the offence) may avoid conviction for an offence committed: s 19B of the Crimes Act (Cth) allows extenuating circumstances that affected the commission of the offence to be a factor in not recording a conviction. That a person was suffering a mental disorder at the time of the commission of an offence must be a factor considered under s 19B or otherwise in determining an appropriate sentence: see Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476-477 (per Mason CJ, Brennan, Dawson and Toohey JJ). Therefore, s 20BQ of the Crimes Act (Cth) does not purport to be the exclusive means of either dealing with mental disorder (a broader term than mental illness) or with utilising mental disorder in determining, notwithstanding "guilt", not to proceed to convict. 41 Lastly, is the above construction one which accords with the disclosed purpose of the legislature: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]? Does its provisions, as construed, give effect to harmonious goals: Project Blue Sky, supra, at [70]? 42 In introducing s 20BQ of the Crimes Act (Cth) the Minister said: "The primary purpose of the Crime Legislation Amendment Bill (No. 2) 1989 is to review the Commonwealth sentencing legislation and the laws governing Federal offenders found unfit to be tried or not guilty on the grounds of mental illness.

The Bill provides a new regime for dealing with persons who are found unfit to plead, or unfit to be tried or not guilty on the grounds of mental illness. Sentencing courts are also being given additional options for persons who are mentally ill or intellectually disabled. The Bill gives magistrates courts greatly increased options when dealing with cases summarily. Hospital orders will be available in lieu of imprisonment, where mental illness has contributed to the commission of serious offences. Special bonds will also be available psychiatric probation orders for mentally ill offenders, and program probation orders for intellectually disabled offenders. The new sentencing options of hospital orders and bonds give effect to the Australian Law Reform Commission's recommendations." (Second Reading Speech, The Hon. Robert Brown, 5 October 1989, for the Crimes Legislation Amendment Bill (No. 2) 1989) It seems that the intention of the Parliament was to give additional powers and extend the options available to magistrates. Conclusion 43 Section 68 of the Judiciary Act grants to the learned magistrate the jurisdiction and/or power to deal, under s 32 of the Mental Health (Criminal Procedure) Act, with persons suffering a mental disorder at the time of the commission of an offence. Her Honour was entitled to deal with Mr Saadat-Talab by making one or more of the orders described in s 32, if the learned magistrate were otherwise satisfied of the criteria, described in that section, for the grant of such orders. 44 Section 20BQ of the Crimes Act (Cth) does not expressly or impliedly affect the operation of the jurisdiction so conferred, but is an additional source of power available in different circumstances. 45 Even if the circumstances overlap, which in my view they do not, the jurisdiction granted by s 20BQ of the Crimes Act (Cth) is additional to that granted by s 68 of the Judiciary Act in its application of s 32 of the Mental Health (Criminal Procedure) Act. 46 The Court makes the following orders:

(i) Pursuant to Part 51B Rule 5(5) of the Supreme Court Rules, time for the filing of the summons be extended to include the date of its filing;

(ii) Pursuant to s 53(3) of the Crimes (Local Courts Appeal and Review) Act , leave to appeal be granted;

(iii) The decision of her Honour Magistrate Huber LCM given on 22 December 2006 in relation to the application of Mr Saadat-Talab under s 32 of the Mental Health (Criminal Procedure) Act be set aside;

(iv) The matter be remitted to the Local Court for determination in accordance with law;

(v) The defendant shall pay the costs of and incidental to these proceedings, as agreed or assessed;

(vi) Any party has liberty to apply on the form of these orders or on the question of the issue of costs;

29/11/2007 - "Commonwealth" altered to "Commonwealth Director of Public Prosecutions" - Paragraph(s) 24

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