SAMI EL MAWAS v DIRECTOR OF PUBLIC PROSECUTIONS

Crimes Act 1900 Enclosed Lands Protection Act 1901 Director of Public Prosecutions Act 1986 LEGISLATION CITED : Crimes (Local Court Appeal and Review) Act 2001 Mental Health (Criminal Procedure) Act 1990. Mental Health Act 1990. Crimes (Sentencing Procedure) Act 1999

The Queen v M'Naghten (1843) 8 ER 718 Porter v The Queen (1936) 55 CLR, Sodeman v The Queen (1936) 55 CLR R v Pangallo (1989) 51 SASR 254 CASES CITED : R v S (1979) 2 NSWLR Attorney General for South Australia v Brown (1960) AC 432 Acuthan & Anor v Coates & Ors (1986) 6 NSWLR 472 Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 Norbis v Norbis (1986) 161 CLR 513

PARTIES : SAMI EL MAWAS v. DIRECTOR OF PUBLIC PROSECUTIONS

Plaintiff: G D Wendler COUNSEL : Defendant: R Lancaster

Plaintiff: Hopper & Co Lawyers SOLICITORS : Defendant: S C Kavanagh

• 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: This is an application for leave to appeal to this Court by way of further amended summons from a decision of her Honour, Magistrate Mottley, sitting in the Local Court at Burwood on 30 June 2004.

2 Her Honour was sitting in proceedings commenced by the defendant in the present proceedings variously described as Constable Simon Moore, or Sergeant Simon Moore, who had proceeded against the plaintiff in the present proceedings, Sami El Mawas, in respect of various offences which included two counts of assault occasioning actual bodily harm under the Crimes Act 1900 s 59; two counts of malicious wounding under the Crimes Act 1900 s 35; one count of maliciously destroy or damage property of value less than $200 under the Crimes Act 1900 s 105; one count of enter inclosed lands without lawful excuse (Enclosed Lands Protection Act 1901 s 4); and one count of enter building/land with intent to commit indictable offence (an offence under the Crimes Act 1900 s 114)

3 Subsequently, the matter having come before this Court, the Director of Public Prosecutions for the State of New South Wales, by virtue of sections 9 and 10 of the Director of Public Prosecutions Act 1986 has assumed the conduct of the proceedings. Therefore, in accordance with the application made by Mr Lancaster on behalf of the Director, I join the Director as a party to the proceedings. I note an appearance has been filed on behalf of the Director.

4 The plaintiff has proceeded on the further amended summons, claiming an order under s 55.3(a) of the Crimes (Local Court Appeal and Review) Act 2001 setting aside the order made by the magistrate. The order made by the magistrate dismissed an application by the plaintiff before her pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990. It is further sought that the matter be remitted to the Local Court to be dealt with according to law. Coupled with those orders the summons also seeks a number of declarations. It was submitted by Mr Lancaster that I should regard the content of those declarations as referring to the grounds on which the summons contended the magistrate fell into error. That is appropriate because the declarations sought are in the familiar form of seeking it be declared that the learned magistrate erred in law in specific ways set out in the summons. The summons also has annexed to it, as the Rules provide, a description of the nature of the dispute and the issues likely to arise, together with a statement of the plaintiff's contention that the learned magistrate had erred in law. 5 It is sought that leave to appeal should be granted as the application raises matters of importance to the general law of criminal responsibility as is concerned in the correct application of Part 3 of the Mental Health (Criminal Procedure) Act 1990. It is submitted that leave should be granted because there has been, it is asserted, a demonstrable miscarriage of justice in the present case: "By reason of the learned magistrate's incorrect construction and application of section 32. 1(a) and (b) of the Mental Health (Criminal Procedure) Act 1990 New South Wales".

6 S 52.1 of the Crimes (Local Courts Appeal and Review) Act 2001 provides that: "A person who has been convicted or sentenced by the Local Court may appeal to a Supreme Court against the conviction or sentence 'but only on a ground that involves a question of law alone'."

7 The present applicant does not fall within that latter section since it is not sought to appeal against the conviction or sentence, but rather against the magistrate's refusal to apply the provisions of s 32.2 and a finding that the plaintiff contends, should have been made in his favour under s 32.1(b). Leave is therefore necessary.

8 S 32.1 provides that if it appears during the proceedings to the magistrate that the defendant is: "(iii) suffering from a mental condition for which treatment is available in a hospital .... 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 2 or 3."

9 Subsections 2 and 3 allow the magistrate a number of options, including: the adjournment of the proceedings, granting bail, or making any other order the magistrate considers appropriate, dismissing the charge, discharging the defendant into the care of a responsible person, to attend upon a person or place specified for assessment of the defendant's mental condition, or treatment or both, or unconditionally: by subsequent subsections the magistrate is given power to call up the defendant to appear and/or to issue a warrant for the defendant's arrest.

10 Sec 32 is contained within Part 3 of the Mental Health (Criminal Procedure) Act. 11 It is instructive to consider the statutory history and context. The Mental Health (Criminal Procedure) Act 1990 was enacted to displace previous legislation and, in particular, Parts 11A and 11B of the Crimes Act 1900 by re-enacting provisions relating to proceedings involving persons affected by a mental illness, and to be cognate with the Mental Health Act 1990.

12 The provisions of the Mental Health (Criminal Procedure) Act 1990 go further than the earlier law, both common law and statute law, in referring, in particular, to persons who suffer other mental conditions. Part 1 of the Act includes s 3, which defines "mental condition". "Mental condition" means: "A condition or disability of mind not including either mental illness or developmental disability of mind."

13 "Mental illness" is not defined by that Act but is defined in the Mental Health Act. Part 2 applies to criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders. In particular, that part applies to proceedings on indictment, although its application also extends to the summary jurisdiction of the Supreme Court. It may also be that Part extends to appeals in the criminal jurisdiction of the District Court from the Local Court to the District Court. It deals with unfitness to be tried under s 5, and the raising of the question of unfitness as well as its determination.

14 The part also deals with the holding of a special hearing in consequence of a finding of the Mental Health Review Tribunal as to the fitness of a person to plead. It deals with the consequences of the determination of the Mental Health Review Tribunal and of the special hearing.

15 By s31 Part 3, applies to summary proceedings before a magistrate, as applied to criminal proceedings in respect of summary offences or indictable offences, triable summarily before a magistrate. Sections 32 and 33 apply to the condition of the defendant at the time at which the magistrate considers whether to apply the relevant section.

16 S 33 applies to persons mentally ill, that is, within the meaning of, "mental illness", used in Chapter 3 of the Mental Health Act 1990. The magistrate is, in such a case, where it appears to the magistrate that the defendant is a mentally ill person within that meaning, empowered to make orders, including orders that the defendant be taken by police to and detained in a hospital for assessment and if not mentally ill, or not mentally disordered, to be returned to the Court, or to discharge the defendant unconditionally, or subject to conditions, into the care of a responsible person.

17 A community treatment order may be made and the provisions of the Mental Health Act 1990, other than certain specified sections, would apply. The Act contains other enabling provisions in that circumstance. When dealing with matters concerning sections 32 or 33, the magistrate, under s 36, may inform himself or herself as they see fit. 18 In Part 4 the defence of mental illness is explained. S 38 provides that if it is given in evidence on the trial of a person that the person was: "mentally ill, so as not to be responsible, according to law for his or her action at the time when the act was done or omission was made, then, if it appears to the jury before which the person is tried, that the person did the act, or made the omission charged, but was mentally ill at the time the person did or made same, the jury must return a special verdict that the person is not guilty by reason of mental illness."

19 Mental illness there referred to, which is not defined for purposes of the Act has been accepted in this State as referring to that state described in The Queen v M'Naghten (1843) 8 ER 718 (see R v Porter (1936) 55 CLR 182). It is not necessary for me to discuss that defence in detail here save to note that the section applies to jury trials, not to summary hearings before a magistrate to which Sec 32 and Sec 33 apply.

20 It is trite that the defence of mental illness requires that at the time of the committing of the act the accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong according to the standards of ordinary reasonable people.

21 It is the existence of a disease of the mind which differentiates mental illness in the sense referred to in s 38 from the impulsivity of a personal kind that this mind experienced - see Porter (supra). A defect of reason is the inability of the accused to think rationally, to exercise a degree of composure and control over his actions - see Porter (supra), Sodeman v The Queen (1936) 55 CLR 192.

22 Where the accused cannot reason with some moderate degree of calmness in regard to the moral quality of what he is doing, and the other criteria of the defence are satisfied, he will have the defence, as it used to be referred to, of insanity, now mental illness - see Sodeman v The Queen (supra); R v Pangallo (1989) 51 SASR 254; R v S (1979) 2 NSWLR 1.The defence will not, however, be made out simply on proof that the defendant yielded to an irresistible impulse -Attorney General for South Australia v Brown (1960) AC 432. 23 Persons found to be not guilty on the grounds that they were mentally ill, were liable to be detained indefinitely or after statutory provision for the Mental Health Review Council, until released in accordance with the act. Until the statutory reforms persons who suffered from mental conditions but who were not mentally ill were simply treated in the same way as all other defendants. It was in that context of the common law and statutory law that sections 32 and 33 were introduced. I need not examine s 33 in more detail. That section applied to the prosecution of summary offences, the law as it had stood in s 38 and at common law in relation to offences triable on indictment before a jury.

24 S 32, however, provides for the recognition, by the court, of the defendants mental circumstances, if I can call them that, bearing in mind the Act refers to "mental illness", "mental condition" and "mental disorder" and other concepts, each of which seems to refer to something distinct from the others. S 32 relates to a condition of mind different to mental illness or developmental disability or mental disorder, when it refers to a mental condition "for which treatment is available in a hospital", where a person is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990.

25 It refers to the circumstances where the condition of the defendant is one of disability of mind, and that disability of mind is such that, having regard to the allegation of the offence, the magistrate should consider it would be more appropriate to deal with the defendant by, amongst other things, making orders for the care of a responsible person, or for attendance on a person, for instance, a psychiatrist, or at a place, for instance, a hospital, for assessment of the defendant's mental condition or treatment, or both.

26 Application of the section enables, at least for the period of six months referred to in subsection 3A, some degree of supervision. The section is applicable to that entire range of offences, which might be tried summarily before the magistrate. It would be an error to restrict the operation of the section to any narrower spectrum of offence, or any more narrow circumstance.

27 It appears that there is nothing in the Second Reading Speech that assists to define the ambit of s 32. Such discussion of concept as there is of a relevant kind in the Hansard extract with which I was furnished from the Second Reading Speech of the Honourable Peter Collins, Minister for Health, seems to relate to the purposes of the Mental Health Bill, which allowed for the amelioration of the regime that had then existed in respect of the mentally ill.

28 The explanatory note to the Bill refers to clause 32 as: "setting out procedure for the disposal of proceedings by a magistrate where a defendant is developmentally disabled, suffering from mental illness or some other mental condition, but is not a mentally ill person."

29 That explanatory memorandum refers to the power of the magistrate. It does not refer to, nor does the Act expressly refer to, the basis upon which those powers might be exercised.

30 In the present case the magistrate, on the application for her to find s 32 applicable, and to exercise the powers referred to in it, declined to do so. She published a short judgment of 30 June 2004. The prosecutor, at the commencement of the relevant passage in the transcript, which is annexure A to the affidavit of Stephen Hopper, sworn 1 November 2004, is recorded as saying: "Mr El-Mawas is present. It is a s 32 application and I have got the report that I have served on my friend to hand up. There is also a report on the brief, but this one - I have spoken to the psychologist who made the report, and she has amended it with a care plan which hopefully will assist your Honour." Her Honour says: "Perhaps the facts and records should be tendered also, Mr Plummer."

31 It is apparent Sergeant Plummer was appearing for the prosecution. One could be forgiven, when reading the language of that exchange, for believing that Sergeant Plummer was making the application and tendering the s 32 report.

32 In any event, whether the Sergeant was, or was not, making the application, it is perfectly apparent there was no opposition to it, and indeed it appears to be an application that went forward with the support of both parties. The facts and record were tendered. Her Honour then invited counsel for the applicant to tender more documents. There was discussion concerning, in particular, x-rays of the plaintiff's skull. The plaintiff had had a work accident, suffered a significant brain injury, which produced appalling consequences, in particular of disinhibition occasioning problems. The report went on to refer to the plaintiff as needing further assistance from the Brain Injury Rehabilitation Unit at Liverpool Hospital. The report of the psychologist, Ms Natasha Langovski, concluded: "An impaired ability to control his behaviour and regulate his emotions seems to have landed him in his current predicament. These impairments are the direct result of his severe acquired brain injury. She referred to the assistance he would require to generate strategies to manage his emotions and executive dysfunction, thereby reducing the likelihood of him (sic) offending in future. There was a supplementary section attached to her report setting out a plan for the treatment to be conducted, in particular at the Brain Injury Rehabilitation Unit at Liverpool Hospital. 33 In her conclusion the magistrate said, "That is not disputed that he has got an injury". Mr Hopper said: "Yes, and you accept that this injury was the cause of his behaviour on that night and you would be guided by the suggested treatment plan by the psychologist." Her Honour said: "Mr Plummer, what do you want to say?" The prosecutor said:" I do not seek to address your Honour." The magistrate then said, "This is a very serious allegation." 34 She referred to the facts that had been provided by way of statement to the Court, which are part of annexure A to the affidavit of Stephen Hopper sworn 27 July 2004 and, in particular, that the plaintiff, after having been assaulted the evening prior, by his next door neighbour, the victim in the assault charged against the plaintiff, had apparently obtained the assistance of other persons, they had attended at the victim's premises when he was there with another person, and severely beaten both of them, occasioning the victim a large laceration.

35 The plaintiff, when arrested, and to police, had said: "I told the doctor at Liverpool Hospital I would send him two Asians tonight". and he called me a loser, so I said, "I will send them to him. I am a winner". 36 At the hospital he referred to having bashed two Asians and, apparently, to causing them to go to the hospital. In the attack upon him, the plaintiff had apparently suffered such a wound as minded the police to charge his next door neighbour assailant with maliciously wounding him.

37 The magistrate held that the plaintiff was a person who satisfied the Court in relation to the first criteria of s 32. She held: "He is clearly a person who is suffering from a mental condition." 38 She referred to the brain injury and the report by Natasha Langovski. She referred to the suggested treatment plan. She referred to the plaintiff's awareness of his lack of self control and his attempts to engage in avoidance behaviour. She referred to the psychologist's opinion that the plaintiff has an impaired capacity for self control and regulation. She said: "He demonstrates disinhibition and impulsivity in his behaviour and he often finds himself behaving inappropriately and without self modulation." The magistrate referred to the psychologist's observation - "....impaired self control accounts for why many individuals with severe brain damage engaged in aggressive behaviour. " 39 It was in that context that the psychologist recorded, and the magistrate noted: "There is an inability to plan, recognise and choose alternatives in relation to any inappropriate behaviour."

40 The magistrate then held that the present offence was: "not an unplanned operation". 41 She refers to the plaintiff having gone to the next door premises, armed with a mop handle and with two friends who were also armed. She said: "It suggests a degree of premeditation and planning, not an act of impulsivity." 42 In her conclusion the magistrate said: "In determining whether to deal with the matter under s 32, firstly the Court has to address whether the applicant is suffering from a mental condition, and clearly Mr El-Mawas does. The second condition the Court has to be satisfied of is that the proceedings are such that it is appropriate to apply the provisions of s 32."

43 Neither statement by the magistrate in that extract from her judgment reflects the precise nature of the provisions of s 32.

44 The mental condition to which s 32.1(3) refers, is a mental condition for which treatment is available in a hospital. The magistrate had accepted that there was treatment available for the applicant in a hospital, although she does not expressly, after that portion of her finding to which I have already referred, refer explicitly to that matter. S 32.1(b) does not provide that the magistrate's function is simply to determine whether it is appropriate to "apply the provisions of s 32".

45 It is not the case, however, that I should, in construing her ex tempore judgment, treat it as if it were reserved, carefully considered, worded and drafted. Regard must be had to the exigency the magistrate faced, and it is to the content of the magistrate's decision I should have regard, rather than mere questions of infelicity of expression - see Acuthan & Anor v Coates & Ors (1986) 6 NSWLR 472 at 478D-E.

46 Yet, even allowing that degree of latitude, what it was incumbent upon the magistrate to decide is whether "it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law". Two concepts are involved here, the first being that the person is a person who suffers from a mental condition, but not merely a mental condition, but a condition for which treatment is available and which treatment might be ordered if the magistrate made the appropriate order under subsection 3, which could be done if the magistrate held, under s 32.1(b) that it would be more appropriate to deal with the defendant that way than to proceed in accordance with the application of criminal law and procedure. In that regard it is extremely important that the magistrate have regard, not only to the existence of the mental condition, but also to the prospect of treatment for it.

47 Secondly, consideration is required by the magistrate of the appropriateness of proceeding by the usual criminal procedure, and of the appropriateness of considering proceeding by way of such an order for treatment. The magistrate held here: "Undoubtedly Mr El-Mawas is labouring under some difficulties and they relate to lack of self control, they relate to impulsivity and aggressive behaviour. The facts that have been described certainly suggest that Mr El-Mawas has engaged in aggressive behaviour, but there is no suggestion that his behaviour on this particular occasion lacked any thought, and was an act of passion or impulse. In relation to the matter I am of the view that the application of the provisions of s 32 to these proceedings is not appropriate and the application is refused."

48 It has been argued on behalf of the defendant that the test the magistrate applied, that is, deciding that the application of the provision is not appropriate, was more favourable to the plaintiff than that which the Act provides, and on behalf of the plaintiff that it was different in nature to the test that the Act provides.

49 Certainly it is not expressly what the Act provides. It appears to me that the magistrate seemed to consider that unless the features of the particular mental condition had a substantial causal relationship with the commission of the offence alleged, the application of the section would not be appropriate, whether or not treatment might be afforded for the mental condition from which the plaintiff suffered, whether or not, on balance, it was in the community's interest that that treatment might be afforded, rather than traditional criminal procedure and sanctions he applied.

50 The further amended summons says that the learned magistrate erred in law by holding it was inappropriate to deal with the plaintiff in accordance with Part 3 of the Mental Health (Criminal Procedure) Act 1990, because the circumstances of the matter were not of sufficient seriousness. That is a complete misstatement of the way in which the magistrate reasoned.

51 The magistrate seemed to have held, having regard to what had been alleged in the statement of facts that the offences were either too serious or characterised by a degree of planning such that it was inappropriate to apply the provisions of the Mental Health (Criminal Procedure) Act 1990. 52 Thus although the drafting of the reasons might be somewhat on the vague side, they certainly seem to suggest that the magistrate held that either the offence was too serious or that it was characterised by a degree of planning where the condition to which she had been referred was a condition itself mitigating against planning, so that the condition should not be seen to be causative of the crime, and that that rendered the matter inappropriate for the application of s 32.

53 It seems, therefore, that underlying the findings of the magistrate were the errors of construction alleged. In Confos v Director of Public Prosecutions Howie J, in the only decision in relation to the application of s 32 to which the parties could refer me, held: 16 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." 17 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. 18 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. The question for this Court is whether the magistrate failed, either actually or constructively, to exercise the discretion conferred on the court by the section.

54 I am not sure that, even with the greatest respect, I agree entirely with Howie J. I do not see that a discretionary judgment, in the strict sense, is made by the magistrate. To my mind it is rather a value judgment concerning the appropriateness of dealing with the matter under one regime or another. The magistrate does perform a balancing exercise, weighing up, on one hand, the purpose of the criminal process and sentencing, which now are defined by the Crimes (Sentencing Procedure) Act 1999 and, in particular, s 3A of that Act and the purpose of the new procedure under s 32.

55 The purposes of sentencing of which s 3A speaks include deterrence, community protection, and rehabilitation as well as the other purposes therein set out, of which punishment is only one. The public interest to which Sec 32 relates, lies in diverting the mentally disordered offender from the criminal justice system into a system of treatment, which system has also as one of its objects, the protection of the community. But the modes of achieving the objects differ according to the precise nature and degree of any mental condition and the available treatment.

56 Howie J points out that the judgment that is made in those circumstances is one upon which reasonable minds may reach different conclusions in a particular case. I agree. I agree that due regard must be paid to the seriousness of the offending conduct, as Howie J has referred to. But one should not exclude from consideration, when considering the seriousness of the offending conduct, the degree to which the defendant is disabled from being able to control that conduct by limiting consideration to the "seriousness of the offence".

57 I do not see that the question of appropriateness is amenable to being decided by some short form test such as referring to "the more serious the offending, the more important will be the public interest in punishment", not only because of the importance of treatment, but also because of the amplitude of s 3A of the Crimes (Sentencing Procedure) Act 1999.

58 I agree with Howie J that it is the protection of the community with which one is concerned. I do not agree that that renders it less likely in more serious cases, that it will be appropriate to deal with the defendant in accordance with the provisions of the Mental Health (Criminal Procedure) Act 1990. To my mind, the provision for treatment there recognises the concept of protection of the community by the provision of treatment. What weight is given to the various factors that touch upon the magistrate's judgment is a matter for the particular magistrate.

59 What policy considerations should properly be applied are dictated by the particular circumstances of the individual cases, and the principles to be applied - see Norbis v Norbis (1986) 161 CLR 513, but it does seem to me that, where a magistrate failed to have regard to the purposes of treatment and concluded, on a factual basis apparently not at all established by the material before the magistrate, that the offence did not seem to relate to the condition, that the magistrate has incorrectly construed the ambit and purpose of the section.

60 I therefore conclude that leave to appeal should be granted, the appeal upheld, the declaration to which I have referred in the further amended summons numbered 2, should be made, and that the matter should be remitted to the Local Court for determination conformably with the reasons I have given. 61 I order the defendant to pay the plaintiff's costs.

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