Skapik v R

District Court of NSW|2024-06-04

186 McNab v Director of Public Prosecutions [2021] NSWCA 298 Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 Page v Smith [1996] 1 AC 155 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Mailes (2001) 53 NSWLR 251 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Saadat-Talab v Australian Federal Police (2007) 178 A Crim R 527 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013 The ICD-10 Classification of Mental and Behavioural Disorders, 1992 Category: Principal judgment Parties: Daniel Skapik (Appellant) Rex (Crown) Representation: Counsel: D McMahon (Appellant)

Solicitors: Just Defence Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2022/325224 Publication restriction: None Decision under appeal Court or tribunal: Downing Centre Jurisdiction: Local Court Date of Decision: 14 November 2023 Before: Magistrate Guy File Number(s): 2022/325224

Facts

The appellant was employed as a Team Leader at the Housing Contact Centre of the Department of Communities and Justice (DCJ) and as a part time Retail Sales Assistant by Optus.
Joshua Wootton was a serving police officer. The appellant had been friends with Mr Wootton since high school.
On 22 March 2019 (sequence 1) and 29 March 2019 (sequence 2) the appellant used his unique credentials to access the Optus account of Mr Wootton's partner, Olivia Cameron. The appellant then disclosed personal information of Ms Cameron to Mr Wootton, including by providing a copy of Ms Cameron's mobile telephone account (sequence 4).
The appellant accessed the Optus system and provided the information at the request of Mr Wootton, so that he could see who she was communicating with in the context of the breakdown of their relationship. Mr Wootton was subsequently charged with a number of domestic violence related offences.

Relevant Law

The maximum penalty for each offence was 2 years imprisonment. There was a jurisdictional limit on the maximum penalty of 12 months imprisonment and/or a fine of 60 penalty units when these offences were dealt with in the Local Court: s 4J(3)(a) of the Crimes Act.

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

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].
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].
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].
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].
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).
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).
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).
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).
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.
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 scheme

Section 20BQ of the Crimes Act provides: Person suffering from mental illness or intellectual disability (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 (other than an order covered by subparagraph 20AB(1AA)(a)(viia)) or 21B in respect of the person in respect of the offence.
Section 20BR of the Crimes Act provides: Means by which court may be informed For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself.
Section 20BQ operates in relation to federal offences. Similar State provisions, such as Part 2 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the 2020 FP Act), do not apply: Kelly v Saadat-Talab (2008) 72 NSWLR 305.
"Mental illness" as it is referred to in s 20BQ is a reference to any underlying condition and a person does not cease to have that condition because it is controlled by a stable regime of medication: Kelly at [30] (Allsop P, Ipp JA agreeing).
A person must be suffering from the relevant mental illness at the time of the hearing of the application pursuant to s 20BQ: Commonwealth Director of Public Prosecutions v Mahamat-Abgelgader [2017] NSWSC 1102 at [18] (McCallum J).

Principles of statutory construction

Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47].
Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131 at [23]-[26].
Section 15AA Interpretation Act 1901 provides that the interpretation of a provision that would promote the purpose or object of the Act is to be preferred to a construction that would not do so.
Extrinsic materials can be used as an aid to construction, but they are not a substitute for the language considered in context and cannot displace the meaning of the text: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] and section 15AB Interpretation Act 1901.
Commonwealth legislation and the common law of Australia should be interpreted consistently by the intermediate appellate courts of Australia, unless the court is satisfied that the interpretation or the statement of principle is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135] and Hili v The Queen (2010) 242 CLR 520 at [49].

Analysis of the magistrate's reasons

The magistrate accepted the prosecution submission that the relevant mental illness was required to satisfy the definition of "mental illness" provided for by s 4 Mental Health Act 2007 (NSW) (the 2007 MH Act). In my view that constituted an error of law, for reasons that I will come to.
The magistrate accepted as "line ball" that the appellant suffered from a relevant mental illness.
The magistrate considered the offences to be objectively serious because they involved a breach of trust. He directed himself that the purposes of punishment were as relevant to the s20BQ application as they were to sentence. The magistrate did not accept an aspect of what the appellant told one of the psychologists to the effect that he did not know that his conduct was illegal.
The magistrate stated that a factor going against the diversion of the appellant was that there was no procedure for calling the appellant up if he was found to be in breach of the order. In my view, this was also an error. Section 20BQ contemplates making a conditional order for up to 3 years. The power to call up a person to vary the order is an implied power necessary for its exercise: Grassby v R (1989) 168 CLR 1 at [21] and a breach of the order is actionable as a contempt (at [22]).
Overall, contrary to the magistrate's conclusion on the issue, I am satisfied on the facts and the psychologists' evidence that it is more appropriate to deal with the appellant pursuant to the diversionary scheme, otherwise than in accordance with law, for the reasons set out below.

Issue 1 - What constitutes a "mental illness" within the civil law of New South Wales?

The Director's submissions

The Director submitted that the meaning of the phrase "mental illness within the civil law of the State or Territory", is to be equated to the definition of "mental illness" provided for in each of the State and Territory Mental Health Acts, as it existed at the time when s 20BQ was enacted in 1989. [1] No authority was provided for the proposition that the meaning of the relevant phrase is to be determined as at the time that it was enacted into law.
In this case, the Director submitted that the court "must have exclusive regard to" the definition of "mental illness" that was provided for by s 4 Mental Health Act 2007 (NSW) (the 2007 MH Act), which provides: "mental illness" means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms-- (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).
It is contended is that this follows from the following matters: 1. the decision by the Court of Appeal in Kelly that s 20BQ was intended to cover the field, leaves no room for the operation of the cognisant State diversionary scheme provided for by, originally, s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) (the 1990 FP Act), which has now been replaced by the 2020 FP Act; 2. the term "mental illness" was not defined in the 1990 FP Act, however it has been construed by reference to the definition of "mental illness" in the Mental Health Act 1990 (NSW) (the 1990 MH Act), because those Acts formed part of scheme of legislation that were introduced together and assented to on the same day: R v Mailes (2001) 53 NSWLR 251 at [108] Wood CJ at CL, Spigelman CJ and James agreeing) and DPP v El Mawas (2006) 66 NSWLR 93 at [56] (McColl JA, Spigelman CJ and Handley JA agreeing); 3. whilst the New South Wales Parliament has favoured the terms "mental health impairment" and "cognitive impairment", in the 2020 FP Act those terms do not appear in the Crimes Act and have no application in the exercise of the discretion provided for by s 20BQ; 4. in 1989 when the Commonwealth Parliament passed s 20BQ, it intended the section to apply to "person(s) suffering from a mental illness within the meaning of the civil law of the State or Territory" as established by the legislation applicable at that time, thereby excluding the 1990 FP Act and the 2020 FP Act, because those Acts were passed after 1989; and 5. to allow the use of the New South Wales concepts of "mental impairment" or "cognitive impairment" would render s 20BQ redundant and allow New South Wales legislative policy to be substituted for Commonwealth legislative policy.

The appellant's submissions

The appellant contended that s 20BQ co-opted the meaning of "mental illness" within the civil law of New South Wales, which could include statutory and common law uses of that term. This promoted a broader interpretation of the term "mental illness" to include all types of disorders or conditions that may impair mental functioning and provide a proper basis for the diversion of a person charged with a federal summary offence away from the consequences of the criminal law and into appropriate treatment. This was supported by the obiter comments of Rothman J in Kelly at first instance, that a person who suffers from mental illness as defined in s 3 of the 1990 MH Act was "at least part of the class of persons" to whom s 20BQ could be applied: Saadat-Talab v Australian Federal Police (2007) 178 A Crim R 527 at [33]. [2]
The appellant relied on the modern use of the terms "mental health impairment" and "cognitive impairment", which have replaced the use of the term "mental illness" in the Civil Liability Act 2002 (NSW) (the CL Act), the Act which governs the award of "personal injury damages" for most actions relating to "mental harm" in New South Wales. The CL Act adopts in s 3 the definitions of "mental health impairment" and "cognitive impairment" used in the 2020 FP Act and applies them retrospectively to uses of the term "mental illness" as it previously appeared in the CL Act: see clause 47 of Schedule 1 of the CL Act. "Mental health impairment" is defined in s 4 of the 2020 FP Act as: (1) For the purposes of this Act, a "person has a mental health impairment" if-- (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons-- (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by-- (a) the temporary effect of ingesting a substance, or (b) a substance use disorder.
The appellant submitted that the rules of statutory construction do not permit the definition of the term "mental illness" provided for in s 3 of the 1990 MH Act to be substituted for the definition of those words used in s 20BQ: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [32].

The text of s 20BQ

The phrase "a person suffering from a mental illness within the meaning of the civil law of the State or Territory" is a composite one. The language used does not support the Director's proposed construction. If that was Parliament's intention, s 20BQ could have defined "mental illness" by reference to the definition used in s 4 of the 2007 MH Act or by reference more generally to the definitions of "mental illness" used in the Mental Health Acts of the States and Territories.
The phrase does not include a person suffering from an intellectual disability, because s 20BQ is expressly and separately applicable to such persons.
The term "mental illness" is not defined in the Crimes Act.
The Macquarie Dictionary defines the term "mental illness" as: Any disorder of the mind which causes a person to behave, think or feel so abnormally as to cause suffering to themself or others.
The Macquarie Dictionary defines the term "disorder" as including: A derangement of physical or mental health or functions.
"Civil law" deals with the regulation of private conduct between individuals, organisations and government agencies. Civil laws can be found in the common law or in statutes. Civil laws can include those that govern the regulation of an individual's civil rights: Saadat-Talab at [36].
The 2007 MH Act provides for a unique override of an individual's autonomy with respect to the administration of medical treatment. An individual can refuse to accept medical treatment for any medical condition, other than a mental illness as defined in s 4 of the 2007 MH Act, if owing to that illness the person is a danger to themselves or others and is thereby classified as a "mentally ill person" within the meaning of that term in s 14 of the 2007 MH Act. A mentally ill person can, under the supervision of the Mental Health Review Tribunal, be: 1. detained and required to undergo involuntary treatment in a mental health facility [3] , or 2. be required to undergo involuntary treatment in the community, pursuant to a Community Treatment Order. [4]
The 2007 MH Act provides for a civil commitment process and forms part of the civil law of New South Wales. However, the definition of "mental Illness" set out in s 4 of the 2007 MH Act is just one source of the meaning of "mental illness within the civil law of New South Wales. Having said that, it cannot be disputed that persons suffering from a mental illness as defined in s 4 of the 2007 MH Act would be eligible to be dealt with under s 20BQ.
Prior to the introduction of the definition of "mental illness" in s 3 of the 1990 MH Act, the Supreme Court defined "mental illness" as it was used in the Mental Health Act 1958 (NSW) (1958 MH Act) as "a disease of the mind" [5] which was explained by Powell J as: The phrase…is now taken to have a very wide meaning, and such as to embrace "as well as all forms of physical or material change or deterioration, every recognisable disorder or derangement of the understanding whether or not its nature in our present state of knowledge, is capable of explanation or determination". [6]
The CL Act provides that an individual may bring an action for "personal injury damages" on the basis that they have suffered an "injury" which includes an "impairment of a person's …mental condition" which is defined as "mental harm": ss 11 and 27 of the CL Act. Section 30 of the CL Act provides that a person may bring a claim for pure mental harm arising from nervous shock as a result of the injury or death of a third person in limited circumstances, so long as the harm consists of a "recognised psychiatric illness".
The CL Act has expressly replaced the use of the term "mental illness" with the terms "mental health impairment" and "cognitive impairment" as those concepts are defined in the 2020 FP Act. For present purposes, cognitive impairment is not relevant because s 20BQ is expressed as applicable to persons suffering from an intellectual disability. However, it is clear that for the purposes of the civil law in New South Wales to which the CL Act applies, a reference to mental illness is to be read as a reference to a mental health impairment or a cognitive impairment.
The provisions of the CL Act do not apply to certain causes of action: s 3B CL Act. For some of those causes of action, the common law applies.
At common law, psychiatric injury was considered to be a form of bodily injury: Page v Smith [1996] 1 AC 155, applied in Commonwealth v McLean (1996) 41 NSWLR 389 at 403 (Handley and Beazley JJA). However, nervous shock was treated as different "in kind" from tangible physical injury and liability was dependent on the foresight of nervous shock with the wrongful conduct resulting in a "recognisable psychiatric illness": Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402 (Windeyer J). Recognisable psychiatric illness has been found to apply to any condition recognised by the field of psychiatry, such as posttraumatic stress disorder. [7] A recognised psychiatric disorder may or may not satisfy the definition of "mental illness" set out in s 4 of the 2007 MH Act.
To define the term "mental illness within the meaning of the civil law of New South Wales" by reference to the ordinary meaning of the words, supports a construction that it includes all clinically recognisable disorder(s) that significantly interfere with an individual's cognitive, emotional or social abilities.
This construction reflects the modern language of the classification of mental disorders complied by expert bodies for the purpose of assisting clinicians to diagnose mental disorders.
The American Psychiatric Association uses the term a "mental disorder" for all of its classifications contained in DSM-5. It defines a "mental disorder" as: …a syndrome characterised by clinically significant disturbance in an individual's cognition, emotion, regulation or behaviour that reflects a dysfunction in the psychological, biological or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational or tother important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behaviour (eg political, religious or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above. [8]
The World Health Organisation has adopted a similar approach in The ICD-10 Classification of Mental and Behavioural Disorders, 1992, which provides at page 5: The term "disorder" is used throughout the classification, so as to avoid even greater problems inherent in the use of terms such as "disease" and "illness". "Disorder" is not an exact term, but it is used here to imply the existence of a clinically recognizable set of symptoms or behaviour associated in most cases with distress and with interference with personal functions. Social deviance or conflict alone, without personal dysfunction, should not be included in mental disorder as defined here.
The concept of a mental disorder referred to in the DSM-5 and the ICD-10 is reflected in the drafting of the concept of a of "mental health Impairment" provided for in s 4 of the 2020 FP Act.

Context

For present purposes, the Crimes Act provides for matters of criminal procedure related to the investigation and prosecution of federal criminal offences. It is expressed to apply throughout the Commonwealth and the Territories and has extra-territorial operation: s 3A.
Section 20BQ is contained in Division 8 of Part IB of the Crimes Act and is expressed to apply to summary offences only.
Section 20BQ was enacted at a time when the term "mental illness" was one used to apply to a wide variety of conditions, for example as it was defined in [49] [9] . More recent legislation refers to more nuanced concepts such as "mental health impairment" or "mental impairment", where the underlying cause of the impairment is a neutral factor and concepts of "illness" or "disease" are no longer used.
Division 7 of Part IB of the Crimes Act provides for the procedure to be adopted if a person is acquitted of an indictable federal offence due to "mental illness". Section 20BJ of the Crimes Act provides: Acquittal where person mentally ill (1) Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (2) The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1). (3) Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney - General, in writing, of the variation and of the reasons for the variation. (4) Despite subsection (1), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (1), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years. (5) The conditions may include: (a) a condition that the person remain in the care of a responsible person nominated in the order; and (b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person's mental illness, mental condition or intellectual disability and, where appropriate, for treatment. (6) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
The procedure for determining if a person is not criminally responsible for a federal criminal offence is set out in s 7.3 of the Code which provides: 7.3 Mental impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that: (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or (c) the person was unable to control the conduct. (2) The question whether the person was suffering from a mental impairment is one of fact. (3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment. (4) The prosecution can only rely on this section if the court gives leave. (5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment. (6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility. (7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence. (8) In this Code: "mental impairment" includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. (9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Section 7.3 of the Code was enacted after s 20BJ was included in the Crimes Act, in 1989.
Section 7.3 codifies the law in so far as it relates to a person being found to be not criminally responsible for a federal criminal offence. It follows that for a person to be "acquitted because of mental illness" as provided for in s 20BJ of the Crimes Act that the person must have been suffering from a "mental impairment" identified in the non-exhaustive list in s 7.3(8) of the Code, and that the mental impairment caused one of the required effects set out in s 7.3(1)(a)-(c) of the Code.
In those circumstances, it is clear that the use of the term "mental illness" in section 20BJ of the Crimes Act has a contextually different meaning to its use in s 20BQ.
Division 9 of Part IB of the Crimes Act provides sentencing alternatives for persons suffering from a mental illness or an intellectual impairment where a person is convicted of an indictable federal offence. Section 20BS that provides for the making of Hospital Orders and s 20BV that provides for the making of Psychiatric Probation Orders are conditioned on the court being satisfied, inter alia that "the person is suffering from a mental illness within the meaning of the civil law of the State or Territory" and that the illness contributed to the commission of the offence.
Because ss 20BV and 20BS only apply after a conviction for an indictable offence, it follows that the term "mental illness" used in those sections does not have the same meaning as it does in s 20BJ, because in s 20BJ the concept of mental illness referred to is a reference to the person being found not to be criminally responsible for the offence(s). Put conversely, the "mental illness" referred to in ss 20BV and 20BS is a condition of a kind that would not be serious enough to justify an acquittal.

Purpose

The purpose of s 20BQ is to promote the public interest in diverting a person suffering from a mental illness away from the criminal justice system and into treatment if that outcome outweighs the public interest in the purposes of punishment: Confos v Director of Public Prosecutions [2004] NSWSC 1159.
Section 20BQ is intended to be applied on an informal basis and can be considered before a plea is entered and whether or not a person is fit to plead.
The purpose of s 20BQ is promoted by a broad interpretation of the concept of a mental illness because it will promote the consistency of its application, in each State and Territory.

Rejection of the Director's submissions

For the sake of completeness and fairness, I should return to deal with the Director's submissions.
First, as I have already stated, no authority was cited for the proposition that the meaning of the phrase "mental illness within the meaning of the civil law of the State or Territory" was to be construed to the meaning of the phrase as at 1989 when s 20BQ was enacted. Whilst I accept that some provisions must be construed this way, I can see no reason in principle for that approach in the context of the current provision. To the contrary, the reference to the civil law of the State or Territory suggests that the state of the law is fluid and is to be assessed at the time of the inquiry.
Second, I accept the appellant's submission that the principles of statutory construction do not permit the substitution of the definition of the term "mental illness" as it was used in the State and Territory Mental Health Acts, because the context of the use of the terms is different.
Third, contrary to the Director's submission, there was no statutory definition of the term "mental illness" at the time when s20BQ was enacted in 1989. The definition was not inserted into the New South Wales Mental Health Act until it was included in section 3 and Schedule 1 of the 1990 MH Act. [10] The term was not defined in either of the 1958 MH Act or the Mental Health Act 1983 (NSW).
Fourth, acceptance of the Director's submission would likely lead to a myriad of inconsistent applications of s 20BQ in the States and Territories.

Conclusion

For all of these reasons, I am satisfied that the term "mental health impairment" as it is defined in s 4 of the 2020 FP Act, is to be equated to a reference to the term "mental illness" in the civil law of New South Wales, by operation of the amended provisions of the CL Act and clause 47 of Schedule 1 of the CL Act.
Further, I am satisfied that the language used in s 20BQ supports the construction that a "mental illness" is a reference to the common law concept of a "recognised psychiatric illness" referred to in s 11 and 27 of the CL Act. The common law concept has been applied in New South Wales to conditions referred to as "mental disorders" within the widely accepted meaning of that term, such as posttraumatic stress disorder, and which are reflected in the definition of "mental health impairment".
Further or alternatively, I am satisfied that the meaning of the term mental illness within the meaning of the civil law of New South Wales, includes the wide meaning given to that term by Powell J in DW v JMW, set out at [49] above.

Issue 2 Is the appellant suffering from a "mental illness" as defined by s 20BQ of the Crimes Act at the time of dealing with the application?

In the Local Court, the appellant relied on the reports of two highly respected forensic psychologists, Anita Robilliard (15 February 2023) and Sam Borenstein (27 October 2023 and 13 November 2023).
Ms Robilliard assessed the appellant by reference to the criteria in s 14 of the 2020 FP Act, which was inapplicable. An earlier application brought by the appellant under that section was dismissed by his Honour Magistrate Barko on that basis.
Nevertheless, Ms Robilliard diagnosed the appellant as suffering from an Adjustment Disorder with mixed anxiety and depressed mood as referred to in DSM-5, based on the history he provided, and confirmed by the opinion of the appellant's treating psychologist.
Ms Robilliard took a history that the appellant and Mr Wootton became friends when the appellant was forced to move to a new school as a result of extensive bullying and harassment. The appellant described himself as eternally grateful for Mr Wootton's friendship at that most difficult time and over the years. He was a groomsman at Mr Wootton's wedding. Mr Wootton's marriage broke down a short time after the wedding.
Ms Robilliard opined that the appellant was suffering from elevated levels of stress caused by the breakdown of Mr Wootton's relationship. He was anxious as to the mental health of his friend and the possibility that Mr Wootton may self-harm. He remained in close contact with Mr Wootton even during a six-week holiday to Africa, a trip which the appellant almost cancelled out of concern for Mr Wootton's welfare. His judgement was impaired by the extent of the contact that he had with Mr Wootton and he felt as though he became enmeshed in Mr Wootton's problems. He felt under pressure from Mr Wootton and could not see an alternative solution, other than to comply with Mr Wootton's requests.
Mr Borenstein received a similar history to Ms Robilliard. The extent of his social anxiety was indicated by an attempt on his own life in about 2012, which Mr Wootton assisted him to seek medical help for. The appellant told Mr Borenstein that his contact with Mr Wootton ruined his trip to Africa. When he returned to Australia and made contact with Mr Wootton he was obsessed that Ms Cameron was having an affair with the jeweller who made their wedding rings. Mr Wootton was insistent that the appellant check her Optus account. The appellant provided Mr Wootton with a copy of her mobile phone bill. The appellant reported that he did not understand what he did was illegal until after the police charged him.
Also, in the months leading up to the offence the appellant was also under pressure at work at DCJ as a result of a problematic relationship with another worker. In this period he was suffering from sleep disturbance, fatigue and worry. He felt he had lost control of his life and his confidence at work was diminished.
Mr Borenstein diagnosed the appellant as suffering from an Adjustment Disorder with mixed anxiety and depressed mood and Social Anxiety Disorder as referred to in DSM-5. He opined that the offending behaviour was uncharacteristic and a product of the appellant's longstanding emotional and psychological vulnerabilities which became acute as a result of his problems at work and the crisis faced by his longtime support, Mr Wootton.
Mr Borenstein recommended ongoing Cognitive Behaviour Therapy (CBT) for the appellant with his treating psychologist for a period of up to 12 months.
Peter Khanna, the appellant's treating psychologist, agreed with the diagnosis of Mr Borenstein, confirmed that the appellant was continuing to undergo CBT and that he would inform the Court of a breach of its order, if the s 20BQ application was successful.
On the basis of the psychological evidence, I am satisfied that: 1. the offender is suffering from Social Anxiety Disorder and Adjustment Disorder with mixed anxiety and depressed mood, and 2. that those conditions have caused an ongoing disturbance of his thought and mood, which is clinically significant and has impaired his emotional wellbeing, judgement or behaviour, and 3. those conditions are each a "mental illness" as referred to in s 20BQ of the Crimes Act.

Issue 3 - Is it more appropriate to deal with the appellant pursuant to the diversionary scheme rather than in accordance with the criminal law?

This issue involves a discretionary judgement. The relevant factors include the seriousness of the offence together with the exercise of subjective value judgements. The court is permitted latitude as to the decision which might he made, confined only by the subject matter and objects of the Act: DPP v El Mawas (2006) 66 NSWLR 93.
The magistrate stated that the offences were objectively serious but did not give reasons for that finding. For the reasons that follow, I have come to a different conclusion on this issue. The periods in which the appellant unlawfully accessed the restricted data were brief. The information provided by the appellant to Mr Wootton was historical and whilst it involved a breach of Ms Cameron's privacy, that breach of privacy was not significant. On the facts, I am not satisfied beyond reasonable doubt that the offences involved a breach of trust. I also accept that the appellant may not have known that his conduct amounted to criminal offences at the time. That is not to say that he did not understand that what he was doing was wrong and could put his employment with Optus in jeopardy. There was no evidence that the appellant knew that Mr Wootton would use the information provided to commit any offence against Ms Cameron, but he should have known that it was likely to fuel Mr Wootton's obsession with the reasons for his relationship breakdown. The offences occurred in the context of significant and relentless contact by Mr Wootton. I accept by reference to the appellant's mental condition at the time of the offences, that he was emotionally vulnerable due to his experiences at work and Mr Wootton's relationship breakdown, that he found himself enmeshed in Mr Wootton's emotional distress and felt that he could not abandon his friend in a time of need. As a result of these factors, he experienced symptoms of anxiety that impaired his judgement and his impaired reasoning directly contributed to his offending conduct. The nature and extent of his mental condition at the time of the offending leads me to find that his moral culpability for the offences is reduced. I have also taken into account the relatively low maximum penalty for the offences. In all of these circumstances, I am of the view that the objective seriousness of the offences is in the low range.
Following the incident, the appellant no longer has contact with Mr Wootton because he now understands that Mr Wootton's approaches to him were inappropriate and constituted an abuse of their relationship.
The nature and extent of the appellant's mental condition is significant. He has suffered symptoms that have interfered with his emotional wellbeing for many years, beginning in his adolescence and continuing to the present day. His mental condition requires significant and ongoing treatment to assist him to control his feelings of self-worth and symptoms of anxiety that led to his offending conduct. A course of treatment at this stage is likely to prevent him from offending again in the future, by reason of his mental condition and thereby provide for the protection of the community.
The appellant is a person of good character and comes before the Court with no prior convictions. He has accepted responsibility for his offending conduct and from an early stage of the proceedings indicated that he would not contest the charges, other than to seek an order for diversion. The appellant has expressed remorse for his actions and his conduct of the proceedings also indicates remorse.
There are a number of sentencing options available that would be appropriate if the diversionary order was not made. However, an order under s 20BQ for the suggested period of 12 months will involve some restriction of the appellant's liberty.
It is an important factor that the appellant referred himself into care as a result of the charges. This demonstrates his insight, his willingness to engage in treatment and that he is committed to controlling his chronic and complex mental condition.
The psychologists have each recommended that the appellant needs to continue with CBT for his condition. Mr Khanna has informed the Court that the appellant has been an active participant in his own therapy and that he has made good progress in his treatment. I am satisfied that the treatment plan providing for a continuation of these sessions for a period of 12 months is appropriate
In all of the circumstances, I am satisfied that the appellant is unlikely to reoffend and that the offences were a "one-off" aberration on his part caused by the culmination of serious psychological symptoms.
I am satisfied that it is more appropriate to deal with the appellant by the application of the diversionary scheme provided for in s 20BQ of the Crimes Act.

Orders

The orders I make are as follows: 1. The appeal against conviction is allowed. 2. I set aside the convictions and the penalties imposed by the Magistrate. 3. I find that as at 3 September 2024, the appellant is suffering from a mental illness within the civil law of New South Wales. 4. Based on the facts and the evidence it would be more appropriate to deal with the appellant in accordance with s 20BQ Crimes Act 1914 otherwise than in accordance with law. 5. I dismiss the Court Attendance Notice and discharge the appellant into the care of Mr Peter Khanna, psychologist, for a period of 12 months from 3 September 2024, concluding on 2 September 2025 on condition that he continues to participate in treatment with Mr Khanna 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 Mr Khanna to the Court or Community Corrections of non-compliance and the charges may be dealt with as if the appellant had not been discharged.

Endnotes

Mental Health Act 1983 (NSW), Mental Health Act 1986 (Vic), Mental Health Act 1974 (Qld), Mental Health Act 1977 (SA), Mental Health Act 1963 (Tas), Mental Health Act 1981 (WA), Mental Health Act 1979 (NT) and Mental Health Act 1962 (ACT).
Rothman J stated at [38] that he ultimately did not have to decide the issue. His decision was not overturned on appeal on this point.
Chapter 3 Parts 1 and 2 of the 2007 MH Act.
Chapter 3 Part 3 of the 2007 MH Act.
RAP v AEP [1982] NSWLR 508 at 510
DW v JMW [1983] 1 NSWLR 61.
See for example Commonwealth v McLean (1996) 41 NSWLR 389.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013, p 20.
DW v JMW [1983] 1 NSWLR 61
The definition was not changed in the Mental Health Act 2007 (NSW) and it remains the current definition for the purposes of that Act. 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: 16 September 2024

Mental Health Act 1958(NSW)

Mental Health Act 1983(NSW)

Mental Health Act 1990(NSW)

Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

Telecommunications Act 1977(Cth)

(NSW), Mental Health Act 1986(Vic)

(Vic), Mental Health Act 1974(Qld)

(Qld), Mental Health Act 1977(SA)

(SA), Mental Health Act 1963(Tas)

(Tas), Mental Health Act 1981(WA)

(WA), Mental Health Act 1979(NT)

Mental Health Act 1962(ACT)

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (16)

Cases Cited (22)

Cited By (1)