Taylor v Bamber & Anor [2011] NTSC 36

Justices Act s 67, s 120, s 121A, s 121A(1)(d)(e) and (f), s 121(1AA), s 122A

Mental Health and Related Services Act (NT) s 23(3)(a), s 77, s 77(2), s 77(3), s 77(4)

Birkeland-Corro v Tudor Stack [2005] NTSC 23; Graham v Atkins [2006] NTSC 51, considered

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 16; (1980) 144 CLR 1; McKirdy v McCosker & Anor [2002] NSWSC 197; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, referred to

Plaintiff: Central Australian Aboriginal Legal Aid Service

First and Second Defendants: Office of the Director of Public Prosecutions

Taylor v Bamber & Anor [2011] NTSC 36

[1] The plaintiff seeks an order in the nature of mandamus to require the first defendant to proceed in accordance with s 77(4) of the Mental Health and Related Services Act (NT) and dismiss three charges laid against the plaintiff on information. The second defendant is the informant and the first defendant is a stipendiary magistrate sitting as the Court of Summary Jurisdiction at Alice Springs.

[2] The second defendant opposes the grant of the orders sought by the plaintiff. The first defendant submits to the Court's jurisdiction, but takes no active part in the proceedings, as is usual in matters of this kind.[1]

[3] The first charge against the plaintiff was that on 28 March 2010 at Alice Springs he unlawfully entered a building, the alleged circumstances of aggravation being that the building was a dwelling house, that the building was occupied at the time and that the plaintiff intended to commit the crime of stealing in the building.

[4] The plaintiff's alleged criminal conduct on the same occasion gave rise to two further charges: the second charge, that he stole car keys valued at $998.05, and the third charge, that he unlawfully used a motor vehicle, the circumstances of aggravation being that the value of the motor vehicle was $20,000 or greater, and that the motor vehicle was damaged and the cost of repairs in excess of $1,000.

[5] The three charges laid on information and several other charges laid on complaint were mentioned before the Court of Summary Jurisdiction on at least five occasions prior to 4 August 2010. On the latter date, the presiding magistrate requested a certificate pursuant to s 77(2) Mental Health and Related Services Act. Section 77(2) provides as follows:

• (2) The court may request from the Chief Health Officer a certificate in the approved form stating:

  • (a) whether at the time of carrying out the conduct constituting the alleged offence, the person was suffering from a mental illness or mental disturbance; and

  • (b) if the person was suffering from a mental illness or mental disturbance - whether the mental illness or disturbance is likely to have materially contributed to the conduct.

[6] Before the Chief Health Officer may lawfully give a certificate of the kind requested, he or she must receive and consider advice in relation to a defendant from an authorised psychiatric practitioner or designated mental health practitioner.[2]

[7] After considering the advice of one of such specified persons, the Chief Health Officer may then give a certificate in the approved form stating whether, at the time of carrying out the conduct constituting the alleged offence, the defendant was suffering from a mental illness or mental disturbance; and, if so, whether the mental illness or disturbance was likely to have materially contributed to the conduct.

[8] After the Court receives the certificate, it must under s 77(4) dismiss the charge against the defendant if it is satisfied that, at the time of carrying out the conduct constituting the alleged offence, the person was suffering from a mental illness or mental disturbance and that, as a consequence of such mental illness or disturbance, the person did not know the nature and quality of the conduct, or did not know the conduct was wrong, or was not able to control his or her actions.

[9] Mr Robson for the second defendant suggested in the course of his argument to the Court that the procedures in s 77 were "crude and rudimentary". For the purposes of this decision, I do not need to make findings in relation to that characterization. However, I do note that a "designated mental health practitioner" (whose advice informs the Chief Health Officer) may be a psychologist, registered nurse, occupational therapist, Aboriginal health worker, social worker or an ambulance officer.[3] True it is that the person needs to have not less than two years approved clinical experience and have completed an approved "training and orientation course" before the person can be appointed as a "designated mental health practitioner". However, to certify that a person was suffering from a mental illness or mental disturbance at the time of offending requires a retrospective medical diagnosis, and to certify that such mental illness or disturbance is likely to have materially contributed to the offending conduct requires an expert opinion as to causation. It is therefore unusual that the advice of persons in some of the occupations referred to is treated as equivalent to the advice of a specialist psychiatrist and is sufficient under the statute to relevantly inform the Chief Health Officer to enable him or her to give the s 77(2) certificate.

[10] A reassuring factor may be that the Chief Health Officer under the Public Health Act must be registered or entitled to be registered as a medical practitioner - see s 5(1)(b) Public Health Act. The Chief Health Officer may, however, delegate to any person all or any of his powers or functions under the Public Health Act (or any other law in the Territory) and so it is possible that the Chief Health Officer's powers under the Mental Health and Related Services Act could be delegated to someone who is not a medical practitioner.

[11] The s 77 certificate and the statements of opinion it contains have significant evidentiary value. It may be in a given case that the s 77 certificate is the only evidence before the Court. Section 77(4) provides as follows:

(4) After receiving the certificate, the court must dismiss the charge if satisfied that at the time of carrying out the conduct constituting the alleged offence:

(a) the person was suffering from a mental illness or mental disturbance; and

(b) as a consequence of the mental illness or disturbance, the person:

• (i) did not know the nature and quality of the conduct; or

• (ii) did not know the conduct was wrong; or

• (iii) was not able to control his or her actions.

[12] Although the Court is required to dismiss the charge only if satisfied as to the matters set out in subparagraphs (a) and (b), it is unclear what enquiry, if any, the Court is entitled to undertake in order to test the basis for the statements in the certificate of the Chief Health Officer. Section 77(4) seems to contemplate that the Court will accept the certificate of the Chief Health Officer, and does not make provision for a situation in which there is anything other than acceptance. Whether there can be an evidence-based enquiry in relation to the matters stated in the certificate and, if so, the nature of the enquiry, remains unclear.[4] The issue was not argued before me. However, the regime set up under s 77 is such that the process leading to the dismissal of charges against a defendant may be less than rigorous.

[13] I stress that these observations are not conclusions made after full legal argument, and they relate to issues which I do not need to determine. However, they may have relevance in relation to whether a prosecutor would consent to summary disposition of a criminal charge classified as a "minor indictable offence" in a particular case. I comment on that further in par [22] below.

[14] On 12 November 2010, the matter came back before the Court. Counsel for the defendant (the within plaintiff) referred to s 77(4) Mental Health and Related Services Act and submitted that the Court had no choice but to dismiss the charges. He argued that the Court "must have been exercising summary jurisdiction" by requesting the certificate and that, in relation to the prosecutor's consent, "...it was never indicated that consent was ever an issue." Counsel for the prosecution indicated clearly that he did not consent to summary jurisdiction being exercised with respect to the first and third charges, and referred to the Court's power to decline to deal with the second charge.[5] He argued that the second charge was "inextricably entwined" with the first charge, and suggested that all three charges should be dealt with together. Counsel for the defendant then made a submission that "the Crown seems to be withdrawing consent for this matter to be dealt with summarily".

[15] The learned magistrate decided the issue against the plaintiff and made orders as follows:-

"Yes all right, well it would seem that issue has never been traversed. Certainly 4 August was the first mention before Mr Neill and apparently according to his documentation, at the request of counsel for the defence, ... orders pursuant to s 77 of the Mental Health and Related Services Act, a s 77 report was sought.

There is nothing to indicate as to whether that was to be in relation to all charges or just the summary charges. I don't think anyone had really turned their mind to it until - well certainly there has been no submissions apparently or nothing on the file to indicate whether that has been the case. Now clearly it is a matter where counts 1and 3 cannot proceed without consent to jurisdiction by the Crown. It would seem illogical to deal with count 2 separately from counts 1 and 3 so I am not prepared to dismiss those charges pursuant to s 77 without consent of the Crown. ....

In relation to counts 1, 2 and 3 I note that the Crown does not consent to jurisdiction in relation to counts 1 and 3, so counts 1, 2 and 3 are adjourned to 25 November to obtain a committal date at 10 am. ...".

[16] Mr O'Reilly argued that the course of the proceedings in the Court of Summary Jurisdiction, from the first mention through several subsequent mentions, culminating in Magistrate Neill's request made on 4 August 2010 for a certificate from the Chief Health Officer, evidenced the assumption of jurisdiction by the Court of Summary Jurisdiction to summarily hear and determine the first and third charges for the indictable offences described in par [3] and par [4] above. Mr O'Reilly relied in particular on the fact that the Court had requested a certificate pursuant to s 77(2) Mental Health and Related Services Act on 4 August 2010. He argued that it was not then competent for the Court, albeit constituted by a different magistrate, not to dismiss all three charges on 12 November 2010. He also argued that the Crown should not be able to "interfere with this process by using their consent to summary jurisdiction as a de facto veto power in respect of the result."

[17] In my view the plaintiff's arguments are answered by reference to the provisions of s 121A Justices Act.

Jurisdiction of the Court of Summary Jurisdiction

[18] Because the first and third charges were "minor indictable offences" within the meaning of the Justices Act,[6] the jurisdiction of the Court of Summary Jurisdiction to hear and determine those charges depended upon: (1) the consent of the defendant, (2) the consent of the prosecutor and (3) the Court being of the opinion that the case could properly be disposed of summarily.[7] All three were necessary conditions precedent to the Court's jurisdiction.

[19] However, at least one of those conditions was not met, in that the prosecutor did not relevantly consent. In my opinion, such consent cannot be implied; it must be express. At no stage did the prosecutor give express consent. The fact that on 4 August 2010 the prosecutor (a Police Sergeant) did not oppose or seek to clarify (or restrict to the charges laid on complaint) the defendant's application that the magistrate request a s 77(2) certificate from the Chief Health Officer cannot amount to consent under s 121A(1)(e) Justices Act.

[20] As to consent on the part of the defendant, his counsel argued forcefully on 12 November that the Court had assumed jurisdiction, but it does not appear that the defendant or counsel on his behalf had ever expressly consented.

[21] Finally, I observe that the condition that the Court must be of the opinion that the case can properly be disposed of summarily was not met. Alternatively, there is no evidence that the Court was of the required opinion. The Court needs to be made aware of the of the evidence on which the prosecution relies so that the Court is adequately informed before making the assessment required under s 121A(1)(f) as to whether the case can properly be disposed of summarily.[8] It would appear that a document setting out the facts was tendered. However, at no stage did the first defendant or any other magistrate indicate being of the required opinion.

[22] The conditions precedent to the court's jurisdiction to hear and determine indictable offences under s 121A(1) are very important. By consenting to summary disposition a defendant waives his or her right to a trial before a jury. When a prosecutor consents to an indictable offence being disposed of summarily, the prosecutor accepts that the maximum penalty which can be imposed is a penalty which is very often considerably less than the maximum penalty applicable if the matter were dealt with by the Supreme Court. In a case where mental illness or mental disturbance is alleged, the prosecutor submits to a regime which, as mentioned in par [12] above, may be less than rigorous and which can lead to dismissal of the charges under s 77(4).

[23] In considering the plaintiff's arguments as to assumption of jurisdiction by implication, I am reminded of the unusual case of Graham v Atkins.[9] The defendant (appellant) in that case had not been asked to enter a plea to the charge on complaint at the start of the trial, because the Court and the parties had overlooked the requirement in s 67(1) Justices Act for a plea to be taken. Although the trial proceeded on the assumed basis that the defendant had pleaded not guilty, and the prosecution called all its evidence on that assumption, an appeal by the defendant against conviction was allowed on the ground that the proceedings in the Court of Summary Jurisdiction were a nullity. Compliance with s 67 was held to be mandatory as it founded the jurisdiction of the magistrate to hear the charge. The error under consideration "involved a fundamental procedure going to the validity of the proceedings in their entirety."[10]

[24] The three conditions precedent in 121A(1)(d)(e) and (f) Justices Act found the jurisdiction of a magistrate to deal with a "minor indictable offence" and so are analogous to the requirement in s 67 Justices Act that a defendant be asked to plead to a charge at the outset of a summary trial. The same principles apply, with the same potential for invalidity. The mandatory conditions precedent to the Court's jurisdiction must be satisfied in a clear manner, by the use of express words, such that it can be readily ascertained whether or not jurisdiction is being exercised at any point. Hence, in my view, both the defendant and the prosecutor must expressly consent to summary disposition under s 121A Justices Act.

[25] On the basis of my findings in pars [19], [20] and [21], I conclude that the Court did not have jurisdiction to hear and determine the first and third charges in a summary manner. Therefore, the Court was not at any time exercising summary jurisdiction in respect of those charges. It follows that s 77 did not apply, since under s 77(1)(b) the Court had to be exercising summary jurisdiction for the section to apply.

[26] Different considerations apply to the second charge. The Court had jurisdiction pursuant to s 120 Justices Act to deal with that as a "minor offence", unconditional as to consent of the defendant (the present plaintiff) or the prosecutor, although nonetheless subject to the value of the property involved not exceeding $5,000 and subject always to the possibility under s 122A that the Court might reach the view in the course of dealing with the offence that it should be tried by the Supreme Court.

[27] In the present case, the Court accepted the prosecutor's submission that the facts relating to the second charge were inextricably linked with the offending conduct constituting the first and third charges. The Court rightly concluded that it would be illogical for the second charge to be dealt with separately from the other two charges and hence (pursuant to s 122A Justices Act) declined to further exercise jurisdiction under s 120 Justices Act. In my opinion there was no error in the exercise by the Court of its discretion under s 122A. Since the Court was no longer exercising summary jurisdiction with respect to the second charge, s 77 Mental Health and Related Services Act ceased to apply.

[28] I conclude that s 77 Mental Health and Related Services Act did not apply to the plaintiff in proceedings relating to the first and third of the three charges laid against the plaintiff on information.

[29] I find that s 77 Mental Health and Related Services Act did apply to the plaintiff in proceedings relating to the second of the three charges laid against the plaintiff on information, but that s 77 ceased to apply to him on 12 November 2010 upon the first defendant making the order referred to in par [15] above.

[30] There is no basis in law for an order in the nature of mandamus to compel the first defendant to dismiss any of the three charges laid against the plaintiff on information.

[31] The plaintiff's originating motion sought a permanent stay of proceedings by way of alternative or additional relief to an order in the nature of mandamus, but the plaintiff's counsel abandoned that part of the application at the hearing.

[32] The plaintiff's originating motion should be dismissed.

[33] I will hear the parties as to final orders including in relation to the issue of costs.

[1] The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35.9-36; such submission is 'save as to costs': McKirdy v McCosker & Anor [2002] NSWSC 197; (2002) 127 A Crim R 217, per Howie J at [2].

[2] See s 77(3) of the Act.

[3] See s 23(3)(a) Mental Health and Related Services Act.

[4] This problem was identified by Magistrate Neill SM in the Court of Summary Jurisdiction on 4 August 2010. His Honour said: "I would see it as a major problem if a certificate came and there was any reluctance or failure to provide the report on which it was based. I would not feel able to be satisfied solely from the conclusion of somebody else's investigations without [knowing] all the steps involved in that conclusion." His Honour's concerns were related to the principles which ordinarily govern the receipt of expert evidence, and the need for both the facts underlying the expert opinion and the reasoning of the expert based on those facts to be made clear - see, for example, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [64] - [67] per Heydon JA. In addition, the underlying facts must be established on the evidence for the expert opinion to be given weight.

[5] Section 122A Justices Act.

[6] Section 4 definition of "minor indictable offence" and s 121A(1) Justices Act.

[7] Section 121A(1)(d)(e) and (f) Justices Act. See also Birkeland-Corro v Tudor Stack [2005] NTSC 23 at par [82].

[8] Section 121A(1AA) Justices Act.

[9] G_raham v Atkins_ [2006] NTSC 51.

[10] Graham v Atkins [2006] NTSC 51, [6] and [13].