Criminal law: March 2017

Director of Public Prosecutions v Wallman [2017] NSWSC 40

Section 33 applications – nature of the test

A Magistrate’s erroneous assumption about the effect of an order under mental health legislation caused the Supreme Court to step through the test for mentally ill persons who are referred for detention and assessment, with important lessons to be learned for both experienced and inexperienced practitioners.

The accused was charged with one count of being armed with intent to commit an indictable offence and one count of having a knife in a public place. The circumstances of his arrest suggested that he had some mental health issues: amongst other things, he said he wanted to go back to Silverwater because he was stranded and had nowhere to go.

At court the papers were marked so as to have him assessed by a mental health nurse, who said he was at risk of relapsing into a number of mental illnesses. Less than two weeks later he breached bail and returned to court, before a Deputy Registrar, where his lawyer said she couldn’t get instructions (reading between the lines: because the accused presented as seriously mentally ill). The Deputy Registrar evidently saw the notes of the previous assessment, formed the preliminary opinion that the accused was a ‘mentally ill person’, and ordered that the accused be detained for assessment in a mental health facility, pursuant to Mental Health (Forensic Provisions) Act 1990 (NSW) s 33(1D(b). As a result, an assessment was undertaken by a medical officer, who formed the view that the accused was ‘mentally disordered’, but did not satisfy the criteria for ‘mental illness’ under the Mental Health Act. To this point, the system had worked entirely as intended. Outstanding under the Mental Health Act was an assessment by a psychiatrist, which would determine the future of the accused’s detention.

Meanwhile however, the matter went to a Magistrate, in chambers. That Magistrate purported, without notice to either party, to make an order under s 33(1)(a) that the accused be detained and assessed (remembering that an order in identical terms, but under a different section which gave the power to the Deputy Registrar, had already been made). That same day the psychiatrist’s report came back determining that the accused was neither mentally ill nor mentally disordered. The prosecutor duly sought to have the matter relisted so the accused could be dealt with for the charges, but the Magistrate referred to the order he had purported to make the previous day, and held that the matters had been finalised, such that the Court was now without jurisdiction. The prosecution appealed, on the basis that the purported orders did not finally dispose of the matters, which were now to be dealt with according to law.

Fagan J, sitting alone in the Supreme Court’s supervisory jurisdiction, upheld the appeal and remitted the matter, declaring that the charges remained outstanding and ordering the Local Court to determine them.

The Magistrate’s purported order was redundant, given the Deputy Registrar had already made such an order (at [32]). The failure of the Magistrate to afford the prosecutor a chance to be heard, the making of a redundant order in chambers, and the fact the Magistrate thought the orders prevented the court from dealing with the matters further, were manifest and fundamental errors (at [33]).

The greatest value in this decision is the stepwise approach that Fagan J took in considering the process under s 33, starting from about [12] of his Honour’s decision, with the facts of this particular case intertwined. The judgment helpfully brings together the steps in the Mental Health (Forensic Provisions) Act as well as the Mental Health Act, and also draws attention to the finer points of the test. For example, in this case the Magistrate erroneously concluded that the finding by a medical officer that the accused was a ‘mentally disordered person’ was sufficient to make the order, whereas the test actually requires the accused to be a ‘mentally ill person’ – and, importantly, those are not the same thing (see [29]).