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  • Unreported Judgment

Stapleton v Queensland Police Service

 

[2019] QDC 190

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Stapleton v Queensland Police Service [2019] QDC 190

PARTIES:

ELIZABETH STAPLETON

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

APPEAL NO: 41/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

27 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The conviction and orders of the Magistrates Court made on 13 February 2019 are set aside.
  3. The proceeding is remitted to the Magistrates Court to be determined by a different Magistrate according to law.

CATCHWORDS:

CRIMINAL LAW – practice and procedure - appeal pursuant to s 222 Justices Act 1886 – conviction – [offence] – mode of hearing – failure to call on defendant for plea before commencing hearing – whether defendant capable of plea before determination of unsoundness of mind - whether separate hearing required for determination of unsoundness of mind under the Mental Health Act 2016 (Qld) – whether appropriate to amalgamate of unsoundness of mind issue into the trial of substantive charge error of law – whether issue of unsoundness of mind mischaracterised as defence pursuant to practice direction – whether defendant has onus of proof on balance of probabilities to prove unsoundness of mind – need for adjournment to facilitate of defendant’s psychiatric expert witness – refusal of further adjournment to facilitate attendance of legal representative’s during that evidence – whether denial of natural justice and opportunity to present evidence – whether errors of law vitiate conviction.

Legislation

Justices Act 1886 (Qld), ss 145, 171, 222, 223 & 227.

Mental Health Act 2016 (Qld), ss 22, 109, 116, 117, 119, 172-176, 180, 243, 247, 258, 259 & 382.

Mental Health Act 2000 (Qld), ss 247, 382, 243, 288 & 281.

Cases

Allesch v Maunz (2000) 203 CLR 172

Briginshaw v Briginshaw (1938) 60 CLR 336

Dwyer v Calco Timbers (2008) 234 CLR 124

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

In the matter of WBD [2018] QMHC 4

In the matters of Rankin; Kumar; Sciortino [2017] QMHC 8

In the matter of Brock Wall [2017] QMHC 11

Kioa v West (1985) 159 CLR 550

McDonald v Queensland Police Service [2017] QCA 255

Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170

R v Brock Wall on 6 August 2018

R v DAY [2010] QCA 369

Refjek v McElroy (1965) 112 CLR 517

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456

Teelow v Commissioner of Police [2009] QCA 84

White v Commissioner of Police [2014] QCA 121

Warren v Coombes (1979) 142 CLR 531  

COUNSEL:

R Logan for the Appellant

G Meoli for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

The Office of Director of Public Prosecutions for the respondent

  1. [1]
    On 13 February 2019 the appellant was convicted after a summary trial in the Magistrates Court held in Mossman of two offences of committing public nuisance; dangerous operation of a vehicle; four wilful damage offences; serious assault public officer; assault or obstruct police office; and assault of police officer. She was sentenced to 2 years probation and a $1000 compensation order, with convictions recorded.
  1. [2]
    The appellant appealed her convictions, which appeal was properly conceded by the respondent. At the conclusion of hearing of the appeal on 13 June 2019, I allowed the appeal, and these are my reasons.

Background

  1. [3]
    The solicitor for the appellant first indicated a not guilty plea at a mention on 10 July 2018. The appellant was not called upon to enter her plea at that time or at any time leading up to the trial.
  1. [4]
    At the trial the learned magistrate remarked that the appellant was pleading not guilty, but she was never called upon at the commencement of, or during, the trial.
  1. [5]
    A critical issue for the court was whether the appellant was, or appeared to be, of unsound mind at the time of the alleged offending. An overview of the offending as alleged at trial is as follows:

Charge

Facts

Wilful damage x 3

 

Public nuisance

The complainant was at home with her children and partner. They woke to the appellant shouting and pulling at the front door, breaking a piece of wood off the door frame.

 

The appellant walked away from them yelling and screaming, making nonsensical statements, including ‘I’m a terrorist, I’m gonna come in and kill all of your kids and why hasn’t anyone called the police yet my name is Elizabeth Stapleton”.

 

She walked along the road, banging on fences and other cars then walked back to her house. She vomited. She shouted “My baby has got Ebola, my baby is with my mother” and “I’m being raped, why hasn’t anyone called the police”. 

 

She snapped off a rear windscreen wiper and spat on a vehicle.

 

She kicked the rear and side panels of another vehicle. 

Dangerous operation of a motor vehicle

Police were responding to an incident involving the appellant and they saw the appellant driving towards them at speed, swerving back and forth across the highway.  The appellant slowed and carried a U-turn in front of the police vehicle and came to a stop. Police took evasive action.

Public nuisance

 

Wilful damage

 

Serious assault 

 

Obstruct police officer

 

Serious assault on a public officer performing function

The appellant got out of the car and banged the bonnet of the police car, before climbing onto the bonnet then onto the roof of the police car.  She was jumping up and down, causing dents.

 

She took off her clothes. She got off the roof of the car and spat towards a police officer, resulting in spittle landing on his arm.

 

She approached the police officer with clenched fists and swung at the police before a physical altercation then was arrest by the use of force.

 

An ambulance officer arrived and she spat at him, with spit landing on his shorts.  The defendant was sedated and taken to the hospital.

 

  1. [6]
    The Magistrate considered that he needed to hear evidence from civilian witnesses to assist with his decision of whether the defendant was of unsoundness of mind. The trial then proceeded in a conventional way with the prosecution case combining the issue of unsoundness of mind with its evidence of the substantive charges. After the close of the crown case, the appellant was called upon as to her election to give or call evidence, including expert medical evidence for the issue of unsoundness of mind in her case.
  1. [7]
    The appellant wished to call a psychiatrist as an expert witness on the unsoundness of mind issue. The witness was not available at 3:58 pm that day, so she applied for an adjournment of the trial against objection by the police prosecutor. The court proposed to adjourn the hearing to the next day to allow the doctor to give evidence; having recognised that the doctor would have some meaningful input into a report relied upon to demonstrate unsoundness of mind. But the proposed adjournment was short-lived when it transpired that the appellant’s solicitor was not available that next day, and a further adjournment for that reason was denied. In the result the defendant’s expert evidence did not form part of the evidence.
  1. [8]
    The trial proceeded to closing arguments and decision.
  1. [9]
    During the course of his reasons, the learned magistrate first considered and determined that the defendant was not of unsound mind when the offence was allegedly committed, and then continued to convict the defendant on all charges and sentenced her to 2 years’ probation coupled with a $1000 compensation order, with a convictions recorded.

Grounds of Appeal

  1. [10]
    The appellant appeals against the conviction on the grounds that:
  1. The appellant’s plea was not entered according to law;
  1. The magistrate erred in failing to approach the unsoundness of mind consideration and the hearing of the trial in a two-tiered process; and
  1. The magistrate erred in not allowing an adjournment to allow medical evidence to be called in relation to the unsoundness of mind.

Mode of Appeal

  1. [11]
    The appeal is brought pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [12]
    Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:

“(1)   An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

  1. (2)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  1. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
    by way of rehearing on the original evidence; and
  1. (b)
    on the new evidence adduced.”
  1. [13]
    For an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”[1]
  1. [14]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[2] 
  1. [15]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[3]

Appeal against conviction

  1. [16]
    The appellant relies upon one or a combination of errors or defects as giving rise to a miscarriage of justice. For the following reasons, I determined that grounds 1 and 3 carried the appeal, and I have also given guidance consideration to Ground 2.

Ground 1: Plea not entered according to law

  1. [17]
    The appellant contends that her plea was not entered according to law.
  1. [18]
    The Justices Act 1886 (Qld) provides that when the defendant is present at the hearing, the substance of the complaint shall be stated to the defendant and the defendant shall be asked how s/he pleads.  When the defendant is legally represented and there is more than one complaint before the court, with the defendant’s consent, the appellant may enter a plea in bulk.[4]  Sections 146 and 148 of the Justices Act 1886 (Qld) assures that taking a not guilty plea, and the conducting of a summary proceeding, in the Magistrates Court will be in accordance, or, as nearly as possible, in accordance with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.
  1. [19]
    Further, in relation to the indictable charges being dealt with summarily pursuant to s 552B of the Criminal Code, s 552I requires the offender to be addressed at the commencement of a hearing.  This did not occur, and any prior intimation as to pleas and elections of summary jurisdiction are merely administrative.
  1. [20]
    At the commencement of the trial hearing, the learned trial Magistrate merely remarked that the appellant was entering pleas of not guilty. This seems to have been predicated on an assumption cognisant of the contentions about defendant’s soundness of mind, perhaps that the appellant’s solicitor had earlier indicated a not guilty plea at a mention on 10 July 2018. As things transpired, the defendant was never called to formerly plead at any pre-trial mention or at the trial itself.
  1. [21]
    It seems to me that the Court did not properly take the defendant’s plea before conducting the summary hearing.

Ground 2: Unsoundness of Mind

  1. [22]
    The appellant asserts that the learned magistrate erred in failing to approach the unsoundness of mind consideration and the hearing of the trial as a two-tiered process.
  1. [23]
    The appellant points to several matters as indicia of the wrongful approach, in particular: noting a plea of ‘not guilty’ in the absence of calling on the defendant after determination of the issue of unsoundness of mind, amalgamating that issue with the substantive trial; requiring two separate and distinct burdens of proof during the course of the trial; hearing evidence from civilian witnesses to help decide if the defendant was of unsoundness of mind; requiring the defendant to prove unsoundness of mind after the closing of the prosecution case; denying an opportunity for examination experts, for example, as to the appellant’s conduct at the relevant time, intoxication or the ability to clearly provide a version of events.
  1. [24]
    The appellant argues that if the appellant was determined to be of unsound mind then the learned magistrate ought to have followed the procedure as set out in the s 174 of the Mental Health Act 2016 (Qld).  She further argues that if the learned magistrate did not so find, then the appellant ought to have been then asked to enter her plea in the usual way and a trial or a sentence hearing would follow in a separate event.

Former Statutory Framework

  1. [25]
    Some historical legislative context is helpful. The former Mental Health Act 2000 was repealed and replaced by Mental Health Act 2016 (Qld) commenced on 5 March 2017. 
  1. [26]
    Prior to the 2016 Act, any question about unsoundness of mind or unfitness for indictable offences was dealt with by reference to the Mental Health Court,[5] constituted by a judge assisted by two psychiatrists.[6]  The primary criminal proceeding was suspended pending the determination by the Mental Health Court.[7]  The Mental Health Court would then determine if the person was of unsound mind at the time of the alleged offence; unfit for trial for the alleged offence and unfit for trial permanently; or unfit for trial on the alleged offence and it is not of a permanent nature.  The section was subject to s 268 (disputed facts by the person) and s 269 (dispute about a material fact by an expert).[8]  Depending on the finding, the Mental Health Court may then make a forensic order.[9] 
  1. [27]
    In the event that the Mental Health Court determined that a defendant was of unsound mind at the time the alleged offence was committed, the primary criminal proceedings would be discontinued, subject to the defendant exercising his or her right to elect to be brought to trial for the alleged offence.[10]

Magistrates Power to Determine of Mental Health Issues

  1. [28]
    The new Mental Health Act 2016 (Qld) effected significant changes empowering magistrates to administer the Act for simple offences, to determine whether a defendant was of unsound mind at the time of an alleged offence, or unfit for trial.
  1. [29]
    This newfound power afforded to the Magistrates Court for simple offences is expected to save defendants enduring procedural delay by reference to the specialised jurisdiction of the Mental Health Court to separately determine whether s/he was of unsound mind when they committed an offence and whether s/he is fit for trial. The 2016 Act seeks to improve efficiencies for simple offences whilst preserving the integrity of the assessment and examination framework without risk of self-incrimination.[11] 
  1. [30]
    Under this new regime if a defendant is charged with a simple offence and a magistrate is satisfied s/he was of unsound mind at the time of the offence, or is unfit to stand trial, the magistrate may dismiss the charge;[12] or adjourn the hearing of the charge if the defendant is found temporary unfit for trial but likely to become fit within 6 months.[13]  Magistrates also have power in certain circumstances to: refer a defendant for appropriate treatment or care;[14] refer cases involving exceptional circumstances for community protection to the Mental Health Court;[15] or make an examination order.[16]
  1. [31]
    A ‘simple offence’ is an offence (indictable or not) punishable on summary conviction before a Magistrates Court by fine, imprisonment or otherwise.[17] 
  1. [32]
    ‘Unsoundness of mind’ is defined in s 109 of the Mental Health Act 2016 (Qld) to mean: (a) a state of mental disease or natural mental infirmity described in section 27(1) of the Criminal Code; or (b) a state of mind described in the section 28(1) of the Criminal Code, section 27(1) of the Criminal Code applies to a person.  However, unsound mind does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.[18]
  1. [33]
    Relevantly, ss 27(1) and 28(1) of the Criminal Code provide that:

27   Insanity

  1. (1)
    A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.

28   Intoxication

  1. (1)
    The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.”
  1. [34]
    A magistrate is assisted in this determination by a Mental Health Assessment. The Queensland Health Liaison Court Liaison Service prepares a report and, in this instance, it would address unsoundness of mind.
  1. [35]
    Section 172 provides for the magistrates’ power to dispose of the mental health issue as follows:

Power to dismiss complaint—unsound mind or unfitness for trial

  1. (1)
    This section applies if—
  1. (a)
    a complaint for a simple offence is to be heard and determined by a Magistrates Court; and
  1. (b)
    the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence—
  1. (i)
    was, or appears to have been, of unsound mind when the offence was allegedly committed; or
  1. (ii)
    is unfit for trial.
  1. (2)
    The court may dismiss the complaint.”
  1. [36]
    The prospective terms of s 172(1)(a) – “if a complaint for a simple offence is to be heard and determined by a Magistrates Court” – clearly differentiate the relevant determinations subject of s 172(1)(b) of unsoundness of mind or unfitness for that upcoming trial.  In this way, on its plain reading, the provision contemplates a step process: 
  1. First, a hearing and determination, on the balance of probabilities, that the defendant:
  1. (a)
    was, or appears to have been, of unsound mind when the offence was allegedly committed; or
  1. (b)
    is unfit for trial; and
  1. Secondly, the hearing and determination of the substantive charge. 
  1. [37]
    It is noteworthy that the provision makes no distinction between a determination of unsoundness of mind or determination unfitness for trial, and the mode of the hearings may properly be a matter for individual case management and general practice direction, namely the Magistrates Court Practice Direction No. 1 of 2017, which I deal with later.
  1. [38]
    Here, the appellant argues that there was mischaracterisation of the appropriate approach as there was an improper amalgamation of the two separate considerations by the court below. The appellant asserts that the practice direction is ambiguous about the approach; logically there are two separate considerations and two separate and distinct burdens of proof. It is submitted that seeking an unsoundness of mind determination does not automatically mean there ought to be a not guilty plea. Therefore, as the argument goes, in the circumstances of this case, the magistrate ought to have employed a two-tiered approach; firstly, the consideration of the unsoundness of mind issue. If there was a finding that the appellant was of sound mind, the appellant ought to have been asked to enter her plea. And secondly (if required), a hearing of the substantive charge in the trial.
  1. [39]
    There is obvious force in this submission, which draws analogous support from the well-established practice and procedure for serious offences referred to the Mental Health Court.
  1. [40]
    For comparative purposes, a reference of serious offences to the Mental Health Court is usually by application, accompanied by an expert report, and until determination, the cognate criminal proceeding is suspended.[19]  The Mental Health Court, as a separate and specialist forum, has no interest in trying the charges, and confines its hearing to the issues of unsoundness of mind, and/or fitness for trial and related matters.  For that limited purpose, the Mental Health Court may consider:
  1. Oral evidence from expert witnesses;
  1. The brief of evidence including a criminal history (provided by police or the Office of the Director of Public Prosecutions);
  1. All medical reports relating to the matters to be decided in the court;
  1. Written submissions from the parties;
  1. Relevant material submitted by victims or concerned persons that is not part of the brief of evidence.
  1. [41]
    The Mental Health Court then decides whether the person was of unsound mind when the offence was allegedly committed,[20] unless there is a substantial dispute of fact.[21]  If the defendant is found to be of unsound mind when the offence was allegedly committed, the proceeding for the offence will be discontinued, but despite the decision, the person may elect to be tried for the offence.[22]  If a person is found fit for trial and of sound mind, the trial will continue according to law.[23]
  1. [42]
    A defendant may elect to proceed to proceed to trial and rely upon the defence of insanity or unsoundness of mind at any time for any particular reason, for example when a reference would take too long and the person in in immigration detention; or if a Mental Health Court has found them sound of mind or fit for trial; or if the person is intentionally intoxicated at the time.[24]

Magistrates Court Procedure

  1. [43]
    The power afforded by s 172 of the Mental Health Act 2016 (Qld) is subject of a general practice direction, namely the Magistrates Court Practice Direction No. 1 of 2017.  As subordinate legislation, the practice direction ought be construed consistently with the primary legislation.
  1. [44]
    The Practice Direction provides for the management and timely disposition of cases requiring a determination of a defendant’s fitness for trial or unsoundness of mind pursuant to s 172, as follows:

Fitness for Trial – simple offences

  1. If the charge is for a simple offence and a party disputes the whole or part of the Mental Health Assessment, the Court will list the matter for hearing of the issue of fitness for trial and make any necessary directions.
  1. If, at the conclusion of the hearing of the issue of fitness for trial, the Defendant is found fit for trial, the Court will list the charge for trial and make any necessary directions.
  1. If, at the conclusion of the hearing of the issue of fitness for trial, the Defendant is found unfit for trial, the Court may dispose of the charge in accordance with paragraphs 9(a); or 9(c); or 9(d); or 9(e).

Unsoundness of Mind – simple offences

  1. If the charge is for a simple offence and a party disputes the whole or part of the Mental Health Assessment, the Court will list the matter for hearing of(i) the issue of unsoundness of mind; and (ii) the substantive charge; and may make any necessary directions.
  1. If, at the conclusion of the hearing, the Defendant is found to be of unsound mind the Court may dispose of the charge in accordance with paragraphs 9(a); or 9(b); or 9(c).
  1. If, at the conclusion of the hearing, the Defendant is found to be of sound mind the Court may dispose of the charge as appropriate according to law.”
  1. [45]
    For the purposes of paragraphs 12 and 14, paragraphs 9 provide that the charge may be:

“(a)   Dismissed, if the Court is reasonably satisfied on the balance of probabilities that the Defendant was, or appears to have been, of unsound mind when the offence was allegedly committed or is unfit for trial [s 172]; or

  1. (b)
    Dismissed and the Defendant referred to a relevant agency for appropriate care; or the health department or another entity the court considers appropriate for care and treatment - if the Court is reasonably satisfied on the balance of probabilities that the Defendant was, or appears to have been, of unsound mind when the offence was allegedly committed or is unfit for trial; and does not appear to have a mental illness [s 172 and s 174]; or
  1. (c)
    Dismissed and an examination order made - if the Court is reasonably satisfied on the balance of probabilities that the Defendant was, or appears to have been, of unsound mind when the offence was allegedly committed, or is unfit for trial; and the court (i) is reasonably satisfied the person has a mental illness; or (ii) is unable to decide whether the person has a mental illness or another condition [s 172(1)(b)(ii) and s 177(1) and (2)].
  1. (d)
    Adjourned and the Defendant referred to a relevant agency for appropriate care; or the health department or another entity the court considers appropriate for care and treatment - if the Court is reasonably satisfied on the balance of probabilities that the Defendant is unfit for trial; but is likely to become fit for trial within 6 months; and is reasonably satisfied the person does not appear to have a mental illness [s 173 and s 174(1) and (2)].
  1. (e)
    Adjourned and an examination order made – if the Court is reasonably satisfied on the balance of probabilities that the Defendant is unfit for trial; but is likely to become fit for trial within 6 months; and the court (i) is reasonably satisfied the person has a mental illness; or (ii) is unable to decide whether the person has a mental illness or another condition [s 173(2) and (3) and s 177(3)].” 
  1. [46]
    It is immediately apparent that the Magistrates Court Practice Direction No. 1 of 2017 diverges from the Mental Health Court procedure in some critical respects. Broadly, it treats the determination of a defendant’s fitness for trial differently to a determination of a defendant’s unsoundness of mind at the time of the alleged offending.
  1. [47]
    For a determination of a defendant’s fitness for trial, the practice direction envisages two separate and distinct hearings, both subject to any necessary directions.  First, the magistrate will hear and determine the defendant’s fitness for trial before listing the trial of the substantive charge.  Secondly, if at the conclusion of that first hearing the defendant is found fit for trial, the court will then list, hear and determine the substantive charge.  But if, at the conclusion of that first hearing, the defendant is found unfit for trial, the court may transition the unfit defendant into the mental health system.  This is analogous to the procedure of the Mental Health Court.  And, of course, as a matter of logic, a determination that a defendant is fit to stand trial will see the matter proceed the trial of the substantive charge.  It would be counter-intuitive for a court to force a defendant into the very trial about which it must determine the defendant’s unfitness in which to participate. 
  1. [48]
    In contrast, for a determination of a defendant’s unsoundness of mind at the time of the alleged offending, the practice direction envisages only one hearing dealing with both the issue of unsoundness of mind, and the substantive charge.  That is, subject to any necessary directions, the magistrate will determine the issue of unsoundness of mind as part of, and within, the trial hearing itself.  If, at the conclusion of the trial, the defendant is found on the balance of probabilities to be of unsound mind, the court may transition the unfit defendant into the mental health system.  But if, at the conclusion of the hearing, the defendant is found to be of sound mind, the court may then proceed to appropriately dispose of the charge by acquittal or conviction and sentence.
  1. [49]
    Although the practice direction envisages a single mode of hearing for all matters, it does not fetter the court’s proper management of the issue of unsoundness of mind within that paradigm, but with fidelity to the enabling Mental Health Act 2016 (Qld).  The court should embrace the new efficiencies with fidelity to the Act’s objects and preserving the integrity of the independent assessment and examination framework without risk of self-incrimination.  For this reason, the court should not automatically deal with the issue as a defence within the trial proper unless all other options have been considered and are not appropriate. 
  1. [50]
    The proper management of the case will depend upon the nature and extent of any dispute about the facts relied upon to sustain the substantive charges. But, in any event, in my view, a defendant who is fit to stand trial can be called upon at the beginning of the hearing to enter a ‘not guilty’ plea predicated upon being of unsound mind at the time of the offending.
  1. [51]
    It seems to me that if there is no or a very minor factual contest, the metal health issue could be more efficiently and effectively determined as a separate matter before launching into the full blown trial, or if the case involves a significant factual contest then it may need to be determined in the same way that a jury in the higher courts is called upon to determine a defence of insanity under s 27(1) of the Criminal Code in the trial hearing.[25]
  1. [52]
    For the defence of insanity, a defendant bears the onus to satisfy the court that it is more probable than not that s/he was not of sound mind when s/he did the act constituting the offence. That is, the court must be satisfied that the defendant had a mental disease or natural mental infirmity and that the disease or infirmity deprived the defendant of one or more of the capacities relevant to the offending. If the court is so satisfied on the balance of probabilities it must determine the issue and dispose of the case accordingly. If the court is not so satisfied and determines the defendant was not of unsound mind, and the prosecution has proved the charge beyond reasonable doubt, the defendant would be convicted of the charge.
  1. [53]
    The term “reasonably satisfied” has been subject of careful analysis by Lynham QC DCJ, in RRK v Queensland Police Service,[26] including reference to the Briginshaw principles and the observations of Keane JA in R v LR [2005] QCA 368 at [44] about the term “reasonably satisfied” in the context of s 254 Police Powers and Responsibilities Act 2000 (Qld).  I respectfully agree that the seriousness of a s 172 determination, and the gravity of the consequences on the proceedings, does enliven a higher degree of certainty to be satisfied on the balance of probabilities applying the Briginshaw principles.
  1. [54]
    In Briginshaw v Briginshaw,[27]  Dixon J said:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”

  1. [55]
    The principle is that depending on the nature and gravity of the allegation against a party, the strength of the evidence required to meet the standard of proof may vary. In practical terms, this means that for more serious allegations, the court ought more closely examine the evidence to ensure that it is strong enough to prove the allegations on the balance of probabilities. However, this principle in Briginshaw does not create another standard of proof.  That is, it does not displace the basal requirement that the court needs to be “reasonably satisfied” on the balance of probabilities, instead it permits the court to require a higher degree of satisfaction to discharge that standard where the seriousness of the allegations and consequences of sustaining them warrant that approach.    So much was affirmed by the High Court in Refjek v McElroy,[28] and Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd.[29] 

Directions for Trial Management

  1. [56]
    Implementation of the practice direction, as is appropriate, always remains subject to any necessary directions about the conduct of the hearing having regard to the particular circumstances of the case, and to relevant objects and principles for administration of the Mental Health Act 2016 (Qld). 
  1. [57]
    Relevantly here, when the court lists the matter for the hearing of (i) the issue of unsoundness of mind and (ii) the substantive charge, consideration should be given to any necessary directions about the conduct of that hearing. And the court ought expect the parties’ active assistance in the formulation of directions, which refine, reduce and identify the contested issues, nature and extent of oral and documentary evidence for the issue, and a hearing plan.
  1. [58]
    It seems to me that if a Mental Health Assessment is disputed and the court is required to determine whether the defendant was, or appears to have been, of unsound mind when the offence was allegedly committed then the following matters may be considered to the extent they are relevant to making appropriate case management directions for the hearing:
  1. Whether the facts alleged to comprise the offending is disputed and the nature and scope of the dispute.
  1. Timely disclosure of relevant documents by all parties, including the brief of evidence with a criminal history; all medical reports relating to the matters to be decided in the court; and any other relevant material submitted by victims or concerned persons, which are in the brief of evidence.
  1. Ensuring that doctors reporting to the Court are fully briefed with all relevant documents prior to providing reports, and ensuring that all relevant doctors are given sufficient notice of the need to testify at the hearing;
  1. Determine the mode of hearing, for example:
  1. (a)
    If there is no factual dispute, or a minor dispute, then the mental health issue may be appropriately heard for a preliminary determination at the commencement of the trial hearing, before the trial proper;
  1. (b)
    If there is there is a substantial factual dispute, then evidence relevant to the issue may be adduced within the trial, and determined before disposing of the charge by acquittal or conviction and sentence (as appropriate).
  1. Finalise a trial plan dealing with the mode of hearing, management of documentary evidence, oral evidence from expert witnesses, and evidence of witnesses relevant to any factual dispute.
  1. [59]
    It is not clear to me whether the learned magistrate was assisted in his consideration of any or all of these matters before proceeding with the trial as he did.
  1. [60]
    Therefore, I think this was an ideal case where the determination of the issue of unsoundness of mind could have been made without calling on the defendant to elect to adduce any evidence about the substantive issues after the close of the prosecution case. It seems to me that this case, involving minimal factual dispute, would have been conducive to a two-tiered hearing – first, a hearing and preliminary determination about the defendant’s unsoundness of mind, and secondly, depending upon that determination, making appropriate diversionary orders, or continuing with the trial proper in relation to the substantive charge.
  1. [61]
    Since this appeal can be disposed of by grounds 1 and 3, it is unnecessary for me to further deal with the matter. However I am satisfied that a determination under s 172 is justiciable as a part of an appeal against a final conviction.[30]

Ground 3: Denial of adjournment to call medical evidence

  1. [62]
    The appellant further argues that the learned magistrate also erred by not allowing an adjournment to enable the appellant’s medical expert to testify in relation to the unsoundness of mind issue.
  1. [63]
    Section 146 of the Justices Act 1886 (Qld) provides for the process of a summary trial when a defendant pleads not guilty as follows:

“146 Where defendant pleads not guilty

  1. (1)
    If the defendant pleads not guilty then the court may –
  1. (a)
    proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply if the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require. …”
  1. [64]
    Section 148 of the Act further requires that the conduct of the summary hearing must be, as far as possible, in accordance with the practice in the Supreme Court.
  1. [65]
    The common law recognises a fundamental duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.[31]  A reasonable opportunity to be heard “requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.”[32]
  1. [66]
    In Kioa v West,[33] Mason J said:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

  1. [67]
    Here, the appellant sought to call a psychiatrist, Dr Venugopal, to testify about her unsoundness of mind. The witness was not available at 3:58 pm and she applied for an adjournment to facilitate the witness’s attendance against the objection of the police prosecutor. The learned magistrate apparently appreciated that the doctor would have had some meaningful input into a report relied upon to demonstrate unsoundness of mind, and granted an adjournment until the next day consistent with the merit of the application. But that adjournment was short-lived when it transpired that the solicitor representing the appellant was not available to appear. A longer adjournment to accommodate the solicitor was denied and the trial proceeded to closing arguments and decision.
  1. [68]
    It seems to me that each of those matters strike at the heart of the judicial obligation owed to the appellant to conduct a fair trial, that is, properly affording the appellant procedural fairness and natural justice as would be expected in Supreme Court proceedings. The unfairness precluded the appellant from eliciting evidence, including expert evidence, relevant to the mental health issue of unsoundness of mine, as well as a viable defence.

Disposition

  1. [69]
    For these reasons, in my respectful view, the trial magistrate erred by:
  1. Failing to take a plea from the defendant at the commencement of the hearing.
  1. Allowed erroneous or irrelevant matters to guide or affect him by refusing the defendant’s application to adjourn the proceeding to facilitate expert medical evidence in the defence case;
  1. Failed to afford procedural fairness when disposing of the mental health issue of whether the defendant was of unsound mind at the time of the alleged offences.

Order

  1. [70]
    Therefore, I will allow the appeal, set aside the orders made by the Magistrates Court and order that the proceeding be remitted to the Magistrates Court to be determined by a different magistrate according to law.

Judge DP Morzone QC

Footnotes

[1] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[2] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[3] White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[4] Justices Act 1886 (Qld), s 145.

[5]  Section 247 Mental Health Act 2000.

[6]  Section 382 Mental Health Act 2000.

[7]  Sections 243 and 259 Mental Health Act 2000.

[8]  Reasonable doubt person committed the offence and Dispute relating to substantially material fact. See for example In the matter of WBD [2018] QMHC 4.

[9] Section 288 Mental Health Act 2000.

[10]  Section 281 Mental Health Act 2000.

[11]  Explanatory Notes, Mental Health Bill 2015 & Explanatory Notes, Mental Health Amendment Bill 2016 (Qld).  Mental Health Act 2016 (Qld), ss 180, 180A.

[12] Mental Health Act 2016 (Qld), ss 22(1) & 172.

[13] Mental Health Act 2016 (Qld), s 173.

[14] Mental Health Act 2016 (Qld), s 174.

[15] Mental Health Act 2016 (Qld), ss 175 & 176.

[16] Mental Health Act 2016 (Qld), ss 22(2) & 176.

[17] Mental Health Act 2016 (Qld), s 171, Justices Act 1886 (Qld), s 4.  Cf. In the matters of Rankin; Kumar; Sciortino [2017] QMHC 8 at [9].

[18] Mental Health Act 2016 (Qld), s 109.

[19] Mental Health Act 2016 (Qld), ss 258 & 259.

[20] Mental Health Act 2016 (Qld), s 116.

[21] Mental Health Act 2016 (Qld), s 117.

[22] Mental Health Act 2016 (Qld), s 119.

[23]  Cf. In the matter of Brock Wall [2017] QMHC 11, and Lyons SJA in R v Brock Wall on 6 August 2018.

[24]  Cf. R v DAY [2010] QCA 369.

[25] Criminal Code (1899) Qld, ss 27(1), 645 – Accused person alleged or appears of unsound mind.

[26] RRK v Queensland Police Service [2019] QDC 176 at [11] – [19]

[27] Briginshaw v Briginshaw (1938) 60 CLR 336, at 362

[28] Refjek v McElroy (1965) 112 CLR 517

[29] Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170

[30]  As to an order made on a defendant’s application before trial (and before conviction) see: RRK v Queensland Police Service [2019] QDC 176 at [42] – [54]

[31] Kioa v West (1985) 159 CLR 550, 582.

[32] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [35] per Flick J cited in SZTQL v Minister for Immigration and Border Protection and Another (No 2) (2015) 150 ALD 456, [3] per Allsop CJ.

[33] Kioa v West (1985) 159 CLR 550, 582.

Close

Editorial Notes

  • Published Case Name:

    Elizabeth Stapleton v Queensland Police Service

  • Shortened Case Name:

    Stapleton v Queensland Police Service

  • MNC:

    [2019] QDC 190

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    27 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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