Re Rankin[2017] QMHC 8

MENTAL HEALTH COURT

1. [1]
   These three matters concern transitional provisions in the Mental Health Act 2016 (2016 Act).  Under the Mental Health Act 2000 (2000 Act), if a person was alleged to have committed an indictable offence, questions as to whether they had a defence of unsoundness of mind or were fit for trial could be referred to the Mental Health Court – s 256.  Under the 2016 Act, references may only be made to the Court if a person is charged with a serious offence, see for example s 110(4). 

Serious Offence

2. [2]
   A serious offence is defined as follows:

“serious offence means an indictable offence, other than an offence that is a relevant offence under the Criminal Code, section 552BA(4).”

3. [3]
   Section 552BA of the Criminal Code is headed, “Charges of indictable offences that must be heard and decided summarily”.  It provides that some charges – those in relation to relevant offences – must be heard summarily.  A relevant offence is defined by s 552BA(4):

“(4) In this section –

relevant offence means –

1. (a)
    an offence against this Code, if the maximum term of imprisonment for which the defendant is liable is not more than 3 years; or

2. (b)
    an offence against part 6,^[1] other than –

1. (i)
    an offence mentioned in paragraph (a); or

2. (ii)
    an offence against chapter 42A;^[2] or

3. (iii)
    an offence that, under section 552BB, is an excluded offence.”^[3]

4. [4]
   To summarise, less offending can be referred to the Mental Health Court under the 2016 Act than was able to be referred under the 2000 Act.  Persons who have committed an offence punishable by a maximum term of imprisonment of three years or less, or a property offence can no longer be referred, unless the property offence is one which falls within s 552BA(4)(b)(ii) or (iii) of the Criminal Code.

Associated Offence

5. [5]
   Once an alleged offender has been referred to the Court in relation to a serious offence, the Court may also hear a reference in respect of an associated offence – see eg., s 110(4).  An associated offence is defined at s 107 of the 2016 Act:

“An associated offence, in relation to an indictable offence with which a person is charged, means an offence, other than an offence against a law of the Commonwealth, that the person is alleged to have committed at or about the same time as the indictable offence.”

6. [6]
   It can be seen that the definition of associated offence depends upon a temporal link between the serious offence and the offence said to be associated.  The words, “at or about the same time” have some elasticity.  They are apt to comprehend an offence which is committed closely in time to a serious offence even though the offences are quite separate conceptually and contextually.  Having regard to the meaning of the word associated, in my view the words are also apt to comprehend an offence somewhat separated in time from the serious offence, if there is a conceptual link between the two.  For example, an assault on day one might be considered to be committed “at or about the same time” as a failure to appear in relation to that assault committed six days later.   

Magistrates Court Jurisdiction

7. [7]
   Just as the 2016 Act reduced the number of offenders who could be referred to the Mental Health Court as described above, s 172 of the 2016 Act provided an increased jurisdiction to Magistrates to deal with questions of unsoundness of mind and fitness for trial where an offender is charged with a simple offence.  That section provides:

“Power to dismiss complaint – unsound mind or unfitness for trial

3. (1)
    This section applies if –

1. (a)
    a complaint for a simple offence is to be heard and determined by a Magistrates Court; and

2. (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

2. (ii)
    is unfit for trial.

3. (2)
    The court may dismiss the complaint.”

8. [8]
   By s 171 of the 2016 Act, a simple offence has the same meaning as it has in the Justices Act 1886, section 4, namely:

“simple offence means any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise.”

9. [9]
   In summary, the 2016 Act provides that where there is a question as to unsoundness of mind or fitness for trial in relation to an offender charged with an offence which is not a serious offence, the Mental Health Court has no jurisdiction to determine those issues on a reference, but the Magistrates Court does have jurisdiction.

Transitional Provisions

10. [10]
    Section 803 of the 2016 Act provides:

“Application of new Act in relation to proceedings for alleged offences

3. (1)
    To the extent a provision of the new Act relates to a proceeding for an alleged offence, the new Act applies if a proceeding is started after the commencement.

3. (2)
    For subsection (1), it is irrelevant whether the offence is alleged to have been committed before or after the commencement.

3. (3)
    To the extent subsection (1) is inconsistent with any other provision of this chapter, the other provision prevails.” (underlining added)

11. [11]
    This section deals with criminal proceedings; it does not deal with proceedings in the Mental Health Court. 
12. [12]
    If the underlined words are taken literally, the Magistrate’s power to dismiss complaints only exists where the criminal proceeding against the person is started after the commencement of the 2016 Act.  The 2016 Act commenced on 5 March 2017.  After 5 March 2017, there can be no referral to the Mental Health Court unless the defendant is charged with a serious offence.
13. [13]
    Sections 833 and 834(1) of the 2016 Act provide as follows:

“833  Application of div 2

This division applies if –

1. (a)
    before the commencement, a reference of a person’s mental condition was made to the Mental Health Court under the repealed Act; and

2. (b)
    immediately before the commencement, the reference had not been decided by the court.

834  Hearing of reference continues under repealed Act

3. (1)
    The reference may be heard, or continue to be heard, and dealt with under the repealed Act as if the new Act had not commenced.

…”

14. [14]
    It can be seen that s 833 means that a reference already in the Mental Health Court at the time the 2016 Act comes into force is to be decided under the 2000 Act. 

Lacuna

15. [15]
    When one considers the provision at s 803 of the 2016 Act on the one hand, and the provisions at ss 833 and 834(1) on the other, it can be seen that, if the underlined part of s 803(1) is read literally, there is no provision for either the 2016 Act or the 2000 Act to apply to an offender who was charged with non‑serious offences before the 2016 Act commenced, but who was not referred to the Mental Health Court before the 2016 Act commenced.
16. [16]
    Counsel for the defendants Rankin and Kumar submitted that I should read the underlined part of s 803(1) as if it was worded, “the new Act applies as if the proceeding was started after the commencement.”  I have underlined the three words which must be added to or changed in s 803(1) to accommodate the defendants’ argument.  The defendants submitted that if the Court were not prepared to construe s 803(1) that way, the Court should act pursuant to s 851 of the 2016 Act and order that the references be heard in the Mental Health Court as though s 834 of the 2016 Act applied to them.  I will deal with these two alternative submissions in turn.

Defendants’ Primary Submission

17. [17]
    I wondered whether I had jurisdiction to entertain this first submission, sitting as a Member of the Mental Health Court.  However, I conclude that I do by reason of s 639 of the 2016 Act which provides that I retain my plenary jurisdiction as a Supreme Court Judge while sitting in the Mental Health Court. 
18. [18]
    Counsel for the defendants submitted that I could have resort to extrinsic material in construing s 803(1) because if the literal meaning were adopted it would lead to a result which was unreasonable – s 14B(1)(b) of the Acts Interpretation Act 1954.  I accept that.  Counsel for the defendants then referred to the Explanatory Notes to the 2016 Act which contain the following in relation to cl 801 of the Bill which became s 803 of the 2016 Act:

“801 Application of new Act in relation to proceedings for alleged offences

Clause 801 provides that, where a matter in the Bill relates to a proceeding for an alleged offence, the Bill applies as if the proceeding started after the commencement.  This enables, for example, the magistrates powers under chapter 6 to apply to any hearing after commencement, regardless of when the alleged offence occurred or when the proceeding commenced.” (underlining added)

19. [19]
    Counsel for the defendants referred to the close similarity of language between the part of the Explanatory Notes I have underlined and the part of s 803(1) I have underlined.  He submitted it must be by error that the words in the underlined part of s 803(1) did not capture the intention of Parliament, and that therefore I should read them as if they contained the three changes underlined at [16] above.  He relied upon the words of the Explanatory Notes, and the obvious legislative purpose of substituting one jurisdiction for another, rather than creating a lacuna.  I think there is much good sense in that submission.
20. [20]
    In Alphadale Pty Ltd v Chief Executive, Department of Environment and Heritage Protection^[4] the Court said:

“[40] … Courts have presumed to overcome error or absurdity using what is known as the golden rule. Generally, however, such readings involve only a change to one or two words, or the position of one or two words. In Sevmere Pty Ltd v Cairns Regional Council & Anor the Court of Appeal applied Lord Diplock’s formula in Wentworth Securities Ltd v Jones as to when errors or omissions could be remedied. It was to the effect that three preconditions needed to be met:

‘First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.’

[41] As the discussion in the judgment of Holmes JA shows, the Court’s use of the golden rule in such circumstances is very much aligned with its taking a purposive approach to the interpretation of legislation, so that if the object or purpose of the legislation can be discerned, the Court should strive to give effect to it.

[42] In Taylor v The Owners – Strata Plan No 11564 & Ors the High Court approved Lord Diplock’s three conditions in Wentworth Securities, ‘as reformulated’ in Inco Europe Ltd v First Choice Distribution saying, ‘The reformulation was of the third condition: the court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted.’

[43] As can be seen from Lord Diplock’s formulation, the Court must be careful not to cross ‘the boundary between construction and legislation’. In particular, the cases contain warnings about supplying omitted words. In both Taylor and Sevmere the Courts expressly adopt the warning given by Lord Nicholls of Birkenhead in Inco Europe to the effect that even when Lord Diplock’s three conditions are met, the Court may still refrain from interpreting the statutory provision, ‘in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler [1977] Ch 1, 18, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature.’” (footnotes omitted)

21. [21]
    In my view, this is one of the rare occasions where I can intervene so as to overcome what is in my view an obvious error in the drafting of s 803(1).  I am persuaded of this because of the clear purpose of the Parliament in enacting s 803(1) to provide that issues of unsoundness and fitness in relation to offences which are not serious should be dealt with by the Magistrates Court, rather than the Mental Health Court.  I think that purpose is evident from the overall statutory scheme, and also from the words of the Explanatory Notes.  The similarity between the words which I have underlined in s 803(1) above, and the words which I have underlined in the Explanatory Notes, is striking.  To read the section in the way for which the defendants contend involves only reformulating three words.  In these circumstances I am satisfied that I am construing the legislation, rather than presuming to legislate myself.
22. [22]
    I will make a declaration as to my interpretation of s 803(1) as the issue will be relevant to many cases, both in this Court and the Magistrates Court.

Defendants’ Secondary Argument

23. [23]
    In light of my decision above, it is not strictly necessary that I consider this argument.  However, I will express the view I take of it.  Section 851(1) provides as follows:

“If this chapter makes no or insufficient provision for the transition to the new Act of a matter before a court, the court may make the order it considers appropriate.” (my underlining)

24. [24]
    Were I not of the view that s 803(1) should be read as the defendants contended, I would refuse to make an order under s 851(1).  First, that subsection only gives the Mental Health Court power to make an order if there is “a matter before a court”.  That must mean properly before it.  In my view I could not use that section to, in effect, give myself jurisdiction to hear a matter.  Secondly, in acting pursuant to s 851(1) this Court would need to be very mindful of the distinction referred to in the case law set out above: a Court can construe legislation, but it cannot legislate.
25. [25]
    I now turn to consider the facts of the individual cases before me.

Rankin

26. [26]
    Mr Rankin was charged with assault or obstruct police officer on 11 July 2011.  That is not a serious offence as defined.  He was charged some time in 2011.  On 15 November 2011 he pled guilty to that charge and a punishment was imposed.  Then on 6 February 2016 Mr Rankin was charged with sexual assault.  That is a serious offence.  Lawyers acting for him realised that he was likely either of unsound mind or permanently unfit for trial by reason of a natural mental infirmity evident since birth.  The lawyers obtained an order dated 7 March 2017 reopening the 2011 proceedings and setting aside the sentence imposed on 15 November 2011.^[5]  Then the lawyers referred both the matter of the assault or obstruct police officer, and the sexual assault, to the Mental Health Court. 
27. [27]
    When the matter came before me I made a finding of unsoundness of mind in relation to the sexual assault because there was no question about my jurisdiction: that was a serious offence.  However, I reserved the question of whether I had jurisdiction in relation to the assault obstruct police charge.  It could not be considered to be an associated offence.  It is not a serious offence and the reference of it to the Mental Health Court was made on 15 March 2017, after the 2016 Act came into operation.  Thus the Mental Health Court does not have jurisdiction in relation to the 2011 offending.  I dismiss the reference in relation to this offence.
28. [28]
    Construing s 803(1) as I do, the Magistrate who deals with Mr Rankin’s 2011 offending pursuant to the orders made 7 March 2017 has power to dismiss the proceeding against him if satisfied that he was of unsound mind at the time of the offending or is not fit for trial. 

Kumar

29. [29]
    Mr Kumar is charged with two counts of wilful damage both dating from 29 May 2016.  He was charged on 8 June 2016 and bailed to appear in the Southport Magistrates Court on 20 June 2016.  He was referred to the Mental Health Court after the 2016 Act came into effect – on 24 April 2017. 
30. [30]
    The offences of wilful damage are not serious offences.  Although they are indictable offences, they are relevant offences as defined by s 552BA(4) of the Criminal Code, and are not excluded offences within the meaning of that section.  Therefore the offences are not properly the subject of a reference to the Mental Health Court under the 2016 Act.  I dismiss the reference in relation to Mr Kumar.
31. [31]
    In accordance with my reading of s 803(1) above, the Magistrates Court has jurisdiction to deal with issues of unsoundness or unfitness in relation to these offences.

Sciortino

32. [32]
    Mr Sciortino was charged with various offences, only one of which would be classed as serious under the 2016 Act.  A reference was made of Mr Sciortino’s offending on 12 April 2017.  It was made by the Chief Psychiatrist pursuant to a legislative duty, as I shall explain.  At the time Mr Sciortino allegedly committed the offences he was on an involuntary treatment order made under the 2000 Act.  Chapter 7 Part 2 of the 2000 Act dealt with people who were on involuntary treatment orders or forensic orders at the time they were charged with further offending.  It cast various duties on the Director of Mental Health (now called the Chief Psychiatrist) to obtain reports from psychiatrists about a person so charged and, by s 240(1), to refer the person’s “mental condition relating to the offence” to the Mental Health Court.
33. [33]
    Section 832 of the 2016 Act provides as follows:

“832  Making of reference under repealed Act by director or director of public prosecutions

3. (1)
    This section applies if—

1. (a)
    before the commencement, the director was satisfied the repealed Act, chapter 7, part 2 applied to an involuntary patient; and

2. (b)
    immediately before the commencement, the director had not under the repealed Act, section 240(1) referred the matter of the patient’s mental condition relating to the offence with which the patient was charged to the Mental Health Court or director of public prosecutions.

3. (2)
    The repealed Act, chapter 7, parts 1 to 3 continues to apply, as if the new Act had not commenced.

3. (3)
    A reference made to the Mental Health Court under the repealed Act, section 240 or 247 as applied by this section is taken to have been made under the new Act.”

34. [34]
    This section of the 2016 Act provides that the Chief Psychiatrist continues to have the duty which the Director of Mental Health had under the 2000 Act to refer people such as Mr Sciortino to the Mental Health Court.  It seems, having regard to the words of subsections (2) and (3), that the legislature contemplated such referrals would be under the 2000 Act.  The referral in Mr Sciortino’s case was under a form approved under the 2016 Act, but I treat it as if it were in the old form – this is simply an irregularity.
35. [35]
    The effect of s 832 of the 2016 Act is that offences which are not serious offences but which are committed by people under involuntary treatment orders or forensic orders made under the 2000 Act are to be referred to the Mental Health Court.  There could be no purpose for the legislature requiring such reference if it did not contemplate that the Mental Health Court would then hear the references, and I so construe the transitional provision at s 832 of the 2016 Act.  This result seemed so obvious when the matter of Sciortino came on for hearing last week that I dealt with the reference then.  I said I would provide reasons as to the view I took of s 832 at a later date, and these are those reasons.