Enhancing diversion in the superior courts
Table of contents
5.1 This last chapter considers a suggestion to extend the operation of s 32 and 33 of the MHFPA to the superior courts.
5.2 As we have noted,1 s 32 and 33 currently apply to criminal proceedings in the Local Court and the Children’s Court. The Local Court has traditionally been responsible for hearing proceedings for less serious criminal offences. While legislation does provide the Supreme and District Courts with power to divert a defendant where a question concerning his or her fitness to plead has been raised,2 this power is very limited in comparison to those provided under s 32 and 33. It is open to question whether the extension of s 32 and 33 to the superior courts would allow them to respond more appropriately to certain situations involving defendants with a cognitive impairment or mental illness.
5.3 A reform of this kind would be consistent with a move to extend to the Local Court the operation of the legislative provisions concerning fitness to plead and the special verdict of not guilty by reason of mental illness, an initiative that we discuss in CP 6, Chapter 1 and 3, respectively. Together, such reforms would work to ensure a more streamlined, consistent, and straightforward approach in dealing with defendants with a mental illness or cognitive impairment across all three courts.
Existing diversionary powers of the superior courts: section 10 of the MHFPA
5.4 Legislation already recognises that there may be circumstances where the superior courts should divert a defendant with a mental illness or cognitive impairment away from the criminal process. But as we have just noted, this power to divert is extremely curtailed. Section 10(4) of the MHFPA allows the court to dismiss charges against a defendant and order his or her release, but only in cases where the question of the defendant’s fitness to be tried has been raised.
5.5 Section 10(4) provides:
If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.
5.6 The diversionary measure provided by s 10(4) is only available to those defendants whose condition or disability is of a nature to raise concerns about their ability to stand trial. In addition, although s 10(4) does not exclude more serious offences from potentially giving rise to a diversionary order, in practice it seems likely that only the more trivial offences will be considered suitable.3 In relation to the orders that the court can make once it decides to divert a defendant under s 10(4), again its powers are extremely limited. While it has interlocutory powers that may be used to direct a defendant into some form of treatment for a limited time,4 once it makes a final determination to divert under s 10(4), the only order available is to dismiss the charge and release the defendant, with no supervisory powers over the defendant once released.
5.7 Clearly, s 10(4) of the MHFPA provides the superior courts with a much more limited diversionary power than those provided to the Local Court by s 32 and 33. Ultimately, the question whether s 32 and 33 should be extended to apply to superior court proceedings involves a policy decision about whether the more serious range of offences coming within the jurisdictions of the superior courts should be capable of giving rise to broader diversionary orders, or whether these are offences of such an objectively serious nature that those who commit them should not be able to be diverted out of the criminal process.
Issue 7.40
Does 10(4) of the MHFPA provide the superior courts with an adequate power to divert defendants with a mental illness or cognitive impairment?
Issue 7.41
Should s 32 and 33 of the MHFPA apply to proceedings for indictable offences in the Supreme and District Courts as well as proceedings in the Local Court?
Formulating a legislative list of principles for these extended diversionary powers?
5.8 The question whether to extend s 32 and 33 to the superior courts involves consideration of the principles that should underpin any such reform and guide the operation of these broader powers across the three courts. The existing diversionary powers of the courts as well as the police are not clearly defined and operate separately from each other rather than as a coherent whole, as should be evident from the discussion of these various powers in this Consultation Paper. Because of their piecemeal nature, it is difficult to identify any clear statement of principle about what they should be aiming to achieve and the situations in which it is appropriate to apply them. If the Local Court’s diversionary powers were extended to the superior courts as a way of providing a more streamlined system, there would be an argument for ensuring that this move was based on a coherent set of principles to underpin the operation of these extended powers, involving a statement about the aims of diversion in this area and the situations where diversion may and may not be appropriate. It is open to question whether there would be any advantage in including within the legislation that granted these diversionary powers to the three courts, a statement of principle aimed at achieving a consistent and coherent approach in the application of these powers.
Issue 7.42
Interaction of s 32, 33, fitness to plead provisions and provisions governing the special verdict of not guilty by reason of mental illness
5.9 If there is a move to extend the application of s 32 and 33 of the MHFPA to the superior courts, consideration will need to be given to the interaction of these diversionary provisions with the legislative powers of those courts to find a defendant unfit to be tried and not guilty by reason of mental illness. Similarly, if the legislative powers governing fitness to be tried and the defence of mental illness are extended to apply to the Local Court (issues that are discussed in CP 6, Chapters 1 and 3), then the interaction of these provisions with s 32 and 33 will again need to be considered. In any event, as we discuss in CP 6, even if the legislative provisions governing fitness to be tried and the defence of mental illness do not currently apply to Local Court proceedings, it is likely that the common law provides the Local Court with some power to find a defendant not guilty by reason of mental illness or unfit to be tried, and the interaction of these powers with the Court’s legislative powers to divert should be considered.
5.10 The interaction of these various powers requires consideration of two main issues. The first relates to the timing of the application of these powers. If a court has the power to divert a defendant and also the power to find him or her unfit to be tried, should it always be required to consider the application of one power before the other? For example, should an application to divert a defendant be required to be made and considered before an application to determine the defendant’s fitness to be tried? The second issue relates to the scope of these various powers and whether they should be formulated to apply to the same group of defendants and in respect of the same offences. If this is the case, then the tests for eligibility for the application of these various powers will need to be considered to see if they are consistent with each other. These matters are discussed in greater detail in CP 6.
FOOTNOTES
1. See para 3.2.
2. See MHFPA s 10(4).
3. Section 10(4) requires the court to determine that it is inappropriate to inflict any punishment before dismissing proceedings. The word, “punishment” has been interpreted broadly to include even the most minimal of punishments, such as the recording of a conviction without any additional penalty: see DPP v Mills [2000] NSWCA 236, [9]. It could be argued as a consequence that it will be rare that the circumstances of a case allow a court to conclude that it is inappropriate to inflict any punishment, even the recording of a conviction, except for the most trivial offences.
4. See MHFPA s 10(3).
