ON 3 SEPTEMBER 1990, the NSW Mental Health (Forensic Procedures) Act 1990 (formerly known as the Mental Health (Criminal Procedure) Act 1990) commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/mhpa1990355

The significant provisions are found in Part 3, specifically s32.

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 32
Persons suffering from mental illness or condition
32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013 ,

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B) If the defendant fails to appear, the Magistrate may:
(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:
(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).

(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.

(5) The regulations may prescribe the form of an order under this section.

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5

February 15, 1990 Legal Helpdesk Lawyers

ON 15 FEBRUARY 1999, the High Court of Australia delivered Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 (15 February 1990).

http://www.austlii.edu.au/au/cases/cth/high_ct/168clr594.html

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Longman v R [1989] HCA 60

December 6, 1989 Legal Helpdesk Lawyers

ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).

http://www.austlii.edu.au/au/cases/cth/high_ct/168clr79.html

Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.

The High Court held that what the jury was told was not sufficient.

Per Brennan, Dawson and Toohey JJ at [30]:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.

Sydney, Australia

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Appeals, Criminal Law, Criminal Procedure, LAW FIRM, United Kingdom

Guildford Four released

October 19, 1989 Legal Helpdesk Lawyers

ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.

http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm

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Criminal Law, Criminal Procedure, Judges, LAW FIRM, Practice and Procedure

Jago v District Court of NSW

October 12, 1989 Legal Helpdesk Lawyers

ON 12 OCTOBER 1989, the High Court of Australia delivered Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (12 October 1989).

http://www.austlii.edu.au/au/cases/cth/HCA/1989/46.html

Superior Courts “possess an inherent power to prevent their processes being used in a manner which gives rise to injustice”.

The inherent jurisdiction of the Superior Courts empowers them to order a permanent stay of proceedings to prevent an abuse of process. The power is to be exercised with fairness as the “touchstone”: per Mason at 31.

A permanent stay of proceedings will only be ordered in an “extreme case”: Per Mason CJ at 34.

Per Mason CJ at 33-34:

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial…At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’…”

It is fundamental to the legal system that an accused be given a fair trial according to the law. The accused has “a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.”: per Deane at 56-57.

The five main considerations in determining whether or not proceedings should be stayed on the grounds of unfair delay are, per Deane J at 60:

“the length of the delay”
“reasons given by the prosecution to explain or justify the delay”
“the accused’s responsibility for and past attitude to the delay”
“proven or likely prejudice to the accused”
“the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.”

Peter O’Grady, Lawyer
BA, LLB, Grad Cert Leg Prac, Acc Spec
Principal Solicitor, Legal Helpdesk

Corporations Law, Criminal Law, Evidence, LAW FIRM

Hamilton v Oades [1989] HCA 21

April 12, 1989 Legal Helpdesk Lawyers

ON THIS DAY in 1989, the High Court of Australia delivered Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 (12 April 1989).

A company director sought to be excused from compulsory examination under s 541(3) of the Companies (New South Wales) Code on the basis his answers might lead to self incrimination where there were criminal charges and proceedings on foot (as well as pending) and he would be exposed to derivative evidence being used against him in the criminal proceedings. The court held that the director could not be excused from answering the questions as the statute had abrogated his privilege against self incrimination.

http://www.austlii.edu.au/au/cases/cth/HCA/1989/21.html

Sydney, Australia

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