Nilsson, Sigrid v State of Tasmania

Court:Full Supreme Court
Docket Number:218/2010
Judge:Crawford CJ, Blow J, Porter J
Judgment Date:22 Dec 2010

[2010] TASFC 7

[2010] TASSC 6


Crawford CJ, Blow J, Porter J


Nilsson, Sigrid
State of Tasmania
Department of Police and Emergency Management

Aust Dig Magistrates [270]

Magistrates — Appeals and review — Tasmania — Motion to review — When remedy available — Denial of natural justice — Disputed fact in case accepted without adequate opportunity to challenge.

Crawford CJ

The appellant was charged on complaint with disorderly conduct and two assaults. It was part-heard by a magistrate, Mrs H M Wood, on two dates, following which it was twice adjourned. The complainant was then given leave to withdraw the complaint.


The appellant applied to the magistrate for an order under theCosts in Criminal Cases Act 1976, s4(1), that she be paid her costs in respect of her defence. The magistrate dismissed her application.


The appellant sought a review of the order dismissing her application under theJustices Act 1959, s107(1). In the circumstances of the case, the grounds of the motion to review were constrained by s107(4)(a) to errors or mistakes on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. The motion to review was dismissed by Evans J.


The appeal to this Court resulted. The basis of the appeal is constrained by theJustices Act, s123(1), to a point of law or the admission or rejection of evidence.


It is necessary to consider in some detail the course of the proceedings in the Magistrates Court, the decision of the learned magistrate and the decision of the learned judge.

The hearing of the complaint

I will take the history of the hearing from the magistrate's reasons for dismissing the application for costs and from the judge's reasons for dismissing the motion to review. The charges flowed from the appellant's actions on 14 June 2007 when she was accompanying her mother and assisting her to leave the Royal Hobart Hospital contrary to medical advice. Her mother had been admitted to hospital two or three days earlier after suffering a head injury following a fall. A CT scan had revealed some bleeding and she was receiving assessment and treatment in the Neurosurgical Unit. The appellant became concerned about the level of care her mother was receiving and the way in which she was treated as a patient. Communications between her and hospital staff became problematic and she indicated that she wished to take her mother out of hospital.


The magistrate found that treating practitioners were concerned about the prospect that the appellant would remove her mother from the hospital and about her mother's safety. It was also found that Dr Koefman made an initial order for admission under theMental Health Act 1996, s26, providing for the admission and detention of the mother as an involuntary patient in the hospital. The making and validity of the order has been challenged by the appellant.


The magistrate found that the signing of the order occurred as the appellant was leaving the Unit. According to her case, she was unaware that the order had been made and understood that her mother was a voluntary patient and free to leave. As she and her mother commenced to leave the hospital together, they were restrained by hospital security staff.


There was then an altercation between the appellant and security staff. If the appellant had had the opportunity to give evidence in her defence, she would have said that in the altercation her mother was pulled away from her very forcefully and was screaming as they dragged her backwardsand the appellant was being held and grabbed. She would also have said that as a result, she kicked out and struck two members of the security staff in the leg. Her defence was that although she struck them as alleged, she did so lawfully in self-defence. After that, security officers took her to the floor where she was restrained until police officers attended.


Prosecution witnesses included treating practitioners, hospital security staff and police officers. On the first day of the hearing on 5 May 2008, evidence was given for the prosecution by three police officers, Dr Koefman and the clinical nurse manager of the Neurosurgical Unit, Mr Weeding. On the second day of the hearing on 28 July 2008, evidence was given for the prosecution by a clinical psychologist employed at Neuropsychology in the hospital, Dr Croft, and the manager of medical orderlies and security services, Mr Taylor. It was Mr Taylor who was the alleged victim of one of the assaults, particulars of the charge alleging that the appellant kicked out with her feet and struck him in the left shin.


When the hearing resumed on 3 October 2008, the prosecution had three more witnesses to call. They were a clinical nurse specialist, Mr Handley, a medical orderly, Mr Wattenberg, and a security officer, Mr Bodfish. Mr Wattenberg was the alleged victim of the other assault. The particulars in the complaint alleged that the appellant assaulted him by kicking out with her feet and striking him in the left knee.


The particulars of the charge of disorderly conduct, as amended, were that in the neurological ward at the hospital, a public place at Hobart, the appellant engaged in disorderly conduct by interfering with a patient under an initial order under theMental Health Act by attempting to remove the patient, by acting in a violent manner requiring her to be restrained, and by yelling in a loud voice.


At the outset of the hearing on 3 October 2008, the appellant's lawyer obtained leave from the magistrate to withdraw. The appellant had terminated the lawyer's instructions. The appellant then applied for an adjournment, providing a medical certificate to the effect that she was unfit to continue her usual occupation. The prosecutor said that he did not oppose it and that he had intended to inform the magistrate, without going into detail, that he held serious concerns as to whether the appellant was fit to proceed that day consequent upon some exchanges they had prior to court. The hearing was adjourned.


When it resumed on 22 October 2008, the prosecutor said to the magistrate that he had reviewed the file and determined that it was not in the public interest for the prosecution to continue and he sought leave to withdraw the complaint. Leave was granted. The appellant then applied for costs. The hearing of that application was adjourned.

The hearing by the magistrate of the application for costs

The hearing of the application occupied more hearing time than the hearing of the charges. It came before the magistrate on six different dates until on 26 August 2009, the magistrate published reasons for dismissing it.


A great number of exhibits were tendered. They included the statements of witnesses the prosecution would have called if the complaint had not been withdrawn. One of the circumstances theCosts in Criminal Cases Act, s4(2)(e), required the magistrate to have regard to was whether the appellant was discharged from the proceedings because she established (either by the evidence of witnesses called by her or by cross-examination of witnesses for the prosecution or otherwise) that she was not guilty. Such an event had not taken place and so s4(2)(e) did not apply. Nevertheless, she wished to give sworn evidence and she wanted the magistrate to hold a comprehensive trial of what was alleged in the complaint. According to the magistrate's reasons for decision, the appellant's reasons were that she wanted to vindicate her position, to refute the prosecutor's assertion that the prosecution was discontinued on compassionate grounds and to establish that the true reason was that the police did not think they would win their case. The magistrate resisted taking the course sought by the appellant and ruled that prosecuting counsel, Mr Miller, and the appellant were permitted to file a statement or statutory declaration. The magistrate was concerned that a contested hearing of evidence would take far too long. Her Honour referred to the statement of Mr Miller, who did not object to the course the appellant wished to have taken, that he would be more than a day cross-examining the appellant on the costs application if she gave evidence. However, he indicated that he was content to give evidence in relation to the reasons for discontinuing the prosecution.


Mr Miller filed a statutory declaration in response. In it he said that prior to 3 October 2008, he had concerns about the state of the appellant's mental health. On 3 October, his concerns were reinforced when he observed her demeanour at the court, which included that she was in a highly agitated state. I will not set out all of what he said about that, but he added that concern about her state of mental health was also expressed to him that day by an experienced psychiatric nurse who had observed the appellant's demeanour while the nurse was waiting to give evidence and expressed his view to Mr Miller that the prosecution should be discontinued as clearly, she was very unwell.


Mr Miller said in his statutory declaration that after further consideration he decided it was not in the public interest to pursue the prosecution because of the detrimental effect he believed it was having on the appellant's health. He also had regard to the fact that if the complaint was found proved, it was likely that the appellant would be released without conviction on condition she be of good behaviour for a period. That was the order made when another complaint that arose out of an incident at the hospital, had been found proved against the appellant. He also considered that the finding on the other complaint, and the costs the appellant had incurred in defending three complaints against her, were likely to operate as a deterrent to future...

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