Supreme Court Slams Controversial Magistrate

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By Paul Gregoire and Ugur Nedim

Controversial Magistrate Roger Prowse is at it again. As discussed in a previous blog, the Local Court magistrate caused a stir in May 2015, when he accused a police office of contempt and called a halt to proceedings against a man charged with common assault.

On that occasion, defendant Tony Rugari was before the court for allegedly grabbing a child protection worker by the throat and throwing her to the ground. Police arrested Rugari in the foyer of the court on the morning of his defended hearing, after he allegedly wrote a threatening message on the court list directed at the same woman.

The magistrate “occasioned a serious injustice”

Magistrate Prowse considered Mr Rugari’s arrest as an affront to the court, as the scheduled hearing could not go ahead while Mr Rugari was under arrest. His Honour insisted that Rugari be “unarrested” and refused to adjourn the hearing, accusing police of committing a contempt of court. He later decided to to issue a “permanent stay of proceedings” so the case would never be heard. The magistrate remarked:

“… there is a clear power in the Court to stay the proceedings. There is a clear power in the Court to take action to prevent the processes as being abused or thwarted by way an abuse can be perpetuated by the thwarting of the business of the Court being disposed of properly”.

Anticipating an appeal, the magistrate then condescendingly asked the prosecutor:

“Do you want me to order a transcript of that so that when you pop off to the Supreme Court it has already been prepared?”

The Director of Public Prosecutions (DDP) appealed the permanent stay to the Supreme Court, where Justice Wilson found the magistrate had incorrectly applied the law and “undermined the proper administration of justice”. The Supreme Court Justice remarked:

“… it is apparent that the miscarriage of justice that occurred was precipitated by the Magistrate’s mistaken understanding of the principals [sic] of contempt of court. Everything that followed flowed from that mistake”.

Her Honour described the magistrate’s view (that arresting a person at court amounts to contempt) as an “… erroneous assumption that led to the Magistrate’s apparent, although wholly misplaced, irritation with the police and, by extension, his irritation with the police prosecutor…”.

She formed the view that “[h]is intent seems to have been to punish the prosecution for what he regarded as contemptuous interference in the Court’s processes by the police”.

She ordered that the case be sent back to Liverpool Local Court to be heard before a different magistrate.

Acting outside his powers once again

At around 2:30pm on August 5 last year, police issued 19-year old Zachary Wallman with infringement notices for being on a platform of Sydney Central railway station without a ticket, and for smoking in a restricted area. The officers approached him again as he was allegedly obstructing passengers on a staircase.

The young man tried to get away from police, but then returned, saying he was “over it” and that he wanted to go back to Silverwater prison, as he was “stranded” with “nowhere to go.” He threatened that if police did not return him to prison, he would commit a robbery and “hurt a police officer.”

Police from Sydney City Local Area Command arrested Mr Wallman, and located a 23 cm knife, with a 12cm blade, in his back pocket.

Wallman was later charged with one count of being armed with intent to commit an indictable offence, under section 114(1)(a) of the Crime Act 1900 and one count of having custody of a knife in a public place, under section 11C(1) of the Summary Offences Act 1998.

Released on bail

Mr Wallman appeared before Central Local Court on August 10 last year. During the proceedings, psychiatrist Dr Zhang gave evidence that he had a history of schizophrenia, attention deficit hyperactive disorder and mild intellectual impairment. The doctor added that Wallman had not take his medication since being released from prison.

The Central Local Court magistrate granted strict conditional bail, requiring him to reside with his “aunty” at a residence in South Tamworth and to comply with a strict curfew.

Diagnosed as mentally disordered

A representative of the Mercy Connect Disability Services – who were monitoring Wallman – notified police that he was missing on August 20. Police then arrested him for breach of bail, and brought his before Tamworth Local Court.

The defendant’s lawyer and the deputy registrar of the court both found that Mr Wallman was unable to communicate properly. The deputy registrar ordered that Wallman be sent to the Banksia Unit of Tamworth Hospital that day to undergo mental health assessment, under section 33(1D) of the Mental Health (Forensic Provisions) Act 1990.

The clinic’s certified medical officer found that Mr Wallman was not a mentally ill person under the provisions of section 14 of the Mental Health Act 2007 which state:

“(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious harm, or

(b) for the protection of others from serious harm.

(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account.”

However, the medical officer found that the defendant was mentally disordered under section 15 of the same Act, which states:

“A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.”

The assessment is referred to as a ‘Form 1’. However, section 27 of the Mental Health Act required that a psychiatrist make a second assessment.

Enter Magistrate Prowse

On August 22 last year, Magistrate Prowse was set to preside over Mr Wallman’s case and was sitting in chambers considering the charges.

Without consulting either the prosecution or the defence, he ordered that the defendant “be taken by police and detained in the mental health facility for assessment in accordance” under section 33(1)(a) of the Mental Health (Forensic Provisions) Act.

This is despite the fact that the deputy registrar had sent Mr Wallman to the facility two days prior.

Section 33(1)(a) states as follows:

“Mentally ill persons

(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 that the defendant is a mentally ill person, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 2013 or otherwise):

(a) may order that the defendant be taken to, and detained in, a mental health facility for assessment”

The magistrate noted he had been presented with Form 1, which stated that the defendant was found to be a mentally disordered person. And as Justice Fagan of the Supreme Court later pointed out, the magistrate thought the order “prevented the court from dealing any further with the charges.”

The Supreme Court

The DDP appealed Magistrate Prowse’s order to the Supreme Court, which delivered its judgement on February 3 this year.

Justice Fagan of the Supreme Court found the order to be flawed in two significant respects. Firstly, a prerequisite to making such an order “is that it appears to the magistrate that the defendant is a mentally ill person.”

However, Magistrate Prowse relied upon the authorised medical officer’s opinion that he was mentally disordered, rather than mentally ill, which are not the same.

Secondly, such an order can be only made “at the commencement or at any time during the course of the hearing of proceedings.” But Magistrate Prowse made the order before the proceedings began, without giving the prosecutor or the defendant a chance to be heard.

It was further found that the magistrate’s order was never communicated to any mental health facility. In fact, on the same day the order was made, psychiatrist Dr Khambay carried out the required second assessment, which found that the defendant was neither mentally ill nor mentally disordered.

Justice Fagan found it difficult to see how the magistrate “could have thought it was appropriate to make” the order.

Magistrate Prowse defiant

On August 23, Sergeant Donovan appeared as prosecutor and told Magistrate Prowse that a Form 1 had been reissued by Dr Khambay, showing the defendant was neither mentally ill nor mentally disordered. The prosecutor requested the charges be relisted.

However, the magistrate declared, “The matter is finalised. In the absence of the jurisdiction, the court cannot entertain the Crown’s application.”

The decision not to reopen the case, Justice Fagan found, was an error of law as the magistrate’s order under section 33(1)(a) was invalid. The Justice further remarked that, even if the order had been valid, it would not “have deprived the Local Court of jurisdiction to deal further with the charges.”

The magistrate’s misapprehension  

The Supreme Court pointed out that if a person is found to be mentally disordered, he or she cannot be detained for more than three days. And if they are not mentally ill or disordered, they cannot be detained any longer than they already have been.

According to Justice Fagan, Magistrate Prowse was mistaken in calling a halt to the case. The Justice found that the charges against the defendant remained outstanding and had not been disposed of.

The Supreme Court ordered that Magistrate Prowse’s order be set aside and that, as the charges remained outstanding, the case be sent back to a Local Court to be heard and th determined.

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