Section 20BQ Applications: Mental Health at Time of Hearing is Relevant, Not When the Alleged Offence Occurred

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By Paul Gregoire and Ugur Nedim

Abdelaziz Ali Mahamat-Abdelgader arrived in Australia seeking asylum in June 2012. The citizen of the African nation of Chad was refused immigration clearance at the airport, taken into immigration custody and transferred to Sydney’s Villawood Immigration Detention Centre.

Abdelgader applied for a protection visa. He claimed refugee status on the basis that he would be killed if he was returned to his country of origin. He was also concerned about the safety of his family. However, he was rejected at every level of the process.

By January 2014, Abdelgader had been in detention for 19 months and had exhausted all avenues of appeal. And when he was told he was to be sent back to Chad, he said he would rather die. The detainee commenced a hunger strike, and he lay on his bed without moving for days on end.

As his condition deteriorated, Abdelgader was transferred to a private psychiatric hospital in the Brisbane suburb of Toowong. And he fled the facility five days after he arrived. Abdelgader was eventually taken back into custody nine months later, after he was located in NSW.

The Commonwealth Director of Public Prosecutions (CDPP) brought a charge against the Chadian man in July 2016, in relation to his escape from the psychiatric hospital.

Section 20BQ

In December 2016, Abdelgader appeared before the Parramatta Local Court facing one count of escaping immigration detention, contrary to section 197A of the Migration Act 1958 (Cth). This federal offence carries a maximum penalty of up to 5 years imprisonment.

The presiding magistrate found that Abdelgader was suffering from a mental illness, and, therefore, it was appropriate to deal with him under the provisions of section 20BQ of the Crimes Act 1914 (Cth).

Section 20BQ stipulates that when a federal offence is heard in a state or territory court of summary jurisdiction and the alleged offender is suffering either a mental illness or an intellectual disability, the charge can be dismissed, so they can then have their medical needs dealt with appropriately.

In NSW, the court of summary jurisdiction is the Local Court. It deals with summary offences, which are considered less serious than indictable offences. A federal offence carrying 10 years or less can be heard in the Local Court if the prosecution and defence agree it should be heard summarily.

If a magistrate finds that section 20BQ does apply, a defendant can then be released into the care of a nominated person for up to 3 years, or they can be required to undertake a treatment program that can last for up to 3 years, or the person can be released unconditionally.

As the charge is dropped when this section applies, there’s no finding of guilty and, therefore, no conviction is recorded.

In the case of Abdelgader, the magistrate dropped the charge under section 20BQ and released the asylum seeker into the care of the Department of Immigration and Border Protection.

Appealing the diversion

The CDPP appealed the decision to the NSW Supreme Court in June 2017. It did so based on three grounds, which all suggested that the magistrate made an error in finding that the provisions of section 20BQ applied in this case.

“In short,” Justice Lucy McCallum summed up, “the DPP contends that the Magistrate erroneously confined attention to Mr Abdelgader’s state of mind at the time the offence is alleged to have been committed, whereas the section directs attention to the position as at the date of the hearing.”

This contention relates to subsection 20BQ(1)(a) as it specifically sets out that the court can dismiss a charge on a mental health basis if “the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory”. This means at the time of the current hearing.

In Abdelgader’s case, the CDPP submitted that the magistrate considered the Chadian asylum seeker’s mental illness at the time he made the escape from the hospital in early 2014, rather than at the time the proceedings were taking place in late 2016.

State laws have changed

During the proceedings, Justice McCallum made note of the differences in making a mental health order application under NSW state law, compared with that of section 20BQ within the federal Crimes Act.

Back in 2017, at the state level, section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Old Act) applied.

Section 32 of the Old Act set out that a magistrate could dismiss a charge and have an accused undertake a treatment program if they were considered to have a mental illness at the time the offence was committed or during the subsequent criminal proceedings.

“Whereas the State provision permits the Court to consider an accused person’s mental state at the time of the offence,” her Honour explained, “the Commonwealth provision focuses exclusively on the accused person’s state of mind at the time of the hearing.”

However, the Old Act ceased to apply as of 27 March this year, which was when the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the New Act) took effect.

Under the New Act, section 14 contains the provisions relating to mental health orders. This section remains much the same as the old law except for three distinct changes.

The first is that there are new definitions for mental health impairment and cognitive impairment in the New Act. As well, section 15 of the New Act provides a statutory list of considerations that a magistrate may refer to when making a decision on whether to apply a mental health diversion.

And finally, the timeframe that permits a magistrate to call discharged defendants back into court to face their original charges if they haven’t been following their treatment or support program has been upped to 12 months, under the New Act, compared with the 6 months that used to apply.

A chronic illness

Regarding Abdelgader, Justice McCallum found that the magistrate focused on a series of documents assessing his mental health in 2013-14. And in particular, he considered one dated December 2013, which was prior to his hunger strike and assessed him as having “long-term psychosis”.

“Although there was no express finding… that Mr Abdelgader was suffering from a mental illness at the time of the hearing,” her Honour found, “in my view it is clear that the Magistrate was satisfied in those terms, evidently finding that the condition referred to by the psychiatrist was chronic.”

Justice McCallum further stated in her 20th July 2017 findings that she had read the Local Court transcript on several occasions and it was clear to her that the magistrate was focused on the chronic, or ongoing, nature of Abdelgader’s mental illness at the time of the proceedings.

“I am not persuaded that the Magistrate applied the wrong test,” her Honour determined, adding that “it was open on the evidence to his Honour to be satisfied in the terms of that test.”

“For those reasons, I have concluded that the DPP’s appeal must fail.”

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