Jones and Anor v Booth and Anor [2019] NSWSC 1066

Jones and Anor v Booth and Anor [2019] NSWSC 1066 · Read the judgment on AustLII

Catchwords: Mental health – s 32 applications – psychologist vs psychiatrist

In comments made in the context of applications under s 32 of the Mental Health (Forensic Provisions) Act, but which are relevant to any case where there is expert evidence of mental illness, the Supreme Court has commented on the circumstances in which it will be appropriate to have a psychologist rather than a psychiatrist provide a report.

An offender was to be sentenced for offences in the Local Court (the details are irrelevant for present purposes). His lawyer thought he would benefit from a psychological assessment, and engaged a psychologist: the First Plaintiff, Mr Jones. Mr Jones duly conducted a number of tests, then produced a report in support of an application under s 32 of the Crimes (Forensic Provisions) Act 1990, to the effect that the charges should be dismissed because of a mental health condition. The matter went before a Magistrate. That particular Magistrate was of the view that most of what a psychologist could say was ‘not within the terms’ of the mental health legislation; that is, the Magistrate considered that only a psychiatrist was capable of being qualified as an expert on this topic. The matter was adjourned without the s 32 application being resolved. When the matter next returned to court the accused’s lawyer renewed the application that the psychologist was appropriately-qualified. The Magistrate disagreed again, and the matter was adjourned again. But when the application came back to court a third time, it eventually ended up before a different Magistrate. That Magistrate presumably took a different view about the qualifications of psychologists, because she determined to dismiss the charges under s 32. The successful result notwithstanding, the psychologist and the offender took action in the Supreme Court seeking declarations which, amongst other things, would have declared that particular psychologist qualified for the purposes of s 32 and other legislation. The main motivation behind the application seems to be related to his loss of income and / or reputation suffered as a result of the opinions expressed by the Magistrate. The application came before Johnson J, sitting alone. His Honour declined to make a declarations for reasons to do with the hypothetical nature of the questions (remembering that the s 32 was eventually granted based on that report, albeit by a different Magistrate). Nevertheless, from [43] onwards, his Honour determined to provide guidance in an area of importance for the administration of criminal justice in the Local Court.

His Honour started by observing that the s 32 jurisdiction is an inquisitorial or administrative jurisdiction, in which a Magistrate may inform themselves as they see fit (at [51]-[52]). The Evidence Act does not apply, so the applicants’ references to expert qualifications under s 79 of the Evidence Act were misconceived (at [53]-[54]). That notwithstanding, the Local Court should consider the qualifications and expertise of the author of any report tendered, along with the contents of the report, in order to determine whether the report should be admitted, and if so what weight to put on it (at [55]). It would be an error for a Magistrate to take a blanket approach, such that only psychiatrists’ reports would be accepted (at [57]). There is no bright line test which delineates, for the purposes of s 32, areas where a psychologist’s report can or cannot be received (at [59]). One obvious distinction is that psychiatrists may prescribe medication, which may be important if that kind of treatment will be necessary (at [60), but otherwise it is unhelpful to attempt to generalise the cases which may be appropriate for a psychologist’s report, or where a psychiatrist’s report may be required. Psychologists play an important part in the provision of reports under s 32 (at [63]), but from time to time they have been the subject of disapproval where their reports have crossed the line into expression of psychiatric opinion, or where there was a bare acceptance of a defendant’s account combined with limited explanation of the diagnosis (at [64]). Although the view expressed by the original Magistrate disclosed error, it did not give rise to a refusal of the application; the report was eventually received and the application successful; for that and other reasons the relief sought was refused (at [69]-[70]).

Following this authority, practitioners would be well-advised to remind psychologists to strictly comply with the relevant Expert Witness Code of Conduct, and to provide detailed information about their qualifications (which should accompany the report when tendered).