R v Skapik [2025] NSWCCA 19
R v Skapik [2025] NSWCCA 19 · Read the judgment on AustLII
Catchwords: Sentencing / diversion – Mental Health – Commonwealth provisions
In this decision the CCA has held that the Commonwealth summary mental health diversion provisions are not limited to acute and serious mental health conditions such as might see a person be involuntarily detained. The concept of ‘mental illness’ in this context is broader and provides a measure of flexibility.
This matter came to the CCA by way of a stated case at the request of the Commonwealth DPP; the facts are set out in the District Court judgment which preceded it (Skapik v R [2024] NSWDC 427). The respondent had worked at Optus and used his credentials to look into the account of a friend (a police officer) who was having a relationship breakdown and wanted information about the people with whom his ex-partner was communicating. The respondent was charged with Commonwealth offences relating to the unauthorised access of restricted data and disclosing telecommunications information. In the Local Court – and in the District Court on appeal – he asserted that at the time of the offences he was suffering from mental conditions (adjustment disorder with mixed anxiety and depressed mood, and social anxiety disorder), that those conditions materially contributed to the offending conduct, and that therefore he should be dealt with under the Commonwealth provision providing for mental health diversion, rather than under the general criminal law. He succeeded in his District Court appeal (that is, the matter was diverted under s 20BQ of the Crimes Act 1914 (Cth)) so that the charges were conditionally discharged, but the Commonwealth asked the judge to submit a question of law to the CCA. The CDPP did not ask that the CCA change the outcome of the District Court appeal – they merely wanted a question of law answered.
Section 20BQ is the Commonwealth equivalent of the more common State provision allowing for mental health diversion of summary offences found in Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 14. In the Commonwealth form of the provision, the threshold question in s 20BQ requires that the person is suffering from ‘a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability’. This appeal was ultimately about what those words mean – and perhaps more particularly what ‘the civil law’ means in this context.
The Commonwealth contended that the meaning of those words was limited to the definition of ‘mental illness’ in the Mental Health Act 2007 (NSW). Without intending to minimise the impact of conditions like depression or anxiety, the Mental Health Act definition describes what might be considered particularly serious mental conditions, like delusions and hallucinations, such as you might expect could a lead a person to be involuntarily admitted to a mental health facility. That is, on the construction contended for by the Commonwealth, you would expect the scope of s 20BQ to be limited to only those people who were very acutely mentally ill, and the provision would be far more limited in scope than the equivalent State provision. The respondent contended for a much more expansive version of the definition.
The Court (Stern JA, with whom Garling and N Adams JJ agreed) rejected the Commonwealth’s interpretation of the section. The Court’s reasoning was based on a range of textual, contextual, historical, purposive, and practical reasons, only a few of which will fit in a brief summary.
Nothing in the language of the section indicates an intention to limit ‘mental illness’ only to mental illness of a character or severity which would permit involuntary admission or detention in a hospital under a State or Territory law (at [15]). The text suggests that Parliament intended to the provision to be a simple and efficient process for summary courts to determine mental illness (at [19] and [26]). It is likely that the words ‘within the civil law’ were intended to distinguish mental illness in this context from the meanings of ‘mental illness’ that were, at the time the provision was introduced (in July 1990) established in the criminal law as applying to a verdict of acquittal because of mental illness, or to questions of fitness to plead (at [37]-[40]). Similarly, nothing in the extrinsic material ([42]-[53]), historical analysis ([54]-[65]), or comparable NSW provisions ([66]-[70]) supported the interpretation contended for by the Commonwealth.
Parliament used the words ‘mental illness within the meaning of the State or Territory’ in s 20BQ(1)(a) to direct attention to the meaning of mental illness in the State or Territory as a matter of civil, as opposed to criminal, law. They intended to distinguish the very specific concepts of mental illness developed in the context of fitness to be tried or acquittal on the basis of mental illness (at [78]). The definition of ‘mental illness’ in this context is developed by the courts of the relevant State or Territory, and in NSW is not limited by the definition in s 4 of the Mental Health Act 2007 (NSW). That means that different definitions of mental illness are applicable in different States or Territories, but that is an inevitable choice of Parliaments choice of words in s 20BQ(1)(a) (at [80]-[81]).