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Supreme Court 26 May 2006

McDonald v Commissioner of Corrective Services & Anor

[2006] NSWSC 496

Public order & justice offences
CRIMINAL LAW: ADMINISTRATION OF PRISONS HABEAS CORPUS PAROLE PERIOD PAROLE ORDER MADE BY SENTENCING COURT

Citation: McDonald v Commissioner of Corrective Services & Anor [2006] NSWSC 496
Court: Supreme Court of New South Wales, Common Law Division
Date: 26 May 2006
Judge(s): Hidden J

Background

The plaintiff had been remanded in custody on an assault charge. While still on remand, two medical practitioners certified he was mentally ill, and the Chief Health Officer ordered his transfer to the prison hospital at Long Bay under s 97 of the Mental Health Act 1990. At that point, the plaintiff fell within the definition of "forensic patient" under paragraph (b) of the Act's dictionary, which covers persons detained in hospital pending committal or trial for an offence.

After the plaintiff was sentenced in the Local Court to 15 months' imprisonment with a seven-month non-parole period, the sentencing magistrate made a court parole order directing his release on 22 March 2006. The State Parole Authority briefly purported to revoke that order but later rescinded the revocation and directed release by 1 April 2006. Despite both the court parole order and the Parole Authority's direction, the plaintiff remained detained in the prison hospital.

The central question was whether, following sentencing, the plaintiff had become a different kind of forensic patient under the Mental Health Act, thereby falling under a regime that required ministerial approval for release rather than entitling him to release under the court parole order.

  • Whether the plaintiff remained a "forensic patient" under paragraph (b) of the Mental Health Act 1990 dictionary definition (persons held pending committal or trial) after he was sentenced, or whether he had transitioned to a forensic patient under paragraph (c) (persons transferred to hospital while serving a sentence of imprisonment).
  • If the plaintiff remained under paragraph (b), whether the Mental Health Review Tribunal and Minister for Health retained discretionary control over his release, or whether the court parole order governed.
  • Whether the plaintiff was entitled to be released pursuant to the court parole order made under s 50 of the Crimes (Sentencing Procedure) Act 1999.

Decision

The court found that the plaintiff did not automatically transition from a paragraph (b) to a paragraph (c) forensic patient upon sentencing. Paragraph (c) applies to a person "transferred to a hospital while serving a sentence of imprisonment." Because the plaintiff had been transferred to hospital while still on remand, before any sentence was passed, his situation did not fit paragraph (c). No fresh transfer order had been made under s 97 of the Mental Health Act following sentencing.

Hidden J observed that, in theory, a new transfer order could have been made under s 97 after sentencing, which would have brought the plaintiff within paragraph (c) and engaged the ministerial release regime under s 82. However, no such order was in fact made, and the court declined to treat the plaintiff as though one had been.

The court also noted that the statutory framework as it applied to remand prisoners transferred to hospital was "clearly unsatisfactory" and in need of legislative amendment to clarify the position. Hidden J applied a purposive interpretation, informed by the Act's stated object of minimising restrictions on the liberty of mentally ill persons to the extent consistent with their care.

Because the plaintiff did not fall within paragraph (c), the ministerial discretion over release under s 82 did not apply to him. The court parole order therefore entitled him to release, and the habeas corpus application was granted.

Orders Made

  • Application granted.
  • The plaintiff was found entitled to be released.
  • The precise terms of the formal order were to be settled in consultation with the parties.

Key Takeaways

  • The definition of "forensic patient" under the Mental Health Act 1990 contains distinct categories, and which paragraph applies turns on the circumstances at the time of the hospital transfer, not the circumstances at a later point such as sentencing.
  • A remand prisoner transferred to hospital under s 97 falls within paragraph (b) of the forensic patient definition. That status does not automatically convert to paragraph (c) status (persons transferred while serving a sentence) upon the person being sentenced, in the absence of a fresh transfer order.
  • Where a person remains a paragraph (b) forensic patient after sentencing, the ministerial discretionary release regime under s 82 does not displace a court parole order made under s 50 of the Crimes (Sentencing Procedure) Act 1999.
  • Hidden J expressly flagged that the Mental Health Act 1990 provisions dealing with remand prisoners transferred to hospital were unsatisfactory and called for legislative clarification.
  • Interpreting legislation that affects liberty, the Supreme Court applied s 4(2) of the Mental Health Act 1990, which requires interpretation to minimise restrictions on the liberty of mentally ill persons to the minimum necessary in the circumstances.

Legislation and Cases Referenced

Legislation:
- Mental Health Act 1990 (NSW), ss 82, 86, 97, 100A, Sch 1 (dictionary definition of "forensic patient"), s 4(2)
- Mental Health Regulation 2000 (NSW), cl 19(1)
- Mental Health (Criminal Proceedings) Act 1990 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Crimes (Administration of Sentences) Act 1999 (NSW), s 130
- Criminal Procedure Act 1986 (NSW)

Cases:
- Hamilton v Director-General Department of Health & Anor (NSWSC, unreported, 13 April 1995, James J)