Citation: Wedge v Commissioner of Corrective Services & Ors [2006] NSWSC 998
Court: Supreme Court of New South Wales, Common Law Division
Date: 26 September 2006
Judge(s): Hidden J
Background
The plaintiff was an inmate at Long Bay Prison Hospital. In May 2006, a magistrate sentenced him to two concurrent 15-month terms of imprisonment with a non-parole period of seven months. Because those sentences were under three years, the sentencing court made a parole order directing his release at the expiry of the non-parole period on 26 July 2006.
Before that date arrived, the plaintiff was examined by two medical practitioners, including a psychiatrist, who certified he was mentally ill. Under section 97 of the Mental Health Act 1990, a delegate of the Chief Health Officer ordered his transfer to hospital on 30 June 2006, and he arrived at Long Bay Prison Hospital on 13 July 2006. That transfer made him a "forensic patient" under the Act. An authorised person then issued a notice under section 100A confirming he should remain in hospital beyond the initial seven-day period.
The non-parole period expired on 26 July 2006 while the plaintiff remained in hospital. The mandatory review of his case by the Mental Health Review Tribunal under section 86 of the Act had not yet occurred, having been adjourned to October 2006. The Commissioner of Corrective Services took the position that the plaintiff could not be released until the Tribunal reviewed his case and the Minister for Health made an appropriate order. The plaintiff contested that position and sought a declaration of entitlement to release, together with relief in the nature of habeas corpus.
Legal Issues
- Whether the plaintiff's status as a forensic patient ceased upon the expiry of his non-parole period, thereby entitling him to release under the court's parole order.
- If the plaintiff remained a forensic patient after the non-parole period expired, whether the administrative steps taken under the Mental Health Act (the section 97 transfer order and the section 100A continuation notice) were sufficient to override the parole order made by the sentencing court.
Decision
Hidden J held that the administrative orders made under sections 97 and 100A were not sufficient, by themselves, to override the parole order. The critical point was that the section 86 review by the Mental Health Review Tribunal had not been completed. That review process, and any subsequent ministerial order, forms the mechanism through which a prisoner's continued detention as a forensic patient is properly confirmed.
The court reasoned that sections 97 and 100A orders are purely administrative in nature. The prisoner has no right to be heard before they are made. By contrast, a section 86 Tribunal review is a proceeding at which the prisoner is entitled to appear and be legally represented. Interpreting the Act to allow purely administrative action to override a court-ordered release, without any opportunity for the prisoner to be heard, was inconsistent with principles of natural justice and with the general legislative intention apparent across both the Mental Health Act and the Crimes (Administration of Sentences) Act 1999.
His Honour also noted that the Mental Health Act, while not a penal statute, bears upon the liberty of the subject in this context. Consistent with the approach in Beckwith v The Queen, Part 2 of Chapter 5 of that Act falls to be interpreted accordingly. The court further observed that any public safety concerns arising from release remained addressable through the involuntary admission provisions in Chapter 4 of the Act.
On the alternative argument, whether the plaintiff had actually ceased to be a forensic patient upon expiry of the non-parole period, His Honour did not resolve that question, having found for the plaintiff on the second ground. The court declined to make the specific declaration sought in the summons (that forensic patient status ceased on 26 July 2006), as that framing did not accord with the reasoning, and invited the parties to settle the terms of an appropriate declaration and any consequential orders.
Orders Made
• The plaintiff is entitled to be released
• A declaration to be framed by the parties regarding the plaintiff's entitlement to release
• Any consequential orders to be determined by the parties, with consideration as to whom such orders should be made
Key Takeaways
- Administrative orders under sections 97 and 100A of the Mental Health Act 1990, transferring a sentenced prisoner to hospital and confirming continued detention there, are not sufficient on their own to override a court-made parole order once the non-parole period has expired.
- The section 86 Mental Health Review Tribunal review constitutes the proper mechanism for confirming a prisoner's continued status and detention as a forensic patient; until that process is completed and the Minister acts upon any recommendation, the administrative detention machinery is incomplete.
- A prisoner subject to the section 86 review has the right to appear and be legally represented, in contrast to the purely administrative section 97 and 100A processes, and the Supreme Court treated that procedural distinction as significant in construing the Act.
- Where a statute bears upon the liberty of the subject, even if it is not a penal statute, the court applied the principle from Beckwith v The Queen (1976) 135 CLR 569 that the provisions should be interpreted in that light.
- Release of a forensic patient who remains a public safety concern is not necessarily unchecked: the involuntary admission provisions in Chapter 4 of the Mental Health Act 1990 remain available as a separate pathway after a parole-based release.
Legislation and Cases Referenced
Legislation:
- Mental Health Act 1990 (NSW), ss 82, 84, 86, 89, 97, 100A, 105, 107, 274
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 23, 130(1)
Cases:
- Hamilton v Director-General, Department of Health and Anor (James J, unreported, 13 April 1995)
- McDonald v Commissioner of Corrective Services & anor [2006] NSWSC 496
- Beckwith v The Queen (1976) 135 CLR 569