Citation: TD, By Her Tutor, The Protective Commissioner of NSW v State of NSW [2011] NSWSC 763
Court: Supreme Court of New South Wales
Date: 22 July 2011
Judge(s): Hall J
Background
The plaintiff, TD, was an Aboriginal woman with a history of chronic schizophrenia who was found, following a special hearing under the Mental Health (Criminal Procedure) Act 1990 ("the Act"), to have committed assault with intent to rob. The sentencing court nominated a "limiting term" under s.23 of the Act and made an interim order under s.24 directing her detention at Mulawa Correctional Centre. A subsequent order under s.27 then directed that she be detained in a hospital, making her a "forensic patient."
TD, acting by her tutor (the Protective Commissioner of NSW), brought proceedings against the State for false imprisonment, alleging that her continued detention was unlawful. Hall J delivered a liability judgment in her favour on 30 April 2010.
The State then filed a notice of motion seeking to re-open the liability judgment, arguing that Hall J had incorrectly construed s.27 of the Act in reaching that conclusion. The judgment of 22 July 2011 resolved that motion and finalised the proceedings.
Legal Issues
- Whether s.27 of the Mental Health (Criminal Procedure) Act 1990 provides both the power to detain and the power to determine the place of detention, or only operates to direct the location of detention already authorised elsewhere in the Act.
- Whether s.24 of the Act constitutes an interim order that is spent once an order is made under s.27.
- Whether the court retains a discretion under s.27 to make no order at all (in which case a detained person would be entitled to release), or whether s.27 operates as a mandatory direction as to place of detention.
- Whether the State's notice of motion to re-open the liability finding should be granted.
Decision
The central dispute on the re-opening application was whether s.27 of the Act operates as the source of power to detain, or merely as a mechanism to determine where an already-detained person is to be held. The State argued that the power to detain arose from the limiting term under s.23 combined with the custody order under s.24, and that s.27 only directed the place of detention. On this view, a court could not simply decline to make any order under s.27 and thereby release the person.
The plaintiff contended, consistent with obiter observations by James J in R v AN (No 2) [2006] NSWCCA 218, that s.27 was the source of both the detention power and the power to direct location. Accordingly, the court retained a discretion not to make any order under either s.27(a) or (b), which would entitle the person to release. The plaintiff also submitted that any s.24 order is interim in nature and is spent once a s.27 order is made.
Hall J dismissed the State's notice of motion, confirming his earlier liability finding. The judgment records that the parties had agreed on the quantum of damages at $80,000 plus costs, and the court approved that settlement pursuant to s.76 of the Civil Procedure Act 2005 given TD's status as a protected person. The judgment monies were directed to be paid to the NSW Trustee and Guardian for management on TD's behalf.
Orders Made
- The notice of motion filed on 25 June 2010 (seeking to re-open the liability judgment) was dismissed.
- Judgment and verdict for the plaintiff on her pleaded cause of action in false imprisonment.
- The plaintiff discontinued all other claims against the defendant arising from the same events.
- The Court approved the agreed settlement of damages in the sum of $80,000 plus costs, as agreed or assessed.
- The defendant was ordered to pay the plaintiff $80,000 in damages plus costs, as agreed or assessed.
- Judgment monies were directed to be paid to the NSW Trustee and Guardian for management under the Protected Estates Act.
- Leave was granted to either party to apply in respect of the form and terms of the orders.
Key Takeaways
- The construction of s.27 of the Mental Health (Criminal Procedure) Act 1990 was found to be critical to determining the lawfulness of detention of forensic patients, given limited prior judicial consideration of its scope in the context of the Act's overall scheme.
- Under the Act's scheme, an order under s.24 operates as an interim measure following the nomination of a limiting term under s.23, and a further order under s.27 is required once the Mental Health Review Tribunal has made its determination about the person's condition.
- The State's argument that s.27 only directs the place of already-authorised detention (rather than providing the detention power itself) was not accepted, and the earlier finding of liability for false imprisonment was confirmed.
- Where a plaintiff is a protected person within the meaning of the Protected Estates Act 1983 (now replaced by the NSW Trustee and Guardianship Act 2009), the Supreme Court must approve any agreed settlement quantum under s.76 of the Civil Procedure Act 2005, and judgment monies are directed to the NSW Trustee and Guardian for management.
- The obiter observations of James J in R v AN (No 2) [2006] NSWCCA 218 regarding the discretionary nature of s.27, while not binding, were treated as a relevant reference point in the construction debate.
Legislation and Cases Referenced
Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss.18, 23, 24, 27
- Mental Health Act 1983 (NSW)
- Civil Procedure Act 2005 (NSW), s.76
- Protected Estates Act 1983 (NSW)
- NSW Trustee and Guardianship Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- TD v State of NSW [2010] NSWSC 368
- R v AN (No 2) [2006] NSWCCA 218; (2006) 66 NSWLR 523
- R v AN [2005] NSWCCA 239
- R v Adams [2001] NSWSC 1042; (2001) 126 A Crim R 264
- Mailes v DPP and Mental Health Review Tribunal [2006] NSWSC 267