Citation: R v McKellar (No 6) [2014] NSWSC 1169
Court: Supreme Court of NSW
Date: 22 August 2014
Judge(s): Button J
Background
Following a special hearing determined in favour of the Crown, Button J had imposed a limiting term on the offender in April 2014 and referred the matter to the Mental Health Review Tribunal under s 24(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The Tribunal subsequently determined unequivocally that the offender was suffering from a mental illness, and provided a detailed report to the Court.
The Tribunal's report recommended that the offender be detained at the Metropolitan Reception and Remand Centre, a placement where he had been settled for some time and was said to be progressing well. The report invited the Court to make an order under s 27 of the Act in accordance with the Court of Appeal's decision in Director of Public Prosecutions v Khoury [2014] NSWCA 15.
Button J identified a potential difficulty: whether the Metropolitan Reception and Remand Centre qualified as a "mental health facility" within the statutory definition, and whether that distinction affected which order under s 27 was available.
Legal Issues
- Whether the Metropolitan Reception and Remand Centre constituted a "mental health facility" as defined under s 3 of the Mental Health (Forensic Provisions) Act 1990 (NSW), read together with s 4 and s 109 of the Mental Health Act 2007 (NSW)
- Whether, where the Tribunal has determined that an offender is suffering from mental illness, the Court has power under s 27 to order detention in a place that is not a defined mental health facility
Decision
Issue 1: Whether the Metropolitan Reception and Remand Centre is a defined mental health facility
Button J traced the definitional chain carefully. Under s 3 of the Mental Health (Forensic Provisions) Act 1990, a "mental health facility" carries the same meaning as in the Mental Health Act 2007. That Act defines the term to mean either a "declared mental health facility" (premises subject to a Gazette order under s 109) or a "private mental health facility" (premises licensed under a specific division of that Act). The Metropolitan Reception and Remand Centre had not been the subject of any Gazette order, and nothing suggested it could qualify as a private mental health facility. His Honour concluded it was not a defined mental health facility.
Issue 2: Whether the Court could order detention outside a defined mental health facility
Button J held that, because the Tribunal had determined the offender was suffering from mental illness, s 27(a) of the Act was engaged. That provision requires the Court to order detention in a defined mental health facility in those circumstances. The alternative in s 27(b), which permits an order for detention elsewhere, applies only where the Tribunal has determined the person is not suffering from mental illness (or is suffering from a relevant mental condition but objects to detention in a mental health facility). His Honour acknowledged he fully accepted the Tribunal's recommendation as being in the best interests of the offender and the community, but concluded he had no power to give effect to it by ordering placement at the Metropolitan Reception and Remand Centre.
Approach to the order
Given the Court was not empowered to follow the Tribunal's specific placement recommendation, and no alternative recommendation had been provided, Button J declined to be overly prescriptive. He made a general order for detention in a mental health facility and left the selection of the particular facility to the Tribunal. His Honour also noted, for the Tribunal's benefit, that future notifications under s 24(3) in cases of determined mental illness could usefully identify whether a recommended placement is a defined mental health facility.
Orders Made
- The offender is to be detained in a mental health facility.
- The Mental Health Review Tribunal may determine from time to time the particular defined mental health facility in which the offender should be detained.
Key Takeaways
- Under the definitional chain linking the Mental Health (Forensic Provisions) Act 1990 and the Mental Health Act 2007, only premises subject to a Gazette order under s 109 (or licensed as a private mental health facility) qualify as a "mental health facility" for the purposes of s 27 orders.
- Where the Tribunal determines that an offender is suffering from mental illness, s 27(a) is engaged and the Court is required to order detention in a defined mental health facility; the power in s 27(b) to order detention elsewhere is not available in those circumstances.
- A correctional facility such as the Metropolitan Reception and Remand Centre, absent a Gazette declaration, does not satisfy the statutory definition of a mental health facility, regardless of the practical suitability of that placement.
- The Supreme Court left selection of the specific facility to the Tribunal rather than making a prescriptive order, given the absence of any compliant alternative recommendation before the Court.
- Button J flagged that Tribunal notifications to courts under s 24(3) would be assisted by explicitly stating whether a recommended placement is a defined mental health facility, to avoid the procedural difficulty that arose in this case.
Legislation and Cases Referenced
Legislation
- Mental Health Act 2007 (NSW), ss 4, 109
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 3, 24(2), 24(3), 27
Cases
- Director of Public Prosecutions v Khoury [2014] NSWCA 15
- State of New South Wales v TD [2013] NSWCA 32