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Supreme Court 10 May 2019

R v Wilson (No 6)

[2019] NSWSC 529

Homicide
MENTAL HEALTH

Citation: R v Wilson (No 6) [2019] NSWSC 529
Court: Supreme Court of NSW
Date: 10 May 2019
Judge(s): Schmidt J

Background

Ms Wilson was found unfit to stand trial for the murder of Jason Shepstone in October 2015. At a subsequent special hearing, the court found her not guilty of murder but guilty of manslaughter, and imposed a limiting term of two years and six months imprisonment commencing July 2018. The matter was then referred to the Mental Health Review Tribunal.

The Tribunal subsequently determined that Ms Wilson was no longer suffering from a mental illness, but from vascular dementia, a mental condition for which treatment is not available in a mental health facility. It concluded that an aged care facility was the more appropriate treatment environment. By the time the matter returned to the Supreme Court, the Public Guardian had arranged for Ms Wilson to be admitted to a locked medical ward at Shellharbour Hospital, pending identification of a suitable aged care placement.

The court was then required under s 27 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to make a detention order. The parties disagreed sharply on what form that order could lawfully take.

Legal Issues

  • Whether the court was required to order Ms Wilson's detention in a correctional centre, or whether it could order detention in a hospital or aged care facility under s 27(b)
  • Whether the word "detained" in s 27(b) requires coercive restraint backed by a statutory scheme, or whether a hospital or aged care setting can satisfy that requirement
  • Whether a s 27(b) order must specify a particular place of detention, or whether a general category such as "an aged care facility" is sufficient
  • Whether the court had sufficient evidence to be satisfied that Shellharbour Hospital's locked ward was not a "mental health facility" and was a place where Ms Wilson could be "detained"

Decision

Issue 1: Must the place of detention be specified in the order?

The court held that if a s 27(b) order is made for detention at a place other than a mental health facility, that specific place must be identified in the order (at [42]-[44]). Relying on observations by Basten JA in DPP (NSW) v Khoury [2014] NSWCA 15, the court confirmed that the court's role at this stage is to determine where detention should occur, not merely to nominate a category of place (at [43]).

Issue 2: What does "detained" mean in s 27(b)?

The court held that "detained," in its ordinary meaning, requires that a person be kept under restraint, custody or confinement and not be free to leave (at [35]-[37]). Consistently with Johnson J's approach in State of New South Wales v Windle (No 3) [2017] NSWSC 727, the court concluded that a s 27(b) order must result in a real restraint on the person's liberty (at [52]). Before ordering detention at a place other than a mental health facility or correctional centre, the court must be satisfied on the evidence that the specified place is actually capable of detaining the person (at [64]).

Issue 3: Was Shellharbour Hospital a place where Ms Wilson could be "detained"?

The court found, on Dr Irvine's uncontested evidence, that the locked ward at Shellharbour Hospital is not a declared or private mental health facility (at [30]-[31]). It was also satisfied that Ms Wilson is currently restrained in that ward, is not free to leave, and that hospital staff would take steps, including involving police if necessary, to return her should she leave (at [72]-[73]). Those findings together established the ward as a place capable of supporting a s 27(b) detention order (at [95]).

Issue 4: Could the court order detention in an aged care facility or a correctional centre?

The court declined to order detention in a correctional centre, rejecting the Crown's submission. The Tribunal had determined that Ms Wilson's condition was best treated in an aged care facility and had not recommended a correctional placement (at [92]). The court also declined to order detention in an aged care facility, whether public or private, because no specific facility had been identified, no evidence established that any such facility was not a mental health facility, and enforcement at a private facility would depend solely on the facility's cooperation without any statutory foundation (at [80]-[82]). Accordingly, the court ordered detention in the locked ward at Shellharbour Hospital as the appropriate interim measure, noting that the Tribunal would be required to review the matter as soon as practicable under s 45(1)(b) (at [96]-[99]).

Orders Made

  • Ms Wilson's bail is revoked.
  • Ms Wilson is to be detained in the locked ward at Shellharbour Hospital where she is presently admitted.

Key Takeaways

  • Under s 27(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW), a court ordering detention at a place other than a mental health facility must identify that specific place in the order. A general category such as "an aged care facility" is insufficient (at [42]-[44]).
  • The word "detained" in s 27(b) carries its ordinary meaning of restraint, custody or confinement. The court must be positively satisfied, on evidence, that the place specified in the order is one from which the person will not be free to leave (at [35]-[37], [52]).
  • A locked hospital ward that is not a declared or private mental health facility can satisfy the requirements of s 27(b), provided the evidence establishes that the person can be effectively detained there (at [30]-[31], [95]).
  • Ordering detention in a private aged care facility will be problematic where no statutory scheme imposes obligations on the facility and enforcement would depend entirely on the facility's voluntary cooperation (at [80]-[81]).
  • Even where a court cannot immediately order detention in the setting the Tribunal has identified as most appropriate, the Tribunal retains the ability to give effect to its own determination once a suitable placement is located, through its review functions under Part 5 of the Act (at [86], [99]).

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Mental Health Act 2007 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
- Director of Public Prosecutions (NSW) v Khoury (2014) 306 ALR 86; [2014] NSWCA 15
- R v Wilson [2015] NSWSC 1538
- R v Wilson (No 4) [2017] NSWSC 1730
- R v Wilson (No 5) [2018] NSWSC 1077
- State of New South Wales v Boatswain [2014] NSWSC 1446
- State of New South Wales v TD [2013] NSWCA 32
- State of New South Wales v Windle (No. 3) [2017] NSWSC 727
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34