A.N v Regina (No. 2)

[2006] NSWCCA 218

Reported Decision: 163 A Crim R 133
66 NSWLR 523

New South Wales

Court of Criminal Appeal

CITATION:	A.N (No. 2) v Regina [2006] NSWCCA 218 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 May 2006
JUDGMENT DATE:	24 July 2006
JUDGMENT OF:	James J at 1; Simpson J at 88; Rothman J at 89
DECISION:	Order pursuant to s 24(1)(b) of the Mental Health (Criminal Procedure) Act effective from 6 July 2005 and until further order that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre.; Order pursuant to s 27(b) of the Mental Health (Criminal Procedure) Act that the applicant be henceforth detained during the limiting terms in a Juvenile Justice Detention Centre. The Court recommends that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre.
CATCHWORDS:	Mental Health (Criminal Procedure) Act 1990 - s.24(1)(b) - s 27(b) extent of power - whether discretion to make an order - whether Court can make order that part only of a limiting term be served in custody or detention.
LEGISLATION CITED:	Crimes Act 1900 - s. 61J Mental Health (Criminal Procedure) Act 1990 - ss 11, 24 Criminal Appeal Act 1912 - s 2 Crimes (Sentencing Procedure) Act 1999 - s 43 Children (Detention Centres) Act 1987
CASES CITED:	Erceg v The District Court of NSW [2003] NSWCA 379 L. Shaddock & Associates Pty Limited v Parramatta City Council (No. 2) (1982) 151 CLR 590 Grierson v The King (1938) 60 CLR 431 R v Carrion (2002) 128 A Crim R 29 Postiglione v The Queen (1997) 189 CLR 295 R v Allen (1994) 1 Qd R 526 R v De Zylva (1998) 38 A Crim R 207 Re Cripps ex parte Muldoon [1984] 1 QB 686 R v Jovanovic (1996) 106 A Crim R 548 R v Reardon (2004) 146 A Crim R 475 Mailes v Director of Public Prosecutions and Mental Health Review Tribunal (unreported) Hulme J at 10 April 2000 R v Adams (2003) 58 NSWLR 1 R v Tas (District Court 1 Oct. 1997) R v Boyle (unreported Matthews J 18/9/92) R v Mailes (2004) 62 NSWLR 181 R v Mitchell (1999) 108 A Crim R 85
PARTIES:	A.N Regina
FILE NUMBER(S):	CCA 2005/582
COUNSEL:	D. Woodburne - Crown R. Burgess - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1234
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ
LOWER COURT DATE OF DECISION:	29 April 2004

- 27 -

2005/582

JAMES J
SIMPSON J
ROTHMAN J

24 July 2006

A.N (No. 2) v REGINA

Judgment

1 JAMES J: In this matter the Court has already given one judgment R v AN [2005] NSWCCA 239. The present judgment is to be read in conjunction with the judgment already given.

2 In order to explain the issues remaining to be determined by the Court, it is necessary to set out in some detail the history of the criminal proceedings against AN (who I will generally refer to as “the applicant ”).

3 The applicant was charged with having on 8 August 2000, when he was only thirteen years old, committed two offences against the same complainant, who was herself only thirteen years old, namely detaining for advantage, which was an offence under s 90A of the Crimes Act (since repealed) and aggravated sexual assault, which was an offence under 61J of the Crimes Act, the circumstances of aggravation being that the applicant was in company with a co-offender, who was himself a juvenile but somewhat older than the applicant.

4 A judge of the District Court in a judge alone trial found that the applicant because of intellectual disability was unfit to be tried (Mental Health (Criminal Procedure) Act s 11). In this judgment I will generally refer to the Mental Health (Criminal Procedure) Act simply as “the Act”.

5 After the necessary steps had been taken under the Act a special hearing under s 21 of the Act took place before his Honour Judge McGuire sitting without a jury. At the special hearing Judge McGuire found, in accordance with s 22(1) of the Act, that, on the limited evidence available, the applicant had committed both of the offences charged.

6 Judge McGuire then, in accordance with s 23 of the Act, held that, if the special hearing had been a normal trial of a person fit to be tried, he would have imposed sentences of imprisonment and his Honour nominated limiting terms being his best estimate of the sentences he would have considered appropriate if the special hearing had been a normal trial of a person fit to be tried and the person had been found guilty of the offences. The limiting terms nominated by Judge McGuire were, for the offence of detaining for advantage, a limiting term of five years and, for the offence of aggravated sexual assault, a limiting term of five years, the two limiting terms to date from 29 April 2004 and thus to be concurrent with each other.

7 Judge McGuire made the following further orders:-

“I direct that the matter be referred to the Mental Health Tribunal. I further direct that (AN) be detained in a juvenile detention centre pending the court being notified of the determination of the Mental Health Tribunal”.

8 The further orders made by Judge McGuire were made pursuant to s 24 of the Act and it is convenient at this stage to set out the provisions of s 24.

“24
(1) If in respect of a person a Court has nominated a limiting term, the Court:
(a) must refer the person to the Mental Health Review Tribunal, and
(b) may make such order with respect to the custody of the person as the Court considers appropriate.
(2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not:
(a) the person is suffering from mental illness, or
(b) the person is suffering from a mental condition for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital.
(3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person”.

9 AN applied for leave to appeal against the limiting terms nominated by Judge McGuire. The application for leave to appeal was competent because the definition of “sentence” in s 2 of the Criminal Appeal Act includes:-

“(d) Any order made by the court of trial imposing a limited term of imprisonment on a person under s 23(1) of the Mental Health (Criminal Procedure) Act …”.

10 AN’s application for leave to appeal was heard on 14 June 2005 by a bench of the Court of Criminal Appeal constituted by James J, Howie J and Rothman J. The Court reserved its decision.

11 On 6 July 2005 the reserved judgments of the members of the Court were handed down by a bench of the Court of Criminal Appeal which did not include all of the judges who had heard AN’s application.

12 The principal judgment was the judgment of Howie J, with whom the other members of the Court agreed. Howie J concluded that leave to appeal should be granted, that the limiting terms nominated by Judge McGuire should be quashed and that in lieu thereof there should be limiting terms of three years for the offence of detaining for advantage and four years six months for the offence of aggravated sexual assault, both limiting terms to date from 29 April 2004. The orders proposed by Howie J became the orders of the Court. Howie J did not propose, and the Court did not make, any order pursuant to s 24 of the Act. There was apparently no discussion on 6 July 2005 about the terms of the orders the Court should make.

13 On 23 August 2005 the Legal Aid Commission, which had been acting for AN, wrote a letter to the Registrar of the Court of Criminal Appeal, requesting that the Court of Criminal Appeal re-open the proceedings before it pursuant to s 43 of the Crimes (Sentencing Procedure) Act and make an order in compliance with s 24(1)(a) of the Act that the applicant be referred to the Mental Health Review Tribunal. It was stated in the letter that counsel who had appeared for the applicant and for the Crown in the Court of Criminal Appeal were in agreement that the proposed additional order should be made. It was submitted in the letter that the Court of Criminal Appeal did not need to make any order under s 24(1)(b) of the Act, “as the applicant is detained at the Frank Baxter Juvenile Justice Centre and will be reviewed in due course by the Mental Health Review Tribunal”.

14 On 13 September 2005, without any further Court hearing, the Court amended the judgments previously handed down by adding a paragraph in which the Court noted that it had been asked to correct the orders made on 6 July 2005 pursuant to s 43 of the Crimes (Sentencing Procedure) Act and in which the Court made an order that “pursuant to s 24(1) of the Mental Health (Criminal Procedure) Act the applicant is referred to the Mental Health Review Tribunal”.

15 In a document dated 6 February 2006 from the Mental Health Review Tribunal to the Registrar of the Court of Criminal Appeal the Tribunal notified the Court that it had determined pursuant to s 24(2) of the Act that the applicant is not suffering from a mental illness and is not suffering from a mental condition for which treatment is available in a hospital. In the covering letter with which the notification of the Tribunal’s determination was enclosed the Tribunal raised the question of whether an order should now be made by the Court under s 27 of the Act. It is convenient at this stage to set out the provisions of s 27 of the Act.

“27 If a Court is notified by the Mental Health Review Tribunal of its determination in respect of a person under section 24 (3), the Court may:
(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or
(b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital—order that the person be detained in a place other than a hospital”.

16 Although the notification of the Tribunal’s determination was forwarded to the Court Registry on or about 6 February 2006, the Tribunal’s determination was not drawn to the attention of any of the judges who had determined AN’s application until 23 March. The parties were then invited to lodge written submissions on whether the Court should now make an order pursuant to s 27(b) of the Act.

17 Written submissions both dated 13 April 2006 were received from both counsel for the applicant and counsel for the Crown and the Crown also lodged written submissions in reply to the applicant’s written submissions. In a letter accompanying the written submissions for the applicant counsel for the applicant asked whether the Court would be prepared to hear oral argument in support of the written submissions.

18 It was not possible to reconvene the bench of the Court of Criminal Appeal which had decided AN’s application, because Howie J is overseas on extended leave. In the circumstances, the Chief Justice directed that for the further proceedings in the matter the Court should be constituted by James J, Simpson J and Rothman J and on 3 May 2006 a further hearing took place before the Court as so constituted. After hearing argument the Court reserved its decision. Just before announcing that it was reserving its decision the Court made an order that until further order of the Court the applicant be detained in custody in a Juvenile Justice Centre being the Frank Baxter Juvenile Justice Centre, where the applicant was in fact being held.

19 After the Court had reserved its decision the Registrar at the direction of the Court invited the parties to lodge written submissions on the following matters.

1. Whether the Court can now make an order pursuant to s 24(1)(b) of the Act.

2. Whether the Court can make an order pursuant to s 24(1)(b) or s 27(b) of the Act, whereby part only of a limiting term is served in detention and, if so, what order, if any, the Court should make in the present case.

20 Written submissions on these matters were lodged by both parties and the Crown also lodged written submissions in reply to the applicant’s written submissions.

21 The question raised by the Mental Health Review Tribunal in its covering letter of 6 February 2006 was whether, having regard to the Tribunal’s determination that AN is not suffering from a mental illness and is not suffering from a mental condition for which treatment is available in a hospital, this Court should now make an order pursuant to s 27(b) of the Act. However, in the written submissions of the parties and in the oral argument on 3 May 2006 a number of other questions were also raised. I will now seek to deal, in turn, with what appear to me to be to the principal questions which were raised.

1. Can the Court now make an order pursuant to s 24(1)(b) of the Act effective as from 6 July 2005 and, if so, should the Court now make such an order.

22 As I have already noted, the Court did not make any order pursuant to s 24(1)(b) when the judgments of the members of the Court were handed down on 6 July 2005. In its letter of 23 August 2005 the Legal Aid Commission requested that the Court make an order pursuant to s 24(1)(a) of the Act but expressly submitted that it was unnecessary for the Court to make any order pursuant to s 24(1)(b) of the Act. In accordance with this letter the Court on 13 September 2005 amended the principal judgment by making an order pursuant to s 24(1)(a) of the Act referring the applicant to the Mental Health Review Tribunal but made no order pursuant to s 24(1)(b) of the Act.

23 Judge McGuire had on 29 April 2004 made an order that the applicant be detained in a juvenile detention centre pending the court being notified of the determination of the Tribunal, that is to say an order under s 24(1)(b). The Court of Criminal Appeal in allowing the appeal against the limiting terms nominated by Judge McGuire did not expressly quash the order made by Judge McGuire under s 24(1)(b). However, it seems to me that this order could not be regarded as having survived the allowing of the appeal and the quashing of the limiting terms nominated by Judge McGuire or the making by the Court of Criminal Appeal of its own order referring the applicant to the Tribunal. In any event, the order made by Judge McGuire was by its terms an interim order and, even if it had not impliedly been quashed by the orders made by the Court of Criminal Appeal, it would by now have ceased to have effect.

24 It was not in dispute throughout all of the written submissions and the oral argument that it was the clear intention of the Court, as evinced in Howie J’s judgment of 6 July 2005, that the applicant should continue to be detained and that the place of detention should be a juvenile detention centre. For example, in par 65 of his judgment Howie J referred to a submission which had been made about the prospects of the applicant being released, while he was still subject to the limiting terms, and to the question of whether the applicant might be transferred to an adult prison on his reaching the age of twenty-one, if he had not been released beforehand.

25 In my opinion, this Court should, in order to give effect to its clear intention, have made an order on 6 July 2005 pursuant to s 24(1)(b) of the Act, that the applicant be detained in a juvenile detention centre. By virtue of s 6A(b) of the Criminal Appeal Act the Court could have made any order which could have been made by the trial court.

26 Section 23 of the Act requires a court, if it has found on the limited evidence available that the accused person committed the offence charged and if it considers that, if the special hearing had been a normal trial of a person fit to be tried, it would have imposed a sentence of imprisonment, to nominate a limiting term being the best estimate of the sentence the court would have considered appropriate, if the special hearing had been a normal trial of a person fit to be tried. However, s 23 does not itself contain any provision requiring that the accused person be detained in custody during the limiting term nominated.

27 At the conclusion of the hearing on 3 May 2006 the Court made an interim order that until further order of the Court the applicant be detained in custody in a juvenile detention centre being the Frank Baxter Juvenile Justice Centre. The Court did not at the time of making the order expressly identify the source of any power to make such an order.

28 The question arises whether the Court can now make an order pursuant to s 24(1)(b), which would be effective as from 6 July 2005.

29 In written submissions and at the hearing on 3 May 2006 various possible sources of a power now to make such an order were suggested.

30 If the orders of the Court made on 6 July 2005 have not yet been perfected, then the Court would still have power to make an order pursuant to s 24(1)(b) of the Act. The effect of r 52 and r 53 of the Criminal Appeal Rules is that an order of the Court of Criminal Appeal is perfected, not by any entry of particulars of the order in any record of the Court of Criminal Appeal but by entry of particulars of the order in the records of the trial court. In the present case there is no information before this Court about whether its orders of 6 July 2005 have been perfected by particulars of the orders being entered in the records of the District Court.

31 The order under s 24(1)(a) of the Act made on 13 September 2005 that the applicant be referred to the Mental Health Review Tribunal, which was an order made by consent, was made on the basis of its being an order under s 43 of the Crimes (Sentencing Procedure) Act, which enables a court to re-open proceedings to correct sentencing errors.

32 There is, however, some difficulty in regarding the order as falling within s 43. Under subs (1) of s 43 the section applies only to criminal proceedings in which a court has “imposed a penalty”. Although a limiting term can be nominated under s 23 of the Mental Health (Criminal Procedure) Act, only where the court considers that, if the special hearing had been a normal trial of a person fit to be tried, the court would have imposed a sentence of imprisonment, and although it has been held that the word “penalty” in s 43 of the Crimes (Sentencing Procedure) Act should be interpreted widely (Erceg v The District Court of New South Wales [2003] NSWCA 379), it is, nevertheless, unclear whether the nominating of a limiting term can be regarded as amounting to the imposing of a penalty. Subsection (6) of s 43 provides that the expression “impose a penalty” in s 43 extends to a number of different kinds of orders which might otherwise not fall within the expression but the kinds of orders listed do not include the nominating of a limiting term under s 23 of the Mental Health (Criminal Procedure) Act.

33 A further difficulty in the present case is whether, even if the nominating of a limiting term can be regarded as the imposing of a penalty, the omission to make an order under s 24(1)(b) of the Mental Health (Criminal Procedure) Act can be regarded as a failure within s 43(1)(b) of the Crimes (Sentencing Procedure) Act to impose a penalty “that is required by law”.

34 Another possible source of power which was suggested for the making of an order under s 24(1)(b) of the Act was the “slip rule” or, rather, an inherent or implied power similar to that conferred by the slip rule.

35 There is no slip rule in the Criminal Appeal Rules and the slip rule in the Uniform Civil Procedure Rules (Pt 36 r 17) does not apply to criminal proceedings.

36 However, as was held in L Shaddock & Associates Pty Limited v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 per Mason ACJ, Wilson J and Deane J, a rule of court in the form of a slip rule reflects the inherent jurisdiction of a court at any time to correct an error in a decree or order arising from a slip or accidental omission.

37 The question arises whether the Court of Criminal Appeal being a statutory Court set up by the Criminal Appeal Act has this “inherent” jurisdiction. As was stated by Dixon J in Grierson v The King (1938) 60 CLR 431 at 435 “It (the Criminal Appeal Act) does not give general appellate power in criminal cases exercisable on grounds and by a procedure discoverable from independent sources. It defines the grounds, prescribes the procedure and states the duty of the Court”.

38 In R v Carrion (2002) 128 A Crim R 29 Wood CJ at CL, with whose judgment the other members of the Court agreed, examined at pars 15 to 33 of his judgment “a number of decisions in which consideration has been given to the question of whether the Court has in the exercise of its criminal jurisdiction the ability to correct orders so as to reflect its intention, either under the slip rule or by virtue of some inherent power or otherwise”.

39 The cases examined by Wood CJ at CL in Carrion included Postiglione v The Queen (1997) 189 CLR 295 at 319 per Gummow J; R v Allen (1994) 1 Qd R 526; R v De Zylva (1998) 38 A Crim R 207; LShaddock & Associates Pty Limited v Parramatta City Council (No 2); Re Cripps; ex parte Muldoon [1984] 1 QB 686; and R v Jovanovic (1996) 106 A Crim R 548 (Full Court of the Federal Court). Wood CJ at CL concluded his review of the cases by saying at par 33:-

“The better view, on the authorities reviewed, is that (the Court) did have an inherent power to do so (to vary a previous order made by the Court of Criminal Appeal), whether or not the order had been perfected”.

40 It is to be acknowledged that Wood CJ at CL held that it was not necessary finally to decide the question, because in Carrion the orders sought to be varied had not been perfected and could be varied pursuant to the Court’s undoubted power to vary orders which have not been perfected.

41 In R v Reardon (2004) 146 A Crim R 475 Hodgson J, with whose judgment the other members of the Court agreed, after considering Grierson, Postiglione and other cases said at 487 (41):

“…once an appeal has been heard and determined and the orders perfected, there is no jurisdiction to reopen the appeal. This is subject to the slip rule… “

42 In my opinion, the cases reviewed by Wood CJ at CL in Carrion and by Hodgson JA in Reardon support the conclusion that the Court of Criminal Appeal, although a statutory court, does have power, independently of any rule of court, to correct an error in an order it has made arising from a slip or accidental omission, even after the order has been perfected.

43 I am further of the opinion that this power should be exercised in the present case. The Court of Criminal Appeal, when it gave judgment on 6 July 2005 clearly intended that the applicant should be detained in custody in a juvenile detention centre. That the Court did not make an order to that effect was an accidental omission on the Court’s part. The present case is clearly distinguishable from cases such as Grierson, in which attempts have been made to reopen appeals or to have the Court of Criminal Appeal decide some matter which has not already been decided by the Court.

44 The Court should now make an order pursuant to s 24(1)(b) of the Act, effective from 6 July 2005 that the applicant be detained until further order in the Frank Baxter Juvenile Detention Centre, leaving open the question of what order if any the Court should now make with respect to any future custody or detention of the applicant.

2. Can the Court make an order under s 27(b) of the Act for the detention of the applicant, as distinct from an order merely providing for the place in which the applicant should be detained .

45 A suggestion was made in the course of oral argument on 3 May that the power conferred by s 27(b) of the Act might be limited to a power to order that the detention of a person who has already been directed to be detained by some other order, be in a place other than a hospital and does not extend to a power to order that the person be detained. On this interpretation of s 27(b), the power to make an order under s 27(b) would be conditional upon the existence of an order providing for the persons custody, made under s 24(1)(b) of the Act.

46 If the Court, as I consider it should, makes an order under s 24(1)(b) of the Act for the detention of the applicant, this question of the proper interpretation of s 27(b) becomes of less importance in the present case. However, the question having been raised and having been argued, I consider the Court should address it.

47 The language of the crucial part of s 27(b) namely “the Court may… order that the person be detained in a place other than a hospital” is open to both interpretations, that is the interpretation that s 27(b) confers a power to order both detention and a place of detention or the interpretation that s 27(b) merely confers a power to order a place of detention.

48 In my opinion, s 27(b), on its proper interpretation, confers a power to order that a person be detained, as well as a power to determine where the person should be detained. I will seek to indicate my reasons for reaching this conclusion.

49 In the dictionary in Sch 1 to the Mental Health Act “forensic patient” is defined as meaning:- “(a) A person who is detained in a hospital, prison or other place… pursuant to an order” under certain sections of the Mental Health (Criminal Procedure) Act, which include s 27 but do not include s 24.

50 In Mailes v Director of Public Prosecutions and Mental Health Review Tribunal (unreported Hulme J 10 April 2006) Hulme J, after referring to the definition of “forensic patient” in Sch 1 to the Mental Health Act, held that a person detained pursuant to an order under s 24 of the Act is not a forensic patient. His Honour’s conclusion follows from the terms of the definition of “forensic patient” and I would agree with it.

51 If a person does become a forensic patient, which would happen if an order is made under s 27, Pt 2 of ch 5 of the Mental Health Act becomes applicable.

52 Part 2 of ch 5 of the Mental Health Act contains the following provisions:-

80 Tribunal to review cases of persons found unfit to be tried
(1) This section applies:
(a) to an accused person who has been found, after an inquiry by a court, to be unfit to be tried for an offence and is ordered to be detained in a hospital or other place, or is granted bail, under section 17 of the Mental Health (Criminal Procedure) Act 1990 , and
(b) to an accused person in respect of whom, after a special hearing by a court, a limiting term has been imposed and who has been ordered (under section 27 of the Mental Health (Criminal Procedure) Act 1990 ) to be detained in a hospital or other place.
(2) The Tribunal must, as soon as practicable after the making of any such order, review the person’s case and determine whether, in its opinion:
(a) the person has become fit to be tried for an offence, and
(b) the safety of the person or any member of the public will be seriously endangered by the person’s release.
(3) If the Tribunal is of the opinion that a person has become fit to be tried for an offence, it must notify the court that made the finding of unfitness and the Director of Public Prosecutions accordingly.
(4) If the Tribunal is of the opinion that a person has not become fit to be tried for an offence and is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person’s release, the Tribunal must make a recommendation to the Minister for the person’s release.
If the Tribunal is of the opinion that a person referred to in subsection (1) (a) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence, the Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions accordingly.

82 Tribunal to review cases of forensic patients
(1) The Tribunal may, at any time, and must, at least once every 6 months, review the case of each forensic patient and make a recommendation to the Minister:
(a) as to the patient’s continued detention, care or treatment in a hospital, prison or other place, or
(b) in the case of a patient subject to a determination that the patient is unfit to be tried for an offence, as to the fitness of the patient to be tried for an offence, or
(c) as to the patient’s release (either unconditionally or subject to conditions).
(2) The Tribunal must review the case of a forensic patient and make a recommendation to the Minister under this section if requested to do so by the Minister, the Attorney General, the Minister for Corrective Services, the Chief Health Officer or a medical superintendent.
(3) If, in the case of a forensic patient subject to a determination that the patient is unfit to be tried for an offence, the Tribunal is, for the purpose of making a recommendation under this section, of the opinion that the patient has become fit to be tried for an offence, it must notify the Director of Public Prosecutions and the court that made the finding of unfitness.
(3A) The Tribunal must notify the Court and the Director of Public Prosecutions if, for the purpose of making a recommendation under this section in relation to a forensic patient subject to a determination that the patient is unfit to be tried for an offence, the Tribunal forms the opinion that the patient:
(a) has not become fit to be tried for an offence, and
(b) will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence.
(4) The Tribunal may not recommend the release of a forensic patient unless it is satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered by the person’s release.
(5) The Tribunal may not recommend the release of a forensic patient who:
(a) is remanded in custody under section 10 (3) (c) of the Mental Health (Criminal Procedure) Act 1990 pending an inquiry into the question of the person’s unfitness to be tried for an offence, or
has been transferred to a hospital while serving a sentence of imprisonment and has not served the term of the sentence or, if a non-parole period has been set in relation to the sentence, the non-parole period.

83 Notice of recommended releases
(1) On receiving a recommendation under section 80 or 82 for the release of a person, the Minister must notify the Attorney General of the recommendation and at the same time furnish a copy of the notification to the Director of Public Prosecutions.
(2) The Director of Public Prosecutions must, within 21 days after the date of any such notification, indicate to the Attorney General whether the Director intends to proceed with criminal charges against the person concerned”.

53 It would seem to me odd, if a person’s becoming a forensic patient and becoming subject to the elaborate review provisions in Pt 2 of ch 5 of the Mental Health Act could depend on the making of an order which merely provided for the place in which a person should be detained, as distinct from an order providing for the person’s detention.

54 Furthermore, it would make good sense for a court to have power under s 27 to decide what order should be made for the person’s future custody or detention. Even if the court has made an order under s 24(1)(b) with respect to the custody of the person, which the court, in the light of the information it then had available to it, considered to be appropriate, the court, by the time it considers what order (if any) it should make under s 27 of the Act, will have received the determination made by the Mental Health Tribunal pursuant to s 24(2) and is, accordingly, likely to have further information about the person in question.

55 It would seem to have been the practice of courts making orders under s 24(1)(b) of the Act to make such orders interim orders, for example orders pending the court being notified of the determination of the Mental Health Review Tribunal. Judge McGuire made such an order in the present case. In Mailes Wood CJ at CL, as a judge of first instance, after conducting a special hearing and making other orders including an order referring Mailes to the Mental Health Review Tribunal, made an order that “pending notification of the determination of the Tribunal and also pending further order of the Court I order that the defendant be detained in a Correctional Centre” (See Mailes v DPP & Anor at par 5). The making of orders under s 24(1)(b) which are merely interim orders and cease to have effect on the Court being notified of the determination of the Tribunal, would be consistent with the Court, on being notified of the determination of the Tribunal, having power under s 27 to make an order for the detention of the person in question.

56 I conclude that the Court can now make an order under s 27(b) of the Act for the detention of the applicant and not merely an order providing for the place in which any detention of the applicant should occur.

3. Does the Court of Criminal Appeal have a discretion whether to make an order under s 27(b) or is the Court obliged to make an order under s 27(b) .

57 If no order is made by the Court under s 27(b) and if there is no continuing order under s 24(1)(b), the applicant would be entitled to be released, there being no warrant for his being held in custody.

58 Until the Crown’s written submissions in reply of 2 May 2006 it was common ground that the Court had a discretion under s 27(b) as to whether it should make any order. However, in the Crown’s written submissions of 2 May 2006 it was submitted that, although the word “may” was used in the opening words of s 27 and s 9 of the Interpretation Act provides that the word “may”, if used to confer a power, indicates that the power may be exercised or not at discretion, s 5(2) of the Interpretation Act provides that the Interpretation Act does not apply to any Act, if a contrary intention appears in that other Act. It was further submitted that a contrary intention appeared in the Mental Health (Criminal Procedure) Act and the Mental Health Act, in that, unless an order was made under s 27(b) of the Mental Health (Criminal Procedure) Act, the person would not become a forensic patient and the review provisions of the Mental Health Act, which are important in the interests of both the person subject to a limiting term and the public, would not come into effect.

59 I do not consider that the submissions made by the Crown can overcome what appears to me to have been the deliberate choice by the legislature of the word “may” in the opening words of s 27. The provisions of the Act are replete with uses of the word “may” and the word “must”. Section 24 of the Act is a good example. Subs (1) of s 24 provides that a court “must” refer the person to the Mental Health Review Tribunal. Subs (2) provides that the court “may” make such order with respect to the custody of the person as the court considers appropriate.

60 In my opinion, the conclusion is inescapable that in the Act, when the legislature intended to confer a power which the donee of the power would be obliged to exercise, the legislature used the word “must” and where the legislature intended to confer a power which the donee of the power might, at its discretion, exercise or not exercise, the legislature used the word “may”.

61 Such little authority as exists supports the view that a court has a discretion whether to make an order under s 27(b). In R v Adams (2003) 58 NSWLR 1 Sperling J at 14 (31) noted that s 27 used the word “may” and observed that “the Court might not be obliged to make any order at all”. In R v Tas (District Court 1 October 1997 Keleman DCJ) it was conceded by the Crown that s 27 conferred a discretion. Judge Keleman expressed the opinion that the concession had been properly made and his Honour declined to make any order. In R v Boyle (unreported Matthews J 18 September 1992) her Honour in her remarks in sentencing Boyle stated, with respect to s 24(1)(b) of the Act that, because of the use in s 24(1)(b) of the word “may”, it was within her power not to make any order under s 24(1)(b) and her Honour declined to make any such order.

62 In my opinion, it is possible to conceive of circumstances in which it would be appropriate not to make any order under s 27. An example might be the circumstances in Boyle, where the offender had been of full mental capacity at the time of committing the offences but had subsequently suffered severe permanent brain damage in an accident. In such circumstances there might be no point in causing the review procedures in Pt 2 of ch 5 of the Mental Health Act to become applicable to the offender.

4. Given that the Court has discretion whether to make an order under s 27(b), should the Court make an order under s 27(b) .

63 It was submitted by the Crown that the Court should make an order under s 27(b). If an order was made under s 27(b), the applicant would become a forensic patient and the review provisions in Pt 2 of ch 5 of the Mental Health Act would come into effect. Under s 80 of the Mental Health Act the Mental Health Review Tribunal would review the applicant’s case and determine whether the applicant had become fit to be tried for the offences and whether the safety of the applicant or of any member of the public would be seriously endangered, if the applicant was released. If the Tribunal was of the opinion that the applicant had become fit to be tried, the Tribunal would have to notify the Attorney-General and the Director of Public Prosecutions and the provisions of ss 29 and 30 of the Mental Health (Criminal Procedure) Act would become applicable. If the Tribunal was of the opinion that the applicant had not become fit to be tried and was satisfied that the safety of the applicant or any member of the public would not be seriously endangered, if the applicant was released, the Tribunal would have to make a recommendation to the Minister for the applicant’s release.

64 Under s 82 of the Mental Health Act the Tribunal could at any time, and would have to every six months or if requested by any of the officials referred to in ss (2), review the applicant’s case and make recommendations to the Minister as to the applicant’s continued detention, care or treatment or as to the applicant’s fitness to be tried for the offences or as to the applicant’s release, either unconditionally or subject to conditions. Under subs (4) of s 82 the Tribunal could not recommend the release of the applicant, unless it was satisfied, on the evidence available to it, that the safety of the applicant or of any member of the public would not be seriously endangered by the applicant’s release. Under s 83 of the Act the Attorney-General and the Director of Public Prosecutions would have to be notified of any recommendation for the applicant’s release. Under s 84, if the Attorney-General objected to the applicant being released on the ground that the applicant had served insufficient time in custody or detention or that the Attorney-General or the Director of Public Prosecutions intended to proceed with criminal charges against the applicant, the applicant could not be released.

65 It was submitted by the Crown that if no order was made under s 27(b), the applicant would not become a forensic patient and the review provisions in Pt 2 of ch 5 of the Mental Health Act would not come into effect. The public generally, individual members of the public and the applicant himself would be deprived of the protections afforded by the review provisions.

66 It was also submitted by the Crown that, if no order was made under s 27(b) and the applicant was released, the applicant would be released, having served in custody only a little over two years of the limiting terms nominated by the Court of Criminal Appeal. It was submitted that, even allowing for the applicant’s subjective circumstances, such a short period in detention or custody would not adequately reflect the objective seriousness of the applicant’s offences.

67 It was submitted on behalf of the applicant that the Court should not make any order under s 27(b). A consequence of the Court not making any order would be that the applicant would be entitled to be released from custody.

68 A number of particular submissions were made by counsel for the applicant in support of the general contention that the Court should not make any order under s 27(b).

1. The applicant has now been in detention for more than two years of the limiting terms nominated by the Court of Criminal Appeal.

2. There was delay of about four years between the committing of the offences and the setting of the limiting terms by Judge McGuire and during this period the applicant had matured from a child of thirteen to a youth of seventeen and had not re-offended.

3. Documents annexed to the determination by the Mental Health Review Tribunal showed that, since the hearing in the Court of Criminal Appeal last year, the applicant has undergone further rehabilitation and maturation. Counsel for the applicant referred particularly to a report by a sex offender counsellor at the Baxter Juvenile Justice Centre dated 27 January 2006, in which the counsellor said that over the past year the level of the applicant’s adaptive skills had improved significantly and he had demonstrated increased maturity.

4. The applicant as a person subject to limiting terms under the Act does not receive the same conditional leave, such as outings, day leave and eventually overnight leave, as is received by other inmates of a juvenile detention centre who are detained under the Children (Detention Centres) Act . The Children (Detention Centres) Act applies only to a “person on remand” and a “person subject to control” within the definitions of those expressions in the Children (Detention Centres) Act and would not apply to the applicant.

5. The applicant’s limiting terms do not expire until nearly a year after he attains the age of twenty-one and it is doubtful whether, after the applicant has attained the age of twenty-one, he could continue to be detained in a juvenile justice detention centre and the applicant on attaining the age of twenty-one would be at risk of being transferred to an adult correctional centre.

6. Although the review provisions in Pt 2 of ch 5 of the Mental Health Act , which would be brought into effect by the making of an order under s 27(b), allow for the possibility of a forensic patient being released before the expiration of his limiting term, in practice this rarely happens. Counsel referred to certain passages in the judgment of Dunford J in R v Mailes (2004) 62 NSWLR 181 in which Dunford J noted at 189 (36, 37) that the Mental Health Review Tribunal had advised “that there is in fact no one under its jurisdiction serving a limiting term who has been released prior to the expiry of their limiting term” and that “in practice such early releases are most unlikely, at least in the case of intellectually disabled inmates”.

7. There is no evidence that, if the applicant was released, the safety of the applicant or of any member of the public would be endangered.

69 As the particular submissions made by counsel for the applicant, I comment as follows.

70 1 and 2 These submissions are factually correct.

71 3 - I accept that since the Court of Criminal Appeal gave its decision last year there has been some further rehabilitation and maturation of the applicant, although I note that most of the documents annexed to the Tribunal’s determination of 6 February 2006 pre-date the Court of Criminal Appeal’s decision.

72 4 - I accept that the applicant does not have the advantages he would have, if the Children (Detention Centres) Act applied to him.

73 5 - The applicant upon attaining the age of twenty-one would not be prevented by s 19 of the Children (Criminal Proceedings) Act from continuing to be detained in a juvenile justice detention centre, as distinct from an adult correctional centre. Section 19 of the Children (Criminal Proceedings) Act provides that, subject to certain exceptions which would not apply to the applicant, a person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of twenty-one. However, the applicant as a person subject to limiting terms is not serving “a sentence of imprisonment”.

74 6 - In my opinion, this Court should recognise that, if an order was made under s 27(b), the applicant might or might be released pursuant to the provisions of the Mental Health Act before the limiting terms expired but the Court should not attempt to make any estimate of the degree of likelihood or unlikelihood of the applicant being released.

75 7 - I would accept this submission.

76 Notwithstanding that I have accepted some of the submissions made by counsel for the applicant, I consider that the Court should make an order under s 27(b).

77 If the Court does not make any order under s 27(b), the applicant would be entitled to be released. In my opinion, the period of just over two years the applicant would have served would be inadequate to reflect the objective seriousness of the offences committed by the applicant, which were described in detail in the Court’s judgment of 6 July 2005.

78 The applicant’s subjective features were recognised and given substantial weight by the Court in its decision to reduce considerably the limiting terms which had been nominated by Judge McGuire.

79 If an order is made under s 27(b), the applicant becomes a forensic patient and the review provisions of the Mental Health Act, which are intended to protect the interests of the public generally of particular members of the public and of the applicant, can take effect. If no order was made, the review provisions would not come into effect.

80 Section 27(b) of the Act provides that the Court may order that the applicant be detained in a place other than a hospital. In my opinion, it is open to the Court to order that the applicant be detained in a juvenile justice detention centre and the Court should so order.

5. Can the Court make an order that a specified part only of the limiting terms be served in a detention centre, with the consequence that the applicant would be entitled to be released at the expiration of that part of the limiting terms .

81 It was submitted by the Crown that the Court has no power under s 27(b) to make an order that part only of a limiting term be served in detention. It was submitted that s 27(b) does not expressly authorise the making of such an order; that the making of such an order would subvert the review provisions in Pt 2 of ch 5 of the Mental Health Act; and that holding that the Court has such a power would be inconsistent with the reasoning of the Court in R v Mitchell (1999) 108 A Crim R 85.

82 It was submitted by counsel for the applicant that the Court would have power under s 27(b) to make an order that a specified part only of a limiting term be served in detention. It was contended that holding that the Court has such a power would be consistent with the breadth of the discretion conferred on the Court by s 27(b) and with a purpose of the package of legislation of which the Act forms a part, that any restriction of personal freedom should be only the minimum necessary for the well being of the individual and the protection of others.

83 In my opinion, the Court does not have a power under s 27(b) of the Act to order that a specified part only of a limiting term be served in detention. As was submitted by the Crown, interpreting s 27(b) as conferring such a power would subvert the review provisions in Pt 2 of ch 5 of the Mental Health Act, which would be brought into operation by the making of any order under s 27(b) of the Act. Those provisions provide for the review of cases of forensic patients, set out the conditions subject to which the Mental Health Review Tribunal must or may recommend the release of a person who is subject to a limiting term, provide that a person is not to be released if the Attorney-General objects to the person being released, and, subject to the fulfilment of conditions, provide for the release of a person, either unconditionally or subject to conditions.

84 In Mitchell the Court held that a court nominating a limiting term could not set a minimum term under the Sentencing Act 1989, because to do so would be “inconsistent with the … review process under which a person subject to a limiting term may be released at any point prior to the expiration of the limiting term” (at 90 (21)). Similar reasoning to that adopted by the Court in Mitchell would preclude the Court from making an order that a specified part only of a limiting term be served in detention.

Conclusion

85 In my opinion, the Court should make the following orders:-

86 An order pursuant to s 24(1)(b) of the Mental Health (Criminal Procedure) Act effective from 6 July 2005 and until further order that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre.

87 An order pursuant to s 27(b) of the Mental Health (Criminal Procedure) Act that the applicant be henceforth detained during the limiting terms in a Juvenile Justice Detention Centre. The Court recommends that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre.

88 SIMPSON J: I agree with James J.

89 ROTHMAN J: In this matter I have had the advantage of reading in draft the reasons for judgment of James J. I join in the orders that he proposes and I agree with his reasons for judgment. In particular, I agree with His Honour's construction of the relevant provisions of the Mental Health (Criminal Procedure) Act. The following is in addition to, not as a substitution for or qualification of, those reasons.

90 The issue raised in this aspect of the matter is the power of the Court of Criminal Appeal to make orders under s.24(1)(b) of the Mental Health (Criminal Procedure) Act (“the Act”).

Section 24 (1) (b) of the Mental Health (Criminal Procedure) Act

91 The relevant terms of s.24 have been set out in the judgment of James J and I do not repeat them. Once the Court has nominated a limiting term the Court is required to refer the person to the Mental Health Review Tribunal and “may make such order with respect to the custody of the person as the Court considers appropriate”. The Tribunal is required to determine matters relating to the person's mental illness and then “must notify the Court which referred the person to it of its determination”.

92 The provisions of this section raise the fundamental question: for what purpose does the Tribunal notify the Court? The obvious answer is that the report may be taken into account in determining an order, if any, under s.27 of the Mental Health (Criminal Procedure) Act. Section 27 of the Act contemplates the capacity of the sentencing court to embark upon a two-stage process and a sentencing court is not functus officio until after it considers the determination of the Tribunal.

93 If it were otherwise, the Court could not receive the notification by the Tribunal. Therefore, whatever order may or may not have been made under s.24(1)(b) of the Act, the Court has not finally determined the matter until after it has received and considered the determination of the Tribunal. The Court has the power to make an order under s.24(1)(b) upon receipt of the notification by the Tribunal of its determination, and its task as a Court is not completed until it receives the notification and acts on it, either by making orders or further orders, or deciding not to make orders. There is no time limit on the making of orders under s.24(1)(b) and such orders may issue while ever the Court is seized of the matter.

94 I reiterate my agreement with the reasons for judgment of James J, insofar as they deal with a capacity of the Court of Criminal Appeal, to correct to the extent necessary any error in an order arising from a slip or accidental omission, even after the order has been perfected. In my view, the conclusion in the preceding paragraphs is an additional basis upon which an order can be made after the judgment on the hearing is delivered and before finally dealing with the notification from the Tribunal. On that basis the District Court, also, could, if it so desired, make a final s.24(1)(b) order after receipt by it of the notification of the determination by the Tribunal.

95 Further, there can be no doubt that the intention of the Court in its original judgment was to impose on the appellant a custodial term.

96 I join in the orders proposed by James J. I do so for the reasons expressed by his Honour. I also do so for the above additional reason being the above construction of s.24(1)(b) of the Mental Health (Criminal Procedure) Act.

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31/07/2006 - Wrong hearing date on cover - Paragraph(s) not applicable