JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2010
DATE OF JUDGMENT:	9 July 2010, 25 August 2010
CASE MAY BE CITED AS:	Antunovic v Dawson
MEDIUM NEUTRAL CITATION:	[2010] VSC 377

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HEBEAS CORPUS - common law jurisdiction of court – application for writ of habeas corpus ad subjiciendum – adult mentally ill person – instructed to live in treatment unit – not allowed to live at home with mother – allowed to go out during day - whether within scope of habeas corpus – interests protected - human rights - personal liberty and freedom of movement – duty of court to consider legality of restraint - whether restraints lawfully justified – involuntary treatment in community – community treatment order – no residence condition – no other power to direct residence – whether court should grant relief – writ as of right where cause shown and not discretionary – applicant entitled to relief – most efficacious relief – order for release - application of Magna Carta 1297 (Imp), Habeas Corpus Act 1679 (Imp), Habeas Corpus Act 1816 (Imp) and other ancient Imperial statutes – Supreme Court (General Civil Procedure) Rules 2005, o 57 – Mental Health Act 1986, ss 14 and 14C – Imperial Acts Application Act 1980, ss 3 and 8 - Charter of Human Rights and Responsibilities Act 2006, ss 12 and 21.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Ms M Carroll	Mental Health Legal Centre
For the respondents	Mr R McClosky	Donaldson Trumble

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 2

PERSONAL LIBERTY...................................................................................................................... 2

PROTECTING PERSONAL LIBERTY.......................................................................................... 4

Three sources or protection......................................................................................................... 4
Habeas corpus ad subjiciendum at common law.................................................................... 4
Magna Carta and the Habeas Corpus Acts............................................................................... 7

Constitutional significance......................................................................................................... 7
Application in Victoria............................................................................................................... 8
Magna Carta 1297................................................................................................................... 11
Petition of Right 1627.............................................................................................................. 13
Bill of Rights 1688.................................................................................................................... 14
Habeas Corpus Acts................................................................................................................. 15

Charter.......................................................................................................................................... 18

HABEAS CORPUS.......................................................................................................................... 22

Swift and efficient vindication of liberty................................................................................. 22
Broad, flexible and adaptable................................................................................................... 25
Proper respondent...................................................................................................................... 25
Power, custody or control: restraints amenable to habeas corpus...................................... 28
Determining legality of the restraint........................................................................................ 33

Constitutional importance........................................................................................................ 33
Duty of court to enquire........................................................................................................... 34
Onus on respondent to justify legality of restraint................................................................... 34
Standard of proof...................................................................................................................... 36
Standard of review.................................................................................................................... 37

Habeas corpus available as of right, though not of course, and is not discretionary...... 38
Unlawful detention of the mentally ill.................................................................................... 39
Summary...................................................................................................................................... 43

ORDER FOR RELEASE OF MS ANTUNOVIC......................................................................... 44

Mental Health Act 1986................................................................................................................. 44
Are the restraints on Ms Antunovic amenable to habeas corpus?...................................... 50
Are the restraints lawfully authorised?................................................................................... 52
What orders should be made?.................................................................................................. 54

CONCLUSION................................................................................................................................. 55

HIS HONOUR:

INTRODUCTION

Zeljka Antunovic is suffering from a mental illness for which she is being treated under a community treatment order issued pursuant to the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antunovic v Dawson

Details

AGLC: Antunovic v Dawson [2010] VSC 377
Case: [2010] VSC 377
Decision Date: 9 July 2010, 25 August 2010

CaseChat Overview and Summary

Antunovic sought a writ of habeas corpus against Dawson, the Chief Psychiatrist, arguing for his release from an involuntary mental health treatment unit. The applicant, an adult with mental illness, was being held under the Mental Health Act 1986 despite his wish to reside with his mother and his ability to leave the treatment facility during the day. The case was heard in the Supreme Court of Victoria, where the court was tasked with determining whether the applicant's rights to personal liberty and freedom of movement were being lawfully upheld.

The primary legal issue before the court was whether the application for a writ of habeas corpus was appropriate in this situation, given the applicant's ability to leave the treatment unit during the day and his status as an adult with mental illness. The court had to consider whether the restrictions on the applicant's residence were lawful and whether the applicant's human rights were being adequately protected. The court also needed to determine if the relief sought by the applicant was available as a matter of right or if it was at the court's discretion.

The Supreme Court found that the applicant's right to personal liberty and freedom of movement were being unlawfully restricted by the Chief Psychiatrist's insistence on him living in the treatment unit. The court held that the restraints on the applicant were not justified under the law and that the applicant's human rights were being infringed. The court determined that the applicant was entitled to a writ of habeas corpus as a matter of right, given the cause shown, and ordered his release from the treatment unit. The court applied various statutes, including the Habeas Corpus Act 1679 (Imp), the Mental Health Act 1986, and the Charter of Human Rights and Responsibilities Act 2006, to arrive at its decision.

The Supreme Court ordered the applicant's immediate release from the treatment unit, emphasising that the relief was available to the applicant as of right. The court underscored the importance of considering the legality of the restraints on an individual's liberty and the protection of human rights in such cases. The writ of habeas corpus was granted, and the applicant was to be released from the treatment unit to live with his mother, as he had desired.

Orders