Commissioner of Corrective Services & 2 Ors v Wedge

The Commissioner of Corrective Services and two other parties appealed to the Court of Appeal of New South Wales against orders made by Justice Hidden. The dispute concerned the detention of Mr Wedge, who had been transferred to a hospital under section 97 of the *Mental Health Act 1990* (NSW) following an order by a Magistrate for his release upon the expiry of his non-parole period. By virtue of this transfer, Mr Wedge became a forensic patient.

The central legal issues before the Court of Appeal were whether Mr Wedge was entitled to be released by virtue of the Magistrate's order, the source of the power to detain a person following a transfer under section 97, and the nature of the powers conferred by sections 86(4) and 97 of the *Mental Health Act* and their interrelationship. The Court was required to consider the definition of a forensic patient under the Act and the meaning of "parole" in this context.

The Court of Appeal reasoned that the transfer of Mr Wedge to hospital under section 97 of the *Mental Health Act* had the effect of placing him under the control of the Director-General of Mental Health, and that the power to detain him derived from that section, rather than from the original sentence or parole order. The Court found that section 97 provided a distinct basis for detention, separate from the criminal justice system's mechanisms for release. Consequently, the expiry of Mr Wedge's non-parole period did not automatically entitle him to release, as his detention was now governed by the provisions of the *Mental Health Act*.

The appeal was allowed, the orders of Justice Hidden made on 26 September 2006 were set aside, and in lieu thereof, the Summons was dismissed.