Director of Public Prosecutions v Khoury

This matter came before the Court of Appeal of New South Wales, with Bathurst CJ, Beazley P, Basten and Macfarlan JJA, and Simpson J presiding. The appeal concerned the Director of Public Prosecutions' challenge to a decision made by the District Court in relation to an offender, Mr Khoury, who had been found unfit to stand trial. Following a special hearing where the offender was found guilty of charges on limited evidence, and a limiting term was nominated by the trial judge, the offender was referred to the Mental Health Review Tribunal. The Tribunal subsequently determined that the offender was suffering from a mental illness. The core dispute revolved around the District Court's subsequent actions, or lack thereof, in dealing with the offender.

The central legal issues before the Court of Appeal were whether the District Court, having been informed by the Mental Health Review Tribunal that the offender was suffering from a mental illness, was mandated by section 27 of the *Mental Health (Forensic Provisions) Act 1990* (NSW) to order the offender's detention in a mental health facility. Relatedly, the Court had to consider whether the discretion afforded by section 27 extended to a power to make no order, or whether the legislative scheme implied a mandatory obligation to make an order for detention in such circumstances. The Court also considered whether the District Court's previous release of the offender on bail, which had expired, rendered the question of appropriate orders moot or ineffectual.

The Court of Appeal declared that the District Court was required, pursuant to section 27(1)(a) of the *Mental Health (Forensic Provisions) Act 1990*, to order that the respondent be taken to and detained in a mental health facility, given the Tribunal's determination that he was suffering from a mental illness. The Court reasoned that the word "may" in section 27 did not permit the court to refrain from exercising its power, but rather indicated a choice between ordering detention in a mental health facility or another place. The Court found that the District Court's failure to make such an order constituted a constructive failure to exercise its jurisdiction. Consequently, the Court directed the Director of Public Prosecutions to take steps to have the matter relisted before the District Court for the purpose of making appropriate orders under section 27.