LN v Director General of the Australian Capital Territory Justice and Community Safety Directorate
[2018] ACTSC 202
•23 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LN v Director General of the Australian Capital Territory Justice and Community Safety Directorate |
Citation: | [2018] ACTSC 202 |
Hearing Date: | 23 July 2018 |
DecisionDate: | 23 July 2018 |
Before: | Elkaim J |
Decision: | Order the release of the applicant under r 3506(1)(a) of the Court Procedures Rules 2006 (ACT). |
Catchwords: | PRACTICE AND PROCEDURE – Application for habeas corpus order – unlawful detention – where ACAT failed to review the applicant’s detention |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Pt 3.9 and r 3506(1)(a) Crimes Act 1900 (ACT) s 329 Mental Health Act 2015 (ACT) s 180 |
Parties: | LN (Applicant) Director General of the Australian Capital Territory Justice and Community Safety Directorate (Respondent) |
Representation: | Counsel Mr D Hoitink (Applicant) Ms A Collins (Respondent) |
| Solicitors Legal Aid ACT (Applicant) ACT Government Solicitor (Respondent) | |
File Number: | SC 329 of 2018 |
ELKAIM J:
This is an application, filed today, for a habeas corpus order under Pt 3.9 of the Court Procedures Rules 2006 (ACT).
The application stems from a hearing on 11 July 2017, when orders were made by Special Magistrate Cush. On that day, his Honour was dealing with an assortment of offences allegedly committed by the applicant. She had entered pleas of ‘Not Guilty’ to each offence.
His Honour found that the applicant was not guilty of each offence by reason of mental impairment. That triggered s 329+ of the Crimes Act 1900 (ACT), which says that, when such a finding is made, the Magistrates Court must either order, under s 329(2)(a), that the accused be detained in custody for immediate review by the ACT Civil and Administrative Tribunal (‘ACAT’), pursuant to s 180 of the Mental Health Act 2015 (ACT), or take the approach set out in s 329(2)(b).
Special Magistrate Cush made the order under s 329(2)(a). That immediately triggered s 180 of the Mental Health Act 2015 (ACT), which says “that ACAT must review the detention and consider the release of the person as soon as practicable, and not later than seven days after the day of the order”.
Unfortunately, something went wrong with the transmission of the order to ACAT because ACAT only received notice of the order on 23 July 2018, a number of days after the expiry of the seven days during which ACAT was supposed to review the decision. This is the basis upon which the applicant now seeks the habeas corpus order, effectively stating: “I was put into custody to be reviewed within seven days. That hasn’t happened so what am I still doing in custody?”
One of the effects of a habeas corpus order would be the immediate release of the applicant, which would in turn frustrate the decision of the Magistrate and the order that ACAT review her detention under s 180. While that may be the case, it seems to me that, the seven days having expired, there is also a real question about whether ACAT could review the detention order because, to do so at this stage (or in fact tomorrow as is apparently planned), would be contrary to s 180(2). In other words, it may be that ACAT no longer has power to review the detention order.
I have come to the view that, whatever went wrong in the transmission of the referral, the elapsing of the seven days following the making of the order means that there is not a valid basis for the applicant to be held in custody.
Section 329(2)(a) of the Crimes Act 1900 (ACT) says that the review must be done “immediately” and then refers to s 180 of the Mental Health Act 2015 (ACT) which stipulates that the review must occur in seven days. There is no mechanism under which the order can be extended beyond the seven days.
Accordingly, I am satisfied that the applicant is entitled to an order under Pt 3.9 of the Court Procedures Rules 2006 (ACT).
I make the following order:
(a)Pursuant to r 3506(1)(a) of the Court Procedures Rules 2006 (ACT), the applicant be released from custody.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 27 July 2018 |
0
0
3