McDonald v Commissioner of Corrective Services

[2006] NSWSC 496

CITATION:	McDonald v Commissioner of Corrective Services & Anor [2006] NSWSC 496
HEARING DATE(S):	18/05/2006 and 19/05/2006
JUDGMENT DATE :	26 May 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Application granted - plaintiff entitled to be released
CATCHWORDS:	CRIMINAL LAW: - administration of prisons - habeas corpus - plaintiff sentenced to term of imprisonment with non-parole period - parole order made by sentencing court - transferred to hospital under Mental Health Act while in custody on remand - whether forensic patient after sentence passed - whether then entitled to release in accordance with parole order or subject to discretionary release by Minister on recommendation of Mental Health Review Tribunal
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Mental Health Act 1990 Mental Health (Criminal Proceedings) Act 1990 Mental Health Regulation 2000
CASES CITED:	Hamilton v Director-General Department of Health & Anor (NSWSC, unreported 13 April 1995)
PARTIES:	Warwick Dean McDonald (plaintiff) Commissioner of Corrective Services (1st defendant) Minister for Health (2nd defendant)
FILE NUMBER(S):	SC 30067/06
COUNSEL:	S Beckett (plaintiff) R Cogswell SC (defendants)
SOLICITORS:	Legal Aid Commission (Mental Health Advocacy Service) (plaintiff) IV Knight, Crown Solicitor (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HIDDEN J

Friday 26 May 2006

2006/30067 Warwick McDonald v Commissioner of Corrective Services & the Minister for Health

JUDGMENT

1 HIS HONOUR: The plaintiff, Warwick Dean McDonald, is currently detained at the Long Bay prison hospital. He asserts that he is entitled to be released and he seeks relief by an order in the nature of habeas corpus. The defendants are the Commissioner of Corrective Services and, for reasons which will appear, the Minister for Health. The plaintiff seeks other relief, but that is not urgent and I am not asked to deal with it.

Background

2 On 9 August 2005 the plaintiff was received at the Metropolitan Remand and Reception Centre, Silverwater, having been remanded in custody upon a charge of assault occasioning actual bodily harm (and another charge to which it is unnecessary to refer). On 17 and 18 August 2005 two medical practitioners, one of whom was a psychiatrist, certified that the plaintiff was suffering from a mental illness, the nature of which is not material for present purposes. On 22 August 2005 Dr Michael Paton, acting under delegation from the Chief Health Officer of the Department of Health, ordered that the plaintiff be transferred to a hospital “as defined in the Mental Health Act, 1990”, and notified the Mental Health Review Tribunal of that order.

3 The order was made, and the notification to the Tribunal was given, in accordance with s97 of the Mental Health Act, which provides:

(1) If it appears to the Chief Health Officer on the certificates, in the form set out in Schedule 3, of 2 medical practitioners, one of whom is a psychiatrist, that a person imprisoned in a prison is a mentally ill person, the Chief Health Officer may order that the person be transferred to a hospital.
(2) The Chief Health Officer must notify the Tribunal in writing of any order made under this section.

4 Pursuant to that order, and while he was still on remand, the plaintiff was transferred to the prison hospital at Long Bay on 11 September 2005. It is this procedure which lies at the heart of the issue which I must determine.

5 The plaintiff’s transfer to the hospital brought into place s100A(1) of the Mental Health Act, which provides:

A forensic patient transferred from a prison to a hospital must be transferred back to a prison not later than 7 days after the patient is transferred from the prison, unless the Chief Health Officer or an authorised person is of the opinion:
(a) that the patient is a mentally ill person or the patient is suffering from a mental condition for which treatment is available in a hospital, and
(b) that other care of an appropriate kind would not be reasonably available to the patient in prison.

I shall turn later in these reasons to the expression “forensic patient” used in that subsection.

6 On 16 September 2005, on the basis of a further psychiatric report furnished three days earlier, Mr Richard Mathews, an authorised person within the meaning of s100A(1), certified that the plaintiff fell within pars (a) and (b) of that subsection. The certificate asserted that the plaintiff was mentally ill or mentally disordered and that other care of an appropriate kind would not reasonably be available to him in prison. Accordingly, the plaintiff remained in the hospital.

7 Section 86(1) of the Mental Health Act requires the Mental Health Review Tribunal, as soon as practicable after a person is transferred to a hospital under s97, to review the case of that person and to make a recommendation to “the prescribed authority” as to the person’s continued detention, care or treatment in the hospital. By cl 19(1) of the Mental Health Regulation 2000, the prescribed authority for present purposes is the Minister for Health.

8 On 27 October 2005 the Tribunal recommended that the plaintiff remain in the hospital, and in due course the Minister approved that recommendation. That approval is given force by s86(4), which provides:

If a recommendation is made under this section to the prescribed authority in respect of a person, the prescribed authority may, subject to the regulations, make an order for the person’s detention, care or treatment in the place (being a hospital, prison or other place) and in the manner specified in the order.

During the whole of this process the plaintiff was still a remand prisoner. However, on 30 November 2005 he was sentenced in a Local Court for the offence of assault occasioning actual bodily harm to imprisonment for fifteen months, with a non-parole period of seven months, to date from 23 August 2005. The total sentence being less than three years, the sentencing magistrate made an order under s50 of the Crimes (Sentencing Procedure) Act 1999 directing the plaintiff’s release at the end of the seven month non-parole period, that is, on 22 March 2006.

9 Although that parole order is the order of a court, the State Parole Authority has the power under s130 of the Crimes (Administration of Sentences) Act 1999 to revoke it. On 21 March 2006 the Authority purported to do so. However, after representations from the plaintiff’s solicitor, the Authority rescinded its revocation and directed that he was to be released by 4pm on 1 April 2006. Nevertheless, he remains in the prison hospital. To understand why that is so it is necessary to examine some further provisions of the Mental Health Act.

The Mental Health Act

10 “Forensic patient” is defined in Sch 1 of the Mental Health Act (the dictionary). The definition embraces four classes of people, expressed in pars (a) to (d). Paragraphs (a) and (d) are concerned with people who, under the Mental Health (Criminal Proceedings) Act 1990, have been found unfit to be tried, or whose fitness for trial is in question, and people found not guilty by reason of mental illness. Those paragraphs of the definition are immaterial for present purposes. However, pars (b) and (c) are expressed as follows:

(b) a person who is detained in a hospital pending the person’s committal for trial for an offence or pending the person’s trial for an offence, or
(c) a person who has been transferred to a hospital while serving a sentence of imprisonment and who has not been classified by the Tribunal as a continued treatment patient …

The expression “continued treatment patient” in par (c) need not concern us. The plaintiff fell within par (b) of the definition when he was transferred to the prison hospital on 11 September 2005.

11 Procedures relating to forensic patients are to be found in Chapter 5 of the Act. An important provision is s82, the relevant parts of which are as follows:

(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
…
(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.
……..

(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:
….

(b) 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.

12 Sections 83 and 84 deal with recommendations by the Tribunal for the release of forensic patients. Section 84 enables the Minister, subject to certain qualifications and conditions which are not presently material, to order such a person’s release.

13 Sections 101 to 108 deal with the termination of a person’s classification as a forensic patient. Sections 101 to 104 are concerned with people who have been found not guilty by reason of a mental illness or unfit to be tried. Sections 105 to 107 are concerned with people who have been sentenced. Section 105 ensures that a person serving a term of imprisonment for which no non-parole period has been set ceases to be a forensic patient on the expiry of that term. Section 106, dealing with persons serving a sentence of imprisonment for life, need not concern us.

14 However, s107 is important. It provides:

A person who, while serving a term of imprisonment for which a non-parole period has been set, has been transferred to a hospital from a prison ceases to be a forensic patient:

(a) on the expiry of the term of imprisonment, or

(b) if the non-parole period has expired - on unconditional release by order of the prescribed authority following a recommendation of the Tribunal, or
(c) if the non-parole period has expired and the person has been released by order of the prescribed authority subject to conditions - on the expiry of any time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with, or
(d) on being classified by the Tribunal as a continued treatment patient, or


(e) on being transferred to a prison,

whichever first occurs.

15 Another important provision is s108, dealing with remand prisoners, to which I shall turn later.

The Motion

16 The plaintiff was represented by Mr Beckett of counsel and the defendants by Mr Cogswell SC. I am indebted to both of them for their capable and well researched submissions, written and oral. The urgency of the matter means that I am unable in this judgment to give all their arguments the detailed consideration they deserve.

17 Mr Cogswell submitted that the basis of the plaintiff’s present detention is the Minister’s order under s86(4) of the Mental Health Act that he remain in the hospital, following the Tribunal’s recommendation of 27 October 2005. He argued that the plaintiff remains a forensic patient and, as such, is subject to the procedures in Chapter 5 of the Act. This is so even though his non-parole period has expired, although Mr Cogswell acknowledged that by virtue of s107 he would cease to be a forensic patient upon the expiry of his sentence. In effect, he argued, the question of the plaintiff’s release during the balance of his sentence has become a matter for the Minister, on the recommendation of the Tribunal, not the Parole Authority. This was said to be consistent with pars (b) and (c) of s107, which appear to envisage the oversight by the Tribunal and the Minister of a forensic patient such as the plaintiff after the expiration of his or her non-parole period.

18 This, Mr Cogswell argued, is also consistent with the objectives of the Mental Health Act to be found in s4, which embrace the necessity of providing hospital care to some mentally ill people on an involuntary basis. Provision for involuntary detention of people in the community in a hospital, also subject to the review and recommendation of the Tribunal, is to be found in Chapter 4 of the Act. For people in the prison system, said Mr Cogswell, those provisions are more or less mirrored in Chapter 5. Thus, within the terms of that Chapter, the release of forensic patients is a matter for the Minister on the recommendation of the Tribunal, and by s82(4) the Tribunal may not recommend the release of such a patient unless it is satisfied “that the safety of the patient or any member of the public will not be seriously endangered by the person’s release”. All this, he argued, is consonant with the tenor of the Act as a whole, which seeks to ensure the humane treatment of the mentally ill while protecting the public.

19 Mr Cogswell pointed out, however, that Chapter 5 is subjected to the requirements of the criminal justice system. Thus, by s82(5)(b), the Tribunal cannot recommend the release of a forensic patient who has been transferred to a hospital while serving a sentence during the term of that sentence or, if a non-parole period has been set, during that period. Equally, ss105 & 107 ensure that a forensic patient cannot be detained as such after the expiry of his or her sentence.

20 Mr Beckett put his submissions on behalf of the plaintiff on three alternative bases. I received in evidence copies of the various warrants issued in the Local Court which led to the plaintiff’s being detained in the prison system from 9 August 2005, when he was first remanded in custody. There were subsequent court appearances prior to the case finally being dealt with on 30 November 2005, each resulting in a further remand in custody. On all those occasions appropriate warrants requiring him to be received and kept in custody, pursuant to s181(4) of the Criminal Procedure Act 1986, were issued. On his being sentenced on 30 November 2005, a warrant of commitment under s62 of the Crimes (Sentencing Procedure) Act was issued, directed to the Governor of the Metropolitan Remand and Reception Centre, Silverwater.

21 Put shortly, Mr Beckett’s first submission was that the plaintiff’s status as a forensic patient did not affect his right to release by virtue of the parole order made by the sentencing magistrate. He argued that the various procedures under the Mental Health Act to which I have referred did not create “a separate detention” of the plaintiff, and were no more than directions as to his placement within the prison system during the period of his confinement authorised by the warrants. That period, he said, ended upon the expiration of the non-parole period and, by the terms of the court’s parole order and by virtue of s131 of the Crimes (Administration of Sentences) Act, he should then have been released. Indeed, he argued that the effect of the Parole Authority’s recission of its decision to revoke the parole order is that the plaintiff became entitled to release on the date specified in the order, 22 March 2006. However that may be, he said, the plaintiff is certainly entitled to release now.

22 The difficulty with that submission is that the plaintiff undoubtedly became a forensic patient, by virtue of par (b) of the definition in Sch1 of the Act, upon his transfer to the hospital on 11 September 2005. His status as such cannot be ignored. A question arises, however, whether that remained his status after he was sentenced. This brings me to Mr Beckett’s second submission, which I find persuasive.

23 I referred earlier to the sections of the Mental Health Act providing for the termination of a person’s classification as a forensic patient. It will be remembered that ss105 & 107 each deal with people who had been transferred to a hospital from a prison “while serving a term of imprisonment…”. The only reference to persons on remand is to be found in s108, which provides:

A person on remand who has been transferred to a hospital ceases to be a forensic patient:
(a) on release (which the Minister is hereby authorised to order or to otherwise ensure) following advice by the Director of Public Prosecutions to the Minister that the person will not be further proceeded against in respect of the offence in relation to which the person has been remanded, or
(b) on being transferred to a prison,
whichever first occurs.

24 By its terms, that section appears to be confined to the termination of a person’s classification as a forensic patient during the remand period. There is no express provision dealing with the position of a remand prisoner who is in due course sentenced. Nor, for that matter, is there any such provision for a remand prisoner who is later released on bail or ultimately acquitted of the charge or charges which led to the remand. On the face of it, this could lead to the ludicrous position that a remand prisoner who did not meet either of the conditions in s108 could be detained as a forensic patient indefinitely.

25 Mr Beckett’s argument was that a person transferred to a hospital whilst on remand ceases to be a forensic patient when the period of remand comes to an end. Adopting the terms of par (b) of the definition, he said that that status is terminated once a person’s trial is no longer pending. The plaintiff’s trial came to an end on 30 November 2005, when he was sentenced. (There is no issue that the word “trial” includes a summary hearing, whether defended or after a plea of guilty.)

26 As I have said, Mr Cogswell’s position was the plaintiff is subject to s107 of the Act (and, for that reason, is entitled to release upon the expiry of his sentence). The difficulty arises because that section is expressed to apply to a person “who, while serving a term of imprisonment…, has been transferred to a hospital…”. Unquestionably, when the plaintiff was transferred to the hospital on 11 September 2005 he was not yet serving a term of imprisonment. Mr Cogswell sought to meet this difficulty in two ways.

27 Firstly, he argued that in retrospect the plaintiff could be said to have been serving a term of imprisonment on the date of his transfer, because the sentencing magistrate backdated his sentence to 23 August 2005. Secondly, and alternatively, he argued that the words “has been transferred to a hospital” should be understood as an adjectival phrase describing the “person” with whom the section is concerned. Recasting the opening words of the section in that way, he said, they would read:

A transferred person who is serving a term of imprisonment…ceases to be a forensic patient…”

28 Mr Beckett was prepared to embrace the first of those arguments if I rejected his submission that the plaintiff’s status as a forensic patient came to an end when he ceased to be a remand prisoner. In that way, the spectre of indefinite detention could be avoided. However, in my view, both interpretations strain the plain language of the section and are unacceptable. The opening words of s107 (like s105) are clear. They refer to a person who was serving a term of imprisonment at the time when he or she was transferred to a hospital.

29 The status of the person at that time cannot be altered retrospectively. If the person had not been sentenced at the time of the transfer, a backdated sentence passed subsequently does not alter the fact that he or she was a remand prisoner at the relevant time. Equally, Mr Cogswell’s alternative argument amounts to a significant distortion of the opening words of the section. Indeed, he acknowledged in oral argument that “it may stretch the language a bit”.

30 Accordingly, I am persuaded by Mr Beckett’s submission that the plaintiff ceased to be a forensic patient when his court proceedings were completed. The only source of his detention thereafter was the commitment warrant issued by the court on that day. Presumably, a further order for transfer to a hospital could have been made under s97 of the Mental Health Act after he was sentenced. He would then have become a forensic patient by virtue of par (c) of the definition in the Schedule. Indeed, that course may well have been taken if the commitment warrant had been observed according to its terms, and the plaintiff had been delivered into the custody of the Governor of the Metropolitan Remand and Reception Centre.

31 However that may be, no such order has been made and the plaintiff is now entitled to be released. Whether he should have been released on 22 March 2006 or the date later specified by the Parole Authority, 1 April 2006, is not a matter which I need to determine. Of course, on his release, he may still be subject to involuntary detention in a hospital under Chapter 4 of the Act.

32 Such provision as the Mental Health Act makes for persons transferred to a hospital while on remand is clearly unsatisfactory, and amendment would appear to be called for to clarify the position. I have done the best I can to interpret the relevant part of the Act in a purposive manner, while recognising that it is legislation dealing with the liberty of the subject and having regard to the legislative intention of the Act as a whole expressed in s4(2):

It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, discretion and jurisdiction conferred or imposed by this Act is, as far as practicable, to be performed or exercised so that:

-(a) persons who are mentally ill or who are mentally disordered receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, and

(b) in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances.

33 I should record that Mr Beckett’s third alternative submission involved the interpretation of the opening words of s107 in a different context, in the light of the decision of James J in Hamilton v Director General, Department of Health & Anor (unreported, 13 April 1995). In the event, it is not necessary that I determine that matter.

34 I shall consult the parties about the terms of the order I should I make and, if necessary, I shall hear argument on costs.

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