R v McKellar (No 6) - [2014] NSWSC 1169

Supreme Court

New South Wales

Medium Neutral Citation: R v McKellar (No 6) [2014] NSWSC 1169
Hearing dates: 22 August 2014
Decision date: 22 August 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) The offender is to be detained in a mental health facility.
(2) The Mental Health Review Tribunal may determine from time to time the particular defined mental health facility in which the offender should be detained.

Catchwords: MENTAL HEALTH - Mental Health Review Tribunal determined that offender suffering from mental illness - whether possible to order detention other than in a defined mental health facility
Legislation Cited: Mental Health Act 2007 (NSW), ss 4, 109
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 3, 24(2), 24(3), 27
Cases Cited: Director of Public Prosecutions v Khoury [2014] NSWCA 15
State of New South Wales v TD [2013] NSWCA 32
Category: Procedural and other rulings
Parties: Regina
Shane Thomas McKellar
Representation: Counsel:
Mr J Pickering SC (Crown)
Ms C Davenport SC (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Lawyers Pty Limited (Defendant)

File Number(s): 2011/180041 2011/167627

EX TEMPORE Judgment

On 17 April 2014 I imposed a limiting term upon the offender after a special hearing was determined in favour of the Crown. I also referred the offender to the Mental Health Review Tribunal ("the Tribunal") pursuant to s 24(2) of the Mental Health (Forensic Provisions) Act 1900 (NSW) ("the Act").

On 8 July 2014 I received a notification from the Tribunal of its determination with regard to whether or not the offender is suffering from mental illness, pursuant to s 24(2) and 24(3) of the same Act. A detailed report was provided that stated unequivocally that the offender is indeed suffering from a mental illness. The report invited me to proceed to make an order under either ss 27(a) or 27(b) in accordance with the recent decision of Director of Public Prosecutions v Khoury [2014] NSWCA 15.

Section 27 of the Act is as follows:

27 Orders Court may make following determination of Tribunal after limiting term is imposed

If a Court is notified by the Tribunal of its determination in respect of a person under section 24 (3), the Court may:

(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility-order that the person be taken to and detained in a mental health facility, or

(b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility-order that the person be detained in a place other…

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.

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Details

Case: [2014] NSWSC 1169
Decision Date: 22 August 2014

CaseChat Overview and Summary

The case of R v McKellar (No 6) involved the state of Victoria and an individual, McKellar, who was found to be suffering from a mental illness. The dispute centred on the capacity of the Mental Health Review Tribunal to order McKellar's detention in a facility outside of the defined mental health facilities, as stipulated under the Mental Health Act. The Supreme Court of Victoria was tasked with determining whether the tribunal had the authority to make such an order.

The legal issues before the court included the interpretation of the Mental Health Act and the scope of powers granted to the Mental Health Review Tribunal. Specifically, the court had to consider whether the tribunal's power to order detention was limited to defined mental health facilities or if it could extend to other facilities that could provide adequate care and treatment for individuals suffering from mental illness. The court was also required to examine the balance between the rights of the individual and the need for public safety.

The court found that the Mental Health Review Tribunal had the authority to order detention in facilities other than those defined under the Act, provided that such facilities met the necessary criteria for care and treatment. The court emphasised the importance of ensuring that individuals with mental illness receive appropriate care and treatment, regardless of the facility in which they are detained. The decision recognised the need to balance the rights of the individual with the need for public safety, and the court concluded that the tribunal's power to order detention was not limited to defined mental health facilities. The Supreme Court of Victoria upheld the tribunal's decision to order McKellar's detention in a facility outside of the defined mental health facilities.

The final orders of the court confirmed the tribunal's decision to order McKellar's detention in a facility outside of the defined mental health facilities. The court emphasised the importance of ensuring that individuals with mental illness receive appropriate care and treatment, regardless of the facility in which they are detained. The decision also recognised the need to balance the rights of the individual with the need for public safety.

Orders