Said and Secretary, Department of Social Security (Social security second review)

Said and Secretary, Department of Social Security (Social security second review) [2015] AATA 508 (15 July 2015)

Division GENERAL DIVISION

File Number

2014/1257

Re

Michael Said

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Deputy President Christopher Kendall

Date 15 July 2015

Place Perth
The decision under review is affirmed.

......................[sgd]..................................................
Deputy President, Dr C Kendall
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – Period in gaol – Period of psychiatric confinement – Whether lawfully detained – Whether undergoing a course of rehabilitation – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 35(2)(b)
Bail Act 1982 (WA) – s 28 – Part D, clause 2 – Part D, Clause 3
Social Security Act 1991 (Cth) – s 23(1) – s 23(5) – s 23(5)(a) – s 23(8) – s 23(9) – s 1158 – 1158(a) – s 1158(b)
Social Security (Administration Act) 1999 (Cth) – s 80
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130
Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436
REASONS FOR DECISION
Deputy President Dr C Kendall
15 July 2015
BACKGROUND

This matter requires the Tribunal to determine whether Mr Michael Said is entitled to receive his Disability Support Pension (“DSP”) from 15 August 2013 to 20 August (during which time Mr Said was detained in Hakea Prison in Western Australia) and from 21 August 2013 to 2 September 2013 (during which time Mr Said was an involuntary patient at the Frankland Centre at Graylands Hospital in Western Australia, after having been transferred there from Hakea Prison).
Mr Said seeks a review of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 26 February 2014. The SSAT affirmed the decision of a Centrelink Authorised Review Officer (“the ARO”) made on 12 November 2013. The ARO had affirmed the decision of a Centrelink officer that Mr Said’s DSP should be suspended from 15 August 2013 to 2 September 2013 while he was detained in Hakea Prison and the Frankland Centre because he had been charged with an offence.
This is a rather unfortunate matter. It concerns a 67 year old homeless man with a complex medical history. From the evidence before the Tribunal it is clear that the circumstances surrounding Mr Said’s incarceration in a state prison and his involuntary detention in a psychiatric hospital were particularly traumatic for him. Suffice it to say, he feels “let down” by both the social security system and the justice system.
In relation to the issues before this Tribunal, Mr Said struggled to understand that the Tribunal could only focus on the quite limited issues before it. In that context, he expressed frustration on several occasions that he was not getting a fair opportunity to convey his story or “take action” against those he saw as treating him inappropriately. The Tribunal explained to Mr Said that it could only hear evidence and argument on the issues relevant to his appeal and, while sympathetic to his concerns in relation to what was, clearly for Mr Said, a distressing event in his life, the Tribunal could only hear evidence that was relevant to the core legal issues before the Tribunal.
Overall, the Tribunal is satisfied that Mr Said was given every opportunity to address these core issues. The Tribunal is also satisfied that AAT staff treated Mr Said with the upmost respect and did all that could be done to assist him in difficult circumstances. The Tribunal also acknowledges the considerable assistance provided by counsel representing the Secretary, Department of Social Services (the “Department”), Ms Allyson Ladhams, and notes the professionalism with which she conducted herself throughout this challenging matter.
Unfortunately, Mr Said was unrepresented before the Tribunal. Despite several extensions of time within which to file written submissions, Mr Said did not file written submissions. Mr Said was, however, able to provide verbal submissions before the Tribunal on two occasions. The Tribunal is satisfied that Mr Said understood the arguments advanced by the Department and the questions put to him by the Tribunal.
FACTS
Mr Said has been receiving DSP since 16 February 1978.
As noted above, Mr Said has been homeless for several years, having been evicted from his Homeswest accommodation. After living in various backpacker hostels, he now camps in a tent in the sand dunes at City Beach in Western Australia. Mr Said has indicated that he cannot afford private accommodation due to various financial constraints, including numerous medical bills and a credit card debt. He is estranged from his extended family but has some contact with his son.
On 10 May 2013, the Town of Cambridge (the “Town”) brought four charges against Mr Said arising, the Town claimed, from various contraventions of the Town of Cambridge Local Government and Public Property Law 1995 and the Caravan Parks and Camping Grounds Regulations 1997 (T12 at 84). It is not entirely clear to the Tribunal why criminal charges were brought against Mr Said for what appear to be rather minor trespassing offences. It may well be the case that the Town sought assistance from community service providers before resorting to criminal sanction. The evidence is unclear. In any event, as discussed below, it was certainly within the Town’s legal authority to rely on the criminal law to remove Mr Said from a beach within the Town’s local boundaries, however unfortunate the consequences of doing so.
The events following the decision of the Town to prosecute Mr Said were clearly outlined for the Tribunal by the Department in the Department’s Statement of Facts, Issues and Contentions dated 21 August 2014.
Relevantly, the Department’s Statement provides the following information (at paragraphs 4-22).
The criminal prosecution brought against Mr Said by the Town came before the Magistrates Court of Western Australia on 7 June 2013. On that occasion, the Court considered that Mr Said was pleading not guilty to the four charges and set the matter down for hearing on 14 August 2013 (T12 at 58-63).
On 14 August 2013, Magistrate Malley, being the Magistrate who was hearing this matter, remanded the matter until 9 October 2013, and placed Mr Said on bail. Magistrate Malley said (T12 at 74):
…I’m going to remand the matter until 9 October, Mr Said. You’re going to be placed on bail, a personal undertaking. I’m going to require a psychiatric assessment as to fitness to plead in relation to the matter. I’m going to ask community based corrections to come up just to speak to you about your obligations because the bail conditions will be that you are to comply with their – to attend upon such psychiatrists as directed by CJS for assessment.
Mr Said refused to sign the relevant bail papers.
On 14 August 2013, Centrelink was advised that Mr Said had been incarcerated in Hakea Prison (T13 at 187). The Department advised the Tribunal that the reason Mr Said was incarcerated was that he refused to sign the bail papers. This is supported by the evidence before the Tribunal.
On 15 August 2013, Centrelink wrote to Mr Said and advised that his DSP was suspended from 15 August 2013 because Centrelink had been advised by the State Correctional Department that Mr Said had been imprisoned from 14 August 2013 (T3 at 10).
On 21 August 2013, Mr Said was transferred from Hakea Prison to the Frankland Centre at Graylands Hospital (T13 at 186). The evidence shows that this transfer arose due to prison officials’ concerns regarding Ms Said’s mental and physical health while in Hakea.
Centrelink wrote to Mr Said on 22 August 2013, advising that he would continue to receive DSP payments for the period from 21 August 2013, with the first payment to be made on 29 August 2013 (T4 at 12).
However, on 23 August 2013, Centrelink was advised by Graylands Hospital that Mr Said was admitted to the Frankland Centre as a prisoner. Centrelink records indicate (T13 at 186):
Amelia from Graylands called in to advise that mistake had been made and that cus has been admitted to FRANKLAND Centre as a Prisoner and not under Court Order. Amelia advised that they had system issues in which incorrect information had been given to Centrelik.. [sic] Amelia advised that if cus will sign his Bail Papers then he would have been released under a Court Order, but due to cus Mental Health issues cus will not sign the papers. DSP has been Suspended DSP/SUS-IMP as of the 22/08/13.
Accordingly, on 26 August 2013, Centrelink wrote to Mr Said and advised that his DSP had been suspended from 15 August 2013 because he had been incarcerated.
On the same day, the criminal prosecution against Mr Said was again listed in the Magistrates Court before Magistrate Malley. On this occasion, Mr Said was legally represented. The Department argued before the Tribunal that it appears from the relevant court transcript that an application had been filed on behalf of Mr Said to vary bail (T12 at 55). The matter was adjourned by the Magistrate to the mental health list for a hearing on 3 September 2013.
On 3 September 2013, the criminal prosecution was adjourned to 2 October 2013. Magistrate Stewart, being the Magistrate now hearing the matter, did not impose bail (T12 at 98-99). The fitness to plead report was not available on 3 September 2013, but the Magistrates Court was advised that Mr Said had been assessed by a doctor and that this doctor was of the view that Mr Said was not fit to stand trial and would not be fit to stand trial within the next six months (T12 at 97).
As a result, on 3 September 2013 Mr Said was released from the Frankland Centre.
Mr Said’s DSP was restored from this date and he was paid a Crisis Payment (prison release payment) of $366.85 (T7 at 21).
On 5 September 2013, Mr Said contacted Centrelink and requested an explanation of the original decision to suspend his DSP. The evidence shows that Mr Said was of the view that he had been unlawfully imprisoned by the State Correctional Department and therefore should not have had his DSP payments suspended (T13 at 185).
On 6 September 2013, Mr Said requested an internal review of the original decision in relation to his DSP being suspended. Mr Said was of the view that his payments should not have been suspended because (T13 at 184):
·he was wrongfully convicted; and
·the Magistrates Court had no jurisdiction to imprison him.
This, he argued, is why he was ultimately released from the Frankland Centre.
On 2 October 2013, the criminal prosecution was adjourned to 23 October 2013 (T12 at 133).
On 23 October 2013, the prosecution discontinued the charges against Mr Said and the Court dismissed the charges for want of prosecution (T12 at 83 and 139).
On 6 November 2013, the ARO spoke to Mr Said about his request for review. The Department noted that the Centrelink record was as follows (T13 at 181):
Customer asserts that he was not lawfully detained in Hakea Prison and Frankland Centre from 14 August 2013 to 2 September 2013.
HIS STORY: attended court on 14 August 2013. He asked for a continuance so that he could make an application to the court. The magistrate did not consider that he was able to represent himself and required him to undertake a bail agreement. The agreement required him to undergo psychiatric assessment.
Customer refused to agree with this: he was taken into custody and transferred to Hakea Prison. With some assistance from Legal Aid he made his case to another magistrate (date not yet specified). The later magistrate found that the former magistrate had no jurisdiction to impose bail or take him into custody. As a result of this finding he was released.
ARO consideration: I regard that the customer should have a chance to verify that his incarceration was unlawful. I have asked him to provide sufficient detail to access the court transcripts. He advises that he will provide this soon.
On 11 November 2013, the ARO affirmed the original decision (T10 at 29).
On 15 January 2014, Mr Said requested that the original decision be reviewed by the SSAT.
On 26 February 2014, the SSAT affirmed the original decision (T2 at 3).
On 12 March 2014, Mr Said sought review of the SSAT decision by the Administrative Appeals Tribunal (T1 at 1).
ISSUE
The issue to be determined by this application is whether the correct decision was made to suspend Mr Said’s DSP from 15 August 2013 to 2 September 2013 on the grounds that DSP was not payable to him by reason of section 1158 of the Social Security Act 1991 (the Act).
The Department contended that Mr Said’s DSP was correctly suspended because:
·during the period 15 August 2013 to 20 August 2013, while Mr Said was in Hakea Prison pending trial for an offence, Mr Said was ‘in gaol’ within the meaning of section 23(5) of the Act and, pursuant to section 1158(a) of the Act, DSP was not payable to him; and
·during the period 21 August 2013 to 2 September 2013, Mr Said was undergoing “psychiatric confinement” because he was charged with an offence and, pursuant to section 1158(b) of the Act, DSP was not payable to him.
The Secretary contended that the decision under review should be affirmed.
Mr Said contended that his DSP was incorrectly suspended because he was unlawfully detained.
LEGISLATION
A social security pension is not payable for any day a person is “in gaol” or for any day that a person is “in psychiatric confinement because they have been charged with a criminal offence”. However, where a person who is confined in a psychiatric institution undertakes “a course of rehabilitation”, any period during which that person is undertaking such a course is not regarded as psychiatric confinement. A social security payment is payable to that person during the time in which they are undertaking a course of rehabilitation.
In that regard, section 1158 of the Act provides:
1158Some social security payments not payable during period in gaol or in psychiatric confinement following criminal charge
An instalment of a social security pension, a social security benefit, a parenting payment, a carer allowance, a mobility allowance or a pensioner education supplement is not payable to a person in respect of a day on which the person is:
(a) in gaol; or
(b)undergoing psychiatric confinement because the person has been charged with an offence.
Note 1: For in gaol see subsection 23(5).
Note 2: For psychiatric confinement see subsections 23(8) and (9).
Section 23(1) of the Act defines “social security pension” as including DSP.
The expression “in gaol” is defined in section 23(5) of the Act as follows:
(5) For the purposes of this Act, a person is in gaol if:
(a)the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or
(b)the person is undergoing a period of custody pending trial or sentencing for an offence.
The expression “psychiatric confinement’ is defined in sections 23(8) and (9) of the Act as follows:
Psychiatric confinement
(8)Subject to subsection (9), psychiatric confinement in relation to a person includes confinement in:
(a) a psychiatric section of a hospital; and
(b)any other place where persons with psychiatric disabilities are, from time to time, confined.
(9)The confinement of a person in a psychiatric institution during a period when the person is undertaking a course of rehabilitation is not to be taken to be psychiatric confinement.
As explained in the Department’s Supplementary Submission to the Tribunal dated 2 July 2015, the phrase “course of rehabilitation” is not defined in the Act.
The Full Court of the Federal Court in Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436 (Franks) at [47] accepted that the phrase should be given its ordinary English meaning, and noted the dictionary definition of “rehabilitation” as being “the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury.” The Court in Franks found:
45. … the Secretary is concerned to seek from this Court a ruling that the phrase “course of rehabilitation” in s 23(9), properly construed, is to be narrowly confined. We do not consider that there is any justification for reading the phrase, in the context of s 23(9) and s 1158(b), in this narrow way.
46. The expression “course of rehabilitation” is not defined in the Social Security Act 1991. The expression “rehabilitation program” is given by s 23(1) a special meaning in the Social Security Act 1991: it means “a rehabilitation program under Part III of the Disability Services Act 1986”. By s 20 of that Act, the Secretary is empowered to approve the provision of a rehabilitation program for a person “in the target group”, ie, a person in the 14 to 65 year age bracket with a disability attributable to an intellectual, psychiatric, sensory or physical impairment which results in the person having a substantially reduced capacity to engage in paid employment or to live independently. An approved “rehabilitation program” must be directed to substantially increasing the capacity of the person to engage in paid employment or to live independently. The expression “course of rehabilitation” in s 23(9), in its application to s 1158, is unlikely to be confined to an activity directed to increasing a person’s capacity to engage in paid employment or to live independently. The concept of a “rehabilitation program” as defined in s 23(1) is of limited assistance in construing the phrase “course of rehabilitation” in s 23(9).
47. It was not suggested that the phrase “course of rehabilitation” in the context of s 23(9) as applied to s 1158(b), has a particular technical meaning or that experts involved in psychiatric care have a particular understanding of what is involved in something they describe as a course of rehabilitation. The phrase “course of rehabilitation” in s 23(9) must have its ordinary English meaning, though that meaning will be coloured by the context in which the phrase appears. Of the many meanings the word “course” is capable of conveying set out in the Macquarie Dictionary, 3rd ed, that of particular relevance in the context of s 23(9) and s 1158(b) is: “a systematised or prescribed series: a course of studies, lectures, medical treatments, etc”. The Dictionary gives the following as one of the meanings capable of being conveyed by the word “rehabilitation”: “Medicine the use of medical, social, educational or vocational measures or a combination of these to train or retrain someone who has a disability as a result of illness or injury”.
48. There is nothing in the ordinary meaning of the phrase or in the context in which it appears in the Social Security Act 1991 to suggest that this expression is used in the Act to mean a rehabilitation program with a duration precisely, though provisionally, defined. Nor is there anything to suggest that the phrase in the Act is only satisfied by rehabilitation activities structured by reference to identified milestones towards achieving a precise goal. The boundaries of the activities capable in the circumstances of the particular case of constituting a “course of rehabilitation” within s 23(9) as applied to s 1158(b) are thus wide.
49. An appeal lies to this Court from the AAT only on an error of law. Where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words, that question is one of fact only, so long as it is reasonably open to hold that they do, ie, that different conclusions are reasonably open as to whether the facts of the particular case do or do not come within the particular statutory provision: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288.
50. Provided it is open to the decision-maker on the evidence to conclude that the person in question is undertaking rehabilitation activities that are not merely engaged in by him on an ad hoc basis, but which form part of what can be said to be a planned series of activities that may include medical and other treatments directed towards improving the person’s physical, mental and/or social functioning, then, depending on the circumstances of the particular case, it is open to the decision-maker to hold that such activities do constitute “a course of rehabilitation” for the purposes of s 23(9)…
52. So long as the AAT recognised, as it did, that merely to engage in rehabilitation activities did not mean that Mr Franks was undertaking a “course of rehabilitation” and, so long as it was entitled to find that the rehabilitation activities he engaged in could be said to be “a rehabilitation program … suited to the respondent and designed to assist his long-term prospects”, it cannot be said that the AAT made any error of law in concluding that Mr Franks was not undergoing “psychiatric confinement” within s 1158(b) because he was undertaking a “course of rehabilitation” within s 23(9).
53. It was not suggested that there was no evidence before the AAT to support the finding it made in par [12] of its reasons. Nor was it suggested that this finding was erroneous in law because it was unreasonable in the Wednesbury sense. Given what we have said about the proper approach to construing the phrase “course of rehabilitation”, the AAT did not, in arriving at its conclusion, ignore any relevant considerations. Having made this finding of fact and there being no basis for thinking it was tainted with any error of law, it follows, in our opinion, that the AAT’s conclusion that Mr Franks was undertaking a “course of rehabilitation” for the purposes of s 23(9) as applied to s 1158(b) cannot be overturned in an appeal to this Court under s 44 the Administrative Appeals Tribunal Act.

From the above, it is clear that if the Tribunal finds that Mr Said was “in gaol” during the period 15 August 2013 to 20 August 2013 and was not “undergoing a course of rehabilitation” while in “psychiatric confinement” during the period 21 August 2013 to 2 September 2013, then the original decision under review must be upheld. If, however, it is found that Mr Said was undergoing a course of rehabilitation while in psychiatric confinement, he must be reimbursed any DSP payments that were withheld during the relevant period.
EVIDENCE
The evidence before the Tribunal consisted of a set of T-Documents filed by the Department (T1 to T18) and a large set of unnumbered prison and medical documents subpoenaed from the Frankland Centre (Exhibit R5).
The criminal charges
On 21 November 2013, Mr Said received a letter from the Magistrates Court of WA, Perth Registry, providing him with “certified copy prosecution notice PE24756-9/13”. The notice (at Exhibit R5) advised Mr Said of the following charges:
Charge No.1 of 4
That MICHAEL SAID
Between 18 March 2013 and 11 April 2013, both dates inclusive
At Reserve 16921, West Coast Highway, City Beach
Within the district of the Town of Cambridge, traversed sand dunes otherwise than along pathways designated by signs or fences for that purpose, contrary to clauses 5.5{c) and 14.3(1) of the Town of Cambridge Local Government and Public Property Local Law.
And further
Charge No.2 of 4
That MICHAEL SAID
Between 18 March 2013 and 11 April 2013, both dates inclusive
At Reserve 16921, West Coast Highway, City Beach
Within the district of the Town of Cambridge, entered local government property which had been closed off to the public by a sign without being authorised to do so by the Town of Cambridge, contrary to clauses 5.12 and 14.3(1) of the Town of Cambridge Local Government and Public Property Local Law.
And further
Charge No.3 of 4
That MICHAEL SAID
Between 18 March 2013 and 11 April 2013, both dates inclusive
At Reserve 16921, West Coast Highway, City Beach
Within the district of the Town of Cambridge, was a person on local government property and failed to obey a lawful direction of an authorised person, contrary to clauses 13.2 and 14)(1) of the Town of Cambridge Local Government and Public Property Local Law.
And further
Charge No.4 of 4
That MICHAEL SAID
Between 18 March 2013 and 11 April 2013, both dates inclusive
At Reserve 16921, West Coast Highway, City Beach
Within the district of the Town of Cambridge camped on land not being a site in a caravan park or camping ground licensed under the Caravan Parks and Camping Grounds Act 1995 and otherwise than in accordance with Regulation 11 of the Caravan Parks and Camping Grounds Regulations 1997 contrary to Regulation 10 of the Caravan Parks and Camping Grounds Regulations 1997.
Magistrates Hearing dated 7 June 2013
Mr Said contends that he was “unlawfully” detained. As such, it is useful to review to court transcripts of those proceedings that led to Mr Said’s incarceration in Hakea Prison and his involuntary hospitalisation in the Frankland Centre.
Mr Said appeared in the Magistrates Court in Perth on 7 June 2013. The presiding Magistrate was Magistrate Malone.
Relevantly, the court transcript for that hearing provides (T12 at 59-63) as follows:
Beckett, Mr: Thank you, your Honour. Beckett for the prosecution again.
His Honour: Yes, thank you, Mr Beckett. Yes, morning. You’re Michael Said?
Accused:       With pleasures, your Honour. I appear in person.
His Honour: Yes, thank you, Mr Said. Now, you face a series of charges under the Town of Cambridge local laws.
.....
Accused: Sir, I don’t know how they got this address. They seem to be making up their minds what they want to know and I am not having a plea at the moment. I will just foreshadow that what they are doing at the moment is conspiratorial under section 560 of the Criminal Code of Western Australia - - -
His Honour:   Yep.
Accused: - - - and there’s many other Criminal Code sections which will apply to them. I have given them notice last year that they will be sued for several hundred billion – million – dollars of damages they have caused me because they are acting as vigilantes – a group of vigilantes. They think they own the beach. The beach is public property. It does not belong to them - - -
His Honour: Okay.
Accused:        - - - and they want me away from - - -
His Honour:   Mr Said, I have to interrupt you because today isn’t the - - -
Accused:       I accept that but I need to foreshadow to you.
His Honour:   - - - hearing date. I just need to know from you whether you need an opportunity to get advice about these charges or whether you’re definitely pleading not guilty and want a hearing date set. What do you want to do?
Accused:       I would like to counter-charge them in fact.
His Honour:   Well, you will have to do that under your own resources. I can only deal with what’s before me.
Accused:       The Legal Aid Commission is not empowered – don’t have the resources - - to support me to mount a challenge against them and to really take them on – - - -
His Honour:   Yep.
Accused:       - - - and these people need to be taken on. They have acting like a group of vigilantes - - -
His Honour:   Yes.
Accused:       - - - and they are stealing things from the beach - - -
His Honour:   Yes. Okay, look, I don’t want to set you off on another speech telling you that I don’t need your speeches, okay? So I just do need to know do you need to get advice about these charges?
His Honour:   Yes. So you’re pleading not guilty?
Accused: Well, I’m not only not guilty. I think what the charge under the Constitution they’re not allowed to even proceed with these charges.
His Honour:   Okay. All right.
…..
His Honour:   Okay. All right. Just bear with me. So, Mr Beckett, obviously Mr Said is passionately defending these matters which is fair enough.
Beckett, Mr:   Yes, your Honour.
His Honour:   Is it appropriate to set the matters down for hearing today.
Beckett, Mr:   Yes, I think so, your Honour. I don’t think there’s any prospect of it getting resolved any other way.
His Honour:   No, no, I wouldn’t have thought so.
…..
His Honour:   So we’re looking at slightly less than a day perhaps? 14^th of August. Is that - - -
….
His Honour:   Yes, yes, no. I’m just asking about the 14^th of August. So your computer - - -
Accused:       No, 14^th of August is fine. It’s excellent.
His Honour:   It is fine? All right. Okay, so - - -
Accused:       10 am?
His Honour:   Yes. The matter is adjourned through to the 14^th of August. It’s the four charges obviously for hearing. A notice will go out - - -
Magistrates Hearing dated 14 August 2013
Mr Said appeared in the Magistrates Court in Perth on 14 August 2013. The presiding Magistrate was again Magistrate Malley.
Relevantly, the court transcript for that hearing provides (T12 at 73-75) as follows:
…..
Said, Mr:        I haven’t done – you haven’t allowed me to even present you with any documentation which shows the case that these people have – I mean, they supposed – the legislation says that no private person should be allowed to prosecute criminal prosecution and now you are allowing a private corporation to be acting as a prosecutor. Now, that to me is contrary to the law and you are – you are objecting to the law that you’re supposed to uphold. The police refused to prosecute me.
Now, why are they allowing to continue to do that, and the law of – under the Commonwealth, Federal law, 1914, is actually still in force. It doesn’t allow them to proceed the way they’re trying to do so. And they give very vague hint of what I’ve supposed to have done. How can I respond to that? There need to be disclosure. And they don’t give any detail, they don’t give nothing. They should give you a hint of what you must have done. How can you respond to that? How can you plead anything to that?
That’s the kind of insurance company and the banks and the whole lot of them doing that in order for them to continue to run this country as a mark. They bringing apartheid in this country. They’re running the whole beach. I have a lawful right to be on the beach. I have a lawful right to go fishing. They been stealing my things. Nobody wants to proceed. Every time I go to the police they say, “Have you taken your tablets?” Why am I supposed to be dealt with like this?
His Honour:   The matter is going to – I’m going to remand the matter to 9 October, Mr Said. You’re going to be placed on bail, a personal undertaking. I’m going to require a psychiatric assessment as to fitness to plead in relation to the matter. I’m going to ask community based corrections to come up just to speak to you about your obligations because the bail conditions will be that you are to comply with their – to attend upon such psychiatrists as directed by CJS for assessment.
…..
His Honour:   Could you organise CJS to come up and (indistinct) somebody so that (indistinct) So, Mr Said, what I’m going to do is just adjourn the matter to - - -
Said, Mr:        Well, I object that. I will be lodging an appeal forthwith.
His Honour:   - - - to 9 October.
…..
His Honour:   Just take a seat in the back of the court, Mr Said, and we’ll arrange bail papers at this stage - - -
Magistrates Hearing dated 26 August 2013
Mr Said appeared in the Magistrates Court in Perth on 26 August 2013. The presiding Magistrate was again Magistrate Malley.
Relevantly, the court transcript for that hearing provides (T12 at 78-80) as follows:
JSO     The matter of Said, Michael Said, sir.
His Honour:   Yes.
Beckett, Mr:   Beckett for the prosecution, your Honour.
His Honour:   Yes. Mr Barker, I presume this is not your application, is it, as such?
Barker, Mr:     It was my application.
His Honour:   It’s little bereft in content, Mr Barker.
Barker, Mr:     Was it? Okay.
His Honour:   Well, to vary bail you might indicate, in fact, what your intentions were in relation to bail so the other party might have some indication.
Barker, Mr:     Sorry about that, your Honour. The information we got from the accused person, that he was simply in custody on these charges, which I found curious – and it was difficult to work out why he was in custody. And then early listed it to vary the bail, but when we go the prosecution notice, it became apparent why he was placed on bail in the first place.    So the situation is since then I just tried to get a hold of Ms Hicks from the Frankland Centre, but my colleague spoke to Ms Hicks on 23 August, which would have been Friday, and unfortunately Mr Said is currently an involuntary patient at the Frankland Centre. The information is he needs to be here and he’s not fit to plead. So what I was proposing today, your Honour, is a short adjournment through to the mental health court, or the START Court, Tuesday week.
His Honour:   Yes. That’s probably the best place for it. Just so you know the background, I mean, normally I wouldn’t, for these sort of matters, obviously, impose bail, but the problem was for Mr Said it was apparent to me – I think I’ve had dealings with him before. In any event, on the day it was apparent to me that he had psychiatric issues and, realistically, I needed an assessment to be done.
Barker, Mr:     Yes.
His Honour:   And it hadn’t been done up to this point of time, and the only way to get it done was to at least have a requirement that he undertake that test. It was to go through somebody who was already treating him. Mr Lazhar, I think it was, down at Fremantle. And as I understand it, he wouldn’t sign his bail papers.
Barker Mr:     He was resistant to the order that your Honour made.
His Honour:   And that was – if I didn’t make that order, he would never do it, and I would never get a report, one way or another. I will probably get a report now, actually, quicker than I would have otherwise. But having said that, it’s an issue that perhaps the prosecution in this case might want to think about fairly carefully. The reality is the charges in themselves are at the lower end of the scale, and it has to be put into context. You’re dealing with a person with a serious psychiatric illness, I suspect, and you really have to think: Is it public interest and expense to pursue Mr Said not because he has or hasn’t committed the offences because it’s just simply – well, you’ve seen it.
Beckett, Mr:   Yes.   Yes, Your Honour.
His Honour:   You’ve got to understand how he thinks - - -
Beckett, Mr:   Yes.
His Honour:   - - - and how he perceives the world.
Beckett, Mr:   I fully agree with your comments, your Honour. This is something that the town has commenced very reluctantly. They’ve been trying to get police and mental health agencies to assist and unfortunately haven’t had any results in having him moved on. There’s nothing to be achieved by fines, and the town understands that, but it’s something that had to come to a head, and perhaps the mental health intervention might be the best thing for it.
His Honour:   Well, perhaps you might want to go down the mental health court list. They provide the backup, and once that occurs, I would recommend to your client that they perhaps gracefully withdraw in the interests of justice. That’s what I’m suggesting to you, but I agree that the mental health court is the one that – so what day was it? Tuesday, was it?
Barker, Mr:     They sit on Tuesdays, your Honour, in my understanding.
His Honour:   Okay. 3 September?
Barker, Mr:     Thank you.
His Honour:   Okay. Thank you, Mr Barker.
Barker, Mr:     Thank you, your Honour.
His Honour:   So next Tuesday, and hopefully by then we will have a better idea of where he’s going.
Barker Mr:      There’s just the note for him to appear by video.
His Honour:   Video, if he’s not on bail.
Beckett, Mr: Sorry, your Honour. He will be remaining in Frankland until that time? Is that correct?
His Honour:   I imagine so. He will be, no doubt, unless he signs his bail papers and is released.
Beckett, Mr:   Okay. Sorry. And the START Court: what time is that? I’m not familiar with the START Court, or mental health court. 10 am.
His Honour:   Thank you very much.
Barker, Mr:     Thank you. If I could be excused.
His Honour:   Yes.
Beckett, Mr:   Thank you, your Honour.
Magistrates Hearing dated 3 September 2013
Mr Said appeared in the Magistrates Court in Perth on 3 September 2013. The presiding Magistrate was Magistrate Stewart.
Relevantly, the court transcript for that hearing provides (T12 at 93-104) as follows:
JSO:    Magistrate court is now reconvened. Said. Michael Said. He is coming up from custody, your Honour.
…..
Her Honour:   Thank you, Mr Watts. Mr Watts – Ms Collins have you had the opportunity of reading the report?
Collins, Ms:    Yes, I have read that report. Yes.
Her Honour:   And Mr Watts, have you had the opportunity to read it?
Prosecutor:    I have briefly, yes.
Her Honour:   Okay. While we are waiting for Mr Said to come up, I understand that there’s a fitness – that there was supposed to be a fitness to plead report, and, unfortunately, that doesn’t seem to be in front of me today. Anyway, I just wanted to raise that, although it does raise that Mr Said has got some illnesses. Thanks very much, Mr Said. Just a take a seat there if you don’t mind.
Accused:       Is it possible to have a pen and paper?
Her Honour:   A pen and paper? Yes. I will give you a piece of paper, although Ms Collins is here. She is your duty lawyer today, so she can take down everything.
Accused:       Okay.
Collins, Ms:    I’m actually appearing as a friend of the court today per Mr Said.
Her Honour:   You are a friend of the court. Okay.
Collins, Ms:    I’ve spoken to him. I’m not in a position to act on instructions today. Mr Said has agreed for me to raise with the court that he doesn’t recognise the court or the jurisdiction of your Honour. He also says he doesn’t recognise jurisdiction of the counsel acting in this matter. He says to me that if the matter is ongoing, he will not be signing bail papers, and I understand that’s why he is in custody at the moment. I expect this matter is unlikely to progress without this report.
Her Honour:   All right. Now, Mr Watts. What do you have to say?
Prosecutor:    Your Honour, firstly – first of all: if the matter needs to be adjourned, we can manage to be here on a different date. But Towns brought these charges out of inquiries that there may be cause for concern with Mr Said living within (indistinct). Cause for concern to the community and also his health and well-being. The police have not been helpful to the town in this matter, so we would rather, reluctantly, bring these charges, but we are obviously in the court’s hands, your Honour.
Her Honour:   Well, the difficulty is that the report that I’ve been provided with is not the report that was asked for by the magistrate. The magistrate asked for a fitness to plea report.
Collins, Ms:    Yes, that report is not due in the court until 9 October, the due date. It was requested on 14 August. The fitness to plea report is due in court on 9 October.
Her Honour:   Well, okay, so – so why is that? So Mr Said is here because he was sent – you see, Mr Watts, we are a voluntary court. Okay. So number 1, I don’t think that this is the court for Mr Said, because he just told us through Ms Collins that he doesn’t recognise the jurisdiction of the court, so – so number 1, I don’t think that Mr Said can stay in this court, because we are voluntary, and if Mr Said doesn’t want to participate, then that’s entirely up to him, but I can’t force it on him.
Number 2, I’m very concerned that bail was set, but then Mr Said has come up from custody today. Can you tell me the background as to why bail was set? Were you here? Were you before the magistrate?
Prosecutor:    I wasn’t here on that date. (indistinct) of our office was here on that date, and, unfortunately, he is unavailable today, the reason why I’m here, but - - -
Her Honour:   Did you seek bail?
Prosecutor:    I’m sorry, Your Honour.
Collins Ms:     I’m (indistinct) that the duty lawyer has had prior dealings with this matter. The charges of a nature where they are fine only, and, certainly, at the lower end of the scale, and I don’t have a copy of any record that Mr Said has in terms of bail being set. I understand the reason that Mr Said is custody is because he has refused to sign his bail papers, and I believe that may have been in relation to him not wanting to undertake a psychiatric report.
Her Honour:   So has he been seen by the psychiatrist for the fitness to plea report?
Collins, Ms:    There’s – there’s no record indicating any correspondence or interviews being set, or anything to that effect at all.
Her Honour:   You see usually, when we get these reports from Franklin, they actually do into fitness to plead.
Collins, MS:   I don’t – I have not seen the report.
Her Honour:   No, I know. It certainly is quite a comprehensive report, but it doesn’t go into the area that was asked about. I might show it to you now M (indistinct).
Accused:       May I enlighten the court on some matters.
Her Honour:   In a minute, Mr Said. If you don’t mind, I will just hear what Ms Walsh has to say, and Dr Brett's just having a look at the report too. Thank you, Dr Brett.
Brett, Dr:       With of course permission, I will give Dr Spininano a phone call and just ask him to clarify that.
Her Honour:   Yes. See what has happened is that Mr Said has come to us – so that you know the background, I don’t know whether you are aware of the report.
Brett, Dr:       No, I am aware of the background.
Her Honour:   Okay then. So what has happened is that the reason why Mr Said is in custody is he won’t sign his bail papers. He has been referred to our court, but I actually don’t think that he is – he has just told us through Ms Collins that he doesn’t recognise the jurisdiction of our courts, so I’m not sure court is the one for him.
Collins, Ms:    He doesn’t the jurisdiction of any court in relation to this matter. He says that the charges – they are not charges at all. He doesn’t recognise jurisdiction in relation to any of this.
Her Honour:   Okay. Well, look, if you don’t mind - - -
Accused:       Can I - - -
Her Honour:   Do you know Dr Brett?
Accused:       Find out who is the gentlemen – who is the gentlemen in the back who spoke.
Her Honour:   Dr Brett.
Accused:       Dr Brett.
Her Honour:   He is Dr Brett and he -- - -
Accused:       What is his authority?
Accused:       I see. Where does he stand?
Her Honour:   Where does he?
Accused:       I mean, who is he with?
Her Honour:   He is with this court.
Accused:       I see. Dr Ban.
Brett, Dr:       B-r-e-t-t.
Accused:       Brett.
Her Honour:   Brett, that’s right. Now, look, Mr Said, if you don’t mind, we are going to stand this matter down for a few minutes so Dr Brett can make some inquiries. All right. And then you will come up before me very soon.
Accused:       Well, there’s a lot of false reports been generated when I fell down and injured my foot.
Her Honour:   Okay.
Accused:       And these false reports from Sir Charles Gardner, under the insurance urgings and insurance corruption, they been generating every single agency in the state, psychiatric agency, were forced on me whether I like it or not when I’m there for my foot. An order for them to generate (indistinict) report, so I would not be able to proceed. That is where it’s all at.
Her Honour:   All right. All right. Well - - -
Accused:       And I need to bring these people before the court. I told – I agree the chief psychiatrist yesterday a notice of my intention to sue them all.
Her Honour:    Okay. All right. Well, look., let Dr Brett make those calls and we will see you soon. Okay. Thank you very much. Mt Watts, you will just have to make a seat – take a seat in the back of the court. Thank you.
Accused:       I haven’t finished (indistinct)
Her Honour:   I will see you again soon, but we have got some other matters to go on with and I will see you soon. Okay.
Accused:       Thank you.
Her Honour:   Thanks, Mr Said.
(Short adjournment)
JSO:    Yes, your Honour.    Said.   Michael Said.
Her Honour:   You can just take a seat, Mr Said. Mr Watts is going to come forward now, and Dr Brett has made a telephone call to Franklin Centre, and perhaps he could update us what is going on. Thank you, Dr Brett.
Brett, Dr:       Yes, I’ve Dr Spininano. Dr Spininano thinks that Mr Said is not fit to stand trial, and he does not believe that he will be fit within six months. He does not believe that he needs to remain in the Franklin Centre, and if the matters are dealt with, that they would organise for community follow up for Mr Said through a mobile, assertive outreach team. At this stage, on my understanding, that he is not agreeing to take medication, and Dr Spininano doesn’t believe that he fulfils the criteria of involuntary (indistinct) under the Mental Health Act.
Her Honour:   Okay. So Mr Watts, in those circumstances, what happens in this court usually is that often there are a negotiations between the prosecution and the defence, and the charges are withdrawn so that – because from what Dr Brett has said to us today Mr Said is currently not fit to stand trial. In Mr Spininano’s view, he won’t be fit to stand trial within six months.
Now, there can be a determination made under the Criminal Law Mentally Impaired Accused Act, but that will take time, and, you know, involves a determination by myself. Okay. But in our court, what usually goes on in these sort of circumstances is that the prosecution is withdrawn. Now, what do you want to do?
Brett, Dr:       Well, I did get on the phone and tried to get some more instructions on this. And I was ask to seek an adjournment for a couple of weeks, just so we can actually review the report, and I’ve only had the chance to briefly look over this morning.
Her Honour:   Certainly.
Brett, Dr:       And obviously - - -
Her Honour:   Well, I think in those sort of situation – should we just adjourn it for mention only back here? Because what the state of that - - -
Collins, Ms:    The only issue is that Mr - - -
Her Honour:   Look, I wasn’t going to set bail, but - - -
Collins, Ms:    These matters are fine only offences, and there’s no other option but for unconditional release under the Criminal Law Mentally Impaired Accused. So it’s a position where - - -
Her Honour:   I have to go through - - -
Collins, Ms:    Certainly, I understand your Honour may not be able to do that today.
Her Honour:   I know – you know – you know – certainly, if that’s the way we have to go, then we will have to go down that path, but I’m just concerned that Mr Said doesn’t need to go back to Franklin Centre and so he can - - -
Collins, Ms:    But he will then be in Hakea prison.
Her Honour:   No, but – you know – in relation to bail, given the circumstances, I wasn’t going to set bail. So I was going to adjourn the matters. I don’t think there will be a return to prison order I would think.
Collins, Ms:    No. Shouldn’t be - - -
Her Honour:   You said that there might be an issue of that.
Collins, Ms:    Well, he is refusing to sign this – any bail papers.
Her Honour:   No, but I wasn’t going to set bail. I was just going to adjourn the matters and, you know, just adjourn them for mention only, and then Mr Watts may come back. And then it’s a matter for Mr Said, if he wants come back and see me. In any event, one way or the other, the matter will be dealt with on the next occasion.
Collins Ms:     Is your Honour saying that you would put a notice in relation to Mr Said? I see.
Her Honour:   Given the circumstances that Mr Said doesn’t need to go back to Franklin Centre, I really think, given what we have found out today – that Mr Said won’t sign is bail papers and that’s why he has been brought up today – in my view, in all the circumstances, I wasn’t proposing to set bail today.
Prosecutor:    (indistinct)   I make a finding on that fact as well and the court (indistinct) initially set bail.
Her Honour:   I think that was probably to – an order for Mr Said to be seen by the psychiatrist. And that has happened now. So, Doctor Brett, I hope that your comments were transcribed. You were quite close to the microphone, because I can call for a transcript of today.
Brett, Dr:       I’m happy to ask Dr Spininano just to - - -
Her Honour:   Put that in writing.
Brett, Dr:       - - - add some paragraphs in - in – in a report for – so the court
Her Honour:   That would be – that would be - - -
Brett, Dr:       - - - would have that in two weeks’ time.
Her Honour:   Yes, certainly, if she could – if Dr Spininano (indistinct) could add two paragraphs to the report as to what you have told us today - - -
Brett, Dr:       Yes.
Her Honour:   That would certainly assist you, wouldn’t it, Mr Watts?
Prosecutor:    Yes. Thank you (indistinct) obviously get a copy of the report (indistinct) court or?
Her Honour:   Well, what I could do is adjourn it for mention only, and then I will get the report and pass it to you.
Brett, Dr:       I’m sure they will be able to do that, certainly by the end of week, probably by the end of the day.
Her Honour: Yes. Okay. Well, by the end of the week, yes.
Accused:       I would like to object to that, your worship.
Her Honour:   Why is that, Mr Said?
Accused:       Because – first of all, there’s nothing psychologically wrong with me at all.
Her Honour:   Okay.
Accused:       Now, the insurance putting millions of dollars in order in order to force that on me is unacceptable for the health department not to pay damages is unacceptable. For the insurance to be allowed to run away with my money for so long is not acceptable. For them to shun me away from the community, and force me on the beach and tell me when I got on the beach that now they got me on the beach to keep heading west. Not to stop there and not to forget to take my son with me. And that whey they telling me that – and these are the people are ones who are generating these reports. Now - - -
Her Honour:   Okay.
Accused:       - - - if you are telling me that you are going to prevent me from being able to (indistinct) charge these people, then you are taking away my rights to defend myself.
Her Honour:   Okay. Well, I’m not – I’m not saying anything about what you may do.
Accused:       Well, that’s what the – what the Dr Spininano has just said. They could adjourn them there.
Her Honour:   No, what - -what - - -
Accused:       And for that to happen is crimes against humanity, and that’s why I’ve been complaining for a long time. I have told the - - -
Her Honour:   Mr Said, you don’t want to go back to Franklin, do you?
Accused:       No, I don’t.
Her Honour:   No. So that’s what we are trying to stop today.
Accused:        All I’m trying to say is that – that I should be able to free in the community, to be able to clarify these people and - - -
Her Honour:   And – and – and - - -
Accused:       - - - and bring them before a court and show you what they are made of.
Her Honour:   All right. All right. Don’t – please don’t get upset.
Accused:       Yes.
Her Honour:   What we are trying to do is see that you are free in the community today. Okay.
Accused:       Pardon?
Her Honour:   So what I’m trying to – what we are trying to determine - - -
Accused:       Yes, but why tell them you putting me on a string. I don’t want to be – I don’t want to be on a string.
Her Honour:   Why do you think I’m putting you on a string?
Accused:       Well, by putting me that I’m nuts psychiatrically to plead or to conduct my affairs, that’s putting me on a string.
Her Honour:   Okay. All right. Well – okay - - -p
Accused:       That’s just where they want me.
Collins, Ms:    I’ve asked Mr Said previously he might be in a position just to allow me to try to sort the matter out with the prosecution. At the moment, I understand Mr Said has a notice in place, so the matter could be worked out in his absence if he doesn’t attend court. So hopefully he doesn’t view that as being placed on a string.
Her Honour:   You see – what – what – what – Ms Collins is trying to help you. Okay. And what we are trying to do is so you don’t have to go back to Franklin or Hakea today.
Accused:       Your Honour, can I - - -
Her Honour:   You want to be free in the community, don’t you?
Accused:       Yes, but can I - - -
Her Honour:   That’s my number one - - -
Accused:       But can I just - - -
Her Honour:   Number one step.
Accused:       I accept what you say, but please hear me out. What my concern is that I have a course in the proceedings in the Supreme Court - - -
Her Honour:   Do you?
Accused:       - - - since 2007.
Her Honour:   Okay. Well, I don’t know anything about that one.
Accused:       And these people trying to declare me vexatious litigant. And they say I’m vexatious litigant, even the – a lot of people saying that.
Her Honour:   Okay,
Accused:       And the court does declare me vexatious litigant.
Her Honour:   Mr Said, sorry to interrupt you, but we are – what I - - -
Accused:       But when they couldn’t do that, - - -
Her Honour:   Okay. Mr Said - - -
Accused:       - - - they found something else.
Her Honour:   Mr Said, sorry to interrupt, but - - -
Accused:       Please don’t - - -
Her Honour:   The thing is about it is is that we are not the Supreme Court here. Okay.
Accused:       I know that, but - - -
Her Honour:   So whatever you are doing in the Supreme Court is not a matter for me.
Accused:       But I’m trying to say, but if they label like this at the moment, where they are trying to put this label on me, I’m not going to be able to proceed.
Her Honour:   It may be – it may be that the prosecution doesn’t go ahead. It may be that the prosecution is withdrawn. Any what they - - -
Accused:       I need to bring all these people to – they threatening my doctors. Even a magistrate, even a judge, have rang up my doctor - - -
Her Honour:   Mr Said, Mr Said.
Accused:       - - - and forced them.
Her Honour:   I’ve got to get on with some other matters at the moment, - - -
Accused:       I accept that, your worship.
Her Honour:   - - - but what we hoping – what we are hoping to do is just adjourn this mention only. Okay. For how long would you need?
Collins, Ms:    Hopefully Mr Said is able to give me instructions to try to get it dismissed, so
…..
Accused:       Yes, I want it dismissed.
Her Honour:   Okay.
Accused:       I think it shouldn’t have been allowed to be stamped in the first place.
Collins, Ms:    I would hope that - - -
Her Honour:   Yes, thank you. They shouldn’t be allowed to stand by the court – the registrar in the first place.
Her Honour:   Okay. So - - -
Collins, Ms:    Not more than four weeks I would’ve thought.
Her Honour:   Four weeks? Yes. And I think we will keep it here. Okay. Four weeks will take us through to – let us make it a Wednesday, because Tuesdays are a very busy day. 2 October. I’m just going to adjourn it for mention only to 2 October, and then if the report comes in, Mr Watts, if you can just give Ms Collins your details and Madam JSO, then – just how, when the report comes in, you really ought to come back, or can we send – we can’t send it to Mr Watts; he has got to see it in the court room, because it’s a psychiatric report. I know we can’t forward it on. Can you see it on 2 October? You have heard it in - - -
Prosecutor:    Yes, that’s fine, your honour. As I said, we are flexible as well.
Her Honour:   Did you want to come back earlier and just – yes – yes – okay. Okay. All right. So let us adjourn it for mention only on 2 October.
….
Her Honour:   So that means you are going to be free to go.
Accused:       Thank you.
Magistrates Hearing dated 2 October 2013

Mr Said appeared in the Magistrates Court in Perth on 2 October 2013. The presiding Magistrate was Magistrate Stewart.
Relevantly, the court transcript for that hearing (T12 at 126-133) provides as follows:
Beckett, Mr:   Thank you, your Honour. It’s Beckett for the prosecution. We note that on the last occasion the question of fitness was raised understandably. The prosecution hasn’t seen a copy of the psychiatric report. We haven’t seen a transcript of what happened last time. We note there’s obviously a mental impairment raised in there. The prosecution – or the Town – does want to proceed with the charges. The Town doesn’t necessarily at this stage accept the position that the accused is not fit to stand trial and won’t be fit to stand trial.
Her Honour:   Well, Mr Beckett, were you here last time or was it some other - - -
Beckett, Mr:   No, it was someone else from our office. I understand the psychiatrist - - -
Her Honour:   Well, that’s right and it’s certainly – the psychiatrist certainly gave oral evidence in court - -
Beckett, Mr:   Yes.
Her Honour:   - - - so I don’t think you’re a psychiatrist, are you, Mr Beckett?
Beckett, Mr:   No, I’m not, your Honour, but - - -
Her Honour:   Okay. Well, there we go. So then we’ve got to go for a hearing about fitness then don’t we?
Beckett, Mr:   That’s exactly what I’m getting at, your Honour. It’s a difficult situation. That’s the point I was leading towards is ultimately as the court decision – I accept the psychiatrist has made those comments – but ultimately it’s the court’s decision as to fitness and so the Town wishes to have the opportunity to have that determined by calling its own evidence and going through cross-examination also
Her Honour:   Sorry, you’re going to be calling your own evidence as to fitness.
Beckett, Mr:   Well, we would like the opportunity to do so, yes. We understand that won’t be today.
Hr Honour:     So who are you – well, that won’t be today.
Beckett, Mr:   No, we accept that, your Honour.
Her Honour:   All right. How many witnesses are you going to be calling, Mr Beckett?
Beckett, Mr:   One. Just one witness as to the conversations we’ve had with the accused in the past. Your Honour, I can understand your scepticism as to the Town’s approach but if I can just explain the backdrop to why we are here. These are not one off charges that the Town is zealously pursuing. The accused has allegedly committed these offences. He’s gone straight back to where he was as he promised he would on the last occasion. This is an ongoing state of affairs.
The Town’s position – and it’s a difficult one – the Town doesn’t come here happily – but the Town’s position is if the accused is discharged then this state of affairs carries on unabated and the accused remains immune from prosecution. The Town doesn’t have arrest powers like the police does.   The Town has tried to engage police to assist and they have declined to do so to date and so it’s a very difficult position and the Town doesn’t want to go to a hearing on fitness but the alternative for the Town is that the situation just carries on indefinitely. The accused remains doing what he’s doing fully aware of what he’s doing and the Town is required to sit on its hands.
Her Honour:   In the Town’s opinion.
Beckett, Mr:   Sorry, yes. No, okay, I accept that your Honour, yes.
Her Honour:   Yes.
Beckett, Mr:   Well, that’s the Town’s position in any case and ultimately if the court makes the final finding that the accused is not fit to stand trial and the charges have to be dismissed and we understand the effect of the legislation there then the Town will obviously have to accept that. I mean, the Town wants the matter to proceed as far as it can because unfortunately the Town hasn’t got any other way of dealing with. The accused will otherwise remain immune from prosecution and continue to offend. The accused won’t engage with mental health services which would be the best outcome. It would be a much better outcome than having the Town prosecute him for all parties.
Her Honour:   Okay.
Accused:       Your Worship, the Town has no power of prosecution power and they tried – they thought in the heat of their enthusiasm, - in 1988 they failed miserably in the referendum and - - -
Her Honour:   Okay. Mr Said, we can’t have the hearing today, all right?
Accused:       What I’m trying to say – I’m still trying to find out the – you – this court has no jurisdiction over a land that is Commonwealth land. It’s not state land and it’s not local government land. The beach belong as reserve 16 – they call it reserve 16 under 21 I think it is. 16 9 21 reserve. It’s West Coast Highway. It’s a six kilometre stretch of coast. Now, when they say I’ve done something and they don’t give any particulars.
Accused:       All right. Mr Said, I don’t want to have debate with – Ms Collins, before you leave, if my memory serves me correctly when Mr Said was here back on the 26^th of – on the 3^rd of September Dr Brett got up in court and had been in correspondence with Frankland Centre where Mr Said had come from Frankland Centre and then there was going to be a report.
Collins, Ms:    Yes.
Her Honour:   Now, has that arrived?
Collins, Ms:    I have actually received the transcript. Unfortunately, I didn’t bring it down to court today. Mr Said had given me previous notice that he didn’t want me to appear today.
Her Honour:   Okay
Collins, Ms:    So unfortunately I thought that that transcript would have been provided to the Town but unfortunately I did speak to my friend this morning that I had received the transcript but I didn’t have it with me at the court today.
Her Honour:   Okay, and I haven’t got it in front of me either, Mr Beckett, so I can’t refer it to you so what we need to get is the transcript of the last occasion and, Mr Said, you were here but you’re quite entitled to read it when it comes, Mr Said.
Accused:       They’re not allowing me to have anything to read there. What I’m saying is that we appeared – first appearance – appear on the 7^th of June when I appeared before Mr Malone - - -
Her Honour:   Yes?
Accused:       - - - and he agreed that this matter should be dismissed and he wanted to put the application to dismiss it.
Her Honour:   Okay?
Accused:       He then says if you’re not going to – wants a plea, either guilty or not guilty – I said, “Well, I cannot enter a plea because there is nothing there to plead for.”
Her Honour:    All right. Now, Mr Said, just hold on a minute. What we’ve got to do is get the transcript of the 3^rd of September so that you can read it, all right, and Mr Beckett can read it.
Accused:       I need the whole file. What - - -
Her Honour:   Well, I haven’t got a file but I can get you the transcript, all right?
Collins, Ms:    Your Honour, I could call my office and ask for it to be faxed down.
Your Honour: No, no. It can’t go on today. Today is not the day that we can go on and Mr Beckett has got to get instructions after reading the transcript and you’ve got to have an opportunity – you were here that day so you recall what went on but remember you were in the dock - - -
Accused:       I accept that but I wasn’t here on the 26^th. I was on video from Frankland on the 26^th and then there was nothing happening and they told me after - - -
Her Honour:   On the 26^th it wasn’t before me either. All right?
Accused:       I don’t know. That’s what I’ve been asking.
Her Honour:   The first time I saw you was - - -
Accused:       What happened then?
Her Honour:   Okay. On the 26^th?
Accused:       Yes.
Her Honour:   It was adjourned to the 3rd of September to this court – to the start court.
Accused:       Yes, but why was I on video but nothing happening.
Her Honour:   Well, I don’t know that because I wasn’t the magistrate either.
Accused:       Always a magistrate.
Her Honour:   The first time that I met you was on the 3rd of September.
Accused:       But who was the magistrate here?
Her Honour:   I can’t – I don’t know the person’s writing. All right. But it was just adjourned. Nothing went on on that date. It just got adjourned into this court.
Accused:       Yes.
Her Honour:   Okay? So there was no hearing or determination.
Accused:       Well, I’ve been asking about that and nobody gives me any clue what happened and I need to know.
Her Honour:   Okay. Well, what happened on that day - - -
Accused:       I need to be informed.
Her Honour:   They did say you were here on that day.
Accused:       Yes, I was here on the 3^rd. I wasn’t here. I was on video from Frankland and there was nothing happening - - -
Her Honour:   Okay.
Accused:       - - - and they told me the video link wasn’t connecting and had problem connecting it and I don’t believe that. I had some problem believing that.
Her Honour:   Okay. Well, what happened is it got adjourned into this court – the start court – on the 3^rd of September and on that day you came up in person, remember? You were in the dock that day.
Accused:       Yes. I came only on the 3^rd,
Her Honour:   Okay. Yes, and then – and so - - -
Accused:        On the 14^th of August I appeared before Mr O’Malley and he – I showed him that he had no jurisdiction and I showed him that he had to – I have not pleaded either guilty or not guilty. Mr O’Malley – before him – Mr Malone – before him – had written a plea of not guilty. I said, “I haven’t entered a plea,“ and I disputed that - - -
Her Honour:   All right. Well, Okay. Let’s get the transcript from the 3^rd of September.
Accused:       And then he couldn’t proceed with the trial as he was thinking that he was going to proceed with it.
Your Honour: Now, what we’re going to do is – I will tell you what we’re going to do today. All right? Mr Beckett and you haven’t seen the transcript from the 3^rd of September and neither have I so I’m going to call for that transcript so you can read it.
Accused:       Yes.
Her Honour:   All right? I will adjourn it for mention only to a date and then if we need to set the trial date we will determinate the trial date on the next occasion - - -
Accused:        But I went to the - - -
Her Honour:   All right? But in the mean time we can all read the transcript.
Accused:       Yes, but I went to the Federal Court. I still think this court has no jurisdiction because I gave notice on the first day that I had given notice in 2011 to the council that they will be sued for several hundred million dollars of damages they have been causing me and - - -
Her Honour:   Okay. Well, that’s for another place, not here.
Accused:       - - - and I did that on the transcript. That should be on the transcript.
Her Honour:   All right. It usually takes two weeks for the - - -
Accused:       And that’s where I have to take it – before the Federal Court. I spoke with the Federal Court the other day. They gave me all the documents I need to prepare.
Her Honour:   All right. You go off to the Federal Court. That’s not here.
Accused:       I will be doing that but I need to remove this case over to the Federal Court.
Her Honour:   All right. Well, two weeks we should get the transcript. If we call for a copy of the transcript today we should get it in two weeks’ time but we’re not here on the 16^th of October. So how about we set it for mention only on perhaps Friday the 18^th of October? Does that suit you?
Accused:       Yes, Friday (indistinct) for mention.
Beckett, Mr:   Sorry your Honour, I will be in another court on Friday. Is the following week available to the court?
Her Honour:   Yes, the following week. What about Monday the – what about Wednesday the 23^rd of October.
Beckett, Mr:   That’s fine for us, thank you, your Honour.
Her Honour:   But it’s only for mention only.
Beckett, Mr:   No, I understand that that, your Honour. No, No, I understand that. Thank you.
Her Honour:   Not for the – to set the – because once we all read the transcript then we will work out where we’re going to go from there.
…..
Accused:       Your Worship, can I ask you for something?
Her Honour:   23^rd of October? Is that all right for you?
Accused:       Can I ask you to stop them from being – stealing my stuff?
Her Honour:   No. Mr Said, I can only deal with the matters that are front in front of me, okay.
Accused:       I caught two of them the other day. They’re coming to steal it again.
Her Honour:   Okay. I can’t give you legal advice, Mr Said. I’m not allowed to. All right?
Accused:       That’s why I’ve tried to seek a restraining order.
Her Honour:   So if you need some legal advice you’ve got to go and see a lawyer. All right? Okay.
Accused:       Yes. Well, I don’t have the resources to do that otherwise I wouldn’t have been on the beach in the first place.
Her Honour:   Okay. All right. Now, did you come in with your son today, Mr Said.
Accused:       No, no. Why should I come in with my son?
Her Honour:   Okay. I just thought that he was here last time or there was some mention of him.
Accused:       No, he wasn’t. My son wasn’t here.
Her Honour:   Okay. All right. 23^rd of October and we will provide the - - -
Accused:       No. I came from Frankland by security.
Her Honour:   That’s right. I saw you first time in the docks when I first met you. Okay. Thanks, Mr Beckett.
Accused:       Thank you very much.
Beckett, Mr:   Thank you.
Her Honour:   That tells you the date. The 23^rd . All right.
Accused:       Okay. I will have a look at that.
Her Honour:   Okay.
Magistrates Hearing dated 23 October 2013
Mr Said appeared in the Magistrates Court in Perth on 23 October 2013. The presiding Magistrate was Magistrate Stewart.
Relevantly, the court transcript for that hearing (T12 at 136-141) provides as follows:
Her Honour:   Mr Said, take a seat. Thank you very much.
Beckett, Mr:   Thank you, your Honour. Beckett for the prosecution. We’ve just been provided with a copy of a recent psychiatric report. I’ve taken instructions from the Town. The Town’s instructed us not to proceed with the charges.
Her Honour:   So, Mr Said, that means that the charges will be dismissed for want of prosecution.
Said, Mr:        Thank you, your Honour. I believe that the charges should proceed today to the full conclusion because I need to counter charge them for criminal charges against me of the federal crimes act – the Commonwealth crimes Act (indistinct) section 75 (indistinct) Commonwealth officers and (indistinct) as a prosecutor when they have no right to be in this court in the first place. For me, it’s – these charges will stick. I have no applied for legal aid. I was granted admission to apply for this, and they will be going to a higher court.
Her Honour:   But the thing about it is, is that I’ve not got an obligation under section 25 of the Criminal Procedure Act. And that’s the section that I have to look at. And so what Mr Beckett has said is that they’re discontinuing the charges against you today. And then - - -
Her Honour:   - - - he’s discontinuing the charge. Just let me finish. Let me finish, and then I’ll let you have a word. So he said that he’s discontinuing the charges. And remember when Dr Brett said that Dr Spininano said that you’re not fit to stand trial and you – he does not believe you’ll be fit to stand trial within six months. Remember he said that? And you can read that, because I did promise that so you can have a look.
Said, Mr:        I haven’t – and I think I’ll challenge that because - - -
Her Honour: I know. Well, the thing about it is is that I’ve now got an expert report to that effect. And so in my view, I have to follow the law, which is this Criminal Procedure Act. And then - - -
Said, Mr:        Under which law is that?
Her Honour:   This is the Criminal Procedure Act 2004, section 25. All right. And if a prosecutioner of charge is discontinued, the court must dismiss the charge for want of prosecution. So that’s what I’m going to do today; all right? Because that - - -
Said, Mr:        (indistinct) fraud (indistinct)
Her Honour: That’s – yes. The Criminal Procedure Act 2004. That’s the act that I have to apply. And its section - - -
Said, Mr:        Well what does it say?
Her Honour:   Section 25 of the act says:
“If the prosecution of a charge is discontinued - this is under subsection 3 -   the court must dismiss the charge for want of prosecution.”
…..
Said, Mr:        (indistinct) costs with this proceeding. Can you make an order for costs?
Her Honour:   No, because now the matters are finish; all right?
Said, Mr:        Yea, but if they have - - -
Her Honour:   And we’ve never gone to trial.
Said, Mr:        Yes. But I mean, it doesn’t matter if it goes to trial or not. They have cost me a lot of money.
Her Honour:   Okay. Well, I’m not prepared to make that order.
Said, Mr:        Okay.
Her Honour:   All right, thank you.
Letter to the Chief Magistrate dated 12 August 2013
The Tribunal notes that in a letter to the Chief Magistrate dated 12 August 2013 (T12 at 45), Mr Said objected to the charges being laid against him by the Town of Cambridge as follows:
I need to file and serve the following motions to strike out Mr James Buckley’s charges against me:
1.Motion to dismiss on the Grounds this Honourable Court lacks Jurisdiction to hear the charges brought before it by Mr Jason Buckley has been allowed to be filed by the Courts Manager/Supervisor (“Kate”)
2.Motion to dismiss on the grounds that Mr Tim Beckett’s Personal Jurisdiction of the Prosecuting Lawyer is null and void as he has no standing whatsoever in any of the conduct of these proceedings let alone being allowed to prosecute
3.Motion to dismiss on the Ground neither the town of Cambridge nor its CEO Mr Jason Buckley have any legal rights to purport to being a “Prosecuting Authority” under the current law and the constitution of 1900 which is still in force, and without them producing the authority of the Queen and/or her representative by letter patent, which needs to be made available if it exist at all, in the absent of such lawful authority to this effect, Mr Jason Buckley is in fact acting treasonous and making false claims by impersonating himself with the authority he does not have and as such is liable to be prosecuted and imprisoned for his gross violations of the law
4.A Motion to Dismiss on the grounds Mr Jason Buckley is in full knowledge of the facts and purports to ignore them and playing himself dumb
5.A Motion to Dismiss on the Grounds that there is no cause or causes of action identifiable by the documents filed and served on me (The Respondent)
6.A Motion to dismiss on the grounds these proceedings been hatched up in secret and in collusion with numerous co-conspirators who need to be joined to these proceeding if they are still in effect, or else be prosecuted separately by programming orders in due course by the appropriate authority at the appropriate forum
7.Numerous other flurry of motions to stop these people from acting criminally any more which will be properly formulated by proper interlocutory and programming orders if these proceedings still survive, otherwise orders will be sought to program the filing of such necessary documents by a properly convened Criminal Court with appropriate jurisdiction
Documentation Relevant to Mr Said’s Imprisonment in Hakea
The court transcripts (as above) reveal that Mr Said was remanded in Hakea Prison because he refused to sign the bail papers Magistrate Malley required him to sign.
In that regard, the Tribunal notes that the bail papers (Exhibit R5), dated 14 August 2013, read:
Bail details (if granted) – Conditions: Bail $1000; To attend upon such psychiatrist as directed by CJS for assessment.
The evidence (Exhibit R5) also shows that the Bail Undertaking was not signed by Mr Said.
Medical Evidence – the Frankland Centre
This matter required the analysis of a considerable amount of medical evidence, some of which is referred to and quoted below. Pursuant to section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal can restrict the publication of the names of parties to proceedings and allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149. Mr Said was asked by Tribunal staff at the Tribunal’s request if he wished to apply to have his name suppressed. He declined to do so.

Relevantly, the Tribunal was presented with evidence that detailed the medical treatment Mr Said received while he was a patient in the Frankland Centre between 21 August 2013 and 2 September 2013 (Exhibit R5).
This material was summarised as follows by the Department in Supplementary Submissions to the Tribunal dated 2 July 2015 (at paragraph 6):
On 19 August 2013, Mr Said was referred to the Frankland Centre for assessment and on 22 August 2013 Mr Said was admitted as an involuntary patient pursuant to section 26 of the Mental Health Act 1996 (WA) The evidence shows that the referral was made as a result of Mr Said undertaking a hunger strike and refusing to take his medication for his physical conditions. (See Exhibit R5, including document headed “Referral for examination by a psychiatrist” dated 19 August 2013 and document headed “involuntary patient order” dated 22 August 2013).
On 22 August 2013, a client management plan was made by staff at the Frankland Centre. (See R5, including document headed “Forensic Services Adult” dated 22 August 2013).The client management plan included the following actions:
ASSESS AND STABILIZE MENTAL STATE
PATIENT
1)    Michael will participate in treatment planning with the treating team and be involved in the development of their client management plan.
NURSING
1)    Nursing Staff will monitor, record and report mental state, mood and cognitive functioning. They will provide appropriate education, counselling and support to assist Michael manage the symptoms of their mental illness.
2)    Nursing staff will administer medication as prescribed by the medical staff, monitoring, recording and reporting any side effects. They will provide relevant education on pharmacological treatment.
MEDICAL
1)    The Medical staff will complete a thorough Forensic Mental State Assessment on admission and continue to monitor mental state, mood and cognitive functioning throughout hospitalisation.
2)    The Medical staff will prescribe medication to assist in the treatment of Michael’s mental illness. They will monitor for efficacy, side effects and adjust as necessary.
SOCIAL WORK
1)    The social worker will liaise with families and supportive contacts to build a case history.
The medical records from the Frankland Centre (Exhibit R5) also reveal the following:

Medication

Dosage

Reason(s)

Special Instructions

Amlodipine maleate Tablets 10 mg

1 in the morning

Hypertension

Ezetimibe Tablets 10 mg

1 in the evening

Diabetes Mellitus

Humalog Injection 100 units / mL

16 units in the morning

16 units in the evening

Diabetes Mellitus

Lacri-Lube Eye Ointment

1 at bedtime

Lantus Injection 100 units / mL

34 units in the evening

Diabetes Mellitus

Liquifilm Eye Drops 1.4 %

1 drop with breakfast

1 drop with lunch

1 drop with dinner

Metformin hydrochloride Tablets 1000 mg

1 in the morning

1 in the evening

Diabetes Mellitus

Pioglitazone hydrochloride Tablets 45 mg

1 in the morning

Diabetes Mellitus

Ramipril Capsules 10 mg

1 in the morning

Hypertension

Risperidone Tablets 1 mg

1 at bedtime

Paranoid Schizophrenia

Patient refused treatment

Rosuvastatin calcium Tablets 10 mg

1 in the evening

ANALYSIS
Was Mr Said held in “gaol” during the period 15 August 2013 to 20 August 2013

Mr Said asserted before the Tribunal that he was not lawfully detained as required by section 23(5)(a) of the Act. He argued that because his incarceration was unlawful his DSP should not have been suspended.
The Tribunal disagrees.
As evidenced by the quote provided at paragraph 30 above, Mr Said was asked to provide transcripts to support his assertion that he was unlawfully incarcerated. No evidence was presented to the Tribunal.
Having reviewed the Magistrates Court transcripts and the bail documents relevant to these proceedings, the Tribunal finds that there is nothing in the transcripts to support a finding that Mr Said’s incarceration was unlawful.
In that regard, reference is had to the court transcript of 26 August 2013 wherein Magistrate Malley acknowledged that it was not his usual practice to impose bail in relation to the offences with which Mr Said had been charged. Magistrate Malley gave the following explanation of his decision to impose bail (T12 at 55):
…[N]ormally I wouldn’t, for these sorts of matters, obviously, impose bail, but the problem was for Mr Said it was apparent to me – I think I’ve had dealings with him before. In any event, on the day it was apparent to me that he had psychiatric issues and, realistically, I needed an assessment to be done.
…
And it hadn’t been done up to this point of time, and the only way to get it done was to at least have a requirement that he undertake that test. It was to go through somebody who was already treating him. Mr Lazhar, I think it was, down at Fremantle. And as I understand it, he wouldn’t sign his bail papers.
The Department noted that when the matter came before Magistrate Stewart on 3 September 2013, Her Honour declined to impose further bail. Her Honour also queried why bail had been imposed in the first place and seems to suggest that this is not how she would have dealt with Mr Said. Her Honour said “I’m very concerned that bail was set”, implying that this is not something that she herself would have done. There is nothing in Her Honour’s words, however, to suggest that Magistrate Malley had acted without legal basis.
The Department contended before the Tribunal that any decision to impose bail is discretionary in nature. Although the decision to impose bail in relation to offences that do not carry a custodial penalty might be described as “unusual”, that does not make it unlawful.
The Tribunal finds that there is no provision in the Bail Act 1982 (WA) (the “Bail Act”) or the Bail Regulations 1988 (WA) that precludes bail being imposed for offences punishable only by way of pecuniary penalty. Schedule 1, Part D Clause 3(a) of the Bail Act clearly anticipates that a condition of bail may be that a person obtains an assessment in relation to their mental health, as appears to have happened in Mr Said’s case.
The relevant sections of the Bail Act are as follows:
28.      Bail undertaking, when required and nature of
(1)       A person shall not be released on bail for an appearance in court unless he has entered into a bail undertaking for that appearance or is deemed to have done so under section 31(3).
(2)       A bail undertaking is an undertaking in writing by an accused in the prescribed form —
(a)that he will appear at a time and place specified, or deemed by section 31(3) to be specified, in the undertaking; and
(b)that if the accused fails to appear at that time and place the accused will, as soon as is practicable, appear at the court at which the accused was required to appear, when that court is sitting; and
(c)that he will comply with such conditions as may be imposed on him under clause 2 of Part D of Schedule 1; and
(d)that he will comply with any home detention condition which may be imposed as a condition on a grant of bail to him pursuant to clause 3 of Part D of Schedule 1,
and containing any agreement as to forfeiture of money by the accused which may be required pursuant to clause 1 of that Part.
Part D — Conditions which may be imposed on a grant of bail
Clause 2
(2b)     Where a judicial officer is of the opinion that the accused should while on bail —
(a)       be counselled for a behavioural problem; or
(b)attend a course or programme that may assist with such a problem,
the judicial officer may under subclause (1) impose a condition for that purpose that requires the accused to —
(c)       attend a prescribed person to be counselled; or
(d)       attend a prescribed course or programme,
that is specified by the judicial officer in the condition.
(3)       Where a judicial officer who grants bail to an accused is of the opinion that the accused’s physical condition ought to be examined the officer may, under subclause (1), impose any condition which the officer considers desirable for the purpose of ensuring that the accused is examined by a medical practitioner.
(3a)     Where a judicial officer who grants bail to an accused is of the opinion that the accused’s mental condition ought to be examined the officer may, under subclause (1), impose any condition which the officer considers desirable for the purpose of ensuring that the accused’s mental condition is examined including a condition —
(a)that the accused be examined by a medical practitioner or an authorised mental health practitioner (as defined in the Mental Health Act 1996) for the purpose of deciding whether to make a referral under section 29 of that Act;
(b)that the accused be admitted to an authorised hospital (as defined in the Mental Health Act 1996);
(c)       that the accused be examined by a psychiatrist.
Once the decision to impose bail was made, pursuant to section 28 of the Bail Act, Mr Said could not be released until such time as he signed a bail undertaking.
Accordingly, the Tribunal finds that the Magistrates Court acted according to law when dealing with Mr Said.
Further, the Tribunal finds that the evidence does not demonstrate any irregularity in relation to Mr Said’s incarceration in Hakea that would make his term of incarceration illegal. The Tribunal finds that Mr Said was held and detained lawfully and, when concerns were raised in relation to his health, he was lawfully transferred to the Frankland Centre by prison officials for assessment and care.
The Department drew to the Tribunal’s attention those court transcripts relating to the criminal prosecution that appear to suggest that Mr Said did not recognise the jurisdiction of the Court to hear the charges against him or the authority of the Town of Cambridge to prosecute him.
The Department contended that there was no evidence before the Tribunal to establish any invalidity in the regulations under which Mr Said was charged, the power of the Shire of Cambridge to prosecute him or the jurisdiction of the Court to hear the charges against him.
Based on the evidence before it, the Tribunal finds that the Court did have jurisdiction to hear the charges against Mr Said. Further, the Town of Cambridge was lawfully entitled to prosecute Mr Said. There is no evidence to suggest that the regulations under which Mr Said was charged were invalid.
Pursuant to section 1158 of the Social Security Act, Mr Said was not entitled to receive DSP for any day on which he was in gaol. Consequently, the decision to suspend Mr Said’s DSP in the period during which Mr Said was in custody at Hakea Prison was correct.
When Mr Said was taken into custody in Hakea Prison, he was undergoing a period of custody pending trial for the 4 offences that were the subject of the criminal prosecution. The Tribunal finds that there were no legal irregularities in relation to his incarceration. Mr Said was therefore “in gaol” within the meaning of section 23(5) of the Act.
During the period of his incarceration, DSP was not payable to him by reason of section 1158 of the Act.
Pursuant to section 80 of the Social Security (Administration Act) 1999, once the Department was satisfied that DSP was not payable to Mr Said, the Department was required to suspend Mr Said’s DSP. It did so and, accordingly, acted according to law.
Was Mr Said in “psychiatric confinement” and “undertaking a course of rehabilitation” while in the Frankland Centre?
It is not disputed that while in the Frankland centre Mr Said was, pursuant to sections 29(8)(a) and 1158(b) of the Act, undergoing psychiatric confinement because he had been charged with four offences. The Frankland Centre is a maximum-secured psychiatric hospital on the Graylands Hospital campus which is operated by the State Forensic Mental Health Service. The 30 bed facility assesses, treats, rehabilitates and resocialises mentally ill patients, most of whom have been referred from the courts or prison system.
The relevant question of fact for the Tribunal is whether, while in the Frankland Centre, Mr Said was undertaking a planned series of activities to train or retrain him, with such activities directed to improving his physical, mental or social functioning (as per Franks at [50]). If the Tribunal finds that Mr Said was undertaking rehabilitation activities only on an ad-hoc basis, or if he was not undertaking planned rehabilitation activities, then Mr Said cannot be said to have undertaken a course of rehabilitation for the purposes of section 23(9) of the Act.
If it is found that Mr Said was undertaking a course of rehabilitation, then any DSP payments withheld during the time he was in the Frankland Centre.
Having reviewed the evidence before it, the Tribunal finds that there is insufficient evidence to satisfy the Tribunal that Mr Said was undertaking a course of rehabilitation while he was an involuntary patient at the Frankland Centre.
As explained by the Department to the Tribunal, to amount to a course of rehabilitation, the type of activities engaged in while in a psychiatric institution must go beyond mere treatment of a condition and must be directed towards improving and developing Mr Said’s life skills and ability to function in society. This is not inconsistent with the decision in Franks. To the extent that Franks at [50] suggests that rehabilitation activities can comprise medical treatment, the Tribunal finds that this needs to be read with the dictionary definition of ‘rehabilitation’ at [47] of Franks, including the purpose of training or retraining a person. The Tribunal also finds that Mr Said would need to comply with the medical treatment suggested in order for the Tribunal to find that he undertook a course of rehabilitation
The evidence shows that the main activities referred to in Mr Said’s client management plan include medication, counselling, education, monitoring and reporting of Mr Said’s condition and assessing Mr Said’s condition (Exhibit R5).
In Supplementary Submissions to the Tribunal, the Department contended (at paragraph 6) that some, but not all, of these activities may amount to rehabilitation activities. However, referring in a client management plan to activities that might be considered rehabilitation activities is not sufficient to show that a person is actually undertaking a course of rehabilitation. There must be evidence to show that the person has in fact undertaken the planned rehabilitation activities.
The Tribunal finds that the evidence does not demonstrate that Mr Said actively engaged in any course of treatment designed for him.
The Tribunal finds that while “education” can be considered a rehabilitation activity, the only evidence that Mr Said actually received education consists of a single entry on the integrated process notes to suggest that on one occasion a dietician provided some sort of education. The Tribunal finds that is insufficient to amount to a “course of rehabilitation”.
Further, while “medication” and “counselling”, when combined with other rehabilitation activities, can be seen to form part of a course of rehabilitation, on their own, these activities do not amount to a course of rehabilitation.
There is no evidence before the Tribunal to suggest that Mr Said received any counselling while in the Frankland Centre.
Further, the evidence demonstrates that Mr Said refused his prescribed medication for his physical conditions until approximately 28 August 2013, and refused the medication prescribed for a mental health condition throughout the entirety of his time in the Frankland Centre (that being Risperidone).
Hence, overall, Mr Said did not comply with what are central aspects of his client management plan.
The Tribunal finds that that any activities that are simply based on monitoring, reporting and assessment do not amount to rehabilitation activities. Mr Said refused to participate in the treatment program designed for him. He refused any sort of substantive counselling or education and refused medication prescribed to address what the hospital believed to be a psychiatric condition.
In the circumstances, it cannot be found on the evidence that for the period 21 August 2013 to 2 September 2013, while a patient at the Frankland Centre, Mr Said was ‘undergoing a course of psychiatric rehabilitation’ in a psychiatric institution as per section 23(9) of the Act. Rather, Mr Said’s time in the Frankland Centre amounts to psychiatric confinement because he was charged with 4 offences by the Town of Cambridge. As such, his DSP payments could be withheld during that period of psychiatric confinement.
DECISION
The Tribunal finds as follows:
·During the period 15 August 2013 to 20 August 2013, while Mr Said was in Hakea Prison pending trial for an offence, Mr Said was “in gaol” within the meaning of section 23(5) of the Act.
·Hence, pursuant to section 1158(a) of the Act, DSP was not payable to Mr Said during this period.
·During the period 21 August 2013 to 2 September 2013, while in the Frankland Centre, Mr Said was undergoing psychiatric confinement because he was charged with an offence.
·While in the Frankland Centre, Mr Said was not undergoing a of course of rehabilitation as per section 23(1) of the Act.
·Hence, pursuant to section 1158(b) of the Act, DSP was not payable to Mr Said during this period.
In light of the above, the decision under review is affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall
................[sgd]...............................................
Associate S Nguyen
Dated 15 July 2015

Date of hearing 12 March 2015

Date final submissions received 10 July 2015

Applicant In person (unrepresented)

Representative of the Respondent Allyson Ladhams

Solicitor for the Respondent Australian Government Solicitor

[2015] AATA 508

15 July 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Charge

Remedies

Division	GENERAL DIVISION
File Number	2014/1257
Re	Michael Said
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Christopher Kendall
Date	15 July 2015
Place	Perth

Medication	Dosage	Reason(s)	Special Instructions
Amlodipine maleate Tablets 10 mg	1 in the morning	Hypertension
Ezetimibe Tablets 10 mg	1 in the evening	Diabetes Mellitus
Humalog Injection 100 units / mL	16 units in the morning 16 units in the evening	Diabetes Mellitus
Lacri-Lube Eye Ointment	1 at bedtime
Lantus Injection 100 units / mL	34 units in the evening	Diabetes Mellitus
Liquifilm Eye Drops 1.4 %	1 drop with breakfast 1 drop with lunch 1 drop with dinner
Metformin hydrochloride Tablets 1000 mg	1 in the morning 1 in the evening	Diabetes Mellitus
Pioglitazone hydrochloride Tablets 45 mg	1 in the morning	Diabetes Mellitus
Ramipril Capsules 10 mg	1 in the morning	Hypertension
Risperidone Tablets 1 mg	1 at bedtime	Paranoid Schizophrenia	Patient refused treatment
Rosuvastatin calcium Tablets 10 mg	1 in the evening

Date of hearing	12 March 2015
Date final submissions received	10 July 2015
Applicant	In person (unrepresented)
Representative of the Respondent	Allyson Ladhams
Solicitor for the Respondent	Australian Government Solicitor