TD v State of NSW

[2010] NSWSC 368

CITATION:	TD v STATE OF NSW [2010] NSWSC 368
HEARING DATE(S):	Monday 15 March 2010
JUDGMENT DATE :	30 April 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Subject to short minutes of order, there is to be an order that the question of liability based on the plaintiff's pleaded cause of action in wrongful imprisonment is determined in favour of the plaintiff against the defendant.
CATCHWORDS:	TORT – WRONGFUL IMPRISONMENT – mentally ill person dealt with by way of a special hearing under s.19 of the Mental Health (Criminal Procedure) Act 1990 – a “limiting term” nominated under s.23 of the Act – whether the limiting term deprived the plaintiff of her right to liberty – s.24 order for plaintiff’s custody an interim order – order made by District Court under s.27 for the plaintiff’s detention “in a hospital” – “hospital” had the meaning prescribed by s.3 of the Mental Health (Criminal Procedure) Act 1990 and s.208 of the Mental Health Act 1990 – plaintiff not detained in a “hospital” as required by order made under s.27 – detention unlawful and infringed her rights – separate question as to liability of State for wrongful imprisonment answered in the plaintiff’s favour against the State.
LEGISLATION CITED:	Civil Procedure Act 2005 Crimes (Administration of Sentences) Regulation 2001 Criminal Appeal Act 1912 Limitation Act 1969 Mental Health Act 1990 Mental Health Act 2007 Mental Health (Criminal Procedure) Act 1990 Mental Health (Forensic Provisions) Act 1990 Protected Estates Act 1983
CASES CITED:	Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 Cobbett v Grey (1849) 4 Ex 729 Collins v Downs (Roden J, unreported, 14December 1982) Cubillo v Commonwealth of Australia [2000] FCA 1084 Cubillo v Commonwealth of Australia [2001] FCA 1213 Mailes v Director of Public Prosecutions & Mental Health Review Tribunal [2006] NSWSC 267 Regina v Adams (2003) 58 NSWLR 1 Regina v AN [2005] NSWCCA 239 Regina v AN (No 2) (2006) 66 NSWLR 523 Regina v Boyle (Mathews, J, 18 September 1992, unreported) Regina v Deputy-Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 Regina v Governor of Brockhill Prison; ex parte Evans (No 2) [2000] 3 WLR 843 Regina v Tas (District Court, Keleman DCJ, 1 October 1997, unreported) Ruddock v Taylor [2005] HCA 48 Watson v Marshall & Cade (1971) 12 CLR 612
PARTIES:	TD v STATE OF NSW
FILE NUMBER(S):	SC 289362/08
COUNSEL:	P: T A Game SC/A P Naylor D: G P Craddock SC/S A Beckett
SOLICITORS:	P: S O'Connor D: I V Knight

- 35 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 30 APRIL 2010

08/289362

TD v STATE OF NEW SOUTH WLAES

JUDGMENT

HIS HONOUR:

(1) Introduction

1 In these proceedings against the State of New South Wales (“the State”), the plaintiff claims damages for wrongful imprisonment and, in the alternative, for assault and/or battery and trespass to the person. The factual matters subjacent to the claim were the subject of an Agreed Statement of Facts (Tab 1, Exhibit A).

2 Mr T A Game SC with Mr A P L Naylor of counsel appeared on behalf of the plaintiff. Mr G P Craddock SC with Ms S A Beckett of counsel appeared on behalf of the State.

Order pursuant to s.72, Civil Procedure Act 2005 re identity of the plaintiff

3 Mr Game raised the question as to whether the Court should exercise circumspection with respect to the matters raised in this judgment concerning matters personal to the plaintiff. Although he did not have specific instructions in this respect, he raised the matter in her interests. Mr Craddock, with respect quite properly, raised the question of power of the Court under s.72 and that, given the nature of the matters concerning the plaintiff, they might constitute a proper basis for the making of such an order.

4 Upon consideration, I have determined that an order should be made under s.72 with a view to prohibiting disclosure of any information tending to reveal the identity of the plaintiff. The approach to be taken, I consider, should be that the plaintiff is to be referred to, in this judgment, by initials which I consider will serve the same purpose as the use of a pseudonym. I accordingly make an order to that effect and additionally make a further order in terms of s.72 prohibiting disclosure of any information which tends to reveal the identity of the plaintiff.

Determination of the separate question on liability

5 On 26 February 2009, this Court made an order for liability, to be determined as a separate question.

6 The proceedings raise for consideration a significant question of law concerning the circumstances in which a mentally ill person may be detained following completion of a special hearing under s.19 of the Mental Health (Criminal Procedure) Act 1990 (“MH(CP) Act”) where:-

(1) The person concerned has been found, on the limited evidence adduced at such a hearing, to have committed an offence.

(2) A “ limiting term” has been nominated.

(3) An order has been made (as in this case) for the person’s detention in a “hospital” .

7 The principal question for determination is whether it was lawful for the plaintiff in the circumstances referred to in (1), (2) and (3) to be detained in a “prison” where the prison did not form part of a “hospital” within the meaning of the Mental Health Act 1990 (“MH Act 1990”). In this case, the “prison” was Long Bay Prison Hospital.

(2) The plaintiff

8 The plaintiff was born on 5 December 1970. Accordingly, she was 31 years of age at the time of the relevant events. She is a “protected person” with the meaning of the Protected Estates Act 1983, she being a person under a legal incapacity within the meaning of the Civil Procedure Act 2005. Accordingly, the proceedings are brought on her behalf by her tutor, the Protective Commissioner of New South Wales, who has been so appointed under the Protected Estates Act.

(3) The pleadings

9 The proceedings have been pursued on the basis of the Second Further Amended Statement of Claim filed on 11 December 2009. The defence to those proceedings is contained in the Further Amended Defence filed on 9 February 2010. The amendment to the original defence raised a limitation defence under s.18A of the Limitation Act 1969 whereby it was pleaded that the whole of the plaintiff’s claims of wrongful imprisonment, assault and/or batter and trespass to the person are statute-barred. However, the limitation defence has not been pressed on the basis that the proceedings do not raise a claim for damages for personal injury.

(4) The applicable legislation

10 There have been changes in the relevant legislation since the events concerning the plaintiff’s detention in 2002 occurred. Since then, the MH Act 1990 has been repealed and replaced by the Mental Health Act 2007 (“MH Act 2007”). Additionally, the MH(CP) Act has been amended and renamed the Mental Health (Forensic Provisions) Act 1990 (“the MHFP Act”).

11 The provisions that were applicable to the events with which the present proceedings are concerned are as follows:-

(1) MH Act 1990 (version for 3 April 2000 to 3 July 2002), Chapters 1 to 3, Chapter 4 (Part 3), Chapter 5, Chapter 8 (Part 1, Division 1), Schedule 1; ss.3, 62, 66, 89 and 208, Schedule 1.

(2) MH(CP) Act (version for 1 January 2000 to 23 February 2003), ss.19, 22, 23, 24, 27, 28 and 29.

12 Many of the provisions of the current legislative scheme have similarities to the scheme as it existed under the 1990 Acts referred to above. In the submissions for the plaintiff, it was contended that whether it is lawful to detain a “forensic patient” in a “prison” or “correctional centre” where the person is the subject of an order that he or she be detained in a “hospital”, remains a pertinent question.

(5) The facts

13 The facts set out below are based upon the Agreed Statement of Facts in Exhibit A.

(a) The plaintiff

14 The plaintiff is a single Aboriginal woman who, at all material times, suffered form chronic schizophrenia and a mild to moderate developmental disability.

(b) The charges and fitness hearing

15 The plaintiff was arrested and charged with a robbery offence and, on or about 23 July 2001, she was indicted with respect to that charge. Following a fitness hearing under s.14 of the MH(CP) Act, she was found unfit to be tried on the charge and was referred to the Mental Health Review Tribunal for it to determine whether she would be fit to stand trial within the next 12 months. On 17 September 2001, the Tribunal determined that question in the negative.

16 On 27 November 2001, the plaintiff (on an amended indictment) was charged, in the alternative to the charge of robbery, with a charge of assault with intent to rob. On 28 November 2001, she was found to be unfit to be tried on the latter charge. Following referral to the Tribunal, it was determined that the plaintiff would not be fit to stand trial on the assault charge for a 12 month period from the date of the fitness hearing.

(c) The special hearing

17 On 7 February 2002, a special hearing under the MH(CP) Act was directed pursuant to s.18(a) of that Act in relation to the two abovementioned charges.

18 On 30 April and 1 May 2002, the District Court (his Honour, Woods DCJ), conducted a special hearing. On 1 May 2002, the plaintiff was found not guilty of the robbery charge but found, on the limited evidence available, that the plaintiff committed the offence of assault with intent to rob.

(d) The nomination of the “limiting term”

19 On 2 May 2002, Woods DCJ, pursuant to s.23 of the MH(CP) Act, nominated a “limiting term” of 20 months in relation to the assault offence, to commence on 24 November 2000 and to expire on 23 July 2002. Section 23(5) of the MH(CP) Act permitted a limiting term to be backdated.

(e) Interim order under s.24(1)

20 Woods DCJ also made an order under s.24(1) of the MH(CP) Act in the following terms:-

“IN ACCORDANCE WITH SECTION 24(1)(A) OF THE ACT, HIS HONOUR ORDERS THAT SHE BE REFERRED TO THE MENTAL HEALTH REVIEW TRIBUNAL. SHE IS TO BE DETAINED AT MULAWA CORRECTIONAL CENTRE.
HIS HONOUR DIRECTS THAT SHE NOT BE PLACED IN SEGREGATION AND THAT ANY PRESCRIBED MEDICATION IS NOT TO BE NEGLECTED.
RECOMMENDED:- MENTAL HEALTH REVIEW TRIBUNAL TO SEE [TD] WITHIN DAYS IF POSSIBLE.
MENTAL HEALTH REVIEW TRIBUNAL TO LIASE [SIC] WITH MRS CARMEL WOOD, WELFARE OFFICER OF CORRECTIVE SERVICES.
BEST OUTCOME WOULD BE PLACEMENT IN A GROUP HOME AS SOON AS POSSIBLE.
MENTAL HEATLH REVIEW TRIBUNAL TO LIASE [SIC] WITH MISS OXENHAM OF GUARDIANSHIP BOARD REGARDING [TD] .
PENDING POSSIBLE PLACEMENT IN A GROUP HOME, [TD] SHOULD IF POSSIBLE BE MOVED INTO ROZELLE HOSPITAL FROM MULAWA.”

(f) The determination of the Mental Health Review Tribunal

21 On 30 May 2002, the Tribunal determined, pursuant to s.24(2) of the MH(CP) Act that the plaintiff was suffering from a mental illness (chronic schizophrenia) and that she was mildly to moderately intellectually disabled.

(g) The detention order made under s.27 of the MH(CP) Act

22 On 24 June 2002, Woods DCJ made the following order pursuant to s.27 of the MH(CP) Act:-

“…
In the matter of [TD], the court has received a notification from the Mental Health Review Tribunal under section 24(3) of the Mental Health (Criminal Procedure) Act 1990 that she is a person suffering from a mental illness.
In accordance with section 27 of the said Act, I therefore order that [TD] be taken to and detained in a hospital
…”

(h) Additional facts

23 In the Agreed Statement of Facts, the following additional facts are set out:-

“22. On 1 July 2002, at the direction of officers, servants, agents and/or others in the service of the First Defendant, the Plaintiff was transferred from the Mulawa Correctional Centre to the Long Bay Prison Hospital to be detained.

23. From 1 July to 12 July 2002 inclusive (the ‘ First Detention Period’ ), officers, servants and/or others in the service or employ of the First Defendant detained the Plaintiff in cell 16 of D Ward of the Long Bay Prison Hospital.

24. At all times during her detention in the Long Bay Prison Hospital during the First Detention Period, the Plaintiff was a ‘forensic patient’ within the meaning of the Mental Health Act 1990.

25. On 12 July 2002, pursuant to section 89(1) of the Mental Health Act 1990, the MHRT re­classified the Plaintiff as a ‘continued treatment patient’ within the meaning of that Act.

26. On 12 July 2002, officers, servants, agents and/or others in the service of the First Defendant and the Second Defendant transferred the Plaintiff from the Long Bay Prison Hospital to the Rozelle Hospital

27. On 12 July 2002, at about 2.50pm, the Plaintiff absconded from the Rozelle Hospital.

28. During the afternoon or evening of 12 July 2002, the Plaintiff was located by officers of the New South Wales Police Force and returned to Rozelle Hospital.

29. During the evening of 12 July 2002, officers, servants, agents and/or persons in the service of the First Defendant (Department of Health) at the Rozelle Hospital refused the Plaintiff's re-admission to that hospital and directed that the Plaintiff be transferred to the Long Bay Prison Hospital. In particular, Dr Leonard Chin, Psychiatry Registrar of Rozelle Hospital, following a conversation with his Clinical Superintendent Dr Trenaman, signed a form (as delegate for the Medical Superintendent) purporting to facilitate the transfer of the Plaintiff from Rozelle Hospital to the Long Bay Prison Hospital pursuant to section 78 of the Mental Health Act 1990.

30. During the evening of 12 July 2002, at about 11.30pm, the Plaintiff was taken to the Long Bay Prison Hospital and detained in cell 16 of D Ward of that facility by officers, servants, agents and/or others in the service of the First Defendant.

31. From 12 July to 16 July 2002 (the ‘Second Detention Period’ ), officers, servants, agents and/or others in the service of the First Defendant continued to detain the Plaintiff in cell 16 of D Ward of the Long Bay Prison Hospital.

32. On 16 July 2002, at about 6.30pm, the Plaintiff was discharged from the Long Bay Prison Hospital and taken to the Edgar Eager Lodge in Darlinghurst where a placement had been found for her.

33. During both the First Detention Period and the Second Detention Period, the Long Bay Prison Hospital was a ‘prison’ within the meaning of the Mental Health Act 1990 and a ‘correctional centre’ within the meaning of the Crimes (Administration of Sentences) Act 1990 (‘CAS Act’ ). In particular, the Long Bay Prison Hospital was the subject of a declaration made pursuant to section 225 of the CAS Act that it be a ‘correctional centre’ within the meaning of that Act or the Correctional Centres Act 1952.

34. On 4 June 1999 there was published in the NSW Government Gazette, No. 66, an order by the Director-General of the Department of Health declaring beds 1-15, only, of the East Wing of D Ward, Long Bay Prison Hospital, to be a "hospital" pursuant to section 208 of the Mental Health Act 1990. During both the First Detention Period and the Second Detention Period, cell 16 within D Ward did not form part of a ‘hospital’ within the meaning of the MH(CP) Act or the Mental Health Act 1990.
35. During both the First Detention Period and the Second Detention Period, cell 16 of the Long Bay Prison Hospital was under the control of the First Defendant.

(i) The meaning of “hospital”

24 In the written submissions for the plaintiff dated 2 June 2009, the following additional matters are set out:-

“20. Section 3 of the MH(CP) Act provided that ‘ hospital has the same meaning as in the Mental Health Act 1990’.
21. Section 3 and Schedule of the MH Act defined ‘hospital’ to mean:
‘(a) any premises the subject of an order in force under section 208 by which the premises are declared to be a hospital, or
(b) an authorised hospital.’
22. An ‘authorised hospital’ was defined to mean premises in respect of which a licence had been granted under Division 1 of Part 1 of Chapter 8. The Long Bay Prison Hospital was not such a hospital. Rather, it was a hospital which was the subject of an order in force under s.208 of the MH Act 1990.
23. Section 208 of the MH Act 1990 provided:-
‘(1) The Director General, by order published in the Gazette:
(a) may declare any premises specified or described in the order, being premises to which this section applies, to be a hospital, and
(b) may, in the same or another order so published, assign a name to the premises so specified or described.
(2) The Director-General may, by order published in the Gazette, change the name assigned to any premises specified or described in such an order.
(3) Premises to which this section applies are:
(a) premises which belong to or are under the control of the Crown or a person acting on behalf of the Crown, and
(b) a public hospital within the meaning of the Health Services Act 1997, and
(c) (Repealed)
(d) where the person to whom premises belong or who has control of premises, by an instrument in writing given to the Director-General, agreed to the premises being premises to which this section applies – those premises.’

24. The ‘Director-General’ was defined to mean the Director-General of the Department of Health: MH Act 1990, Schedule 1.

25. Between 7 December 2001 and 19 September 2002, s.15 of the Health Services Act 1997 defined ‘public hospital’ to relevantly mean:
‘(a) …
(b) a hospital controlled by a statutory health corporation, or
(c) …
(d) a hospital controlled by the Crown (including the Minister or the Health Administration Corporation).’
26. Section 41 and Schedule 2 of the Health Services Act had the effect that the Corrections Health Service (CHS) was a statutory health corporation. The CHS has since been re-named Justice Health.
27. The CHS (as it then was) controlled the Long Bay Prison Hospital and was responsible for the provisions of healthcare services to persons detained therein, including D Ward.
28. On 4 June 1999, the New South Wales Government Gazette (No. 66) published a declaration made by the Director General of the NSW Department of Health pursuant to s.208 of the MH Act, to the effect that the following premises within Long Bay Prison Hospital were declared to be a hospital for the purposes of the MH Act, specifically:
‘Ward A;
Ward C, beds 1 to 15 in the East Wing, only; and
Ward D, beds 1 to 15 in the East Wong, only.’
29. The declaration did not extend to bed (or cell) 16 of D Ward.”

25 After the plaintiff absconded from Rozelle Hospital, she was found by police and returned to that hospital, she was subsequently transferred back to Long Bay Prison Hospital. She remained in cell 16 until 16 July 2002 when she was transferred to the Edgar Eager Lodge.

(6) Plaintiff’s submissions

26 The nature and operation of an order made under s.27 of the MH(CP) Act occupied a central place in the plaintiff’s submissions.

27 As stated above, an order made under that section follows a determination of the Tribunal which, in turn, is made after a limiting term has been nominated by the Court under s.23(1) of the MH(CP) Act. The nomination of a limiting term permitted a Court to “make such order with respect to the custody of the person as the Court considers appropriate”: s.24(1)(b). An order was made under the latter section in this case. Such an order, as discussed below, is in the nature of an interim order.

28 An order subsequently made under s.27(a) of the MH(CP) Act (namely, that the person “be taken to and detained in a hospital”) was said by the plaintiff to have two effects. Firstly, it caused the earlier order made under s.24(1)(b) with respect to the custody of the plaintiff in Mulawa Correctional Centre (the interim order), to become spent. Secondly, the making of the order pursuant to s.27(a) had the effect that the plaintiff became a “forensic patient” within the meaning of the MH Act 1990.

29 The plaintiff’s submissions addressed specific matters concerning the two relevant periods of detention as follows

(a) First period of detention in Long Bay Prison Hospital

30 The first period extended for 12 days between 1 to 12 July 2002. On 1 July 2002, the plaintiff was transferred from Mulawa Correctional Centre to the Long Bay Prison Hospital and was there placed in and detained in cell 16 of D Ward.

31 The submission for the plaintiff was that it was unlawful for the plaintiff to be detained in cell 16 of D Ward because that cell did not form part of a “hospital” within the meaning of the MH Act 1990. As the order made by Woods DCJ pursuant to s.27(a) on 24 June 2002 required the plaintiff’s detention in a “hospital” within the meaning of the MH(CP) Act, it was contended her detention in cell 16 of D Ward was in breach of that order. The State’s submissions acknowledge that her detention in cell 16 of D Ward was in breach of the order made by Woods DCJ under s.27 on 24 June 2002.

32 It was further argued, that the “unlawful detention” was caused by the servants or agents of the State. That responsibility, it was alleged, was shared by the Governor of the Long Bay Prison Hospital, the Department of Corrective Services and the Department of Health: [46] of the Plaintiff’s Written Submissions.

33 That said, Mr Game stated that, on the question of vicarious liability, there was no need for the Court to determine which of the group of departmental officers was liable (if liability is established). The parties had agreed that it would not be necessary for the Court hearing the proceedings to determine which particular officers’ actions gave rise to the alleged liability (transcript, 15 March 2010, p.6).

34 It was contended for the plaintiff, that the alleged unlawful detention alternatively constituted a trespass to the person. The primary case presented, however, was based on false imprisonment. In addition, or in the alternative, the plaintiff’s detention was said to be capable of being characterised as an assault and/or battery.

35 In the course of his oral submissions, Mr Game referred to documentation to be found behind Tab 17 of the tender bundle, Exhibit A. The documentation related to specific factual matters that arose during the course of the plaintiff’s detention. I set out below a brief summary in relation to such material:

(1) On 1 July 2002, the Director of the Centre for Mental Health wrote to Mr Richard Mendon of the Mental Health Advocacy Service advising that arrangements “… have been made for your client to be transferred to the Long Bay Prison Hospital pending assessment by The Rozelle Hospital Forensic Admission Team as to (the plaintiff’s) suitability for admission” .

(2) On 1 July 2002 (Tab 17 of the tender bundle), the relevant entry recorded the fact that the plaintiff did not know that she was going to Long Bay Hospital but thought she was going to Rozelle and was feeling “a bit scared because of other male inmates” . Mr Game noted that the plaintiff was confined in a male prison hospital.

(3) On 2 July 2002, a note was made that the plaintiff believed that she was being transferred from Mulawa to Rozelle and was unhappy with the transfer to D Ward but was “… resigned to same” : Tab 17, p.48.

(4) On 2 July 2002, there was reference to Aboriginal Services visiting the plaintiff the next day with a view to “… ‘celebrating’ her Aboriginality in D Ward” (Tab 17, p.51).

(5) On 4 July 2002, “… reports feeling distressed and wanting to return to Mulawa …” . Reference was also made to protection inmates “… masturbating in her presence whilst on exercise” (Tab 17, p.53).

(6) On 5 July 2002, there was reference to a proposed transfer of the plaintiff being cancelled and reference to “Section 27 ordering [the plaintiff] to be detained in a Hospital. [Plaintiff] extremely upset with same – screaming & crying …” (Tab 17, p.54).

(7) On 5 July 2002 (Tab 17, p.55):-

“[Plaintiff] is here on COURT ORDER Her transfer elsewhere, even if back to Mulawa can only be effected by rescinding the order ie Judge has to reverse order.
LBH was the only hospital flexible enough to accommodate her. Other alternatives are:-
1. Rozelle – when Rehab comes to assess and accept her.
2. Back to Mulawa if Court reverses the order.”


(8) On 7 July 2002, “… Becoming increasingly distressed re having to return to her cell at 1630 hrs. when male pts. came into the ward, noisy, abusive, tearful and generally disruptive, threatening to self-harm etc. Eventually given ‘time out’ …” (Tab 17, p.58).

(9) On 8 July 2002, “ [Plaintiff] expressed her distress at being in D Ward. I have spoken with Richard Mendon (MHAS) and he has requested an urgent MHRT r/v of [plaintiff’s] ‘inappropriate placement’ …” (Tab 17, p.59).

(10) On 10 July 2002, “10.30 am: [plaintiff] complained of feeling distressed and upset by the incident that occurred on the ward. She stated she was concerned about her safety …” (Tab 17, p.62).

(b) Second period of the plaintiff’s detention

36 In accordance with the agreed statement of facts, the second detention period extended from 12 July to 16 July 2002. In this period it is said that the plaintiff was detained in cell 16 of D Ward of the Long Bay Prison Hospital.

37 The Long Bay Prison Hospital notes for that period are behind Tab 27 of Exhibit A. When the plaintiff was taken by police back to Rozelle after she absconded at approximately 8.00 pm on 12 July 2002, she was, according to nursing notes, returned to D Ward at about 11.30 pm. A file note of 15 July 2002 behind Tab 27 of Exhibit A recorded that “Gowan Wise was very concerned about the plaintiff’s placement in ‘male CC’ and that the plaintiff said that she wanted to be transferred to Mulawa”. The note records “for discharge today”. The plaintiff was, in fact, discharged and taken to the Edgar Eager Lodge.

(7) Submissions on behalf of the defendant

38 The State relied upon Written Outline of Submissions for the Defendant dated 9 February 2010. These were supplemented by oral submissions made on 15 March 2010.

39 Whilst the State admitted the plaintiff was detained, it asserted the detention was lawful. It was submitted that the defendant “… was obliged to detain the plaintiff pursuant to the limiting terms nominated by the District Court: Further Amended Defence [4] …”.

40 Similarly, in oral submissions on behalf of the State, it was contended that the limiting terms “… (had) the effect of denying a person’s liberty …” (transcript, 15 March 2010, p.27). It was also submitted that the power to order detention was “… a necessary consequence of the limiting term …” (t.28, lines 46 to 47; t.35, lines 18 to 19).

41 This point was reinforced by the contention that the discretion in a court under s.27 did not enable a judge to order that there be no detention (t.33, lines 35 to 37).

42 In the Outline of Submissions for the Defendant, it was contended:-

“9. The tort of wrongful imprisonment can only be understood by reference to the right which it seeks to protect: the right to liberty. In essence, the defendant’s position is that the right to liberty is removed when a limiting term is set and a custodial order made: ss.23(1), 24(1)(b), 27 of the Mental Health (Criminal Procedure) Act 1990. A limiting term may only be set following a finding that, on the limited evidence available, a person has committed the offence charged: ss.22(1)(c), 23(1).”

43 The contention for the State was that, in fact, the plaintiff’s liberty had been lawfully denied her (following the nomination of a limiting term and the making of a custodial order). Accordingly, she had no right that could be vindicated by resort to the law concerning wrongful imprisonment. In this respect, it was noted “… there is no doctrine of residual liberty which allows for a person lawfully detained to seek damages for wrongful imprisonment with respect to the circumstances of detention”: Regina v Deputy-Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, 162: Outline of Submissions for the Defendant, [10].

44 It was further contended on behalf of the State (Outline of Submissions for the Defendant, [11]):-

“… She [the plaintiff] was forced to serve her detention in a non-gazetted hospital, not a gazetted hospital. That argument concerns the conditions that she was placed under, not the denial of liability per se . A breach of a right not to be subjected to certain conditions goes not to the legality of the deprivation of liberty in gaol but to the manner of confinement: Hague at 165F …”

45 In relation to the operation and effect of an order made under s.27, it was submitted for the State:-

“30. There is nothing in the scheme of the MH(CP) Act which permits of the possibility of the person being released under s.27(a) or (b). Detention in a hospital or prison or other place are exclusive alternatives.”

46 I note, at this point, that this latter submission not only does not find support in authority, but is contrary to the construction of s.27(b) adopted in Regina v AN (No 2) (2006) 66 NSWLR 523. The judgment of James J in that case (with whom Simpson and Rothman JJ agreed) is discussed below. That case involved an appeal which required the Court of Criminal Appeal to consider whether it should make an order under s.24(1)(b) of the MH(CP) Act that the applicant be detained in a specified Juvenile Justice Detention Centre and make an order pursuant to s.27(b) of the MH(CP) Act.

47 The submissions made on behalf of the State concerning limiting terms made under s.23 of the Act included a submission that the observations of Sperling J in Regina v Adams (2003) 58 NSWLR 1 at [31] concerning the use of the word “may” in s.27 was erroneous. However, the criticism of those observations cannot be regarded as valid, having regard to the construction placed on the section by James J in AN (No 2) (supra).

48 For the same reason, the submission made on behalf of the State in the Outline of Submissions for the Defendant that “All limiting term detainees must be the subject of either a hospital order under s.27 or another form of order under s.27” cannot be accepted as correct, having regard to the decision of the Court of Criminal appeal in AN (No 2) (supra).

(8) The tort of false imprisonment

49 Before considering the relevant statutory provisions pertaining to the plaintiff, the following common law principles may be noted:-

(1) The tort of false imprisonment has two elements. First, the fact of imprisonment and, second, the absence of lawful authority to justify it: Hague (supra).

(2) The plaintiff has the onus of proof in relation to the fact of imprisonment: Cubillo v Commonwealth of Australia [2001] FCA 1213, per Sackville, Weinberg and Hely JJ at [262]. The defendant has the onus of proof to show that the imprisonment was lawfully justified: Ruddock v Taylor [2005] HCA 48 at [97] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Cubillo v Commonwealth of Australia [2000] FCA 1084 at [1150]

(3) It has been observed that it is not necessary to prove fault on the part of a defendant and in that sense the tort of false imprisonment is a tort of strict liability: Regina v Governor of Brockhill Prison; ex parte Evans (No 2) [2000] 3 WLR 843, 847. The tort, in other words, may be committed even though a defendant acted in good faith. In Watson v Marshall v Marshall & Cade (1971) 124 CLR 612, Walsh J (at 63) noted in the circumstances of that case that, although the defendant (a member of the Victorian Police Force) had acted in good faith and had believed that he was entitled to do what he did in detaining a person as a patient in a hospital and that it was right to do so, stated, “… but this belief is irrelevant, in my opinion, to his responsibility in law for acts which were prima facie an infringement of the plaintiff’s rights, although it is highly relevant to the amount of damages which should be awarded …”

(4) In relation to statutory authorisations, in the interpretation of an Act which affects personal liberty, supposition as to the intention of the legislature has no place and the function of the Court is limited to interpreting and giving effect to its will as expressed in the statute: Watson (supra) at 629 per Walsh J.

(5) A power or authorisation to detain a person may be conferred for quite different purposes. In some contexts, such a power may have a punitive purpose. In others (eg, in the case of an immigration detention involving the power to detain unlawful non-citizens), the purpose of depriving a detainee of his or her liberty is not a form of punishment. See for example, Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, 499 per Gleeson CJ and Kirby J at 528.

(9) Special hearings and the nomination of limiting terms

50 Part 2 of the MH(CP) Act at the relevant time, as in the equivalent current legislation, contained provisions, inter alia, concerned with the basis or bases for and the procedure for the determination of a person’s unfitness to be tried. It also contained provisions concerning the functions of the Mental Health Review Tribunal on referral after inquiry, the holding of a “special hearing” and the nature and conduct of such hearing.

51 Sections 23 to 27 are of particular relevance to the present proceedings.

52 In a sense it could be said that the statutory scheme under the above Act, including in particular, s.23, s.24 and s.27 is, inter alia, a protective scheme so far as the rights of a mentally-ill person dealt with under the Act are concerned.

(a) Section 23 – nominating terms

53 Section 23 deals with a Court’s function following the completion of a special hearing:-

“23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:
(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and
(b) where the Court would have imposed such a sentence, must nominate a term in this section referred to as a limiting term , in respect of that offence, being the vest estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.
(3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.
(4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during an dafter the special hearing (being periods related to the offence).
(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court, after taking into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time. ” (emphasis added)

54 Section 23(1)(b), accordingly, empowers the Court to impose in the circumstances specified a limiting term that is equivalent to the sentence that it would have imposed had the person been convicted of the offence following a normal trial. It has been observed that s.23 does not, itself, contain any provision requiring that the accused person be detained in custody during the limiting term nominated: AN (No 2) per James J at [26], 528.

55 It was also there observed that it is unclear whether the nominating of a limiting term can be regarded as amounting to the imposition of a penalty at [32].

56 Whilst a limiting term is a sentence for the purposes of s.5(1)(c) of the Criminal Appeal Act 1912 by reason of the definition of “sentence” in s.2 of that Act, it, of course, does not follow that a limiting term is to be considered as the equivalent of a sentence of imprisonment or penalty. The power of the Court of Criminal Appeal to grant leave to appeal against a limiting term was considered in Regina v AN [2005] NSWCCA 239 at 2 per Howie J.

57 Section 23 does not, upon the nomination of a limiting term (as observed in AN (No 2) (supra) at [26]), require that a person be detained in custody.

58 The detention of a person in respect of whom a limiting term is nominated depends upon the Court making orders as authorised by s.24(1)(b) and s.27.

(b) Section 24 orders

59 The Court is authorised to make an order “with respect to the custody of the person as the Court considers appropriate”: s.24(1)(b).

60 The Tribunal, following a referral from the Court under s.24(1)(a), must proceed to make a determination in accordance with s.24(2).

61 The s.24(1)(b) order made by Woods DCJ on 2 May 2002 (the “interim order”) specified and required the plaintiff to be detained in a correctional institution (Mulawa). The s.27 order, which was subsequently made by Woods DCJ, imposed what, for convenience, may be termed a hospital detention in the sense discussed above, that is, a detention in a proclaimed or declared “hospital”, not in a correctional institution. A consequence of the s.27 order, as discussed above, was that the plaintiff acquired the status of a “forensic patient”.

62 Section 24 entitled, Consequences of nomination of limiting term, provided for the making of an order with respect to the custody of the person “as the Court considers appropriate”: s.24(1)(b). An order made pursuant to the latter provision is in the nature of an interim order and has been so described in AN (No 2) (supra) at [23]. See also Mailes v Director of Public Prosecutions & Mental Health Review Tribunal [2006] NSWSC 267 per RS Hulme J at [28] to [20].

63 Accordingly, the source of the power to detain an accused person comes, not from provisions empowering the Court to nominate a limiting term (s.23), but, as a form of interim order, from the terms of s.24(1)(b) following a nomination of the limiting term.

64 The position of an accused person’s liberty or detention arises, once again for consideration, once the Court has been notified by the Tribunal of its determination in respect of a person under s.24(3). It is important in the resolution of liability in the present case for the Court’s jurisdiction and power under s.27 to be carefully scrutinised.

(c) Section 27 orders

65 The provisions of s.27 are critical to the issue of liability. The section comes into operation following upon the determination by the Tribunal after a limiting term is imposed. Following notification by the Tribunal to the Court of its determination in respect of a person under s.24(3), the issue of the person’s detention or otherwise will be determined by order of the Court. Under s.27, the Court may:-

“27. Orders Court may make following determination of Mental Health Review Tribunal after limiting term is imposed
If a Court is notified by the Mental Health Review Tribunal of it determination in respect of a person under s.24(3), the Court may:-
(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering form a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital – order that the person be taken to and detained in a hospital , or

(b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (1) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital – order that the person be detained in a place other than a hospital .” ( emphasis added)

66 The order made by Woods DCJ on 24 June 2002 under s.27 was expressed to be made upon the basis of the Tribunal’s notification under s.24(3), namely, that the plaintiff “is a person suffering from a mental illness”. It directed that the plaintiff’s detention be one “in a hospital”. That order was made under s.27(a). Section 3 of the MH(CP) Act provided that “hospital has the same meaning as in the Mental Health Act 1990”.

67 Section 3 and the Schedule to the MH Act 1990 defined “hospital” to mean:-

“(a) Any premises the subject of an order in force under s.208 by which the premises are declared to be a hospital; or
(b) An authorised hospital.”

68 The relevant declarations made by the Director General of the New South Wales Department of Health pursuant to s.208 of the MH Act 1990 (published on 4 June 1999), as earlier noted, declared the following premises within Long Bay Prison Hospital, a “hospital” for the purposes of the MH Act 1990:-

“Ward A
Ward C, beds 1 to 15 in the East Wing only, and
Ward D, best 1 to 15 in the East Wing only.”

69 The declaration did not extend to bed (or cell) 16 of Ward D.

70 I accept the submission for the plaintiff that the word “hospital” in s.27(a) of the MH(CP) Act is not interchangeable with the word “prison”. Both words, as observed in the plaintiff’s submissions, are used in the MH(CP) Act, eg, s.35 Transfer of prisoners.

71 In AN (No 2) (supra), James J noted, at [47], that the language of the crucial part of s.27, namely, “the court may … order that the person be detained in a place other than a hospital” is open to the interpretation either that the section confers a power to order both detention and a place of detention or the interpretation that s.27(b) merely confers a power to order a place of detention.

72 In that respect, James J observed at [48]:-

“In my opinion, s.27(b), on its proper interpretation, confers a power to order that a person be detained, as well as a power to determine where the person should be detained …”

73 James J set forth his reasons for reaching that conclusion. His Honour, firstly, referred to the definition of “forensic patient” in the Dictionary in Schedule 1 to the MH Act 1990 which is defined as meaning “(a) A person who is detained in a hospital, prison or other place … pursuant to an order” under certain sections of the MH(CP) Act which includes s.27 but which did not include s.24.

74 His Honour referred to the observations of RS Hulme J in Mailes (supra) in which his Honour held that a person detained pursuant to an order under s.24 of the Act is not a forensic patient. That conclusion followed from the terms of the definition of “forensic patient” with which James J agreed.

75 If a person did become a forensic patient, which would happen if an order is made under s.27, James J observed that Part 2 of Chapter 5 of the MH Act 1990 then became applicable.

76 Section 80, in that Part, prescribes the power of the Tribunal to review cases of persons found unfit to be tried. Section 82 conferred power in the Tribunal, at least every six months, to review cases of forensic patients whilst s.83 was concerned with notice of recommended releases.

77 Following reference to those provisions, James J continued at [53] and [54]:-

“53. It would seem to me odd, if a person’s becoming a forensic patient and becoming subject to the elaborate review provisions in Part 2 of Chapter 5 of the Mental Health Act could depend on the making of an order which merely provided for the place in which a person should be detained, as distinct from an order providing for the person’s detention .
54. Furthermore, it would make good sense for a court to have power under s.27 to decide what order should be made for the person’s future custody or detention. Even if the court has made an order under s.24(1)(b) with respect to the custody of the person, which the court, in the light of the information it then had available to it, considered to be appropriate, the court, by the time it considers what order (if any) it should make under s.27 of the Act , will have received the determination made by the Mental Health Tribunal pursuant to s.24(2) and is, accordingly, likely to have further information about the person in question.” (emphasis added)

78 A little later in the judgment, James J stated:-

“56. I conclude that the Court can now make an order under s.27(b) of the Act for the detention of the applicant and not merely an order providing for the place in which any detention of the applicant should occur.”

79 Accordingly, an order made by a court under s.27 is an order that operates in respect of the person’s liberty in terms of a detention duly authorised by the order. The section is the source of the power to decide what order should be made for a person’s future custody or detention. It is that order, following receipt by the Court of a notification by the Tribunal of its determination in respect of a person under s.24(3), which will determine both the question as to whether the person is detained and, if made, the place at which the detention is to occur.

80 A related matter of particular relevance to the present case is whether or not the statutory scheme under the MH(CP) Act, in particular, the above provisions that confer the power to make detention orders (s.27(a) and (b)), vests in the Court a discretion not to make an order under s.27(a) or (b) or whether the Court is confined, in its discretion, to ordering detention in a hospital or in a place other than a hospital and not a power to make no order under either s.27(a) or (b).

81 That was a matter that arose for decision in AN (No 2) (supra). James J observed that if no order is made under s.27(b) and if there was no continuing order under s.24(1)(b), the applicant in that case would have been entitled to be released, there being no warrant for his being held in custody.

82 On that question his Honour observed that, in certain provisions of the Act, the legislature used the word “must” where it intended to confer a power which the donee of the power would be obliged to exercise. Other provisions where the legislature intended to confer a power which the donee of the power might, at its discretion, exercise or not exercise, the legislature used the word “may”: see [60].

83 James J observed that, such little authority as existed, supported the view that a court has a discretion whether to make an order under s.27(b). His Honour, in that respect, referred to the observations of Sperling J in Adams (supra) at 14, [31]. Following reference also to the decision of Regina v Tas (District Court, Keleman DCJ, 1 October 1997, unreported) and the remarks on sentence of Mathews J Regina v Boyle (18 September 1992, unreported), his Honour stated at [62]:-

“In my opinion, it is possible to conceive of circumstances in which it would be appropriate not to make any order under s.27. An example might be the circumstances in Regina v Boyle …”

84 In this latter respect, reference was made to the fact that the circumstances in that case were such that there may be no point in causing the review procedures in Part 2 of Chapter 5 of the MH Act 1990 to become applicable to the offender.

85 In AN (No 2) (supra), the Court of Criminal Appeal proceeded upon the basis that it was in the position of determining whether or not an order should be made under s.27(b). James J, having noted at [77] that, if the Court did not make any order under that provision, the applicant would be entitled to be released, ultimately concluded that, as a matter of discretion, it was open to the Court to order the applicant to be detained in a juvenile justice detention centre and that the Court should make an order to that effect.

86 I am of the opinion that, in light of the abovementioned authorities, the proper construction of s.27 is that the Court has a discretion as to whether to make an order in terms of s.27(a) or (b) or not to make an order for detention under either provision. As noted above, in the latter event, the person concerned (the plaintiff in the present proceedings) would be entitled to be released.

87 In the light of that conclusion, I do not accept the contention made on behalf of the State as to the asserted consequences of the nomination of a limiting term. I also do not accept the submission made as to the limited nature of the discretion said to exist under s.27. In that latter respect, it was contended (t.35):-

“… The way that limiting term works, it’s a little hard to construe the possibility of any residual discretion in a judge to do other than simply choose the place of custody when making a determination under s.27. Which brings us back to … the question that’s really only theoretical, which is whether the limiting term of itself has the effect of denying liberty. We say it does.”

88 With respect, that contention runs contrary to the construction that has been adopted in the authorities concerning s.23, s.24 and s.27 of the MH(CP) Act to which reference has been made above.

89 The terms of the order made by Woods DCJ in this case under s.27, of course, was the source of the power to detain and then within the limitations prescribed by it. By that order, the only lawful authority it conveyed was for the plaintiff’s detention in a “hospital” (as defined by law).

90 In asking then what did the order of Woods DCJ authorise – detention in a “prison” or detention in a “hospital” as defined, the answer is clearly the latter and not the former. The order neither expressly nor impliedly authorised the plaintiff to be lawfully detained in a prison (a place that could have been authorised only under s.27(b)). The detention was to be, and only to be, on premises that were specified in or as declared in an order made under s.208 of the MH Act 1990 and published in the Gazette.

91 In relation to the question of lawful detention, there has long been recognised a distinction between the place and/or nature of confinement, imprisonment or detention and the conditions of confinement, imprisonment etc.

92 In Collins v Downs (unreported, 14December 1982), Roden J stated at 5:-

“In Arbon v Anderson … in which earlier authority such as Cobbett v Grey (1849) 4 Ex 729 and Osborne v Millman (1886) 17 QBD 14 were considered, what appears to be a significant distinction was made between, on the one hand, the nature or place of imprisonment, and on the other, the conditions of imprisonment. This, I believe, is an important distinction to bear in mind when considering the other cause of action pleaded here by the plaintiff.”

93 Roden J then went on to deal with the plaintiff’s case based on false imprisonment in that case (at 5):-

“… I earlier referred, that there is a right of action for false imprisonment available to a [sic] convict prisoner if, during the term of the sentence imposed upon him when his imprisonment or otherwise would be lawful, he is wrongly subjected to imprisonment of a nature or in a place not authorised. In this regard, the distinction mentioned above between nature or place of the imprisonment and the conditions of imprisonment is, I believe, critical.”

Conclusions

94 At the time of the making of the order under s.27, the plaintiff had not, by reason of the limiting term, been deprived of her right to liberty. The order made under s.24 was not a final order but was an interim order. Her detention, its nature and place for the period of the limiting term was determined at the point in time at which the power under s.27 was exercised by the District Court.

95 In other words, the order made by Woods DCJ was both an order for the plaintiff’s detention and an order that specified both the nature and the place of the plaintiff’s detention (“a hospital”). It did not authorise her detention in any other place that could have been ordered under s.27(b). The distinction between a place that is a “hospital” as declared and some other place is, of course, one of importance, not only from the perspective of the treatment of a person with mental illness but as a matter of law in determining what constitutes lawful detention.

96 In this case on the agreed facts, the relevant provisions of the MH(CP) Act and the terms of the s.27 order, I have concluded that the plaintiff’s detention in cell 16 of D Ward was without legal justification. The detention was one in breach of the order made under s.27 of the MH(CP) Act and, accordingly, was not authorised as a matter of law. The detention constituted an infringement of her rights including the right to be free of unlawful restraint.

97 On the findings to which I have referred, the plaintiff has established that the State is liable on the cause of action pleaded, false imprisonment, and I propose to order judgment on that basis in her favour.

98 In relation to the plaintiff’s pleaded causes of action for assault and/or battery and trespass to the person, as indicated above, those causes of actions were pleaded in the alternative not cumulatively to the plaintiff’s primary case for wrongful imprisonment. In the course of his oral submissions, Mr Game stated that the causes of action for assault and battery and for trespass to the person had been pleaded more as “an abundance of caution” on the basis stated by him (transcript, 15 March 2010, p.19). I will, however, briefly refer to the competing submissions made on the alternative counts.

99 Reliance in respect to those alternative causes of action was placed upon the Supplementary Written Submissions on behalf of the Plaintiff dated 20 November 2009 at paragraphs [15] to [22]. Paragraph [18] of those submissions, is in the following terms:-

“18. It is submitted, in addition to and/or in the alternative to the false imprisonment claim, that the Plaintiff was assaulted and/or battered when she was required to be detained in cell 16 of D Ward of the Long Bay Prison Hospital. The Plaintiff was assaulted in that she reasonably apprehended imminent physical interference to compel her return to her cell if she was non-compliant with directions. Alternatively, if there was physical contact in the process whereby the Plaintiff was escorted or placed in her cell, it was battery.”

100 In the written submissions, reference was made to an extract from the clinical notes for 7 July 2002 between 0700 and 2100. It was stated that the entry made it clear that there was a requirement for the plaintiff to be detained in her cell whilst at Long Bay Prison Hospital.

101 It was further submitted for the plaintiff that the Court would “infer that physical interference with the Plaintiff was used or impliedly threatened in escorting the Plaintiff to her cell. Any actual physical interference constituted a battery. If there was no actual physical interference but it was threatened, whether expressly or impliedly, it was an assault. It is submitted that the Court may infer an implied threat from the circumstances …”. It was also contended that the plaintiff did not consent to any physical interference nor was there another lawful justification for any physical interference or threatened physical interference of the plaintiff whilst she was detained at the Long Bay Prison Hospital.

102 The State relied upon written submissions (paragraphs [49] to [61]) of the Outline of Submissions for the Defendant dated 9 February 2010.

103 Mr Craddock and Ms Becket submitted for the State that the plaintiff’s claim of assault and/or battery failed “at the first hurdle”. It was contended that the agreed facts do not establish that there was an assault or a battery.

104 It was acknowledged that assault connotes a reasonable apprehension of an imminent physical interference and battery is an intentional touching or physical interference with another person.

105 It was further contended that references in the clinical notes such as “transfer”, “detain”, “return”, “take and discharge” do not admit of a reasonable apprehension of physical interference or actual touching or physical interference. It was contended that there was no evidence in support of the plaintiff’s assertion that “she reasonably apprehended imminent physical interference to compel her to return to her cell if she was non-compliant”. It was further submitted there was no evidence of physical contact.

106 It was contended that the plaintiff’s reliance on a nurse’s note to the effect that the plaintiff was increasingly distressed at having to return to her cell was not evidence of an apprehension of any physical interference or, for that matter, action in the nature of compulsion. It was contended that the word “escort” is a benign term which did not necessarily attract physical interference.

107 In the alternative, it was contended that if the Court accepted that there was evidence of physical contact, then the State submitted that the actions of its officers, servants and agents were lawful and reasonable. The actions of detaining, transferring, returning and escorting the plaintiff were undertaken in the performance of each person’s duty to implement an order of a limiting term imposed by the District Court.

108 Reliance was again placed upon the decision in Hague (supra). In this respect, it was contended that it would appear anomalous to deny a plaintiff’s claim for wrongful imprisonment because the prisoner has no residual liberty but then to allow a claim in assault or battery for the actions that necessarily arise from the lawful constraint on her liberty (written submissions, paragraph [54]).

109 In this respect, the actions of Corrective Services Officers in moving a prisoner from a correctional centre to another such centre or around a prison arose naturally from the order of the Court to “imprison the plaintiff”: paragraph [54].

110 Finally, it was contended that it was apparent that a Corrective Services Officer may use no more force than was reasonably necessary “in dealing with an inmate”: clause 121(1) and clause 119, Crimes (Administration of Sentences) Regulation 2001.

111 Finally the State took issue with the plaintiff’s alternative cause of action in trespass to the person.

112 It was contended, inter alia, that, following the reasoning in Cobbett v Grey (1849) 4 Ex 729 (supra), the detention which necessarily follows the limiting term that was imposed by the District Court in this case provided a similar authority which had removed the plaintiff’s liberty, adopting comments made in Hague (supra), that if there was a remedy for the apparent wrong inflicted upon the plaintiff then lay elsewhere in the law of wrongful imprisonment: Written Submission, paragraph [61].

113 Finally, Mr Craddock on behalf of the State contended that there ought to be a verdict for the defendant with costs.

114 I consider there is considerable force in Mr Craddock’s submission that, although the nursing notes refer to matters such as the plaintiff expressing or manifesting a distressed state from time to time during her detention, the question remains as to whether the particular factual matters relied upon by the plaintiff rise to the level of establishing circumstances that constitute an implied use of force against her during and by virtue of her confinement or detention.

115 A similar question arose in Watson (supra). It was noted in that case that, although there was a dispute as to whether the officer told the plaintiff that he was arresting him, it was plain and it was made clear to him that he had to go to the hospital. The plaintiff protested but went to a police car nearby and went in it to the hospital with the defendant. Walsh J noted at 626 that no physical force had been used at any time by the defendant “… But I find that in the circumstances the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go to the hospital. Therefore, a restraint was imposed upon the plaintiff which amounted to an ‘imprisonment’ of him by the defendant …”.

116 I do not consider that the evidence establishes an assault, whether in terms of an apprehension in the plaintiff or an assault in the sense of the application of a physical force to the plaintiff.

117 I have earlier referred to extracts from the hospital notes to which my attention was drawn by Mr Game in the course of his submissions. Whilst there are references throughout the notes to the plaintiff’s distress and unhappiness at being confined to D Ward, there is also reference to the fact that she was “resigned to same”, although at times being recorded as feeling or exhibiting distress.

118 There is no evidence of the application of force or of threats being made to the plaintiff. Rather than there being evidence of protest by the plaintiff, the evidence indicates that the plaintiff acted with a sense of resignation to her placement in cell 16 in D Ward.

119 I, accordingly, do not consider that the evidence establishes either actual physical interference or an express or implied threat of an assault.

120 In relation to the plaintiff’s cause of action in trespass to the person, as I have earlier noted, the plaintiff relied upon that tortious cause of action as an alternative only to the claim in false imprisonment. In those circumstances, I do not consider that the need arises to express a concluded view in relation to the claim in trespass.

121 I will, however, permit the parties, should they wish, to make any further submissions in that respect in light of these reasons for judgment and the fact that I have determined liability in the plaintiff’s favour on her claim of false imprisonment.

122 The order made, by consent, on 26 February 2009 was for the determination of “questions of liability” separately from and prior to the questions of damages.

123 On the findings and conclusions set out above, I propose to determine the issue of liability on the plaintiff’s pleaded cause of action of wrongful imprisonment in her favour against the State.

124 I request the parties to draft short minutes of order. Costs of the proceedings are reserved.

125 I propose to additionally grant leave to the parties to apply, by arrangement with my associate, for the proceedings to be re-listed for mention and, as appropriate, case management directions in relation to any hearing on damages and the residual matter to which I have referred arising from the plaintiff’s alternative cause of action.

126 The issue of liability on the plaintiff’s pleaded cause of action in false imprisonment is determined in favour of the plaintiff against the defendant (the State of NSW).

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