The Queen v Jabanardi, Carl

[1983] FCA 185

Re: THE QUEEN
And: CARL JABANARDI (1983) 77 FLR 333
No. NTG9 of 1983
Criminal Law and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Muirhead(2) and Jenkinson(1) JJ.

CATCHWORDS

CRIMINAL LAW - person unfit to plead - detention in gaol 'for an indefinite period' - order for transfer 'to safe custody within an institution' at a future date - no institution of the type contemplated in existence at the time order made - power of Supreme Court to make order for later transfer without specifying institution - power to make order involving expenditure of public money to provide particular type of institution - desirability that any order for custody be for a fixed term - power to hold in custody under criminal law once it is clear person will never be fit to plead.

PRACTICE AND PROCEDURE - parties - person unfit to plead - should be represented by next friend in proceedings concerning custody.

Criminal Law and Procedure - Person unfit to plead - Detention in gaol "for an indefinite period" - Order for transfer "to safe custody within an institution" at a future date - No institution of the type contemplated in existence at the time order made - Power of Supreme Court to make order for later transfer without specifying institution - Power to make order involving expenditure of public money to provide particular type of institution - Desirability that any order for custody be for a fixed term - Power to hold in custody under criminal law once it is clear person will never be fit to plead - Scope of operation of s 382A of Criminal Law Consolidation Act (NT).

Practice - Parties - Person unfit to plead - whether should be represented by next friend in proceedings concerning custody - Criminal Law Consolidation Act (NT), S 382A - Mental Health Act (NT), S 10.

HEADNOTE

The accused, charged with murder, was found by the magistrate to be permanently unfit to plead and was remanded in custody to appear before the Supreme Court in accordance with s 382A of the Criminal Law Consolidation Act. Before Gallop J he was ordered to be detained in custody at a gaol for an indefinite period under s 382A of the Act.

The accused was later represented by a solicitor who appeared amicus curiae, though the accused was unable, by reason of mental incapacity, to instruct him. An originating summons sought a conditional release. Nader J ordered that the accused be transferred to "safe custody within an institution". No such institution existed at that time though the evidence was that provision was being made for a suitable place. His Honour directed that the matter be relisted prior to the accused's transfer so that the suitability of the institution could be considered.

The Crown appealed to the Full Court of the Federal Court, generally on the basis that Nader J should not have made his order in circumstances where no institution existed. The accused cross-appealed on the basis that Nader J should have placed a fixed term on the period the accused could lawfully be held in custody. Further evidence was allowed as to the changed circumstances.

Held: (1) Proceedings under s 382A of the Criminal Law Consolidation Act should be brought by a next friend appointed under the Rules of the Supreme Court.

(2) Per Woodward and Jenkinson JJ, Muirhead J dissenting - The power under s 382A(3) of the Act to order a person to be detained in custody "at such place . . . as the Supreme Court thinks fit" does not extend to the making of an order that a person may be held in any institution other than the one where he is presently held; the order must be positive rather than negative in its substance.

(3) Per Woodward and Jenkinson JJ, Muirhead J dissenting - It would be within the power conferred by s 382A of the Act to order that a person be detained at one of several named places or at a particular type of place as defined by legislation; however the use of the word "institution" is, by virtue of its width and lack of precision, too vague to constitute a valid exercise of power under s 382A(3) of the Act.

(4) There should be a fixed period for any order for custody under s 382A; it is not desirable to direct a holding in custody for an indefinite period or until further order.

(5) The appropriate course in the light of the further evidence was to refer the matter back to Nader J for further consideration.

(6) The accused's detention pursuant to s 382A of the Act might be unlawful or inappropriate on the basis that there are no reasonable prospects that he will ever be able to plead to the charge.

Jackson v Indiana 406 US 715, referred to.

HEARING

Melbourne, 1983, June 28, 29; August 11. #DATE 11:8:1983

APPEAL

Appeal and cross-appeal from a decision in custody proceedings under s 382A of the Criminal Law Consolidation Act (NT).

B J Shaw QC and R Sundberg, for the Crown.

C R McDonald, amicus curiae.

Cur adv vult

Solicitors for the Crown: J B O'Rourke, Crown Solicitor for the Northern Territory.

Solicitors for the respondent: C McDonald, North Australian Aboriginal Legal Aid Service Inc.

PHM

ORDER

1. The appeal and cross appeal be upheld.

2. The order of Nader J. dated 30 March 1983 be set aside.

3. The matter be referred back to Nader J. for further consideration in the light of the evidence placed before this Court and any new material or arguments which may be placed before him.

Orders accordingly

JUDGE1

This appeal raises a number of questions concerning the continuing custody of a person found unfit to plead to a serious charge.

The respondent appeared before a Stipendiary Magistrate at Alice Springs on 16 October 1980 charged with the murder of one Jimmy Campbell on 23 September 1980.

On 24 February 1981 the Magistrate found that he was unfit to plead and remanded him in custody to appear before the Supreme Court, in accordance with s. 382A of the Criminal Law Consolidation Act (NT).

The matter then came before Gallop J., in the Supreme Court at Alice Springs, on 5 May 1981. His Honour ordered that the respondent "be detained in custody at Berrimah Gaol for an indefinite period subject to the condition that he continue to receive regular medical examinations directed to keeping his mental health under review".

The respondent has remained in custody in accordance with that order until the present time.

On 21 February 1983 an originating summons was taken out in the Supreme Court by Mr. Colin McDonald, describing himself as Solicitor for the Applicant, and seeking an order that the present respondent "be granted bail and be at liberty on such terms and conditions as to the Judge . . . . seems fit". This application for release on bail under sub-s. (4) of s. 382A was misconceived. It was however treated, without amendment, as an application for conditional release from custody under sub-s. (6) (b).

At the later hearing of the Summons, and before this Court, Mr. McDonald explained that, as Mr. Jabanardi was unable by reason of mental incapacity to instruct him, he appeared as 'a friend of the Court'. No point was taken by the appellant about the form of the action or the status of Mr. McDonald, either in the Supreme Court or in this Court.

It is no reflection on the excellent motives of Mr. McDonald, or on his very competent presentation of the case for Mr. Jabanardi, to say that this is an unsatisfactory state of affairs. There can be no doubt that proceedings such as these should be brought by a next friend, perhaps the Public Trustee, appointed under the Rules of the Supreme Court. However, on this occasion, we shall follow the Supreme Court in dealing with the merits of the matter without regard to questions of form or the standing of Counsel.

Mr. McDonald's application on behalf of the respondent came on for hearing before Nader J. in the Supreme Court and after hearing evidence and argument, his Honour on 30 March 1983 made an order in the following terms:-

"1. That the Respondent transfer the Applicant from his present place of custody to safe custody within an institution on or before 30th September 1983.

2. That, before the Applicant is transferred in accordance with this Order, the matter be relisted to enable a report to be made as to the suitability of the said institution.

3. That the Respondent report to this Court at intervals of not exceeding 6 months from the date of the transfer concerning:

(a) the mental and general health of the Applicant;

(b) the care that is being given to and the control that is being exercised over the Applicant; and

(c) the treatment, if any, that has been given to the Applicant.

4. That the parties have liberty to apply."

The appellant appeals to this Court against his Honour's order on grounds which may conveniently be paraphrased as
follows
(i) his Honour had no power to order the respondent's transfer to safe custody within an unspecified "institution";

(ii) his Honour had no power to order the respondent's transfer at a future time to safe custody within an institution of a contemplated type, which might not be in existence when the time was reached;

(iii) his Honour had no power to make an order which had the effect of requiring public moneys to be spent in order to provide a particular type of institution where the respondent could be held in safe custody, and

(iv) as a matter of law the only course open to his Honour in seeking to achieve the result he desired - namely having the respondent held in a secure hospital rather than a gaol - was to adjourn the matter until such a hospital was available; he should in any event have followed this course in the exercise of his discretion.

There was a cross-appeal filed by Mr. McDonald who, in argument before this Court, confined himself to the single ground that his Honour should, as a matter of law, have placed a fixed term upon the period for which Mr. Jabanardi could lawfully be held in custody.

During the course of the appeal, the Court allowed further evidence to be adduced, both by affidavit and orally, of changed circumstance since the date of Nader J's order.

There was evidence before Nader J. of irreversible brain damage suffered by the respondent, and of his need for 24-hour supervision and care. His Honour's summary of findings have not been challenged in this Court. They were

"The applicant is unfit to plead. He will, in all probability, never be fit to plead. He should forthwith be transferred from Berrimah Gaol to an institution for chronically mentally ill persons. Such institution should provide care for him and should have regard to promoting such improvement in his condition as may be possible. Some improvement, however minimal, is likely even if it is no more than an enhanced enjoyment of simple natural things. There is at present no such institution in the Northern Territory. There are such institutions in other parts of the Commonwealth. There is no effective arrangement with any state or other Territory for the transfer of the applicant to an appropriate institution. It is preferable, he being an Aboriginal person, that he be not removed any further from his traditional lands than is necessary. The government is actively seeking suitable accommodation for the applicant outside the gaol. It may take less than 6 months for such accommodation to be found. If he is allowed his liberty he will, in all probability, consume alcohol with consequent disinhibition and the possibility of serious harm to himself and others."

The additional material before this Court showed that the respondent's condition had deteriorated in the last three months, in that he had shown violent tendencies on a number of occasions.

There was also evidence that a part of the Berrimah Gaol (the former women's section) had been gazetted as part of the Darwin Hospital, and physical alterations were being made to it to make it more suitable for the reception of a small number of persons who were mentally ill, but required holding in safe custody. It was expected that alterations and staffing arrangements would be completed by about the end of July.

The 'hospital' would be staffed by hospital workers during normal working hours and by prison officers at night and at week-ends. Hospital staff would be on call at those times. There would probably be only two inmates for the 'hospital' in the immediate future. As the Senior Consultant Psychiatric Registrar of Darwin Hospital said, in evidence before this Court, the ward will operate as a specific unit, with limited aims and objectives, for one or two severely brain-damaged individuals.

Before dealing with the grounds of appeal, it is convenient to refer to another question which was raised, in the course of argument of the appeal, by the Bench.

This was whether a person can lawfully be held in custody, pursuant to s. 382A of the Criminal Law Consolidation Act (NT), after it has become clear that he will never be fit to plead to the charge which led to his detention. That section is in the following terms,

"382A(1) Where a person charged with an offence is, from want of comprehension of the nature of the circumstances alleged or of the proceedings, found by the court before whom he is charged to be unfit to plead that court may order that the person be -

(a) discharged;
(b) remanded on bail; or
(c) remanded in custody.

(2) Where a Magistrate makes an order under sub-section (1) (b) or (1) (c) the person in respect of whom the order is made shall be remanded to appear before the Supreme Court.

(3) The Supreme Court may order that a person appearing before it charged with an offence or remanded under sub-section (2) to appear be -

(a) absolutely discharged;

(b) conditionally released; or

(c) detained in safe custody -

(i) at such place;

(ii) for such periods; and

(iii) subject to such conditions, as the Supreme Court thinks fit.

(4) A person who has been remanded in custody under sub-section (1) (c) may, at any time, apply to the Supreme Court to be released on bail.

(5) A person who has been conditionally released from custody under sub-section (3) (b) may, at any time, apply to the Supreme Court -

(a) for a variation of the conditions under which he was so released; or

(b) to be absolutely discharged from custody.

(6) A person who has been detained in custody under sub-section (3) (c) may, at any time, apply to the Supreme Court -

(a) for a variation of the order under that paragraph in pursuance of which he is so detained;

(b) to be conditionally released from custody; or

(c) to be absolutely discharged.

(6A) A person who has been conditionally released from custody under sub-section (6) (b) may, at any time, apply to the Supreme Court -

(a) for a variation of the conditions under which he was so released; or

(b) to be absolutely discharged from custody.

(7) Where a person makes an application under sub-section (4), (5), (6) or (6A) the Supreme Court may make such an order in relation to the person as it thinks fit.

(8) The Supreme Court may, at any time, order that a person in respect of whom an order has been made under sub-section (3) (b) or (c) be tried for the offence for which he was found to be unfit to plead under sub-section (1)."

It seems clear, on the evidence, that there is no possibility of the respondent ever being fit to plead to the murder charge brought against him. It seems undesirable that such a charge should be left hanging over the head of a person in the position of the respondent, and that he should be held in custody indefinitely by virtue of that fact. It would seem preferable that appropriate steps be taken to lay the charge to rest and to deal with the respondent in accordance with general legislation concerning mentally ill persons who represent a risk to themselves or others. This, however, is a matter for the relevant authorities in the Northern Territory.

All this Court can be concerned with is whether there is power to hold a person in custody, pursuant to s. 382A of the Criminal Law Consolidation Act (NT), after it has become clear that he will never be fit to plead. We think it is quite possible that there is no such power, since the intention of the legislature in enacting the section seems to have been to regulate the control of the accused person until such time as he could either be put on trial or be finally discharged. The accused person's entitlement to absolute discharge would, of course, be reinforced if the proceedings against him were discontinued.

The emphasis in the section on periodic orders and opportunities to review those orders is consistent with the doubt we feel about the power under this section to hold a person who will never be fit to plead. Any suggestion that a person could be held in custody for many years, without trial or any possibility of trial, simply because a charge has been laid against him which he will never be well enough to answer, is so repugnant to our legal system's protection of the right to freedom that it would require clear evidence of legislative intention before it could be accepted.

It is interesting to note that the reasoning of the U.S. Supreme Court in Jackson v Indiana 406 U.S. 715 is entirely consistent with the views we have expressed. The facts of that case were similar to the present, although the offences alleged were trivial by comparison with a charge of murder, and the prospect of Jackson ever being able to plead may have been marginally greater than in the present case. The Supreme Court held that indefinite detention because of inability to plead did constitute a denial of the constitutional guarantees of due process and equal protection of the laws. The Court said, at p. 738-9,

"We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial."

However we do not think it proper to express a concluded view on this question because it was not raised by the originating summons before us, nor was it fully argued. And so far as the respondent is concerned, it seems that the practical result will be the same whether he is dealt with under the Criminal Law Consolidation Act (NT) or the Mental Health Act (NT). If the Northern Territory authorities take the view that it is desirable to terminate criminal proceedings against persons who will never be fit to plead, the question of power may never have to be decided. It is fair to say that it is only as a result of these proceedings that evidence has been amassed which makes clear the permanent nature of the respondent's mental illness. And, as will be seen, there is as yet no suitable hospital for the treatment of persons in the respondent's condition. These factors have no doubt had the effect of delaying full consideration by the authorities of the respondent's status.

Turning now to the appellant's grounds of appeal, the first raises the question whether Nader J. had the power to order the transfer of the respondent from the Berrimah Gaol to an unspecified "institution".

We have come, reluctantly, to the decision that his Honour did not have that power. We say 'reluctantly' because of the great care and obvious concern with which his Honour approached his task, and because of what we might respectfully describe as the good sense of his Honour's intentions. Nevertheless we feel obliged to hold that a power to order a person to be detained in custody "at such place . . . . as the Supreme Court thinks fit" (Criminal Law Consolidation Act (NT) s. 382A (3)) does not extend to the making of an order that a person may be held in any institution other than the one where he is presently held - and that was the effect of his Honour's order. In other words, we think orders made under this section must be positive rather than negative in their substance.

In our view it would be within power to order that a person be detained at one of several named places, or at a particular type of place, such as a 'prison' or a 'hospital' as defined by appropriate legislation. But the word 'institution' is very wide and lacking in precision. We think it is too uncertain in its application to constitute a valid exercise of power under s. 382A (3); and we do not believe that this formal defect which we see in the order was cured by the requirement that a report be made to the Court on the suitability of the 'institution' chosen by the authorities for the detention of the respondent.

We have said that, in our view, an order such as that made by his Honour could not be supported under sub-s. (3) of s. 382A. It is true that sub-s.(7) is expressed in completely general terms; when an application is made by a person previously dealt with under the section "the Supreme Court may make such order in relation to the person as it thinks fit". However we think that common sense and consistency demand that there must be limits placed on that power, and those limits must be directly related to the powers conferred by the section on the Court when the person unfit to plead is first brought before the Court. Thus we do not believe that sub-s. (7) gives the Court any greater powers than are to be found sub-s. (3), or other sub-sections which may be relevant in a particular case.

The next point of appeal relates to what Nader J's order intended rather than what it said. It is clear that in making the order which he did, his Honour was acting on evidence before him to the general effect that, if he thought the respondent should be housed in a hospital rather than a gaol, then something would be done to achieve that result, even though the arrangement would probably be makeshift and suitable only for a few people in positions similar to the respondent's.

We must say that we have doubts as to the Court's power to order that, at some future date, a person be transferred to a named place, or type of place, which does not exist at the time the order is made. We believe that such an order should be avoided if the same result can be achieved by other means. His Honour, perhaps sensing this difficulty, seems to have tried to allow the authorities as much scope as possible, by framing his order not in terms of a 'hospital' affording safe custody but in terms of an 'institution'. This choice of words produced the difficulties which we have already considered. There was no evidence before his Honour about the place where, as later evidence shows, it is now intended to house the respondent. So this was not a case of an order directed to a future state of affairs already in clear contemplation. As we have said, we think the validity of such an order could be in doubt, depending upon the particular circumstances of the case.

The real thrust of the appellant's argument, and the main question of principle which it seeks to have determined, arises under its next ground of appeal. This is that the Court had no power to order, in effect, the expenditure of public monies for the provision of hospital facilities, which did not then exist, suitable for the custody of certain mentally ill persons. The appellant argued that s.382A of the Criminal Law Consolidation Act (NT) gives the Crown certain rights (to hold people in custody who have not been convicted of any offence); it does not impose obligations, except insofar as conditions may be attached to the right to detain.

Before dealing with this argument, we think it should be said that Nader J. was led into making the order which he did by evidence from senior health officers along the lines we have already indicated. For example, he refers in his judgment to the Director of External Care Services of the Department of Health saying "it was likely that something could be found if that was the direction of the Court". His Honour heard from several senior officers of the Department who shared his concern for the respondent's plight and were anxious to take steps to improve that situation.

Now that this Court has been asked to examine the strict legality of the order made, we are bound to say that we have considerable doubt as to whether a court can make an order having the intention and effect (though not apparent on the face of the order) of requiring the executive arm of government to provide a building or similar facility which did not exist at the time the order was made. However, we do not think it is necessary or desirable to deal with this weighty question in the present case. The appeal should be upheld for the other reasons we have stated.

It follows from what has been said that, faced with the problem and the material before him, and given the objective which he desired to achieve, we believe that one course open to Nader J. was to adjourn the proceedings before him, and if necessary keep adjourning them, until he was satisfied that a place existed which was more suitable for the custody of the respondent than the remand section of the Berrimah Gaol.

If he had formed the view that no sufficient action was being taken he could, no doubt with appropriate notice to the authorities, have considered discharging the respondent absolutely. This would have had the effect of requiring the authorities to rely, in the respondent's case, on the provisions of the Mental Health Act (NT) for the control of mentally ill persons who represent a risk to themselves or others. That Act provides for custody in hospitals rather than gaols (see s.10). It is true that such an order would have the same effect as one pursuant to the Criminal Law Consolidation Act (NT) requiring the authorities to find a secure hospital for the respondent. But that effect would be achieved by the operation of the Mental Health legislation, not by the direction of the Court.

So far as the cross-appeal is concerned, we accept the submission on behalf of the respondent that there should be a fixed period for any order for custody under s.382A. We believe that, wherever possible, a Court should remand a person in custody until a date which is certain, and that it is not desirable to direct a holding in custody for an indefinite period, or until further order. We think the reference in sub-s.(3) to the fixing of 'periods' gives legislative effect to this approach.

In our view, the appropriate order for this Court to make is that the appeal and cross appeal be upheld, the order of Nader J. dated 30 March 1983 be set aside, and the matter referred back to Nader J. for further consideration in light of the evidence placed before this Court and any new material or arguments which may be placed before him.

JUDGE2

I agree with the order proposed by Woodward and Jenkinson JJ., whose draft judgment I have had the opportunity of reading. The order is appropriate, in view of the fresh evidence received during the hearing of this appeal. But as my views differ on one or two matters I refer but briefly to them. The background to the appeal is set out in the joint judgment and I will not reiterate it.

As they have pointed out the relief sought in the originating summons, namely that the respondent "be granted bail and be at liberty on such terms and conditions as to the Judge . . . seems fit" was not an application appropriate to the circumstances. It was of course in the interests of justice that with the consent of the Crown the matter should have proceeded as it did so that the general and important questions could be dealt with and so that the issues relating to the status of the applicant Jabanardi (who proceeded without the appointment of a "next friend") and of his counsel did not delay a hearing as to the vital issues. The main difficulty arising by the form of the application is that it did not define the true basis of the application or the relief sought and this is a factor relevant to the exercise of powers, an issue argued upon appeal.

Gallop J., who in May 1981 was satisfied the respondent was unfit to plead by reason of "want of comprehension of the nature of the circumstances alleged against him" committed him in custody to Berrimah Gaol "for an indefinite period" subject to the condition that his mental condition be kept under review. As the order did not specify a custodial period I have some doubt as to whether it strictly complied with Section 382 (3)(c) of the Criminal Law Consolidation Act which empowers the court to make an order that a person be "detained in safe custody . . . at such place . . . for such periods and . . . subject to such conditions" as the court thinks fit. An order made under this section should in my view provide a termination date or a fixed review date, otherwise, as the case at bar illustrates, there is a danger of the remand section of a prison becoming a long term place of confinement for a mentally sick person. In view of Gallop J.'s concluding remarks as to the responsibilities of the community to care for the mentally disabled it is clear he was aware of the absence of appropriate facilities to care for the respondent in the Northern Territory and he no doubt envisaged that there would be regular review and, I suspect, periodic reference to the Supreme Court.

Be that as it may, the application originally brought by Mr McDonald, counsel for the respondent to the appeal, was treated as an application for conditional release from custody under Section 382A(6)(b) although it may equally have been treated as an application for variation of the order of Gallop J. by virtue of Section 382A(6)(a).

The other members of this Court have concluded as a matter of law that the section did not empower Nader J. to make an order in the terms set out in their judgment for two basic reasons -

(1) Section 382A(3) empowers the Supreme Court to make orders of a positive nature only, i.e., it is not permissible to direct that a person should be held in an "institution" other than the prison in which he is in custody.

(2) By utilising the word "institution" the order was too wide and imprecise.

With respect, viewing the matter upon the state of the evidence then before Nader J., I consider the order was properly made and within power. My views on this are reinforced by the wide enabling powers expressed in sub-section (7). Certainly the discretion thereby granted does not enable the Supreme Court to roam at large outside the powers expressed in Section 382A(3). But the provisions of sub-section (7) which enables that court to make "such order in relation to the person as it thinks fit" apply not only to applications made under sub-section (6) and (6A), but to applications for bail release under sub-section (4) and to applications for variation of orders for conditional release or absolute discharge under subsection (5). The powers of the Supreme Court in dealing with such applications are so widely expressed as to indicate both a legislative recognition that the orders should be moulded to the circumstances surrounding the individual application, and a legislative intent that in deciding appropriate disposal, the discretion as to the form of order is a wide one. It is in the very nature of things that applications under this section will require detailed consideration, not only of the safety of the community and the problems and medical condition of an applicant, but also of the facilities appropriate to treat or care for an applicant.

In the course of this appeal and in the Court below, it was submitted by the Crown that as there was at the time no appropriate hospital to care for the respondent, and as the provision of such a facility was under active consideration, the appropriate order was to adjourn the proceedings until these exploratory efforts had come to fruition when an appropriate and definitive order could be made. But it seems to me that upon the evidence then before Nader J. that he probably concluded a mere adjournment may have been an exercise in futility which would further prolong a situation repugnant to justice whereby a chronically mentally sick Aboriginal person, unconvicted and unfit to plead should be held in a prison by reason of the inability or failure of the community to provide a care and treatment centre, whether it be termed a hospital or otherwise. There is adequate authority to indicate that this is not the function of prisons devoid of hospital facilities. Moreover (and I draw upon my own experience in the Northern Territory) the situation presented a problem which has existed for years and which has in the past been the subject of previously ineffective judicial comment. The issue simply was whether this situation should preclude the court from making an order intended to ensure the respondent's comparatively early release from a prison to a centre with security provision which the medical witnesses considered was appropriate, or at least, more appropriate.

Nader J.'s order was, as I view it, designed to achieve this end. The other provisions of his order were such as to ensure not only that the parties had liberty to apply, but that opportunity was granted to enable the Supreme Court to consider further the suitability of the institution. His Honour's use of the word "institution" in his final order was not, in my view, such as to offend the provisions of the section and brooks of no misunderstanding or ambiguity against the background of the evidence. In his reasons for judgment his Honour referred to his intention to "order that the applicant be transferred from his present place of custody to a hospital on or before 30th September 1983" subject to the right of the parties to apply as to the date of transfer or as to the "appropriateness" of any particular hospital. He referred in those reasons to Dr MacGregor's recommendation that the respondent be "placed in an institution other than a gaol" and to the doctor's opinion expressed on a humanitarian basis that the respondent was "in need of some caring institution". As no final plans had been formulated at the time the application was considered I consider his order that the transfer be made from a prison "to safe custody within an institution" was sufficiently defined and within power under Section 382A(3).

Nor do I consider his Honour's order should be impugned because its result may have necessitated the expenditure of public moneys for the provision of secure hospital facilities for the mentally sick. As the other members of this Court, after expressing some doubts, have refrained from dealing with this question there is no purpose to be served in pursuing it. I only comment that the responsibilities of the courts in dealing with people in the tragic condition of Mr Jabanardi are provided by statute and the essential rights and liberties of the subject must be borne in mind. The failure of government to provide such facilities, or adequate facilities for the care of the chronically sick should not in my view necessarily operate to prevent the exercise of the courts' function. If this be so in future cases it may well be argued that existing facilities are inadequate or overcrowded and that the discretion of the courts to administer the Act is thereby hampered. In view of the legislation relating to those unfit to plead it must be the responsibility of government to ensure facilities are available for the care of such people in places other than the remand section of prisons.

It follows that save for the further evidence we have heard I would not have allowed the appeal. For the reasons I mentioned when dealing with the order of the Supreme Court made in May 1981 I agree that as far as the cross appeal is concerned an order under the section should be for a fixed period although I am concerned that the section on its face gives the Crown no right to apply for variation of conditions of release or custodial orders.

However, as I have said, in view of developments since his Honour's order was made on 30th March last and the further evidence adduced in the course of the appeal I agree with the order proposed by the other members of this Court. Mr McDonald expressed misgivings as to the evidence of the proposed "hospital" gazetted and being prepared within prison walls. As I understood his submissions, he fears it may be a hospital by day and a prison by night. That is not a matter which can now weigh with this Court. It is a matter which can be put to Mr Justice Nader, who is well conversant with the evidence, who will have the advantage of considering the affidavits and oral evidence placed before us together with any further evidence or submissions he may admit.

In conclusion I express my full agreement with the observations of the other members of this Court that it may now be appropriate to lay the charge to rest and to deal with the respondent under legislation relating to the mentally sick. In view of the recent evidence as to the respondent's deteriorating condition I share their doubts as to whether his custody under Section 382A is appropriate or lawful, there being no reasonable prospects that he will ever be fit to plead.