Wedge v Commissioner of Corrective Services & Ors

[2006] NSWSC 998

CITATION:	Wedge v Commissioner of Corrective Services & Ors [2006] NSWSC 998
HEARING DATE(S):	22/09/2006
JUDGMENT DATE :	26 September 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	The plaintiff entitled to release.
CATCHWORDS:	CRIMINAL LAW: administration of prisons – habeas corpus – plaintiff sentenced to term of imprisonment with non-parole period – parole order made by sentencing court – transferred to hospital under s97, Mental Health Act – forensic patient – non-parole period expired – procedure under s86, Mental Health Act yet to be undertaken – whether the plaintiff is entitled to release by virtue of parole order
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Mental Health Act 1990 Crimes (Administration of Sentences) Act 1999
CASES CITED:	Hamilton v Director-General, Department of Health and Anor (James J, unreported, 13 April 1995) McDonald v Commissioner of Corrective Services & anor [2006] NSWSC 496 Beckwith v The Queen (1976) 135CLR 569
PARTIES:	Norman Gary Wedge - Plaintiff Commission of Corrective Services - 1st Defendant State of New South Wales - 2nd Defendant Medical Superindendent of the Long Bay Prison Hospital - 3rd Defendant
FILE NUMBER(S):	SC 2006/30118
COUNSEL:	S Beckett (plaintiff) R Cogswell SC (defendants)
SOLICITORS:	Geoffrey Tremelling - Legal Aid (plaintiff) Office of the Crown Solicitor (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

26 September 2006

2006/30118
Norman Wedge v Commissioner of Corrective Services & Ors

JUDGMENT:

1 HIS HONOUR: The plaintiff, Norman Gary Wedge, is detained at the Long Bay Prison Hospital. He contends that he is entitled to release, and by a summons filed in this Court he seeks a declaration to that effect and relief in the nature of a writ of habeas corpus. He seeks other relief, which is not urgent and which I am not asked to determine. The summons was directed to the Commissioner of Corrective Services, as first defendant and the State of New South Wales, as the second defendant. At the hearing on 22 September 2006, for reasons which will appear, the medical superintendent of the Long Bay Prison Hospital was joined as the third defendant.

2 For present purposes, it is sufficient to recite that on 30 May 2006 at Lismore Local Court the plaintiff was sentenced to two concurrent terms of imprisonment for fifteen months, with a non-parole period of seven months, dating from 27 December 2005. The sentences being less than three years, the magistrate ordered that he be released at the expiration of the non-parole period, that is, 26 July 2006: s50 of the Crimes (Sentencing Procedure) Act 1999. He was committed by warrants to the custody of the Governor of Grafton Correctional Centre. Subsequently, he was transferred to the Metropolitan Remand and Reception Centre, pursuant to s23 of the Crimes (Administration of Sentences) Act 1999 (to which I shall refer as the “Administration Act.”) From there he was transferred to the facility known as Malabar Special Programs.

3 Towards the end of June 2006, whilst at that facility, he was examined by two medical practitioners, one of them a psychiatrist, who certified that he was mentally ill. This is a procedure for which provision is made in s97 of the Mental Health Act 1990. Pursuant to that section, on 30 June 2006 a delegate of the Chief Health Officer ordered that he be transferred to a hospital. On 13 July 2006 he was transferred to the Long Bay Prison Hospital.

4 It is common ground that, as a result of that transfer, the plaintiff became a “forensic patient”, within the meaning of par(c) of the definition of that expression in the dictionary to the Mental Health Act. Section 100A(1) of the Act provides:

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

5 On 17 July 2006 an authorised person gave notice expressing an opinion in the terms of the subsection, and the plaintiff remains in the hospital. In the meantime, of course, his non-parole period has expired. The parole orders made by the court have not been revoked, although the Parole Authority has the power to do so by virtue of s130(1) of the Administration Act.

6 Chapter 5 of Mental Health Act deals with forensic patients. Part 2 of that chapter provides for review of those patients and commits that task to the Mental Health Review Tribunal. Section 86(1) relevantly provides:

(1) The Tribunal must, as soon as practicable after a person is transferred to a hospital under section 97…:
(a) review the case of the person, and
(b) make a recommendation to the prescribed authority as to the person’s continued detention, care or treatment in the hospital.

The “prescribed authority” for present purposes is the Minister for Health. By subs(3) the Tribunal may at any time recommend that the person be transferred back to a prison.

7 Section 86(4) provides:

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

If the person is returned to a prison, he or she ceases to be a forensic patient: ss105 and 107.

8 On 26 August 2006 the plaintiff’s solicitor appeared before the Tribunal for the purpose of the review required by s86(1), but it was adjourned to a date in October. Apparently, this was in anticipation of the proceedings before me and to abide their outcome. Accordingly, at this stage the plaintiff’s continued detention at the hospital has not been the subject of a recommendation by the Tribunal or an order by the Minister.

9 Other provisions in Part 2 of Chapter 5 which are relevant to forensic patients such as the plaintiff are ss82 and 84. There is no need to examine these provisions in any detail. Section 82(1) requires the Tribunal to review the cases of all forensic patients from time to time and to make a recommendation to the Minister about a patient’s continued detention, care or treatment, or as to the patient’s release. By subs(4) the Tribunal may not recommend the release of a forensic patient unless it is satisfied that “the safety of the patient or any member of the public will not be seriously endangered by the person’s release.” Subs(5)(b) makes it clear that a prisoner who has become a forensic patient by being transferred to a hospital may not be recommended for release during the course of his or her sentence of imprisonment or, if a non-parole period has been set, during that period.

10 Section 84 empowers the prescribed authority, subject to certain requirement set out in the section, to order the release of a forensic patient. As I have said, for patients such as the plaintiff the prescribed authority is the Minister. Release may be subject to conditions. Finally, a forensic patient may be classified as a “continued treatment patient” under s89, a procedure which it is not necessary to examine for present purposes.

11 In a letter to the plaintiff’s solicitor of 31 August 2006 under the hand of Mr Jeff Cunningham, Director of Sentence Administration, the first defendant asserted that, the plaintiff having become a forensic patient upon his transfer to the hospital under s97 of the Mental Health Act and his detention there having been continued by the order under s100A, the “releasing authority” is the prescribed authority under that Act on the recommendation of the Mental Health Review Tribunal. It was also asserted that his status as a forensic patient did not come to an end upon the expiration of his non-parole period. If that be so, he would not be entitled to release during the currency of his sentences unless the Minister made an order under s84.

12 Before me, counsel for the plaintiff, Mr Beckett, submitted that the plaintiff’s status as a forensic patient did cease upon the expiration of the non-parole period, so that he was then no longer subject to the review of the Tribunal and the order of the Minister. Alternatively, he submitted that, if the plaintiff still is a forensic patient, the steps taken under the Act so far are ineffective to override the parole orders made by the sentencing court.

13 There is no doubt that, by s107 of the Mental Health Act, the plaintiff would cease to be a forensic patient on the expiration of his sentences on 26 March 2007 and would be entitled to release. Mr Beckett’s first submission was that the effect of s107 was to terminate the plaintiff’s status as a forensic patient upon the expiration of his non-parole period, when the parole orders came into effect. For that proposition he relied upon the judgment of James J in Hamilton v Director-General, Department of Health and Anor (James J, unreported, 13 April 1995), a decision dealing with a situation relevantly similar to the present case.

14 Mr Cogswell SC, for the defendants, argued that James J’s decision is no longer applicable because of a later amendment to the opening words of the section. I am indebted to both counsel for careful and considered submissions about this matter. I had the benefit of similar submissions in McDonald v Commissioner of Corrective Services & Anor [2006] NSWSC 496. I did not have to decide the matter then and, in the event, I need not decide it now. I am persuaded by Mr Beckett’s alternative argument that the plaintiff is entitled to be released.

15 Put shortly, that argument was that the plaintiff would not become subject to release by the Minister on the recommendation of the Tribunal until the Tribunal had reviewed his case and made a recommendation under s86(1) for his continued detention in the hospital, and the Minister had so ordered under s86(4). Part 2 of Chapter 5 contains a number of provisions concerning the disposition of forensic patients. Apart from those I have outline above, other sections deal specifically with persons who have been found unfit to be tried or not guilty by reason of mental illness: ss 80, 81 and 85.

16 However, as Mr Beckett pointed out, there is no global provision to the effect that a person in detention who has been classified as a forensic patient can be released only by an order of the Minister, upon the recommendation of the Tribunal, under Part 2. Put another way, the machinery of that Part does not necessarily come into play immediately upon a prisoner having acquired the status of a forensic patient. In a case such as the plaintiff’s, that status must be confirmed by the procedure under s86.

17 All that has happened to the plaintiff thus far is an order under s97 transferring him to the hospital and an order under s100A maintaining his detention there. These were administrative steps, no doubt taken for good reason. However, while conferring upon the plaintiff the status of a forensic patient, they did no more than alter the institution in which his sentence was to be served. They did not change the basis of his detention within the prison system, any more than a transfer from one correctional centre to another under s23 of the Administration Act would have done.

18 The right to detain him still has its source in the commitment warrants issued upon his being sentenced and the parole orders made by the court. Those parole orders are in the prescribed form, directing his release on parole at the expiration of the non-parole period and adding that, unless sooner revoked, the order remains in force until the end of the term of imprisonment. Clearly, the reference to revocation is derived from the power of the Parole Authority under s130(1) of the Administration Act to revoke a parole order, before or after it has come into effect. As I have said, the orders in the present case have not been revoked.

19 Mr Cogswell submitted that, immediately upon his being transferred to a hospital under s97 and acquiring the status of a forensic patient, the plaintiff became subject to Part 2 of Chapter 5 of the Mental Health Act during the remainder of his sentences. It was the intention of Parliament, he argued, to take responsibility for the release of all forensic patients from the Parole Authority and place it on the relevant prescribed authority, guided by the review and recommendation of the Tribunal. He relied upon the fact that Chapter 5 as a whole appears to create a comprehensive scheme for the management of forensic patients, even to the extent of provisions for leave of absence to be found in Part 3.

20 This approach, he said, is consistent with the objects of the Mental Health Act, although the basic requirements of the criminal justice system are recognised by ensuring that forensic patients cannot be released before the date on which their sentence renders them eligible for release: s82(5)(b), but must be released upon the expiration of their sentence: ss105 and 107. Generally, Mr Cogswell relied upon the submissions which he had put in McDonald v Commissioner of Corrective Services (supra) and which I summarised at [17] - [19] of the judgment.

21 Accordingly, Mr Cogswell submitted, the plaintiff’s transfer to a hospital under s97 did change the nature of his detention. He referred to s100 of the Mental Health Act, which provides that the period of detention in a hospital of a person such as the plaintiff is “for the purposes of the person’s sentence and parole, to be treated as if it were a period of imprisonment in a prison.” The purpose of this provision, he said, was to make it clear that a person’s classification as a forensic patient takes that person outside the operation of the legislation which otherwise would have regulated his or her imprisonment and eligibility for release. As he put it in written submissions, the Mental Health Act provides another avenue for assessing the eligibility for release of a forensic patient, “by reference to public safety criteria, rather than criminal justice criteria alone”: s82(4). Thus, he argued, the order under s100A of the Act is sufficient authority for the plaintiff’s present detention.

22 This issue did not arise in Hamilton or McDonald, because in both cases the procedure under s86 of the Act had been undertaken. I have not found it easy to resolve, but the nature of the proceedings requires that it be determined urgently. I can see the force of Mr Cogswell’s arguments and, in particular, of the questions of policy which he has raised. However, the position for which Mr Beckett contended is not inconsistent with those policy considerations. It simply requires a further, but important, step before they come into play. It so happens that in the present case the plaintiff has become entitled to release before that step has been taken.

23 There is no doubt that, if the plaintiff were to be subject to the procedures for release under Part 2 of Chapter 5, it would represent a significant change in the nature of his detention. Having been entitled to release on parole, subject to revocation by the Parole Authority, his release would become a matter for the discretion of the Minister on the recommendation of the Tribunal. Whereas a sentencing court or the Parole Authority, depending on the length of the sentence, has the power to direct a prisoner’s release on parole, the Tribunal can do no more than recommend the release of a forensic patient. It is entirely appropriate that such a change in the nature of the detention of a prisoner such as the plaintiff should be effected only upon the recommendation of the Tribunal, upon a review of the case by that specialist body, and after the Minister has seen fit to act upon that recommendation.

24 This, in my view, is the purpose of s86. It establishes a procedure whereby it is determined, after a prisoner has been transferred to a hospital, whether that person’s status as a forensic patient should be confirmed or whether it should be terminated by his or her return to a prison. This interpretation is also consonant with the requirements of natural justice. Orders under ss97 and 100A are purely administrative, and the prisoner has no right to be heard as to whether they should be made. On the other hand, a review by the Tribunal under s86 is a proceeding at which the prisoner is entitled to be heard and to be legally represented: see Part 2 of Chapter 9 of the Act and, in particular, s274.

25 To interpret the Act in this way appears to me to be consistent with its terms. I think it unlikely that the legislature intended, in a case such as this, that an order of a court directing a prisoner’s release could be overridden by administrative action about which the prisoner has no right to be heard. Generally, the Mental Health Act and the Administration Act evince a legislative intention that prisoners be heard on decisions or recommendations affecting their release, whether by the Parole Authority or by the Tribunal. The Mental Health Act as a whole is not a penal statute, but Part 2 of Chapter 5 should be interpreted in the light of the fact that it bears upon the liberty of the subject: cf. Beckwith v The Queen (1976) 135 CLR 569, per Gibbs J at 576. I might add that, if there are issues of public safety attending the plaintiff’s release into the community, there remains the possibility of involuntary admission to a hospital under Part 2 of Chapter 4 of the Act. Indeed, Mr Beckett acknowledged that that may well happen.

26 It follows that the plaintiff is entitled to be released. Mr Beckett foreshadowed that a declaration to that effect would be all that is required. The declaration sought in the summons, that the plaintiff ceased to be a forensic patient on 26 July 2006, is not consistent with my reasoning. I invite the parties to frame an appropriate declaration and, if necessary, any consequential order. The third defendant was joined because there was some uncertainty as to who is the plaintiff’s custodian while he is in the hospital. If there is to be a consequential order, I also invite the parties to consider against whom it should be made.

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