Attorney General of New South Wales v X and Anor

Supreme Court of NSW|2013-09-18|Before: Johnson J

Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Aoun Investments Pty Limited v Chief Commissioner of State Revenue [2006] NSWSC 1394; 65 ATR 301 Attorney General for the Commonwealth of Australia v Alinta Limited [2008] HCA 2; 233 CLR 542 Cheetham v McGeechan [1971] 2 NSWLR 222 CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 Collins v Attorney General of New South Wales [2013] NSWCA 208 Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 Edwards v Santos Limited [2011] HCA 8; 242 CLR 421 Forster v Jododex Australia Pty Limited [1972] HCA 61; 127 CLR 421 Levy v State of Victoria [1997] HCA 31; 189 CLR 579 Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; 218 CLR 273 Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 R v Line [2004] NSWSC 1148 R v Rodriguez [2010] NSWSC 198 R v SE [2009] NSWSC 785 R v Shan Shan Xu [No. 2] [2005] NSWSC 70 R v Stephens [1999] NSWSC 811 R v Steurer [2009] ACTSC 150; 30 ACTLR 272 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 State of New South Wales v Tillman [2008] NSWSC 1293 Texts Cited: The Hon GR James QC, "Review of the New South Wales Forensic Mental Health Legislation", August 2007 New South Wales Law Reform Commission, Report 138, "People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences", May 2013

Judgment 1JOHNSON J: These proceedings raise for urgent determination an issue concerning the relationship between an order of a Judge releasing a person conditionally following a verdict of not guilty on the ground of mental illness and the powers and functions of the Mental Health Review Tribunal ("the Tribunal") where such an order is made.

The Summons and Appearances 2By Summons filed 5 September 2013, the Plaintiff, the Attorney General of New South Wales ("Attorney General"), seeks declaratory relief. The First Defendant, X, is a forensic patient for the purposes of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act"). The First Defendant will be referred to in this judgment by use of the pseudonym "X" given the restriction on publication of the name of a person before the Tribunal: s.162 Mental Health Act 2007. 3The Second Defendant, the Tribunal, has filed a submitting appearance in the proceedings in accordance with usual practice. 4X has been served for the purpose of these proceedings. He is presently residing as a patient at Macquarie Hospital. Evidence before the Court establishes that he does not wish to appear to defend the proceedings. A Notice of Appearance has not been filed on his behalf. 5In circumstances where there would otherwise be no contradictor, the Registrar of the Court liaised with the New South Wales Bar Association with the view to nomination of counsel prepared to act as amicus curiae. Mr Scott Fraser of counsel, who had appeared for X on prior occasions, indicated his willingness to perform this role. 6At the hearing, Mr Fraser made application for leave to be heard as amicus curiae. Mr Kell of counsel, who appeared with Ms Phillips for the Attorney General, supported the application. 7The hearing of an amicus curiae is entirely in the Court's discretion. The footing on which an amicus curiae is heard is that the person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted: Levy v State of Victoria [1997] HCA 31; 189 CLR 579 at 604. The appointment of counsel to act as amicus curiae served to provide a contradictor to the Attorney General's arguments where none otherwise would have appeared: Attorney General for the Commonwealth of Australia v Alinta Limited [2008] HCA 2; 233 CLR 542 at 568 [68]. 8The present proceedings involve significant issues concerning the proper construction and operation of the MHFP Act. 9Leave was granted to Mr Fraser to appear as amicus curiae and the Court is grateful to him for his preparedness to perform this role and for his careful written and oral submissions, which have assisted the Court in the resolution of the proceedings. 10For reasons that will shortly become clear, it was necessary that these proceedings be heard and determined urgently given the need for a ruling by the Court before 25 September 2013.

Factual Background 11On 17 December 2010, X (then aged 19 years) entered a 7-Eleven store at Neutral Bay. He was armed with a pair of scissors. He said to the attendant "Give me 50 bucks or I'm going to stab you". The attendant said "I can't give you 50 bucks" and when he said he was going to call the police, and did so using an emergency button, X said "I want you to call the police" and began cutting his own left arm with the scissors. X was arrested and charged with attempted armed robbery. 12On 26 September 2011, a trial in relation to that charge took place in the District Court before his Honour Judge Berman SC. His Honour found X, who had been diagnosed with schizophrenia, not guilty of the offence charged by reason of mental illness for the purpose of s.38 MHFP Act. 13Having returned a special verdict under s.38, his Honour considered what order ought be made under s.39 MHFP Act. His Honour observed that this was the only occasion on which X had been involved with the criminal law and expressed his satisfaction, on the balance of probabilities, that X's safety and that of members of the public would not be seriously endangered if he was released from custody: s.39(2). 14Having determined that release was appropriate, his Honour considered whether release ought be unconditional or subject to conditions. The Judge considered conditional release to be appropriate. The Judge turned to a submission on behalf of X that the conditions to be set should apply for a specified period. His Honour accepted this submission, stating that what had persuaded him to accept it was "the principle that [X] should not be worse off after being found not guilty than he would have been if he had been found guilty". His Honour continued: "As Mr Fraser submits, were it the case that [X] pleaded guilty, in view of his age and mental condition and lack of criminal history I would not have sent him to gaol but probably released him on some form of bond. He should not, therefore, be worse off because I found him not guilty". 15His Honour directed, pursuant to s.39 MHFP Act, that X be released from custody immediately subject to specified conditions for his treatment for a period of two years from that day. His Honour directed that the Registry provide to the Tribunal a copy of the finding, including the conditions attached to X's release, the transcript of the proceedings and a copy of the material tendered in the trial. 16I pause to observe that there is no question that the making of a conditional release order under s.39 MHFP Act rendered X a forensic patient, who thereby came under the jurisdiction of the Tribunal: s.42(a)(i) MHFP Act. 17On 6 December 2011, the Tribunal conducted its first review of X under s.44 MHFP Act. In a written decision dated 22 February 2012 arising out of that review, the Tribunal determined that it should continue X's release, subject to the usual conditions of release imposed by the Tribunal which provided for a person's active case management in the community. The Tribunal subsequently imposed those conditions by order dated 5 March 2012. Those conditions were different in most respects from those set by the Judge on 26 September 2011. 18In the course of the written first review decision dated 22 February 2012, the Tribunal addressed the effect of the two-year period included in the Judge's order. The Tribunal disagreed that the Court order could have the effect of time limiting X's conditional release. 19On 16 December 2011, X's matter was relisted before his Honour in the District Court. The Judge indicated that the matter had been relisted because a suggestion had been made to the Court that the order made on 26 September 2011 "may have an unfortunate consequence". The Judge explained: "The suggestion was made that at the end of that two year period, the order that he be released from custody would cease to have effect, with the result that he would be required to enter some form of custody. Accordingly, the matter was listed before me for me to receive submissions as to whether the order that I made, had the effect that I envisaged." 20His Honour noted that submissions had been made by the Crown and Mr Fraser which expressed the common view that the order which had been made would have the effect that the Court intended. According to the transcript of 16 December 2011, the Judge enquired of both counsel: "Are you both confident that the effect of my order is that at the end of two years [X] will certainly not be taken into any form of custody and the effect of the order will be that he is no longer supervised". It appears that both counsel agreed with this statement. The Judge declined to make any amendment to the order made on 26 September 2011. 21Since the first review decision of 22 February 2012, X has been periodically reviewed by the Tribunal. It is not necessary, for the purpose of this judgment, to set out in detail events which have occurred since then. It is sufficient to observe that, on 19 December 2012, following a series of events which included X experiencing an acute dissociative episode, and admitting to his treating team that he had been using drugs and had no intention of returning to a drug and alcohol addiction treatment program in which he had been a participant, the Tribunal ordered a variation to its conditions. These conditions included a condition that X reside at Macquarie Hospital, with all leave privileges to be exercised at the discretion of the medical superintendent. 22The most recent Tribunal review of X occurred on 25 June 2013. The Tribunal published its decision in relation to that review on 30 July 2013. At those review proceedings, legal representatives appeared for X and for the Attorney General and made submissions, both orally and in writing, concerning the effect of the District Court order of 26 September 2011, and its relationship with the Tribunal's functions concerning the continued treatment of X. 23After considering those submissions, the Tribunal (President Daniel Howard SC, Dr John Basson and Mr Stephen Woods) maintained the view taken by the Tribunal in the first review decision of 22 February 2012, namely that the Tribunal had the power to impose its own conditions for X's release, which included the power to vary or remove any time limit upon X's conditional release imposed under the District Court order. 24In the seventh review decision of 30 July 2013, the Tribunal stated that given the psychiatric report and risk assessment it had received concerning X, the Tribunal was satisfied that further stabilisation of X's condition was necessary. The Tribunal determined that X should continue to remain in his current placement at Macquarie Hospital until his mental state and behaviour stabilised. The Tribunal noted that the terms of the conditional release order of 19 December 2012 would continue to apply to X, and that the Tribunal proposed to hold a further review with respect to him in six months' time. 25Accordingly, it is clear that the Tribunal contemplated that these conditions would continue to bind X, and require him to reside at Macquarie Hospital, beyond 25 September 2013, being the final day of the two-year period specified in the District Court order. 26In these circumstances, as I have observed, the present Summons was brought before the Court for urgent hearing and determination.

Relief Claimed in the Summons 27The Attorney General seeks declaratory relief in the following terms: (a) A declaration that the decision by the Tribunal dated 30 July 2013, made following a forensic review of X on 25 June 2013 under s.46(1) MHFP Act, is valid. (b) A declaration that the order for variation to conditional release made by the Tribunal under the MHFP Act in relation to X on 19 December 2012, the continued application of which was noted in the decision of 30 July 2013, has, and will continue after 25 September 2013 to have, full force and effect according to its tenor, subject only to any further order made by the Tribunal or the Supreme Court of New South Wales. (c) A declaration that the District Court order under s.39 MHFP Act made on 26 September 2011 does not limit the time period during which the conditional release order of 19 December 2012, or any further order made by the Tribunal varying or substituting that order, has or will have operative effect. (d) A declaration that the District Court order of 26 September 2011 does not have the effect that, after 25 September 2013, X will cease to be a forensic patient under the MHFP Act.

Relevant Provisions of the MHFP Act 28It will be necessary to say something concerning the legislative history of the provisions falling for consideration, before turning to the resolution of the matters in controversy in these proceedings. Before doing so, however, it is appropriate to set out some key provisions of the MHFP Act. 29Part 4 MHFP Act (ss.37-39) is entitled "Defence of mental illness". Part 4 relates to persons tried on indictment. Provision is made elsewhere in the MHFP Act (Part 3 - ss.31-36) concerning summary proceedings relating to persons affected by mental disorders. Sections 37-39 provide: "37 Explanation to jury If, on the trial of a person charged with an offence, a question is raised as to whether the person was, at the time of commission of the offence, mentally ill as referred to in section 38, the Court must explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings and must include in its explanation: (a) a reference to the existence and composition of the Tribunal, and (b) a reference to the relevant functions of the Tribunal with respect to forensic patients, including a reference to the requirements of this Act that the Tribunal may make an order for the release of a person detained in accordance with section 39 only if the Tribunal is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person's release. 38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person. 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order." 30Where the defence of mental illness is raised, a special verdict of not guilty by reason of mental illness may be returned by the jury (or the Judge at a Judge-alone trial) under s.38(1). The Judge must direct the jury in accordance with s.37 at such a trial: R v Rodriguez [2010] NSWSC 198 at [56]-[57]. The Court may remand the person in custody under s.38(2) until the making of an order under s.39, but there is no power to grant bail during this period. The terms of s.39 arise directly for consideration in these proceedings. 31Part 5 MHFP Act (ss.40-76K) is entitled "Forensic patients and correctional patients". This part governs the powers, duties and functions of the Tribunal. 32The objects of Part 5, as contained in s.40, are important: "40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care. Note. Section 68 of the Mental Health Act 2007 sets out general principles with respect to the treatment of all people with a mental illness or mental disorder." 33The functions of the Tribunal under the MHFP Act are to be exercised by the Forensic Division of the Tribunal, a specialist body constituted under s.73 MHFP Act. Section 74 specifies matters for consideration by the Tribunal when determining what order to make under Part 5: "74 Matters for consideration Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part: (a) whether the person is suffering from a mental illness or other mental condition, (b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm, (c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration, (d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release, (e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody." 34Section 42 is in the following terms: "42 Forensic patients For the purposes of this Act, the following persons are forensic patients: (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or (ii) section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act), (b) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section." 35It will be seen that a person released unconditionally under s.39 does not become a forensic patient by operation of s.42. However, a person who is detained or released subject to conditions under s.39 does become a forensic patient. 36Once a person has become a forensic patient, the Tribunal is bound to conduct an initial review under s.44, which provides: "44 Persons found not guilty by reason of mental illness - initial review (1) The Tribunal must review a person's case as soon as practicable after the person is found not guilty of an offence by reason of mental illness, after a special hearing, a trial or on an appeal, and ordered to be detained in a mental health facility or other place or to be released from custody subject to conditions. Note. Relevant orders may be made under this Act (including sections 25 and 39) and under section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act). (2) The Tribunal must, after reviewing a person's case, make an order: (a) as to the person's care, detention or treatment, or (b) as to the person's release (either unconditionally or subject to conditions). (3) This section does not apply if a person ceases to be a forensic patient." 37It will be observed from s.44(1) (and the note to that subsection) that the obligation of the Tribunal to conduct an initial review arises (relevantly, for present purposes) as soon as practicable after a person is found not guilty of an offence by reason of mental illness after a special hearing (under ss.19-24), after trial on indictment (under ss.37-39) or on appeal (where the Court of Criminal Appeal substitutes a verdict of not guilty by reason of mental illness and proceeds to make an order of detention or conditional release under s.7(4) Criminal Appeal Act 1912). 38Following the initial review, the Tribunal must make an order under s.44(2) MHFP Act. 39The criteria that must be considered by the Tribunal before releasing a forensic patient are contained in s.43: "43 Criteria for release and matters to be considered by Tribunal The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that: (a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care." 40Section 46 requires the Tribunal to carry out further reviews of forensic patients periodically. Section 46 states: "46 Further reviews by Tribunal of forensic patients (1) The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time. (2) The Tribunal must review the case of a forensic patient if requested to do so by the Minister for Health, the Attorney General, the Minister for Justice, the Minister for Juvenile Justice, the Director-General or the medical superintendent of the mental health facility in which the patient is detained. (3) The Tribunal must review the case of each forensic patient who is subject to a community treatment order, and who is detained in a correctional centre, every 3 months. (4) The period within which a particular review under this section must be held may, on the motion of the Tribunal or on the application of the patient or the primary carer of the patient, be extended by the Tribunal to a maximum of 12 months. (5) The Tribunal may grant an application to extend the review period if it is satisfied that: (a) there are reasonable grounds to grant the application, or (b) an earlier review is not required because: (i) there has been no change since the last review in the patient's condition, and (ii) there is no apparent need for any change in existing orders relating to the patient, and (iii) an earlier review may be detrimental to the condition of the patient." 41After undertaking a s.46 review, the Tribunal may make orders and recommendations under s.47, which provides: "47 Orders and recommendations on further Tribunal reviews (1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to: (a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or (b) the patient's release (either unconditionally or subject to conditions). (2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release. (3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act. (4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence. (5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person: (a) has become fit to be tried for an offence, or (b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence." 42Sections 51 and 52 concern the circumstances in which classification as a forensic patient is terminated. The terms of s.51, in particular, were addressed in submissions and will require further consideration. Sections 51 and 52 provide: "51 Termination of classification as forensic patient on unconditional release (1) A forensic patient ceases to be a forensic patient if any of the following events occurs: (a) the person is released unconditionally in accordance with an order by the Tribunal under this Part or by order of a court, (b) if the person has been released in accordance with such an order subject to conditions - the time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with expires. (2) This section applies in addition to any other provision of this Subdivision. 52 Additional circumstances for termination of classification as forensic patient (1) Verdict of not guilty or no limiting term after special hearing A person who has been found to be unfit to be tried for an offence ceases to be a forensic patient if following a special hearing: (a) the person is found not guilty of the offence concerned, or (b) the person is found on the limited evidence available to have committed the offence but a limiting term is not imposed on the person. (2) Detention after special hearing A person who has been detained in a mental health facility, correctional centre or other place following a special hearing ceases to be a forensic patient if any of the following events occurs: (a) the limiting term (where that term is less than life) imposed in respect of the person expires, (b) the person is classified as an involuntary patient under section 53. (3) Person found unfit to be tried by court A person who has been found by a court to be unfit to be tried for an offence ceases to be a forensic patient if the Tribunal notifies the court and the Director of Public Prosecutions that it is of the opinion that the person has become fit to be tried for an offence (whether or not a special hearing has been conducted in respect of the offence) and a finding is made, at a further inquiry by the court as to the person's unfitness, that the person is fit to be tried for an offence. Note. A person subject to a finding that the person is unfit to be tried for an offence, and who is released from detention under section 20 or 29, ceases to be a forensic patient by operation of section 51 (1). (4) Dismissal of charges or no further proceedings A person ceases to be a forensic patient if: (a) the relevant charges against the person are dismissed, or (b) the Director of Public Prosecutions notifies the court that the person will not be further proceeded against in respect of the relevant charges. (5) Other circumstances The regulations may make provision with respect to other circumstances in which the Tribunal may make an order terminating a person's status as a forensic patient." 43Elaborate provision is made in s.77A for appeal to the Supreme Court or the Court of Appeal from determinations of the Tribunal: "77A Appeals against Tribunal decisions (1) A forensic patient or correctional patient who is a party to a proceeding before the Tribunal under this Act may appeal to the Supreme Court from any determination of the Tribunal in that proceeding, by leave of the Supreme Court: (a) on a question of law, or (b) on any other question, other than a determination referred to in subsection (4). (2) The Minister for Health may appeal to the Supreme Court from any determination of the Tribunal in a proceeding before the Tribunal under this Act, as of right: (a) on a question of law, or (b) on any other question, other than a determination referred to in subsection (5). (3) A victim of a forensic patient who is a party to proceedings under section 76 may appeal to the Supreme Court from any determination of the Tribunal under that section in that proceeding, by leave of the Supreme Court: (a) on a question of law, or (b) on any other question. (4) A person may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of the person, by leave of the Court of Appeal: (a) on a question of law, or (b) on any other question. (5) The Minister for Health may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right: (a) on a question of law, or (b) on any other question. (6) The Attorney General may appeal to the Court of Appeal from a determination of the Tribunal under this Act as to the release of a person, as of right, on a question of law. (7) An appeal under this section must be made not later than 28 days: (a) after the determination of proceedings by the Tribunal, or (b) in the case of an appeal by the Minister for Health or the Attorney General, of notification to the Minister or Attorney General by the Tribunal of the determination of the proceedings, unless the Court extends the period within which the appeal may be made. (8) An appeal under this section is to be made subject to and in accordance with the rules of the Court. (9) After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal. (10) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Court remitted to the Tribunal. (11) If a party has appealed under this section to the Court against a determination of the Tribunal, either the Tribunal or the Court may suspend, until the appeal is determined, the operation of any order or determination made in respect of the proceedings. (12) If the Tribunal suspends the operation of an order or a determination, the Tribunal or the Court may terminate the suspension or, where the Court has suspended the operation of an order or a determination, the Court may terminate the suspension. (13) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original determination was made, may be given on the rehearing. (14) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. (15) The Tribunal or any member of the Tribunal is not liable for any costs relating to a determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which an appeal is made under this Act, or of the appeal."

Legislative Background and History 44The written submissions on behalf of the Attorney General contained a comprehensive summary of the complex history of the MHFP Act, and amendments to that Act, in support of a submission (which I accept) that the legislative history and context assists the proper construction of the provisions in question in these proceedings. An understanding of the legislative history of provisions in the MHFP Act (and its predecessors), including s.39 and provisions concerning the powers and functions of the Tribunal, will assist in construing the legislation in its present form: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at 393 [26]. The 1990 Legislation 45The MHFP Act, as originally enacted, was named the Mental Health (Criminal Procedure) Act 1990. The Act was renamed the MHFP Act by 2008 amending legislation which commenced on 1 March 2009. 46In the original 1990 Act, s.39 provided that, upon the return of a special verdict of not guilty by reason of mental illness, "The Court must order that the person be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law". 47Chapter 5 of the Mental Health Act 1990 made provision for the treatment and control of persons the subject of a s.39 order, with such persons being forensic patients under the Mental Health Act 1990. That Act required the Tribunal to review a person's case as soon as practicable after the Court had made an order under s.39, and to conduct regular reviews of the person, with the Tribunal's function being to make recommendations to the Minister for Health as to the forensic patient's detention, care or treatment or release, either unconditionally or subject to conditions: ss.81-82 Mental Health Act 1990. 48Recommendations by the Tribunal were ultimately referred to and acted upon by the "prescribed authority" (the Governor) who had power to make orders of conditional or unconditional release or, if release was not recommended, orders for care, treatment or detention: ss.84-85 Mental Health Act 1990. 49Section 101 Mental Health Act 1990 provided originally that a person who was a forensic patient, after having been found not guilty by reason of mental illness and being subject to a s.39 order, ceased to be a forensic patient: (a) on unconditional release by order of the prescribed authority (the Governor); or (b) if the person had been released by order of the prescribed authority (the Governor) subject to conditions - on the expiry of any times specified in the conditions as being a time during which those conditions, or any of them, were to be complied with, whichever first occurred. 50It appears from s.101 Mental Health Act 1990 (and s.127 Mental Health Act 1983 which preceded that provision), that the legislature contemplated that the Governor could impose time-limited conditional release orders upon forensic patients, at the expiration of which such persons would cease to be forensic patients. 51On 16 November 2007, the Mental Health Act 1990 was repealed and replaced by the Mental Health Act 2007. The provisions relating to the review, detention, care and treatment of forensic patients previously contained in Chapter 5 of the Mental Health Act 1990 were substantially reinserted into Part 5 Mental Health (Criminal Procedure) Act 1990. The 2008 Amendments - The Tribunal Becomes the Decision Maker Subject to Appellate Review by Superior Courts 52From 1 March 2009, the Mental Health Legislation Amendment (Forensic Provisions) Act 2008 commenced, introducing a new regime for the management of forensic patients into Part 5 of the renamed MHFP Act. 53The amendments gave effect to a number of recommendations made by the Hon GR James QC in his report entitled "Review of the New South Wales Forensic Mental Health Legislation", August 2007. 54Amongst other things, the amendments abolished the system of executive discretion to determine the release of forensic patients, and vested that decision-making function in the Forensic Division of the Tribunal. Provision was made for appeals to the Supreme Court or the Court of Appeal from decisions of the Forensic Division of the Tribunal under s.77A MHFP Act: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [29]ff (an appeal from that decision confined to the issue of costs was dismissed by the Court of Appeal: Collins v Attorney General of New South Wales [2013] NSWCA 208). Legislative History of s.39 Since 1990 55As mentioned earlier, s.39, as originally enacted in 1990, required the Court to order in all cases where a special verdict of not guilty by reason of mental illness was returned, that the person must be detained in strict custody until release by due process of law. The process which governed the release of such persons involved the exercise of executive discretion by the Governor, as the prescribed authority, upon recommendation of the Tribunal. 56Section 39 was amended in 1997 to remove the words "in strict custody" so as to provide courts with greater flexibility to order a person to be held in a hospital, rather than a prison (second reading speech, Mental Health Legislation Amendment Bill 1997, Legislative Council, Hansard, 20 May 1997). 57In 2003, s.39 was further amended so that courts were no longer obliged to order the detention of persons in respect of whom a special verdict of not guilty by reason of mental illness had been returned, but could also order the conditional or unconditional release of such persons. According to the second reading speech (Legislative Council, Hansard, 25 June 2003), the purpose of this amendment was to override the decision of Levine J in R v Stephens [1999] NSWSC 811 so as to give the Court an alternative to ordering detention in a hospital or in custody, allowing a Court to make orders, in effect, pending the review to be undertaken by the Tribunal and the Governor, in light of the Tribunal's recommendations. 58I accept the submission of the Attorney General that the 2003 amendment to s.39 was not introduced to allow a court to make a time-limited order of the type made by the Judge in the present case. 59In 2004, amendments were made to provisions then contained in the Mental Health Act 1990, which extended the definition of a "forensic patient" to include persons found not guilty by reason of mental illness and ordered under s.39 to be released from custody subject to conditions. The purpose of these amendments was said to be to clarify that the Tribunal had the same powers in relation to persons released conditionally under s.39 as it had for other forensic patients detained under that provision (second reading speech, Crimes Legislation Amendment Bill 2004, Legislative Assembly, Hansard, 27 February 2004). 60It was submitted on behalf of the Attorney General, correctly in my view, that a by product of this amendment was that persons who were released unconditionally by a court under s.39 would never become forensic patients by reason of that order, and would not fall within the jurisdiction of the Tribunal. 61In 2006, ss.39(2) and 39(3) were inserted into the MHFP Act. The purpose of s.39(2) was said to be to provide "an extra layer of comfort to the community" by specifically requiring courts to take public safety into account before making an order for a person's release under s.39(1) (second reading speech, Mental Health (Criminal Procedure) Amendment Bill 2005, Legislative Assembly, Hansard, 8 November 2005). Some Conclusions to be Drawn from Legislative History 62I accept the submission of the Attorney General that the drafting history outlined above with respect to s.39 MHFP Act, does not disclose any intention on the part of the legislature that an order made by a court conditionally releasing a person under s.39 would impinge upon, or otherwise regulate, the ongoing care and control of such persons by the Tribunal and (before 2009) the Governor acting after consideration of the Tribunal's recommendation. 63To the contrary, I accept that the history of amendments to s.39 reflects that, in facilitating the making of conditional release orders under that provision, Parliament intended only to establish an additional mechanism, and a less oppressive mechanism than that which had previously applied, for referring persons in respect of whom a special verdict had been returned for the ongoing jurisdiction of the Tribunal with respect to forensic patients. Provisions in the Criminal Appeal Act 1912 64During the course of the hearing in this Court, consideration was given to provisions in the Criminal Appeal Act 1912 which provide for appeal under that Act from an order under s.39 MHFP Act. Brief reference should be made to those provisions. 65An order under s.39 MHFP Act is included within the definition of "Sentence" in s.2(1) Criminal Appeal Act 1912. 66On an appeal under s.5(1) against "sentence" by way of an order under s.39 MHFP Act, the Court of Criminal Appeal may make any finding, verdict, order or determination which could have been made in relation to the proceedings before the court of trial: s.6A(b) Criminal Appeal Act 1912. 67Section 6A was introduced by the Criminal Appeal (Mental Illness) Amendment Act 1986, which applied (amongst other things) to an order under s.428ZB Crimes Act 1900 (the predecessor to s.39). The amendments to the Criminal Appeal Act 1912 (ss.6A and 7(4)) were intended to clarify that appeals could be made against specified orders or findings in relation to fitness to plead or mental illness, and to empower the Court of Criminal Appeal to make any necessary finding, verdict, order or determination in relation to those appeals (second reading speech, Criminal Appeal (Mental Illness) Amendment Bill 1986, Legislative Council, Hansard, 24 April 1986). 68Subject to one issue concerning the exercise of discretion to grant declaratory relief (see [118]-[121] below), I do not consider that the appeal provisions in the Criminal Appeal Act 1912 bear upon any issue to be determined in these proceedings.

Submissions of Counsel 69Detailed and helpful written submissions were made by counsel for the Attorney General and by Mr Fraser and it is not necessary to set them out in detail in this judgment. A brief statement of the principal submissions of counsel is appropriate. Submissions of Attorney General 70The Attorney General has not sought to challenge in these proceedings the validity of the District Court order, including the two-year limiting period. Rather, the Attorney General asks the Court to clarify the operation and effect of the District Court order, and particularly the time limit stipulated in it on the assumption that that order was validly made. 71Mr Kell submitted that the apparent conflict between the District Court order and the Tribunal's position ought be reconciled on the basis that, notwithstanding his Honour's stated intention as to the effect the order would have, on a proper construction of the MHFP Act, a conditional release order made by a court under s.39 serves as an interim measure only. Accordingly, it was submitted that the District Court order, including the time limit within which it was expressed to apply, has been effectively superseded by subsequent orders made by the Tribunal in relation to X under Part 5 MHFP Act. 72It was submitted that resolution of the interaction between s.39 and provisions contained in Part 5 MHFP Act required consideration to be given to the relevant statutory language, viewed in context, including the general purpose and policy of the legislation and the mischief sought to be remedied. 73In the Attorney General's submission, the construction advanced at [71] above reflected the purpose of the s.39 conditional release power as being to bring a person found not guilty by reason of mental illness, and conditionally released by a court, within the jurisdiction and control of the Tribunal, but not to enable a court to bind the Tribunal to any particular course or period of care or treatment for that person. 74Specific submissions were made in support of this construction based upon a number of features, including: (a) the interim nature of a court's order for conditional release under s.39(1) is reinforced by ss.39(3) and 44 MHFP Act; (b) the absence of any provision within s.39 for setting a limiting period as part of an order for conditional release is to be contrasted with the specific power to fix a limiting term under ss.23-24 MHFP Act, where an accused person has been found, after a special hearing, to have committed the offence charged; (c) the statutory scheme which involves a person in the position of X being a forensic patient under the jurisdiction of the Tribunal, with the Tribunal to exercise its powers and functions over a period of time upon the basis of (no doubt) changing material, with the need for different conditions to be fixed by a specialist body; (d) the fact that a s.39 order is not made by way of punishment so that any principles of sentencing, including proportionality, did not bear upon the decision. 75In addition, the Attorney General submitted that s.51, properly construed, did not support a contrary conclusion as contended by Mr Fraser. 76Mr Kell submitted that there was a live controversy so that declaratory relief should be granted to provide certainty concerning X's position after 25 September 2013. Submissions of Amicus Curiae 77Mr Fraser submitted that it was open to the Judge to set the time period included in the order under s.39. He submitted that the concept of proportionality did bear upon the nature of the decision to be made. Considerations of the type taken into account by the Judge were, it was submitted, relevant and open to the Court. 78Mr Fraser submitted that the continued status of a person such as X as a forensic patient carried with it a significant stigma. He submitted that, unless the two-year period specified by the Judge had effect, X was at risk of a potentially lengthy period as a forensic patient, with the Tribunal exercising significant powers and controls over his liberty. To the extent that X may have ongoing psychiatric issues, Mr Fraser submitted that these difficulties may be accommodated through the process of civil treatment, care and detention under the Mental Health Act 2007. 79Mr Fraser pointed to the fact that a person who has been the subject of a limiting term following a special hearing, ceases to be a forensic patient on the expiration of the limiting term: s.52(2) MHFP Act. He contrasted this time-limited status as a forensic patient which operates where a person had not been acquitted, but had been found to have committed the offence in the limited way available at a special hearing. He submitted that, on the Attorney General's construction, a person such as X is worse off than a person who has been the subject of a limiting term following a special hearing. Mr Fraser submitted that X was worse off, in a practical sense, than he would have been had he pleaded guilty to the charge in the District Court and been sentenced, as the Judge mentioned, to a period of conditional liberty by way of a bond. 80Counsel submitted that the legislative history of the relevant provisions represented a gradual passing of power from the Executive to both the Tribunal and the Courts, so that the construction he advanced was consistent with the legislative history. 81Mr Fraser submitted that s.51 MHFP Act ought be construed as terminating the status of a person as a forensic patient if the person was released subject to conditions under s.39 and the time specified in the conditions had expired: s.51(1)(b) MHFP Act. 82To the extent that the Attorney General sought to rely upon the statutory scheme which saw the decision-making function in the Tribunal under Part 5 MHFP Act, subject to appeal to the Supreme Court or the Court of Appeal under s.77A, Mr Fraser submitted that a more significant appeal avenue was that which appears to have been available to the Crown if it wished to contend error in the s.39 order, being a Crown appeal against sentence under s.5D Criminal Appeal Act 1912, given the definition of "Sentence" in s.2(1) of that Act as including a s.39 order. It was submitted that the Crown could have appealed against the order of 26 September 2011, but instead effectively agreed with it when the matter was relisted in the District Court on 16 December 2011.

Decision 83The issue before the Court is one of statutory construction. The construction of s.39 commences with a consideration of the text itself, with regard to context, including the general purpose and policy of the provision and the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at 46-47 [47]. Context is to be understood in its widest sense, including the statutory scheme governing the Forensic Division of the Tribunal in Part 5 MHFP Act and the provision for appellate review contained in s.77A: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 at 408; Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; 218 CLR 273 at 280-281 [11]-[13]. As mentioned above (at [44]), an understanding of legislative history will also assist the process of construction. 84There is no express provision in s.39 for a court to place a time limit for the operation of conditional release. This is significant, given that elsewhere in the same Act, there lies an express limiting term power under ss.23-24 MHFP Act following a special hearing. 85The textual analysis of s.39 does not support a construction that would see a court being entitled to set a binding final period as part of any conditional release. Indeed, although the Attorney General did not contend that there was an absence of power to fix a time at all, the better view may be that this is the case. Given the statutory requirement under s.44 for an early review by the Tribunal of a forensic patient, such as X, no real purpose would be served by the setting of a time by the Court beyond a form of recommendation or suggestion. 86However, as a submission to this effect was not advanced before me, it is not appropriate to express any concluded view on this issue. It is sufficient to note the absence of such a provision in s.39 and the presence elsewhere in the same Act of a time-fixing power in ss.23-24. This is an important factor in the construction of s.39. 87Section 39 arises for consideration following acquittal. Legally, the person is not to blame for his or her actions and is not to be punished for them: R v SE [2009] NSWSC 785 at [67] (Hoeben J). 88The purpose of the imposition of conditions of release under s.39 contains no element of punishment, with the aim of the exercise being the protection of others and the community generally, together with the welfare of the person concerned: R v Line [2004] NSWSC 1148 at [17] (Simpson J); R v Shan Shan Xu [No. 2] [2005] NSWSC 70 at [53] (Kirby J). 89The rationale underlying s.39 was described by Penfold J, in the course of a helpful examination of relevant statutory schemes in the Australian Capital Territory and other Australian jurisdictions, in R v Steurer [2009] ACTSC 150; 30 ACTLR 272 at 296 [98]-[99]: "[98] ... The focus is not on blame or punishment (actual or estimated) (see Hoeben J in R v SE, quoted at [31] above), but on ensuring the safety of the community and the accused. The requirements for ensuring community safety are not seen as bearing any necessary relationship to the gravity of the accused's actions, let alone to the gravity of those actions in the hypothetical case of the actions having taken place in the absence of mental illness. [99] The logic of the NSW approach seems to be that a person who continues to be a serious danger to him or herself or to the community may need to be detained for longer than would be justified by the offence if committed by a person who is not mentally impaired. The NSW arrangements give full discretion in how long such a person is detained to the Mental Health Review Tribunal; the requirement that the Tribunal must be headed for that purpose by a Judge or former Judge of the NSW Supreme Court presumably reflects a view that the requirements of justice must be observed in administering the person's detention. If the detention is related to the need for community safety (or the person's own safety), then the fact that the NSW approach may mean that a person is detained for longer than would be justified by the nature of his or her 'offending' behaviour is beside the point. Indeed, it is possible that such a person might have been compulsorily detained under mental health arrangements even where there had been no offending behaviour. 90The general tenor of her Honour's observations are apt to the resolution of the present proceedings, particularly with respect to the irrelevance of any concept of proportionality. 91I do not consider that the sentencing principle of proportionality has any role to play in the making of an order under s.39 MHFP Act. The power to make an order under s.39 is effectively protective and not punitive, so that this factor ought play no part: cf State of New South Wales v Tillman [2008] NSWSC 1293 at [57]-[61]. 92To construe the general terms of s.39 as accommodating considerations external to that provision, such as sentencing factors (including proportionality), would be inconsistent with principles of statutory interpretation that when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised, it excludes the operation of general expressions in the same statute which might otherwise have been relied upon for the same power: Pearce and Geddes, "Statutory Interpretation in Australia", 7th edn, 2011, LexisNexis Butterworths, paragraph [4.34]. 93It is clear, and not in dispute, that X became a forensic patient when the conditional release order was made on 26 September 2011. Of necessity, any conditions set by the Judge on 26 September 2011 would relate to the state of affairs as it then existed which, of course, was capable of change. To adopt a construction which would see the Tribunal having clear and full power to impose an entirely new set of conditions, based upon the material before the Tribunal, but with a fixed temporal outer limit determined by the Judge, would not promote the purpose or object of s.39 and Part 5 MHFP Act: s.33 Interpretation Act 1987. 94As Simpson J observed in R v Line at [18]: "Of course, the nature of her condition is such that the insight she has at present may, temporarily or otherwise, be lost. It is for that reason that the legislature has provided that persons in her position are subject to the overriding supervision of the Mental Health Review Tribunal. I understand that the conditions proposed are essentially drawn from those commonly used by that Tribunal. They are comprehensive and detailed and, I am satisfied, adequate for their purpose." 95It is significant that the MHFP Act entrusts the care and treatment of forensic patients to the Forensic Division of the Tribunal, a specialist statutory body charged with important responsibilities in this respect. The attributes of the Tribunal as a specialist statutory body were considered and emphasised in A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal at [56]-[59]. 96Importantly, since 2009, there are provisions for appeal against decisions of the Tribunal under s.77A MHFP Act which permit a forensic patient (as well as the Minister for Health or the Attorney General in certain cases) to challenge a decision of the Tribunal. 97The contemporary statutory scheme, which sets out the functions and powers of the Tribunal, subject to statutory appeal to this Court or the Court of Appeal, is far removed from the past position which saw a person found not guilty by reason of mental illness being detained, subject to the exercise of executive power by the Governor, with the Tribunal playing a recommendation-making role only. 98To construe s.39 as permitting a court, based upon such limited material as may then be available, to fix a legally binding period as an outer limit for the Tribunal to exercise its functions under Part 5, does not sit comfortably with the statutory scheme and would, to my mind, operate adversely to it. 99The strongest argument in favour of a time-limiting power of the Court under s.39 emerges from s.51 MHFP Act. That provision is not worded ideally. Section 51 was referred to during the short argument which took place in the District Court on 26 September 2011 in support of the power to set a time limit. In the seventh review decision of the Tribunal of 30 July 2013, a different construction of s.51 was adopted by the Tribunal. 100The heading to s.51 states "Termination of Classification as Forensic Patient on Unconditional Release". Although not forming part of the MHFP Act, the heading of a section is available extrinsic material which may assist in ascertaining the meaning of the provision: s.35(2), (5) Interpretation Act 1987; Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 at 448-449 [40]; Aoun Investments Pty Limited v Chief Commissioner of State Revenue [2006] NSWSC 1394; 65 ATR 301 at [26]-[27]. 101It must be borne in mind that if a person is released unconditionally under s.39 by order of the Court, the person does not become a forensic patient in the first place: s.42(1) MHFP Act. Accordingly, s.51 must be taken to operate in other circumstances. 102In its decision of 30 July 2013, the Tribunal expressed the view that s.51(1)(b) is aimed at a situation where, having determined to unconditionally release someone, a court or the Tribunal nevertheless imposed a condition precedent to that unconditional release coming into effect, such as arrangements for repatriation or deportation to be completed in the case of a forensic patient who is a foreign national. Such a construction would give effect to the section. One can understand this scenario as a possible example of a situation where the provision could operate in this way. However, I do not construe s.51 as being confined to such a situation. 103I accept the submission of the Attorney General that s.51(1) is predicated on the person being a forensic patient before the court order releasing the person is made. The language of the section only accommodates orders by a court with respect to persons who are already forensic patients. It does not accommodate time-limited orders by a court under s.39 conditionally releasing a person, where it was that order that made the person a forensic patient in the first place. An ordinary reading of the syntax of s.51(1)(b) is such that the order which makes a person a forensic patient, and the order that unconditionally releases the person after the expiration of a prescribed time period, will be temporally distinct. Even if there is scope for an unconditional release order under s.39 to engage s.51(1)(a) (which I do not accept), s.51(1)(b) does not accommodate a time-limited conditional release order made under s.39 where the person only became a forensic patient by reason of that order. 104I am satisfied that a construction that would see s.51(1)(b) permitting a time-limited order of the type made in the District Court would not be consistent with the object and purpose of the MHFP Act. 105I accept the submission of the Attorney General that the appropriate construction is to construe the words "order of a court" in s.51(1)(a) as being a reference to an order made under s.77A(9)(a) MHFP Act, and not s.39(1). Such an interpretation is consistent with the 2008 amendments to the legislation, which inserted that phrase into s.51(1)(a), having simultaneously inserted the appeal provision contained in s.77A into the MHFP Act, but not having otherwise amended s.39. 106That interpretation is also reflected in the sequence in s.51(1)(a), with an order of the court being secondary or subsequent to an order of the Tribunal, keeping in mind that a s.39 order precedes any order by the Tribunal under Part 5 MHFP Act. 107I accept the submission of the Attorney General that this construction, which allows s.51(1) to apply to a court order under s.77A(9)(a) but not under s.39, promotes the underlying purpose or object of Part 5, in particular, that a forensic patient not be released until the Tribunal (or the Supreme Court on appeal) is satisfied that the safety of the patient, or any member of the public, will not be seriously endangered by the patient's release. 108For these reasons, I accept the construction and operation of s.39 advanced by the Attorney General referred to at [63], [71] and [73] above. 109I acknowledge that policy arguments exist, as advanced by Mr Fraser and referred to at [78]-[79] above. However, it is a matter for the legislature to determine the powers and functions of the courts and the Tribunal in the areas to which the MHFP Act applies. The Attorney General drew to the Court's attention Report 138 of the New South Wales Law Reform Commission, "People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences", (May 2013). 110It is, of course, a matter for government to determine whether amendments ought be made to the MHFP Act, no doubt having considered Report 138 and the recommendations contained in it. 111The task of the Court is to construe the MHFP Act in accordance with relevant principles of statutory construction. Having undertaken that task, I am satisfied that the Attorney General has demonstrated a prima facie entitlement to declarations as sought in the Summons.

Declaratory Relief 112The Court has jurisdiction to make binding declarations of right in proceedings before it, whether or not any consequential relief is or could be claimed: s.75 Supreme Court Act 1970. 113The Court has a broad jurisdiction to grant declaratory relief: Forster v Jododex Australia Pty Limited [1972] HCA 61;127 CLR 421 at 435. 114Appropriately, Mr Kell referred the Court to the decision of the Court of Appeal in Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151, where statements were made which may be seen to operate against the grant of declaratory relief in this case. Young JA, at [87]ff, observed that generally speaking, courts do not, as a matter of discretion, make a declaration which conflicts with the determination of inferior courts, particularly in criminal matters. Young JA observed, at [90], that, although there is no utility in granting a declaration as to the sentence of a court as such a declaration cannot affect the binding effect of the sentence as pronounced, it is a different matter if there is some doubt as to the applicability of legislation which, for example, provided for remission of sentence on the original sentence. In my view, the present case is analogous to the class of case where there is utility in granting declaratory relief. 115There is some analogy with the use of declaratory relief to determine a question of statutory construction, the resolution of which affected the date when a prisoner should be released from gaol: Cheetham v McGeechan [1971] 2 NSWLR 222 at 224. 116I accept that there is utility in the declaratory relief sought in the Summons and that a concrete issue is raised that is currently of real practical importance: Edwards v Santos Limited [2011] HCA 8; 242 CLR 421 at 436 [38]. 117I accept the submission of the Attorney General that, given the divergent approaches evidenced by the District Court and the Tribunal, it is appropriate that the status of X be clarified by a superior court. It is equally appropriate and desirable that there be no continuing uncertainty as to whether or not the Tribunal will have jurisdiction in relation to X after 25 September 2013. 118I have taken into account, in the exercise of discretion, the fact that the Crown authorities considered it appropriate to approach the Judge on 6 December 2011, but then accepted the terms and effect of the s.39 order made on 26 September 2011. Further, the Crown did not appeal against the s.39 order to the Court of Criminal Appeal, despite the apparent ability to do so, assuming that a Crown appeal could have been brought under s.5D Criminal Appeal Act 1912. 119Rather, at a time close to 25 September 2013, the Attorney General has approached this Court for relief. 120I have no doubt that the matters referred to in the preceding paragraphs are relevant to the exercise of discretion whether to grant declaratory relief. I bear in mind, however, that it did not become clear until recently that X would be subject to Tribunal conditions and remain a forensic patient after 25 September 2013. It was possible until then that any proceedings would have been academic. 121I have reached a clear view concerning the proper construction and operation of the MHFP Act and that view is entirely inconsistent with a legal conclusion that would see the Tribunal's power with respect to X ceasing on 25 September 2013. I have had regard, as well, to the detailed material before the Court arising from the regular reviews undertaken by the Tribunal, utilising its expertise, with respect to the necessary care and treatment of X. I have in mind, as well, that it remains open to X, in the future, to exercise his appellate rights under s.77A MHFP Act if he sees fit. 122In all the circumstances, I am satisfied that it is appropriate, in the exercise of discretion, to grant the relief sought by the Attorney General.

Orders 123I make the following orders: (a) the Court: (i) declares that the decision of the Mental Health Review Tribunal ("the Tribunal") dated 30 July 2013, made following a forensic review of X on 25 June 2013 under s.46(1) Mental Health (Forensic Provisions) Act 1990 ("the Act") is valid, (ii) declares that the order for variation to conditional release made by the Tribunal under the Act in relation to X on 19 December 2012, the continued application of which was noted in the Tribunal decision of 30 July 2013, has, and will continue after 25 September 2013 to have, full force and effect according to its tenor, (iii) declares that the order made on 26 September 2011 by the District Court of New South Wales under s.39 of the Act ("the District Court order") does not limit the time period during which the conditional release order of 19 December 2012, or any further order made by the Tribunal varying or substituting that order, has or will have operative effect, (iv) declares that the District Court order does not have the effect that, after 25 September 2013, X will cease to be a forensic patient under the Act. (b) I make no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2013

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