COMMISSIONER OF CORRECTIVE SERVICES & 2 Ors v WEDGE

Court of Appeal (NSW)|2006-10-06|Before: Santow JA, Ipp JA, Bryson JA, Hidden J

The application of the mental health system 59 Section 97 of the Mental Health Act provides: "(1) If it appears to the Chief Health Officer on the certificates, in the form set out in Schedule 3, of 2 medical practitioners, one of whom is a psychiatrist, that a person imprisoned in a prison is a mentally ill person, the Chief Health Officer may order that the person be transferred to a hospital. (2) The Chief Health Officer must notify the [Medical Health] Tribunal in writing of any order made under this section." 60 On 30 June 2006 a delegate of the Chief Health Officer made an order in terms of s 97 of the Mental Health Act that Mr Wedge be transferred to a hospital. On 13 July 2006 he was transferred to the Long Bay Prison Hospital. 61 Section 100 of the Mental Health Act provides: "If a person is transferred, under this Chapter, from a prison to a hospital or other place, the period of the person's detention in the hospital or other place 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."

Thus, by s 100, a person's detention in hospital is to be treated, for sentence and parole purposes, as a period of imprisonment. This, in the present context, is a neutral provision. 62 Section 100A contains safeguards designed to ensure that a person transferred to hospital does not remain there without good cause. This section 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. (2) The Chief Health Officer or an authorised person may, at any time, transfer a forensic patient transferred from a prison to a hospital back to a prison if of the opinion: (a) that the patient has ceased to be a mentally ill person or to be suffering from a mental condition for which treatment is available in a hospital, or (b) that other care of an appropriate kind would be reasonably available to the patient in prison …" 63 On 17 July 2006 an authorised person gave notice of a kind contemplated by s 100A(1) that Mr Wedge was a mentally ill person or a person suffering from a mental condition for which treatment is available in a hospital and that other care of an appropriate kind would not be reasonably available to him in prison. 64 The dictionary to the Mental Health Act defines a forensic patient as: "(a) a person who is detained in a hospital, prison or other place, or released from custody subject to conditions, pursuant to an order under section 10(3)()c), 14, 17(3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA(5) of that Act) or (b) a person who is detained in a hospital pending the person's committal for trial for an offence or pending the person's trial for an offence, or (c) a person who has been transferred to a hospital while serving a sentence of imprisonment and who has not been classified by the Tribunal as a continued treatment patient, or (d) a person who is granted bail pursuant to section 14(b)(ii) or 17(2) of the Mental Health (Criminal Procedure) Act 1990 ." 65 Under paragraph (c) of the definition, Mr Wedge became a forensic patient when he was transferred to a hospital while serving a sentence of imprisonment (he has not been classified as a continued treatment patient). 66 The Mental Health Act contains a series of provisions that require the case of a person transferred to hospital, as well as the case of each forensic patient, to be reviewed at regular intervals. 67 Section 86(1)(b) provides: "The [Mental Health Tribunal] must, as soon as practicable after a person is transferred to a hospital under s 97 or 98: (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."

Section 82(1)(a) provides: "(1) The Tribunal may, at any time, and must, at least once every 6 months, review the case of each forensic patient and make a recommendation to the Minister: (a) as to the patient's continued detention, care or treatment in a hospital, prison or other place …" 68 The case of Mr Wedge came before the Tribunal on 24 August 2006 but was adjourned on the ground that he had taken steps to bring this action the subject of the present appeal. Why the Tribunal could not have proceeded, notwithstanding the pending proceedings is not apparent. 69 Section 107 provides for the termination of the classification of a person as a forensic patient. The section is as follows: "A person who, while serving a term of imprisonment for which a non-parole period has been set, has been transferred to a hospital from a prison ceases to be a forensic patient: (a) on the expiry of the term of imprisonment, or (b) if the non-parole period has expired - on unconditional release by order of the prescribed authority following a recommendation of the Tribunal, or (c) if the non-parole period has expired and the person has been released by order of the prescribed authority subject to conditions - on the expiry of any time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with, or (d) on being classified by the Tribunal as a continued treatment patient, or (e) on being transferred to a prison, whichever first occurs." 70 By s 107(b), a person serving a non-parole period does not have his or her classification as a forensic patient terminated merely because the non-parole period has expired. For termination under s 107(b) to occur, not only must the non-parole period expire but there must be an "unconditional release by order of the prescribed authority following a recommendation of the Tribunal". The consequence is that, once the non-parole period has expired, a prisoner who has been transferred to a hospital from a prison remains a forensic patient unless one of the requisite elements leading to termination of classification as a forensic patient is satisfied.

The parties' arguments 71 The appellants contended: · Several sections of the Mental Health Act assume, and take for granted, that a person transferred to hospital will be detained while in hospital. · The scheme of the Act only works if the patient remains detained in hospital once transferred (subject to compliance with s 100A and the other provisions of the Act that relate to the patient remaining detained in hospital). · The patient remains a forensic patient even after the non-parole period has expired; the only purpose for so remaining a forensic patient is to enable the patient to continue to be detained in hospital. · The legislation removes the parole decision from the hands of the Parole Board and transfers it into the hands of the mental health regime. This is readily understandable having regard to the expertise of those making the relevant decisions under the mental health system.

On these grounds, construed as a whole, the Act provides an independent head of power for the detention of a person transferred from prison to hospital under s 97. 72 Mr Beckett, who represented Mr Wedge, disputed these contentions and relied on the canon of construction that the court will not lightly imply a power that authorises an infringement of liberty. He referred to Re Bolton & Anor; Ex Parte Beane (1987) 162 CLR 514 where Brennan J at 523 observed: "[A] statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right."

His Honour remarked that unless Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the Courts would not construe a statute as having that operation. 73 Mr Beckett sought to draw a parallel between the procedure applicable to the revocation of a parole order and the review that the Tribunal is required to undertake in terms of s 86(1) of the Mental Health Act after a person is transferred to a hospital under s 97. He submitted that the review process under s 86(1) affords the prisoner procedural fairness as does an inquiry by the Parole Board under s 169 of the Crimes (Administration of Sentences) Act. He submitted that there would be a denial of natural justice or procedural fairness were a prisoner to be detained by the force of a transfer order under s 97 without having the opportunity of being heard. He submitted that this was a factor that tended to suggest that a transfer under s 97 did not have any independent detaining effect. 74 Mr Beckett submitted that the transfer to a hospital under s 97(1) was a power in the nature of a transfer under s 23 of the Crimes (Administration of Sentences) Act. That power allows the Commissioner to transfer prisoners between correctional centres. Mr Beckett pointed out that s 23 allows for the operation of s 8 of the Habeas Corpus Act 1679 (applied in New South Wales by operation of s 6 of the Imperial Acts Application Act 1969 (NSW) 2nd Schedule Part 1) which requires that a person may only be removed from one prison to another by way of lawful writ. He submitted that s 97, in effect, is simply a lawful writ to transfer the prisoner from prison to the hospital. It is not an order that carries with it any independent detaining power.

The assumption in the Mental Health Act that a person transferred to hospital will be detained 75 Although the Act does not expressly so provide, it assumes that a person transferred to a hospital under s 97 will be detained in hospital. For example, s 100 is plainly predicated on the assumption that a person transferred to hospital will, while in hospital, serve a period of imprisonment. Several other sections of the Act make the same assumption. I shall refer to some of these. 76 Section 82(1)(a) requires the Tribunal to make recommendations "as to the patient's continued detention in hospital". The assumption indicated by the word "continued" is obvious. 77 Section 82(4) provides that the Tribunal may not recommend the release of a forensic patient unless it is satisfied on the evidence available to it that the safety of the patient or any member of the public will not be seriously endangered by the person's release. A person transferred to hospital is a forensic patient, and the inference is that such a person has been and will be detained while in hospital. 78 Section 86(1) (like s 82(1)(a)) juxtaposes a person's "continued detention, care or treatment in the hospital" with the person having been "transferred to a hospital under s 97 …". Again, the reference to "continued" detention assumes that the person transferred has been detained in hospital.

79 Section 90 provides that the Tribunal may, as a consequence of the review of the case of a forensic patient, recommend to the Minister that the patient be allowed to be absent from hospital for such period and subject to such terms and conditions as the Tribunal thinks fit. Under s 91(1) an authorised officer may, on the recommendation of the medical superintendent of a hospital, allow a forensic patient detained in the hospital to be absent from the hospital for such period and subject to such conditions as the authorised officer thinks fit. If a recommendation under s 90 is made, the prescribed authority may make an order allowing the patient to be absent from a hospital (s 90(2)). Under s 92 the medical superintendent may recommend to the Director-General that a forensic patient may apply for special leave of absence in emergencies and the Director-General under s 92(3) may approve of such recommendation. Section 95(1) provides that a forensic patient "detained in hospital" is subject to such security conditions as an authorised officer may consider necessary. 80 Section 86(4) provides: "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."

Section 86(4) is the only express power contained in the Mental Health Act whereby an order may be made for the detention in hospital of a person transferred to hospital. 81 In my view, the assumption in the sections referred to in [26] to [30] is essentially neutral and does not advance the case of the appellants. The persons transferred to hospital under s 97 are transferred from prison, where they have been in consequence of orders for imprisonment made in respect of them. The orders for imprisonment continue to apply (without interruption) upon transfer. The assumption that there was lawful detention prior to the making of a detention order under s 86(4) may be consistent with the appellants' argument that there was an implied order for detention upon the making of a s 97 order for transfer. But that assumption is at least equally consistent with persons being lawfully detained by reason of the sentence of imprisonment applicable to them. The Act works without drawing the implication for which the appellants contend.

Remaining a forensic patient after the expiry of the non-parole period 82 The appellants contended that the continuation of a person's classification as a forensic patient after the expiry of the non-parole period is a strong factor supporting their argument. They submitted that there would be no point for that classification to continue without the continued detention of the person in question. This, they submitted, supports the proposition that a person whose non-parole period expires while the person is in hospital (having been transferred there from prison) is not entitled to be released (even when no detaining order under s 86(4) has been made). 83 In answer to these arguments, I would, firstly, point out that whereas sub-paragraphs (a) and (b) of the definition of forensic patient refer to a person who is "detained in hospital", sub-paragraph (c) refers to a person "who has been transferred to a hospital while serving a sentence of imprisonment". The definition of forensic patient, therefore, does not by its express terms support the proposition that the act of transfer carries with it any independent power of detention. 84 Secondly, the Mental Health Act specifically contemplates that a person may be a forensic patient even though that person may not be subject to detention. This is apparent from the definition of forensic patient. 85 For the sake of convenience, I repeat that paragraph (a) of the definition is as follows: "a person who is detained in a hospital, prison or other place, or released from custody subject to conditions, pursuant to an order under section 10(3)(c), 14, 17(3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7(4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA(5) of that Act)" 86 Section 10(3)(c) of the Mental Health (Criminal Procedure) Act 1990 (NSW) empowers the Court, where a question of a person's unfitness to be tried for an offence is raised, to remand the accused person in custody. Section 14 deals with the Court's powers if an accused person is found unfit to be tried. Section 14(b)(ii) empowers the Court to grant the person bail in accordance with the Bail Act 1978 (NSW). Section 14(b)(iii) empowers the Court to remand the person in custody until effect has been given to the determination of the Tribunal. Section 17(3) empowers the Court to order that upon certain determinations by the Tribunal a person may be detained in various places. Section 25 applies to cases involving a special verdict of not guilty by reason of mental illness. Section 27 concerns detention orders that the Court may make after the Tribunal has made certain determinations. Section 39(1) provides that, if 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 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. Section 7(4) of the Criminal Appeal Act 1912 (NSW) empowers the Court on appeal, where the appellant was mentally ill and not responsible for his or her action at the time the offence was committed, to order that the appellant be detained, or to make such other order (including an order releasing the appellant from custody, either unconditionally or subject to conditions) as it considers appropriate. 87 Thus, persons released from custody under s 14(b)(ii) and 39(1) of the Mental Health (Criminal Procedure) Act or under s 7(4) of the Criminal Appeal Act remain forensic patients after their release. 88 This is consistent with paragraph (d) of the definition, which provides that a person who is granted bail pursuant to section 14(b)(ii) or 17(2) of the Mental Health (Criminal Procedure) Act is a forensic patient. 89 There are, therefore, at least four explicit categories of persons who remain, or become, forensic patients when they are not subject to detention. Accordingly, there appears to be no reason why a person, who is a forensic patient because he or she was transferred to hospital, should not remain a forensic patient upon release on parole. This removes the foundation of the argument considered under his heading.

Implying a power authorising infringement of personal liberty 90 Mr Beckett accepted that an order made under s 86(4) of the Mental Health Act by the prescribed authority for the detention of a forensic patient in hospital would trump a magistrate's order under s 50(1) of the Crimes (Sentencing Procedure) Act. In my opinion that concession was correctly made. See in this regard s 113 of the Mental Health Act which provides that orders made under the Act are to have effect according to their tenor. His argument, however, was that an order made under s 97 was only an order for transfer of the prisoner to hospital and not an order for the detention of the prisoner in hospital. In this sense, he submitted, it was fundamentally different from an order under s 86(4). Until an order under s 86(4) was made, the prisoner would only be detained by power of the order for imprisonment to which he or she was subject. This was, in effect, the approach of Hidden J. 91 The courts reluctance to imply a power authorising infringement of personal liberty is of very long standing. In Nolan v Clifford (1904) 1 CLR 429 at 447 Griffith CJ said: "[T]he common law and the statute law should not be taken to be abrogated, especially on matters affecting the liberty of the subject, unless a plain intention on the part of the legislature to make so important a change was to be found."

See also Harry v Mental Health Review Board (1994) 33 NSWLR 315 at 322 per Kirby J. 92 In my view, however, the principle is of limited application when a person is subject to a sentence of imprisonment and seeks to be released because of a parole order. 93 Parole is a form of conditional release of offenders sentenced to terms of imprisonment. As Smart AJ (with whom Hidden J and Greg James J agreed) said in McCallum v Parole Board of New South Wales [2003] NSWCCA 294 at [28]. "Parole is a privilege not a right". It is described by the New South Wales Law Reform Commission in Chapter II of its Report No 79 On Sentencing as: "[T]he discharge of prisoners from custody prior to the expiry of the maximum term of imprisonment imposed by the sentencing court, provided that they agree to abide by certain conditions, with the intention that they serve some portion of their sentence under supervision in the community, subject to recall for misconduct." 94 The point to be made is that parole is not a means of affording unfettered freedom to a prisoner, nor is it a reduction of the sentence imposed. See Power v The Queen (1974) 131 CLR 623 at 627- 629, Bugmy v The Queen (1990) 169 CLR 525 at 531-532, 536-537. 95 The qualifications on the liberty on a person subject to a parole order substantially diminish the approach to construction advanced by Mr Beckett. 96 I would add that the power of the Parole Board to revoke parole without calling on the prisoner to appear also diminishes the persuasive weight of any comparison between the fairness of the procedure applicable to the revocation of parole and that applicable to the detention of a person under the Mental Health Act.

The prescribed authority's powers under s 86(4) 97 If the Chief Health Officer is of the opinion, within the meaning of s 100A(1), that a patient is a mentally ill person or a person who otherwise falls within the categories described in s 100A(1), the Tribunal must as soon as practicable review the case under s 86(1). The Tribunal may at any time thereafter make a recommendation to the prescribed authority that the person be transferred to a prison (ss 86(3) and 82(1)). The Tribunal must at least once every six months review the patient's case and make a recommendation to the Minister as to the patient's continued detention. 98 Under s 84, the Attorney General may, after receiving a recommendation from the Tribunal for the release of the person, object to the release on specified grounds. Under s 84(2), if the Attorney General does not object within a specified time, the prescribed authority may make an order for the person's release. By s 82(5)(b), however, the Tribunal may not recommend the release of a forensic patient until the patient has served the non-parole period. Thus, the prescribed authority may not, until the non-parole period has been served, order the person's release. A detention order under s 86(4) can therefore have no utility until the non-parole period has been served (as the forensic patient remains detained under the sentence imposed on him or her at least until then). Prior to the expiry of the non-parole period, the person will be detained by reason of the order sentencing him or her to imprisonment and there would be no point in making an order for detention under s 86(4). 99 I have mentioned that, under s 86(4), the prescribed authority is given a discretionary power to determine whether to 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." This power is in addition to the prescribed authority's power under s 84(2) (to which I have referred in the previous paragraph) to order the person's release. While the prescribed authority would have to determine, within a reasonable time, whether or not to exercise the discretions conferred under s 84(2) and s 86(4), the authority may decide not to do so. 100 If the prescribed authority declines to make an order for the release or detention of the patient, and a transfer under s 97 has the effect by its own power of detaining the patient (as the appellants contend), the patient would remain in detention in hospital until the expiry of the overall term of imprisonment, notwithstanding the expiry of the non-parole period. There would then, on the appellants' argument, be no need for a detention order to be made under s 86(4) after the expiry of the non-parole period. From the time of the expiry of the non-parole period to the expiry of the overall term of imprisonment the transfer itself would provide authority for that detention. 101 It would not be possible, even on the appellants' argument, for a s 86(4) order to be made once the overall term of imprisonment has expired. When that occurs the classification as forensic patient terminates, and the power to make a s 86(4) order then lapses. 102 Thus, if the transfer under s 97, by itself, independently provides for the patient's detention in hospital, the power of the prescribed authority under s 86(4) to detain a patient would have no utility (that is, not prior to the expiry of the non-parole period, not between the expiry of the non-prole period and the overall term of imprisonment, and not after the overall term of imprisonment has expired). I appreciate that there would still be utility for the prescribed authority to be empowered to make orders for the care or treatment of the patient in hospital, but that is not to the point. 103 On the other hand, if a transfer under s 97 does not have detaining effect, there is good reason for s 86(4) to empower the prescribed authority to make a detaining order. It may, after all, be thought desirable to extend the patient's detention beyond the expiry of the non-parole period to the expiry of the overall term of imprisonment.

Conclusion 104 In my view, the paramount factors governing this issue of construction are the following: · The provisions that show an assumption in the Mental Health Act that a person transferred from hospital to prison will be detained are consistent with the person being detained by the order of imprisonment to which he or she is subject. · The Act can "work" on the basis that the person in question is not detained by a transfer under s 97, but by the force of the order of imprisonment to which he or she is subject. · There are several explicit categories of persons who remain, or even become, forensic patients when they are not subject to detention. Thus, the proposition that a person transferred to hospital remains a forensic patient upon release on parole is not inconsistent with the Act. · If the appellants' argument were to be correct, and were a transfer under s 97 independently to provide for a patient's detention in hospital, the power of the prescribed authority under s 86(4) to detain a patient would have no utility. · On the other hand, on Mr Wedge's argument, if a transfer under s 97 does not have detaining effect, there is good reason for s 86(4) to empower the prescribed authority to make a detaining order; only then would s 86(4) have utility insofar as it applies to the power to detain. · Some weight, albeit limited, should be given to the presumption in favour of liberty of the subject. 105 I appreciate that regard must be had to the practical considerations that will apply to the notional case of a prisoner who is transferred to hospital so close in time to the expiry of the non-parole period that it is not practically possible for a s 86(4) detention order to be made prior to that expiry. In that event, should the mental health authorities be of the opinion that the prisoner should not be released into the community, it would be open to them to make urgent representations to the Parole Board for the revocation of the parole order. 106 These considerations persuade me that the appellants' argument should not be sustained. Accordingly, I would dismiss the appeal with costs. 107 BRYSON JA: The judgment of Ipp JA sets out the history of the litigation, and the facts and circumstances and the legislation in ways which limit my exposition of them. I respectfully disagree with his Honour's conclusion, for reasons which I state. 108 The claim of the appellants that Mr Wedge is now lawfully detained rests upon his undisputed status as a forensic patient and on the provisions of the Mental Health Act 1990 ("MHA"). Chapter 5 of MHA does not provide in express terms that forensic patients are to be detained. Elsewhere in MHA, in provisions which do not relate to forensic patients, there are provisions which authorise detention of patients in clear language; several are found in Chapter 4 Pt. 2 which relates to in voluntary admission to hospitals: see ss. 21, 23, 25, 26, 27(3); and the continuance of detention is regulated. The position taken by the appellants is to the effect that on a whole view of Chapter 5 it authorises by implication the detention of forensic patients. Mr Wedge was sentenced to two concurrent terms of imprisonment each of 15 months, and the sentences are still current. His claim to be entitled to personal liberty notwithstanding those concurrent sentences rests on the two orders made by the Local Court, at the time he was sentenced on 30 May 2006, each of which specified a non parole period of seven months starting from 27 December 2005 and ordered that he be released at the expiration of the non parole period, that is on 26 July 2006. A parole order may be revoked by the Parole Board under s. 170 of the Crimes (Administration of Sentences) Act, and this may happen without procedural safeguards; but there has been no revocation. The parole orders according to their terms confer entitlement to parole, and hence to release, on and from 26 July 2006. Counsel for Mr Wedge relies on Mr Wedge's entitlement to personal liberty so established, and is entitled to do so unless by implication Chapter 5 authorises detention of Mr Wedge. 109 The entitlement to release which the parole orders conferred is conditional and limited, as is shown by the terms of those orders. Each order required Mr Wedge to submit to supervision and guidance of the New South Wales Probation Service until 26 March 2007 and imposed prescribed conditions requiring him to be of good behaviour and not commit any offence; provided for circumstances in which the order might be revoked, and provided for supervision by a Probation Service Officer in a number of respects which closely limited his freedom of action, including place of residence, travel, employment, persons with whom he associated, and other conditions. 110 Claims that detention or other interference with personal liberty is authorised by a statutory provision are usually based on express provisions and not on implication. There is a long established cautious judicial approach to such legislation based on the view that it is unlikely that the legislature would convey an intention to authorise interference with a right so highly valued as personal liberty except by clear and unmistakable language. Strong expressions of judicial opinion supporting construction of statutes favourable to personal liberty can be found, sometimes approaching hyperbole. 111 The High Court has made observations on the judicial approach in two cases which related to transportation of a person to a place where legislation authorised his detention; detention at that place was authorised, transportation was not, and the High Court did not fill the gaps by relying on implication. In McLaughlin v Fosbery & Ors (1904) 1 CLR 546 Griffith CJ (speaking in this respect also for Barton and O'Connor JJ: see 567) said at 559, I pause for a moment to remark that, while it is clear that sec. 16 recognizes the existence of some authority vested in the committee of the person of a lunatic as to the disposition of his person, the recognition of an existing authority is not the same thing as the creation of a new authority by implication; and that, in the interpretation of a Statute affecting personal liberty, supposition as to the intention of the legislature has no place. The function of the Court is limited to interpreting and giving effect to its will as expressed in the Statute. 112 In Marshall v Watson (1972) 124 CLR 640 Stephen J. (with whom Menzies J. agreed) said at 649, referring to McLaughlin v Fosbery with evident approval: It had been said by the trial judge in that case that power to take an insane person to a hospital was necessarily to be implied from the power to receive into an institution and there detain such a person and, by the New South Wales Full Court, that it could not be supposed that the Legislature would have failed to give the authority necessary to carry into execution the admission and detention of a lunatic; to this the Court said (1904) 1 C.L.R., at p. 559, that in the interpretation of a statute affecting personal liberty supposition as to the intention of the Legislature had no place, the function of the Court being limited to interpreting and giving effect to the Legislature's will as expressed in the statute.

Stephen J. went on to conclude that there was a gap in the legislation which the judicial function could not fill; see p649. 113 Barwick CJ with whom McTiernan J agreed said at 644: But apart altogether from the reluctance which a court ought properly to have to imply a power of arrest and detention, I cannot find room in this legislation to imply an authority in any particular person or class of persons to exercise a power of arrest or detention. I have come to the conclusion that such a power in any member of the public could scarce be implied: nor could such an authority in any particular person or classes of persons be implied.

This is not a statement that a process of implication is not available. McTiernan J's brief observations at 646 also contemplated that authority might arise by implication. 114 A very strong statement on the subject is found in the judgment of Brennan J. in Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 523. His Honour said, with references to authority: "The law of this country is very jealous of any infringement of personal liberty and a statute or statutory instrument which purports to impair a right of personal liberty is interpreted, if possible, so as to respect that right." I find it difficult to see Re Bolton as a decision in which the approach expressed by Brennan J. was given effect, as the respondents in that case did not argue for an implication; see the observations of Mason CJ, Wilson and Dawson JJ at p520 dealing with the construction of s.21(1) of the Defence (Visiting Forces) Act 1963 (Cth). 115 Another strong statement is found in the judgment of Kirby P. in Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315 at 322D-F; his Honour went so far as to say "If the intrusion is left to implication, it must be necessarily implied." Mahoney JA at 335 dealt with the subject in terms which, I would respectfully say, are more moderate: 3. General observations: In view of what has been said, during argument and otherwise, it is proper to add two things. First, the Court has been pressed in argument with the need so to interpret the Act that it does not unnecessarily infringe the liberty of the subject. As I have indicated, it is proper that such a principle be observed: see, eg, Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635-636; (1989) 18 NSWLR 356 at 372 et seq; Re Hawke: Hawke v Hawke (1923) 40 WN (NSW) 58; Watson v Marshall (1971) 124 CLR 621. But it is equally necessary to have in mind what the liberty of the subject involves. The recognition of liberty is not the end but the beginning of the problem: at least it is so in cases such as these, where there are competing values. Liberty has limits: it does not exclude the proper protection of other values and interests.

See the observations of Santow JA in Hunter Area Health Service v Presland (2005) 63 NSWLR 22 at 112 [342] and [343]. 116 There is some risk of error if with excessive simplicity the interests involved are reduced to an interest in personal liberty; the Mental Health Act deals with other interests which are also of high importance, including the interests of patients in their own health and welfare in situations where their own judgment may not well serve their own interests; and also the public interest in the health and welfare of community members. Then too, the interests in personal liberty which could be touched by Chapter 5 of Mental Health Act are qualified in various ways including (as in Mr Wedge's case) the most severe qualification, current terms of imprisonment. 117 In my opinion the process of statutory construction is not altered from what it would otherwise be by the circumstance that it deals with personal liberty. Careful consideration is required before reaching a conclusion that the legislature intends to interfere with so important a value, especially if that intention appears by implication, but if the legislation shows such an intention it must be given effect. The Court's role and duty are as stated in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305: It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": River Wear Commissioners v Adamson (1877) 2 App Cas 743, at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the unqualified, words": Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449, at p 455. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Ltd [1965] 1 WLR 892, at p 899; [1965] 2 All ER 382, at p 386. Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes , 12th ed, (1969), at p 228 et seq, and Craies on Statute Law , 7th ed, (1971), at p 520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.

Although Gibbs CJ did not speak of implication in this passage, and what was there under consideration was departure from literal meaning where there was an obvious drafting mistake, Gibbs CJ's views apply, in my opinion, to meanings revealed by implication. Where the language used in and provisions made by a statute clearly convey by implication that detention is authorised it is in my opinion the Court's duty to give effect to it, just as much as it is the Court's duty to give effect to express language. 118 As Kirby P. said in Harry v Mental Health Review Board (1994) 33 NSWLR 313 at 322 "Courts have a natural reluctance to imply a power which is oppressive of the rights of the individual and which Parliament had not expressly provided." Consistent with this observation, the approach of the Court is one of reluctance, the reluctance is interrelated with the impact of the intrusion on the rights of the individual, and the process of implication is available. The conditionality of the entitlement to liberty of forensic patients generally, particularly well exemplified in Mr Wedge's case, moderates the judicial approach to the question whether legislation authorises interference with his personal liberty, particularly legislation such as Chapter 5 in respect of which the purposes for detention are plain and the legislation provides review mechanism. The personal liberty of a forensic patient who is affect by Chapter 5 is, in all cases, personal liberty which is otherwise regulated and conditional. This appears from provisions, including the definition of "forensic patient", which show how a person becomes a forensic patient, and also from provisions which show how classification as a forensic patient is terminated. The definition of forensic patient is: (Dictionary Schd 1) forensic patient means: (a) a person who is detained in a hospital, prison or other place, or released from custody subject to conditions, pursuant to an order under section 10 (3) (c), 14, 17 (3), 25, 27 or 39 of the Mental Health (Criminal Procedure) Act 1990 or section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act), or (b) a person who is detained in a hospital pending the person's committal for trial for an offence or pending the person's trial for an offence, or (c) a person who has been transferred to a hospital while serving a sentence of imprisonment and who has not been classified by the Tribunal as a continued treatment patient, or (d) a person who is granted bail pursuant to section 14 (b) (ii) or 17 (2) of the Mental Health (Criminal Procedure) Act 1990 . 119 In all cases persons who fall within the definition of forensic patient are otherwise subject to some legal restraint on their liberty or control over it. Mr Wedge, as a person whose sentence of imprisonment is still current, whose non parole period ended after he became a forensic patient, and in relation to whom there are unrevoked parole orders, is in what I would think is probably a quite small class of persons whose detention under Chapter 5 is, as it were, to be tested in the absence of any other lawful restraint on personal liberty. 120 In substance the disposition of the proceedings by Hidden J. which is challenged on appeal was based on the primacy of the parole orders. His Honour said [25]: [25] ... 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 Ch 5 should be interpreted in the light of the fact that it bears upon the liberty of the subject: cf. Beckwith v R (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 Pt 2 of Ch 4 of the Act. Indeed, Mr Beckett acknowledged that that may well happen. 121 In my opinion the parole orders have no influence of substance on the resolution of the question whether the detention of Mr Wedge as a forensic patient is authorised. An entitlement to personal liberty, whether under a parole order or otherwise, is the basal assumption against which the question whether detention is impliedly authorised by statute is to be tested. The sentences and terms of imprisonment which are still current, taken with the parole orders which have not been revoked, produce the result that the sentences do not now authorise imprisonment of Mr Wedge. The parole orders interact only with the sentences; they have no effect on any other lawful authorisation for detention which exists: and no effect on lawful authorisation for detention as a forensic patient, if Chapter 5 of MHA authorises detention. 122 Hidden J. said, at [17] and [18]: [17] All that has happened to the plaintiff thus far is an order under s 97 transferring him to the hospital and an order under s 100A 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 s 23 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 s 130(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. 123 Upon this analysis the detention of Mr Wedge after 26 July 2006 was not authorised because the legal basis of his detention in prison came to an end in accordance with the parole orders. It appears to have been Hidden J.'s view that s.86(4) authorised detention of a person transferred (as Mr Wedge was) to hospital under section 97 of MHA after the procedures referred to in s.86 have been gone through; that is, after review by the Tribunal followed by a recommendation as to the person's continued detention care or treatment in the hospital (referred to in subs 86 (1)) or one of the procedures referred to in subs 86(2) and 86(3), followed by an order for the person's detention, care and treatment under s.86(4); but that otherwise Chapter 5 did not, in any way, authorise detention. It is plain that Hidden J. did not accept contentions on behalf of the appellants (referred to in judgment [19]) "… 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 Pt. 3" or the contention (referred to in judgment [21]) "… 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". Nor did Hidden J. accept the contention that "… the order under section 100A of the Act is sufficient authority for [Mr Wedge's] present detention." 124 Mr Wedge became a forensic patient by the operation of para (c) of the definition; he was transferred to hospital on 13 July 2006 while serving a sentence of imprisonment; and that sentence has not expired. Provisions of Chapter 5 which deal with termination of classification as a forensic patient includes several provisions which turn upon the coming to an end or the qualification of a limitation which otherwise would exist upon the person's entitlement to liberty. Such provisions are found in ss. 101, 102, 103, 104, 105, 106, 107(a) and 108. Section 107 paras (b) and (c) are not like these. 125 It is significant to notice the provisions of ss. 105 and 107: 105 Termination of classification as forensic patient of person serving term of imprisonment for which no non-parole period set A person who, while serving a term of imprisonment for which no non-parole period has been set, has been transferred to a hospital from a prison ceases to be a forensic patient: (a) on the expiry of the term, or (b) on being classified by the Tribunal as a continued treatment patient, or (c) on being transferred to a prison, whichever first occurs.

107 Termination of classification as forensic patient of person serving term of imprisonment for which non-parole period set A person who, while serving a term of imprisonment for which a non-parole period has been set, has been transferred to a hospital from a prison ceases to be a forensic patient: (a) on the expiry of the term of imprisonment, or (b) if the non-parole period has expired - on unconditional release by order of the prescribed authority following a recommendation of the Tribunal, or (c) if the non-parole period has expired and the person has been released by order of the prescribed authority subject to conditions - on the expiry of any time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with, or (d) on being classified by the Tribunal as a continued treatment patient, or (e) on being transferred to a prison, whichever first occurs. 126 Section 107 paras (b) and (c) show an assumption that a person continues to be a forensic patient, and be available for release, hence be detained, after the non parole period has expired. Section 107 paras (b) and (c) would have no function if MHA did not otherwise require detention of a forensic patient after the non parole period has expired. Provisions relating to termination of the classification on transfer to a prison are consistent with a general assumption that a person classified as a forensic patient is available to be transferred to a prison, that is, that the person is in detention. There are statutory provisions for cases in which such a person may not be in detention, but these provisions show an assumption that, in other cases, a person so classified is detained. 127 Section 82 provides for the Mental Health Review Tribunal to review the case of each forensic patient and to make recommendations to the Minister on subjects which include the patient's continued detention and his release. Subsection 82(5) limits the circumstances in which the Tribunal may recommend release. Section 84 provides, in detail, for release of persons after review. Section 84 contains provisions under which, in a regulated procedure, the prescribed authority may ask for a review, and if there is a recommendation for release, may make an order for release. Section 93 deals with breach of conditions of an order for release under s.84 and contains mechanisms for authorising apprehension and detention. Sections 85, 86, 87 and 89 also contain provisions which proceed on the assumption that a person who is a forensic patient will be detained unless he is dealt with in some way which those sections authorise. Sections 90, 91 and 92 regulate leave of absence. Section 95 provides for security conditions for forensic patients who are detained. Provisions of s.107 show clear contemplation that a person may continue to be a forensic patient, and may continue to be detained in a hospital, after the expiry of a non parole period. Section 111 provides for circumstances in which a forensic patient who escapes from a hospital may be retaken, and s.112 provides for related offences. 128 The existence of express provisions under which forensic patients may be released or may be granted leave supports the implication that Chapter 5 is framed on the assumption that forensic patients are to be detained: where there are exceptions, the exceptions are stated expressly. Overall, the provisions of Chapter 5 cannot in my view be understood and given effect unless it is understood that the provisions they make for circumstances in which a person may become a forensic patient, may be transferred to a hospital, and may be transferred out of a hospital or released deal exhaustively with those subjects, to the intent that there are no other circumstances in which a person may be released while he remains a forensic patient, and no other circumstances in which he may cease to be a forensic patient.

129 On behalf of Mr Wedge it was contended to the effect that what section 97 does (and, it would seem, it was contended that it does no more) is to authorise the transfer of a person imprisoned in a prison to a hospital. In this contention, section 97 functions in a similar way to section 23 of the Crimes (Administration of Sentences) Act 1987 which allows transfers of prisoners between correctional centres. Statutory authorisation for transfer between prisons is required having regard to the operation of the Habeas Corpus Act 1679 (Imp.) s.8, a statute of constitutional significance applied in New South Wales by section 6 of the Imperial Acts Application Act (1969) Second Schedule Pt.1, which requires that a prisoner may only be removed from one prison to another by way of lawful writ; statutory authority such as section 23 takes the place of the lawful writ. Section 8 should be understood, with other provisions of the Habeas Corpus Act, as directed to enhancing the efficacy of habeas corpus proceedings by preventing evasive conduct in which prisoners are moved from place to place or sent out of the jurisdiction. (In Re Bolton at p521 Brennan J. referred to the Executive misconduct and evasion which preceded the enactment of the Habeas Corpus Act (1679)). Section 97 does not authorise the transfer of prisoners between prisons, and deals with the altogether different subject of the transfer of a person in a prison who is mentally ill to a hospital; with a requirement (subs. 97(2)) for notification to the Mental Health Review Tribunal. In my opinion s.97 is only distantly related to s.23 of the Crimes (Administration of Sentences) Act and the policy which underlies that section. I do not find it possible to understand s.97 on any other basis than that, if a person is transferred to a hospital in accordance with s.97, the detention of a person in the hospital is authorised; and that authorisation exists before the procedures in s.86 are gone through, before any order under s.86(4) is made by a prescribed authority, and whether or not any such order is ever made. 130 I do not agree with Ipp JA's view that the machinery provisions of Chapter 5 are essentially neutral on the existence of lawful authority to detain. Not all forensic patients are persons transferred to hospital under section 97 and not all of them are persons to whom orders for imprisonment continue to apply. In the definition of forensic patient paras (a) and (b) include some persons to whom no orders for imprisonment apply, and para (a) includes persons who are detained in a hospital, prison or other place, but also extends to persons who have been released in custody subject to conditions. I do not agree that the assumption in sections 91, 92 and 95 is essentially neutral; the assumption is made in relation to persons who are detained in hospital in a number of different circumstances, not always including that they are serving a sentence of imprisonment, and when provisions relating to forensic patients extend to persons released from custody, they extend only to persons released from custody subject to conditions pursuant to some orders under powers mentioned in para (a). In my respectful view Ipp JA is incorrect to say that the assumption that there was lawful detention prior to the making of a detention order under s.84(4) is consistent with the person's being lawfully detained by reason of the sentence of imprisonment applicable to him. The assumption is made with respect to people who are detained in a number of different circumstances and under a number of different powers and (in the case of para (a) of the definition) not only with respect to persons detained in a hospital. I do not find it possible to suppose that the assumption is made, as it were, distributively in relation to whichever of the miscellany of authorisations for detention may operate in relation to a particular person. 131 In this connection it is significant that s.107 provides, among the circumstances in which a person transferred to a hospital from a prison (as Mr Wedge was) ceases to be a forensic patient, for cases (b) and (c) which relate to persons who have been transferred to a hospital from a prison and are still forensic patients after a non parole period has expired; this clearly contemplates that such persons continue in the hospital and continue to be forensic patients, notwithstanding the expiry of a non parole period, until (case (a)) unconditional release otherwise than in accordance with the parole order made in the ordinary way or (case (b)) even after conditional release until a specified time. These provisions are inconsistent or in any event markedly anomalous with a view in which the detention of such persons until they cease to be forensic patients is authorised only by their terms of imprisonment and the law, including the law relating to parole, which bears on that term of imprisonment. 132 It is inconsistent with the scheme of review constituted by ss. 82, 83, 84, 86 and 87 that, without a person ceasing to be a forensic patient in one of the ways for which MHA provides, in Mr Wedge's case in s.107, hospitalisation and opportunities for review should be defeated by an entitlement to parole; particularly in the presence of the anomaly that s.107 contemplates that a person may continue to be a forensic patient after a non parole period has expired. 133 I do not agree with Ipp JA's observations relating to s.86(4), or with the view that a detention order under s.86(4) can have no utility until the non parole period has been served because the forensic patient remains detained under the sentence imposed on him at least until then. An order for a person's detention, care and treatment under s.86(4) can establish matters with respect to the detention care or treatment, and the manner of the detention, care or treatment, which would not otherwise be established and in particular would not be established by the sentence of imprisonment. An order by a prescribed authority under subs.86(4) would bring to decision the process of consideration, including recommendation by the Mental Health Review Tribunal, for which earlier provisions of section 86 provide. The coming into being of an authorisation under an order under subs.86(4) for detention, care and treatment carries with it no implication, either way, about whether or not a person's detention was impliedly authorised by Chapter 5 before the order was made. It is, in my view, an irresistible implication that detention is impliedly authorised, as the provisions for review by the Mental Health Review Tribunal and for recommendation to the prescribed authority would be pointless if there were circumstances in which the person was free, at his choice, to leave the hospital. Further, provisions in Pt.3 particularly those relating to leave of absence in ss. 90, 91 and 92, and security conditions in s.95, would be futile if there were circumstances in which the forensic patient was entitled to leave the hospital at his own choice. Among this array of sources for the implication, the most compelling is the consideration that an order made in accordance with s.86(4) would be futile if there could be circumstances in which the detention of the forensic patient was not authorised while the procedures which may lead to an order under s.86(4) were followed. 134 The decision of B.M. James J in Hamilton v Director-General Department of Health NSWSC unreported 13 April 1995 related to an earlier form of section 107 in which, in particular, paras (b) and (c) were differently expressed. B.M. James J's views do not have application to the present form of section 107. 135 Overall, the indications in Chapter 5 that it is assumed that a forensic patient is detained, with clearly stated exceptions, and the need for a forensic patient to be in detention if machinery in Chapter 5 is to work effectively, or in many cases if there is to be any need for the machinery at all, indicate in a clear way, although by a process of implication, that detention of forensic patients is authorised and required, with exceptions for which Chapter 5 expressly provides. Mr Wedge's detention is lawful, the appeal should be allowed and Mr Wedge's claim should be dismissed. **********

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.

Mental Health Act 1990(NSW)

D Crimes (Administration of Sentences) Act 1999(NSW)

Mental Health Act 1959(Vic)

Mental Health (Criminal Procedure) Act 1990(NSW)

CITATION: COMMISSIONER OF CORRECTIVE SERVICES & 2 Ors v WEDGE [2006] NSWCA 271

Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 Beatty v Brashs Pty Ltd (1998) 79 FCR 551 Bugmy v The Queen (1990) 169 CLR 525 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 Harry v Mental Health Review Board (1994) 33 NSWLR 315 Hamilton v Director General Department of Health & Anor (13 April 1995, unreported) CASES CITED: Hunter Area Health Service v Presland (2005) 63 NSWLR 22 McCallum v Parole Board of New South Wales [2003] NSWCCA 294 Marshall v Watson (1972) 124 CLR 640 McLaughlin v Fosbery & Ors (1904) 1 CLR 546 Nolan v Clifford (1904) 33 NSWLR 315 Power v The Queen (1974) 131 CLR 623 Re Bolton & Anor; Ex Parte Beane (1987) 162 CLR 514

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 998

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