GRAHAM v STATE OF NEW SOUTH WALES

STATUTES - construction - purposive approach - scope and limits of - Bate v Priestley, Court of Appeal, unreported 4 October 1989 referred to.

LAW REFORM - facility for day leave - facility for treatment of forensic patients in strict custody in mental hospitals - desirability of express provisions in relation to treatment referred to by Kirby P.

WORDS AND PHRASES - "detained"; "strict custody".

Crimes Act 1900, s 428ZB Mental Health Act 1983, ss 111, 119, 120, 121, 122, 123, 125, 126, 128, 129, 130, 131, 132.

Safford v Safford [1944] P 61,66; R v National Insurance Commissioner; ex parte Timmis [1955] 1 QB 139; Hurren v Hurren [1971] VR 459; Collins v Wilcock [1984] 1 WLR 1172, considered.

Kirby P. The judgment of Mahoney JA clearly sets out the nature of the problem before the Court. His Honour has demonstrated the asymmetry between the provisions in the Mental Health Act 1983 (the Act) as they affect the respective powers of the Mental Health Tribunal (the Tribunal) and the prescribed authority (the Governor). His Honour has also demonstrated the unclarity of the provisions which are here in question. His reasons suggest the desirability of providing to the Tribunal the facility which would flow from the declaration which the appellant seeks.

Unfortunately, I have come to the conclusion that the Act, properly interpreted, does not authorise the making of the declaration sought. I also have doubts concerning the correctness of the declaration which McInerney J felt that he was able to make in respect of what is described as 'supervised ground patrol'. However, as that declaration hasnot been challenged in a cross-appeal, it will stand. I must explain why I have come to a conclusion different from Mahoney JA.

I will mention at the outset a number of matters which colour my approach to the task of statutory construction which is before the Court.

First, it is appropriate to say that, normally, where legislation is ambiguous and one construction may be adopted which favours liberty (even a measure of it) and another which denies liberty, a court will generally prefer the former to the latter. So much has been said in many cases concerned with the construction of the dauntingly obscure language of probation, release on licence and prisons legislation. See eg Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 , 361. I would so approach the construction of the present Act. But that principle has a necessarily attenuated application in the context of a statute which deals with 'forensic patients'. By definition, they are detained under a court order, detained pending trial for an offence or transferred to a hospital whilst serving a sentence of imprisonment. For such categories of 'patients' the normal presumption of liberty - even of a measure of freedom - must be modified by the necessity arising from the custodial detention of the 'patient'. Cf State of South Australia v O'Shea (1987) 163 CLR 378 , 397.

Secondly, there are sound reasons of policy why the Act should be construed, if possible, to permit a facility of 'supervised day leave'. The concept of a "forensic patient' exhibits an internal tension between treating the subject both as a 'patient' and as 'forensic', requiring detention. Counsel could not point to any provision of the Act, or its 1958 predecessor, which would specifically authorise treatment of such patients. Section 109A of the 1958 Act was mentioned but not relevant. Yet the very fact that the person is a 'patient', and detained pursuant to s 428ZB of the Crimes Act 1900 in a hospital, suggests that some form of 'management' (to use a neutral expression) was envisaged by Parliament. That section of the Crimes Act, the order made under it and indeed the Act all envisage that, in due course, the 'patient' may be discharged. But to provide such management and to ready the patient for discharge, some form of 'supervised day leave' would appear (in some cases at least) to be highly desirable. By definition, some 'forensic patients' would need more assistance and support upon release than ordinary prisoners. In that sense, their need for forms of 'supervised day leave' would seem to be greater.

However that may be, if Parliament has not provided for such a facility and, on the contrary has enacted a regime of strict custody at a specified place, a court is not authorized to contradict Parliament's requirements because it conceives it to be desirable that Parliament should have provided otherwise than it did. It is one thing to fill gapswhich Parliament has left or to repair apparent oversight or inadvertence on the part of Parliament. It is quite another to adopt a construction which defeats the purpose of Parliament, as disclosed in the language it has used and the scheme of the legislation it has enacted.

Thirdly, the 'purposive' approach to statutory construction is now generally accepted. It is regularly applied by the High Court of Australia and this Court. A catalogue of recent applications is collected in my judgment in Bate v Priestley, Court of Appeal, unreported, 4 October 1989. I readily adopt such an approach for the task of statutory construction now before me. But it is essential to remember that the object of the 'purposive approach' to statutory construction is to achieve the presumed intention of Parliament. It is not to secure some sensible objective which the court considers desirable but which Parliament, in the statute, has not enacted. This is not simply to say that, in the end, the primary task of construction is to give effect to the ordinary and natural meaning of the words used. So much is plain. The 'purpose' must appear from the words used and the

scheme and apparent policy of the legislation. It is to frustrate the 'purpose' of Parliament and to undermine the achievement of that purpose to adopt a construction which is inconsistent with the language adopted by Parliament.

Fourthly, I readily concede that, when one turns to the language of this Act, there are some indications whichsupport the construction urged by the appellant. It is not in doubt that, in certain contexts, the word 'detained' can refer to the general status of the subject and not to a fact of physical coercion. A person may be 'detained' although not in fact always kept 'under lock and key'. Safford v Safford [1944] P 61 , 66 (CA). However, 'detained' can also mean a state of actual physical detention. So it was held in Hurren v Hurren [1971] VR 459. McInerney J held that the latter was the meaning of the word here. The choice between the available constructions is determined by ascertaining the purpose of Parliament in each case. That, in turn, requires consideration of the language and scheme of the legislation. Being a 'forensic patient' is itself a matter of status. The appellants argued that this suggested that the reference to the place of 'detention care or treatment' was therefore to be seen as a mere elaboration of the status and not as a geographical confinement or a punitive imperative.

The power of the Tribunal is to make recommendations 'as to' the forensic patient's detention. The phrase 'as to" denotes a wide ambit for the potential application of the 'recommendation'. Like so many such phrases in legislation, it has a chameleon-like quality, taking its meaning from its context. Cf Technical Products Pty Ltd v State Government Insurance Office (1989) 63 ALJR 392 , 393. That context is one of 'recommendation'. The Tribunal has no power to order. The fact that a Minister might reject the 'recommendation' is itself a contextual indication that thepower conferred on the Tribunal was intended to be broad. Furthermore, under the Act, the power of recommendation is not confined to 'detention' but includes 'care or treatment'. The reference to an 'other place' appears to envisage, at least in some circumstances, that the recommendation will extend, and the order under s 119(6) allow, movement of the forensic patient to the 'other place'. Otherwise the recommendation and the order, so far as it refers to the 'other place' would be ineffective. Similarly 'care and treatment' which may take place in a 'hospital or other place' envisage that the forensic patient will still be 'detained' (presumably in the designated hospital) whilst receiving the "care or treatment'. Otherwise, if the 'patient' were not 'detained' he or she would be at liberty although no order had been made for that purpose under s 119(6)(b).

Having acknowledged that there are reasons of law and policy which tend to support the construction urged by the appellant, I must now set out the reasons which have led me to conclude that this is not the preferable construction in the circumstances.

First, one must read the relevant provisions of the Act in the context for which they were provided. The appellant was tried upon indictment charging her with murder. She was found not guilty of murder on the grounds of mental illness. The order which followed was made pursuant to s 428ZB of the Crimes Act. That provision required that the court:

... Shall 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.' (emphasis added)

The qualification of the detention envisaged by s 428ZB by the phrase 'in strict custody' gives an indication of Parliament's object in so providing. Obviously, society could not ordinarily allow to go free a person who had perpetrated a

serious crime, was found not guilty for lack of capacity to form the necessary criminal intention but who still suffered from mental illness which might give rise to similar conduct to the peril of the community. The verdict which enlivens an order under s 428ZB of the Crimes Act is not equivalent to an acquittal. It involves an acceptance that the accused person did the criminal act charged. He or she escapes the ordinary punishment which normally follows only by reason of the finding of a relevant mental illness. Had the appellant been convicted of murder she would have been sentenced to life imprisonment. She is not a voluntary patient in a mental hospital. Both by s 428ZB of the Crimes Act and the order of Yeldham J, she is required to be 'detained in strict custody'. In considering the powers of the Tribunal to make a recommendation to the Minister under s 119(1), it is essential to give meaning to those powers in the rather unusual circumstances of a person who is under the restraints which legislation and a judge's order envisaged for the appellant.

Secondly, where that legislation and order envisagedetention 'in strict custody' it is plainly for a purpose. The purpose may be, in part, treatment and management of the patient. But it is also, in part, for the protection of the patient and of the community. It is not, as such, a punishment; but the requirement of "strict custody' envisages a high measure of coercive control. It therefore contemplates, at least ordinarily, that the place of such control will be clearly designated and capable of providing a high measure of security. The difficulty which immediately arises in the notion even of 'supervised' day leave is that, at the least, such freedom from detention in a specified place is not readily compatible with the 'strict custody' which s 428ZB of the Crimes Act and the order which Yeldham J made pursuant to it, suggest. Meaning must be given to the adjective 'strict'. Plainly, that word envisages more than the mere status of detention. It represents an instruction from Parliament that the detention is to be highly controlled and most secure.

Thirdly, although it is true that 'detention' can sometimes refer to the subject's status, I do not believe that this is the meaning of the word as it appears in s 119(1)(b)@). This is because, in the context of a 'forensic patient' already subject to the requirement of detention 'in strict custody', Parliament has specifically designated that the act of 'detention' (or 'care or treatment') is to take place in particular specified environments. These are a 'hospital', 'prison' or 'otherplace'. The phrase 'other place' would necessarily be read as an 'other place' like a 'hospital' or 'prison'. This means an 'other place' where that high measure of security can be exerted which fulfils the requirement that the patient be "detained in strict custody'. Although transport to the 'other place' for the purposes specified would of necessity follow, the object of the power in s 119(1)(b) is to provide the basis for the making of the order by the Governor, as prescribed authority, under s 119(6). There would be no point in providing the power to make the recommendation to the Minister, as the trigger for the operation of s 119(6), if the Governor then had no power, as prescribed authority under the Act, to make an order 'for the person's detention in such place'. The 'place' envisages a 'place' of 'strict custody'. This is fundamentally inconsistent with a notion that an order might be made for 'supervised day leave' where no 'other place' becomes the patient's place of detention. The order to which the recommendation is directed is necessarily confined to one of detention, care or treatment in a secure place of strict custody such as a hospital prison or other not dissimilar place. A recommendation which contemplated some other place of detention would have no point. It cannot therefore be within the legislative intention.

Fourthly, strength is given to the conclusion that s 119(1)(b) and 119(6)(a) each envisage physical detention within a 'hospital, prison or other place' by a considerationof the scheme of the surrounding sections. Thus s 111 (not yet in force) provides that a medical superintendent can, in the case of temporary patients in a mental hospital allow the patient to be absent from the hospital 'for such period and subject to such conditions, if any, as the medical superintendent thinks fit'. Had it been intended to provide a similar facility for forensic patients under the regime of 'strict custody' which the Crimes Act envisages, it might be expected that Parliament would have specifically so provided, just as it did in s 111. See also s 112.

This argument gains still further force when ss 119 and 120 dealing with 'forensic patients' are considered. Under s 119, specific provision is made for a forensic patient to apply to the medical superintendent for 'special leave of absence'. But such 'absence' from 'detention' and 'strict custody' is limited to a designated ground, namely to:

(a) visit a sick or dying near relative; (b) attend the funeral of a near relative; or

(c) deal with circumstances constituting in the opinion of the medical superintendent and the secretary, an emergency.

Similarly, under s 130 the medical superintendent or an authorised officer may allow a forensic patient to be absent from the hospital for such period and subject to such conditions if any as they think fit 'in order to undergo medical investigation or treatment'. Had it been intended that for 'treatment' there should be a facility for adetained person to leave detention in the hospital and to be excused from the 'strict custody' otherwise envisaged by Parliament, it might have been expected that Parliament would have so provided. Had it done so, it would have laid down the applicable circumstances, conditions and procedures. Instead of this, Parliament has obliged detention of the forensic patient in 'strict custody' and empowered a Tribunal to make recommendations but limited (relevantly) to 'detention, care or treatment in a hospital, prison or other place'.

Fifthly, the power of recommendation for such detention must be read in the context of the alternative recommendations which are envisaged under s 119(1)(b). The power to make the recommendation which is in question here is alternative to the power to recommend fitness or unfitness for trial for an offence or release, unconditionally or subject to conditions. These powers are addressed to the long term custodial condition of the forensic patient. In the context, therefore, meaning must be given to the word 'continued'. The power of the Tribunal to make recommendations is concerned with the choice as to the patient's status and, if the patient is to be detained, the place of detention. Therefore, the words are not, in the context, apt to support a detailed recommendation concerning the day to day management of the patient. Nor are the words in s 119(6) apt for that purpose. The composition of the Tribunal, comprising a senior lawyer, a medical practitionerand a layman would also seem ill chosen for a day to day management decision concerning the regular 'treatment' of the forensic patient.

Sixthly, the care that is taken in this part of the Act to attend to the custodial detention of the forensic patient also argues against extracting from the language of s 119 a power to make recommendations, without specific legislative authority, which would necessarily diminish the extent of 'strict custody' and 'detention' for which Parliament has otherwise provided. The phrase 'hospital, prison or

other place' recurs in s 120 where wide powers are given to the police to apprehend a forensic patient who has been released on conditions. Section 121 provides that a forensic patient detained in a hospital, prison or other place, or absent in accordance with ss 129 or 130, is to be 'subject to such security conditions as an authorised officer may consider necessary'. Specific provision is made for transport; but only 'to and from such places' and then only 'as may be necessary or convenient for the administration of this Act' and 'in accordance with security conditions referred to'. Express provision is made for a recommendation by the authority for the transfer of the patient to a prison (s 122) and for the transfer of mentally ill prisoners to hospitals (s 123). A clue as to the nature of the 'strict custody' and 'detention' of the forensic patient is also given by s 128 of the Act. By that section, where a person is transferred from a prison to a 'hospital or other place', the period of thatperson's 'detention in the hospital or other place' is to be treated as if it were a period of imprisonment in a prison.

Under s 131 a forensic patient who 'escapes' from a hospital may be retaken. Under s 132 a person who rescues or attempts to rescue any person being conveyed to or detained in a hospital, or hospital officer who connives in such escape, is guilty of an offence.

These provisions, and the scheme of the Part of the Act in which they appear, all lay emphasis upon the security arrangements which surround a forensic patient. They add strength to the notion, also derived from the 'strict custody' for which s 428ZB of the Crimes Act provides, that where 'detention' is used in s 119, it involves a description of actual physical restraint. The derogations from that restraint are specifically provided by Parliament. They are strictly limited. They do not include the facility of 'supervised day leave'. That term is itself unspecific and rather vague. Had such derogation from 'strict custody' and 'detention' been intended by Parliament, the expression and its incidents would have been spelt out in detail. The facility in the Tribunal to make recommendations concerning the appropriate classification of 'forensic patients' cannot, in these circumstances, be distorted into a power to make recommendations which will ground an order dealing with the day to day management of the patient's treatment.

It is for these reasons that I have come to the conclusion that McInerney J was right in dismissing the appellant's claim for the declaration which she seeks. Nothing which I have said touches the prerogative powers of the Governor, as distinct from his statutory power to make an order as designated authority under s 119(6) of the Act. The scope of the Governor's prerogative power (if any) which may survive the detailed provisions of the Act concerning forensic patients was not argued in the appeal.

As I have already indicated, I see distinct advantage in the provision of an express power to the medical superintendent to provide under appropriate conditions of security for 'supervised ground patrol' and 'supervised day leave' as defined. But in my view each of these facilities should be provided (as others have been) in express terms by Parliament and under conditions which Parliament establishes.

The Court was informed that consideration is being given to proposals for legislative amendment to provide expressly for a facility of "supervised day leave'. In my respectful opinion, that is the course that should be followed. The attempt to extract such a facility from the present provisions of the Act offends the legislative injunctions of 'strict custody' and 'detention' in specified places;

URJ GRAHAM v STATE OF NEW SOUTH WALES (Mahoney JA) 7

contradicts the legislature's highly specific and limited provision for exceptions from such restraint; and distorts the facility of recommendation by the Tribunal andorders by the Governor to a purpose which they were not intended by Parliament to have.

I would dismiss the appeal. As it was brought as a test case and funded on each side by public authorities, I would make no order as to costs.

Mahoney JA. Gweneth Marjorie Graham is a forensic patient within the Mental Health Act 1983. She is at present at Cumberland Hospital. It is desired that she be able to have, in the sense to which I shall refer, 'supervised ground parole' and 'supervised day leave'. The Mental Health Tribunal has so recommended.

Doubts have arisen as to whether the Tribunal may so recommend and whether effect may be given to such a recommendation. The present proceedings have been brought to determine the powers of the Tribunal and of His Excellency the Governor, as the prescribed authority, in that regard. The plaintiff has sought declarations accordingly.

In order to determine whether these declarations should be made, it is necessary to understand how the plaintiff comes to be where she is and what is desired now to be done.

The plaintiff was tried for the crime of murder. Shewas held not guilty by reason of mental illness. Section 428ZB of the Crimes Act 1900 provides that in such a case:

... the Court shall 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.

On 23 June 1987 Yeldham J made an order in the following terms:

Order under s 428ZB of the Crimes Act that the accused be detained in strict custody at Cumberland psychiatric hospital at Parramatta, or such other place as the Minister or Mental Health tribunal may direct, under the care and control of the authorised officer of that institution until released by due process of law.

If that order be the order presently operative in relation to the plaintiff, she is to be 'detained in strict custody' and the place at which she is to be so detained is 'Cumberland psychiatric hospital at Parramatta'. If, subject to what I shall say, that be the place at which she is to be detained, it is, in order to understand what may be done, necessary to determine what precisely that place is.

During the hearing of the appeal, the court invited the parties to indicate what comprises 'Cumberland psychiatric hospital at Parramatta'. The parties were not able to provide evidence as to what this was or is. Reference was made to a copy of the Government Gazette of 27 July 1984 and to a proclamation contained in it appointing particular wards of 'Cumberland Hospital to be a mental hospital'. The parties were not able to suggest what effect that proclamation might have in respect of the definition of the meaning or boundaries of 'Cumberland psychiatric hospital at Parramatta' or inrelation to a forensic patient subject, not to the Mental Health Act 1958, but to the Mental Health Act 1983.

Reference is made in the material included in the appeal papers to 'Cumberland Hospital'. There is no reference, as such, to 'Cumberland psychiatric hospital' to which counsel have been able to refer the court.

In these circumstances, it is not clear to what place precisely the judge's order directed the plaintiff to be detained. If "Cumberland psychiatric hospital at Parramatta', on its proper construction, denotes Cumberland Hospital as such,

then, subject to her being detained within the confines of that hospital, it would be permissible for her to be at any place within it. If, on the other hand, "Cumberland psychiatric hospital' refers only to, eg, particular buildings at that hospital, such as the wards referred to in the proclamation of July 1984, then further questions arise. To these I shall subsequently refer.

The position is further complicated. The order of Yeldham J directed detention at the hospital specified in it 'or at such other place as the Minister or Mental Health tribunal may direct'. It would have been open to the Minister or the Tribunal there referred to to direct another place. That other place need not be a hospital or a mental hospital, although no doubt there may be practical or administrative reasons why any place so directed would be such. The evidence does not establish that there has been any direction under the judge's order.

There is, however, evidence before the court to suggestthat an order or orders were made by His Excellency the Governor under s 119(6). Thus, on 8 June 1988 an order was made that she 'continue to be detained in a hospital as defined by the Mental Health Act 1983'. In August 1988 further recommendations were made by the Tribunal. The Minister approved some only of them. It does not appear whether His Excellency the Governor made any order after the order of 8 June 1988.

As I shall indicate, an order made by the Governor under s 119(6) of the Mental Health Act 1983 may, by virtue of that provision, vary the place in which, pursuant to s 428ZB, the plaintiff is to be detained. Counsel were not able to elucidate the effect of the order of 8 June 1988 or to indicate what is 'a hospital as defined by the Mental Health Act 1983'. The material placed before the court suggests that, whilst the definition of 'hospital' in s 4(1) of the 1983 Act has been brought into force, that definition relevantly refers only to 'any premises the subject of an order in force under s 7(2) by which the premises are declared to be a hospital', and, as the court is informed by Mr Street for the respondent, s 7(2) is not yet in operation.

If the hospital in which the plaintiff is confined pursuant to his Honour's order is the Cumberland Hospital as such, there is, I infer, no difficulty in her visiting or being at, during her detention, any of the wards or places in it. I shall therefore assume that the difficulty arises because 'Cumberland psychiatric hospital' is the term applied merely to certain wards or structures at that hospital andthat the term does not include the relevant portions of the grounds of Cumberland Hospital.

Those who are involved in (to use a neutral term) the care of the plaintiff are, it has been suggested, desirous that she have two things: 'supervised ground parole' and 'supervised day leave'.

There are no definitions of these terms. They are, the court is informed, expressions used by those in the hospital concerned with the care of persons confined or treated there. The court has been referred to a letter of Dr R E Elliott of 18 July 1988 and a statement by that doctor as material for this purpose.

"Supervised ground parole" apparently involves that the plaintiff be allowed, under appropriate supervision, to go outside the particular ward or place to which it is assumed she must be physically confined, but remaining always within the grounds or other wards of the Cumberland psychiatric hospital.

"Supervised day leave" apparently involves that she be allowed, again under appropriate supervision, to go outside the grounds or confines of that hospital.

URJ GRAHAM v STATE OF NEW SOUTH WALES (Mahoney JA) 9

In each case, at least as far as the present application is concerned, the expressions involve two things: that she will be under such supervision as ensures that she cannot come and go as she pleases but remains subject to constraint; and that what she does is done for the purpose of the treatment of her. The evidence before the court establishes, for thepurposes of this application, that for this purpose 'treatment' of a patient with her condition involves activities which would, eg, increase her overall level of functioning, by helping the development of her social skills and her capacity for independent living. The evidence indicates that her rehabilitation by such treatment can be assisted by the training, available at the Cumberland Hospital, in reading newspapers, craft, cooking, money management and personal hygiene.

It may be that the requirements of the Acts and of the order for the plaintiff's detention would be complied with even if, in other circumstances, she was allowed to be outside the relevant buildings or wards or outside the boundaries of the Cumberland Hospital. I do not, by what I say, wish to exclude that possibility. However, in the present case the declarations sought are sought for the restricted purposes to which I have referred. I therefore confine my consideration to declarations in that form.

In this proceeding the plaintiff initially sought declarations that under s 119(1) and (6) the Tribunal and His Excellency the Governor respectively might recommend and grant supervised ground parole and supervised day leave. The proceeding was initially heard by McInerney J. His Honour made the following declarations:

1. The Mental Health Review Tribunal had the power to recommend that the Plaintiff be granted supervised ground parole on such terms and conditions as may be determined by the medical authority at Cumberland Hospital.

2. The Governor had the power to order that the Plaintiff be granted supervised ground parole on such terms and conditions as may be determined by the medical authorities at Cumberland Hospital.

3. The Mental Health Review Tribunal and the Governor had no power to order supervised day leave as asked for in the Declarations.

No appeal has been brought against the order insofar as it makes declarations 1 and 2. Therefore the power to recommend and to grant supervised ground parole is not now in question. However, the plaintiff has appealed against his Honour's declaration that the Tribunal and the Governor have no power in relation to supervised day leave as sought in the proceeding. I shall therefore confine myself to that matter.

The legislative provisions relating to mental health in New South Wales are presently contained as to part in the Mental Health Act 1958 and as to part in the Mental Health Act 1983. The court is informed for the respondent that the 1983 Act is not yet in force except as to: Part 1 ss 1, 2, 3, 4 and 6 and Part 7. Part 2 Div | and Parts 4, 5 and 6 are not in operation. Part 3, relating to the Mental Health Review Tribunal, appears to be in operation.

The argument has proceeded upon the basis that the requirement of the order of Yeldham J that the plaintiff 'be detained in strict custody' at the relevant place would, unless the operation of it be modified, prevent her having supervised day leave; and that, if that order is to be modified, the relevant power lies only in s 119.

The first of these is, in my opinion, not correct. Arequirement that a person be 'detained in strict custody' at a particular place or within a particular building does not, in my opinion, mean that that person may not, whilst so detained, be taken outside that place or building. The term 'detain' and its derivatives may have various meanings. The meaning to be given to the term in a particular case depends upon the statutory context in which it is used: see generally Reg v National Insurance Commissioner, ex parte Timmis (1955) 1 QB 139; Collins v Wilcock (1984) 1 WLR 1172. In Paul v Paul (1954) VLR 331, Dean J, in considering the word 'detained' as used in the Marriage Act 1928 and the relevant provisions of the Mental Treatment Act 1930, saw 'detain' as referring 'to the case of a person lawfully held against his will, one who is not free to depart when he pleases': at 333. But such a detention of a person at a place is not inconsistent with those who detain him taking him, for a particular reason, to another place. Thus, a prisoner detained under sentence at the Long Bay Penitentiary in New South Wales would continue to be detained in or at that place notwithstanding that, for example, he was brought under appropriate control for the hearing of an appeal by the Court of Criminal Appeal. Similarly, if the place of the plaintiff's detention be a particular building or ward prima facie she would remain so detained notwithstanding that, for example, she was taken under control to another place for medical or surgical treatment.

Mr Street, who appeared for the respondent, submitted that this is not the meaning of 'detained' in this context.

His submission suggested that 'detain' and 'strict custody' require continued physical presence within the limits of the place or building. His argument suggested that the fact that the Act contains provision such as ss 128, 129 and 130 shows this to have been the meaning attributed to the terms by the legislature.

I do not think that that argument should be accepted. It would not, I think, be correct to say that, if 'detained' has the meaning to which I have referred, a provision such as s 129 would not be necessary. It is not necessary for me to examine in detail the operation of ss 128-130. But these sections would permit a forensic patient to do things which, without them, a patient 'detained' at a particular place could not do. For example, s 129 would permit a forensic patient to be allowed to leave the relevant building or place without supervision or custody of the kind to which I have referred. That is not something which could otherwise be done in respect of a patient 'detained' at a particular place.

But Mr Basten, for the plaintiff, has submitted that, however this be, the necessary power to allow supervised day leave lies within s 119 and he seeks a declaration to that effect.

I come first to the powers of the Tribunal under s 119(1). The function of the Tribunal under this provision is merely to 'recommend'. Counsel have not suggested that such a recommendation has any operative result other than to provide a basis for such action as may be taken under s 119(6). However, it has been submitted that the ambit ofthe power of the Tribunal to recommend under s 119(1) is to be seen as indicating the extent of the power of the prescribed authority to act under s 119(6) or is, at least, relevant in the determination of such power. I shall therefore consider what the Tribunal may recommend to the Minister and in particular whether it may recommend supervised day leave in the sense to which I have referred.

The matters to which recommendations may refer are stated in s 119(1)(b)(i) and (iii). They are the person's 'continued detention, care or treatment in a hospital, prison or other place' or her 'release'. The issue is as to what the

URJ GRAHAM v STATE OF NEW SOUTH WALES (Mahoney JA) 11

Tribunal may recommend in relation to such matters. It may make any recommendation which is 'as to' such matters. That phrase denotes, in my opinion, a wide relationship to the subject matter. It has, in American cases, apparently been seen as equivalent to 'relating to': Channell v State 107 So 2d 284, 291; Edelstein v Brown 100 SW 129; State v Morrow 280 SW 697, 701; and such a meaning is, I think, appropriate in this context.

Therefore the Tribunal's power to recommend is not limited to a recommendation merely that the patient continue to be detained or that she be detained in a particular or another place. The recommendation may, in my opinion, go to the incidents of that detention and what should be done as part of it. It may, as the terms of the provision provide, go to what should be done by way of care or treatment of the patient there.

Mr Street, for the respondent, submitted that, even ifthis be accepted, the recommendations may be made only upon the basis that the patient is, if not released, continued in detention. That is correct. The recommendations, if they do not go to release, may not go to such a treatment of the patient as would leave her, not in a state of continued detention, but under some lesser form of restraint or control. As Mr Street's argument has suggested, s 119 and the other provisions in relation to forensic patients, operate upon the basis that, until released, the patient is, in accordance with s 428ZB of the Crimes Act to be 'detained'.

But it does not follow from this that a recommendation may not suggest that she be taken from time to time and under appropriate supervision and control from the building, ward or place in or at which, in accordance with the existing effect of the order, she is to be detained. As I have indicated, the concept of detention in a particular place does not involve that the detainee may not in any circumstances or for any purpose be outside such building, ward or place. As I have indicated, the concept of detention or of detention in or at a place is not so narrow. And, in the context of a person detained because of her mental illness, the term is, I think, to have the appropriate flexibility. An order for detention because of mental illness would, I believe, involve not merely physical custody but the expectation that treatment would be able to be given. And, if 'detention in strict custody' involves the expectation, or at least the contemplation, of treatment, I do not think the legislation restricts that treatment to such treatment only as may be administered whilstphysically confined in a particular building or ward.

It is not necessary for present purposes to attempt to mark out the boundaries of what may be recommended by the Tribunal in this regard. It is sufficient to indicate my conclusion that, in the sense in which the term is used in the present case, it would be within the power of the Tribunal to recommend supervised day leave. But in deference to the practicalities of situations which may arise, it is proper to add a further comment. As I have said, 'supervised day leave' is envisaged to involve absence from the particular building, ward or place to which the current operation and the order made under s 428ZB applies. I have indicated that supervised day leave involves absence from that place whilst still in a state of detention. The concept of detention for this purpose involves such supervision and control that the person, wherever she be, is held against her will and is not free to come and go as she pleases: Paul v Paul (1954) VLR 331 at 333. If there be such supervision and control, she will remain in detention. And she must remain in detention in or at the particular place in question. Physical absence from that place whilst under such supervision and control and for the purposes here contemplated, viz, treatment of her condition from time to time at appropriate intervals would not mean that she ceased to be in detention in or at

that place. Were she taken indefinitely from the place, she would ordinarily cease to be detained in or at that place. The absences to be recommended therefore must be such as, as a matter of degree, will not cause the place in or at which sheis detained to be other than the relevant place. Any recommendation of the Tribunal must therefore be framed accordingly.

I come now to the construction of s 119(6). It is this provision which is central to the submissions made by Mr Basten for the plaintiff. A recommendation does not, as such, have an operative effect upon what the patient may do. It is to the order made by the Governor to which a patient must look for a relevant change in her position. It is not suggested that there is, in the regulations referred to in s 119(6) anything which affects the present issue. I shall therefore confine my observations to the terms of the subsection

Two things may be said about the Governor's power under s 119(6). First, what he may order is not limited to or by what the Tribunal has recommended. It may be that regulations could affect this power but, as I have said, it has not been suggested by the parties that presently the power is affected by any regulation. Therefore, once there be a recommendation in respect of a forensic patient, the Governor may make any form of order within the subsection

Second, there is a curious asymmetry between the terms of the power given to the Tribunal to recommend: s 119(1)(b)(i); and the power given to the Governor to order: s 119(6)(a). The Governor's power is not 'as to' the person's detention but 'for the person's detention in such place, being a hospital, prison or other place, and in such manner as are specified in the order'. The power to order detention in aplace allows the Governor to nominate a place, presumably a place other than the existing place of detention. But, in my opinion, the Governor's power is not limited to the nomination of a place. He may make an order for detention 'in such manner' as the order specifies. It is to this essentially that the plaintiff's argument has been directed.

Mr Basten submitted that the legislative intention was that the Governor should be able to order anything which the Tribunal may recommend. Accordingly, the submission suggested, an order for detention in a particular manner may provide for both the incidents of detention and care and treatment whilst in that detention.

The reason why the powers of His Excellency the Governor are framed in terms different from the powers of the Tribunal is not clear. I do not think it is necessary to pursue the question. In my opinion, the power to order detention in a particular 'manner' would extend, for example, to ordering that a patient detained in a particular place, be detained in the part of the place at which she would be given treatment and, I think, would extend to ordering that that treatment be given or permitted to be given. Again, provided the effect of the order was not to change what was done in respect of the person from detention to another and lesser state of control or constraint, it would, in my opinion, be within the Governor's power to order that she be taken from that place of detention to another place for the purposes of treatment, in the sense and within the limits to which I have already referred. And if treatment involved that, whilst still underdetention in the sense to which I have referred, she be taken out of her current place of detention for short periods for and as such treatment, it would be within the Governor's power so to order.

Mr Street, in his submissions, emphasised that, in considering what may be done in respect of a patient, the powers must be such that she remains at all times 'detained in strict custody' within the requirements of s 428ZB. The submission

URJ GRAHAM v STATE OF NEW SOUTH WALES (Hope AJA) 13

suggested that, at the least, the circumstances in which a person may be permitted to be outside the limits of the relevant place of detention must, if she is to remain in such detention, be very limited. I agree that, in the end, the person must, in the sense to which I have referred, remain in detention. But, as I have said, detention or detention in a particular place does not require physical confinement of the person within a particular building or ward at all times. And I am satisfied that supervised day leave, in the sense here in question, may be given without the person ceasing to be in detention or in detention at the relevant place.

As this decision may have implications beyond the instant case, I should add three observations. First, I have indicated that 'detain' is a concept the boundaries of which are affected by the context in which it is found. Here, it is used in a context where what is involved is not merely detention of a person dealt with for murder but also detention where ongoing psychiatric review and treatment is envisaged. The detention involved is, I think, to be such as to accommodate both of these things. Second, it does not followthat, because detention has such a meaning where mental health considerations are involved, it will have the same meaning, or allow of the same things, where they are not. And, third, I have, for the purpose of illustrating what particular things may be able to be done whilst a person is detained in strict custody under s 428ZB, used certain examples. The examples which I have taken have been taken only for the assistance of those who may need to understand or apply what I have said. The actual cases which I have taken as examples may, of course, be affected by other legislation or considerations and what I have said is no determination or decision in relation to such cases. The formal decision of the court is merely that, in the sense to which I have referred, supervised day leave may be ordered under s 119(6). Whether and to what extent particular things so exampled may be done must be determined in the context of the particular case and circumstances.

For these reasons, in my opinion, the plaintiff is entitled to a declaration that the Tribunal may, within s 119(1), recommend that she have, and the Governor may, within s 119(6), order that she have, supervised day leave.

The plaintiff should be directed to bring in Short Minutes of the orders necessary to give effect to the conclusions which I have expressed.

Hope AJA. I have read the reasons of Kirby P and Mahoney JA, who both agree, as I understand it, that it would be desirable for the Mental Health Review Tribunal to have power to make a recommendation to the Minister that a forensic patient be allowed to have supervised day leave of absence but, whilst Kirby P considers that the provisions of the relevant legislation precludes a conclusion that the Tribunal has such a power, Mahoney JA considers that it has.

As it seems to me, the words 'detain' or 'detention' do not of themselves prevent a grant of supervised day leave. This position has been reached under the English legislation where such a leave of absence is not regarded as an interruption of continuous care and treatment but as part of that care and treatment. Consequently it is not regarded as an interruption of detention: Safford v Safford [1944] P 61.

There appear to be three statutory provisions which are said to militate against such a conclusion in respect of the powers of the Tribunal. They are:

(1) Section 428ZB of the Crimes Act 1900 which deals with the effect of a finding and declaration as to mental illness;

(2) The provisions in Part VII of the Mental Health Act 1983 which refer to detention, care or treatment in a hospital, prison or other place; and

(3) The provisions of ss 129 and 130 of the Mental Health Act authorising medical superintendents to grant special leave of absence to a forensic patient in certain circumstances.

Section 428ZB was inserted in the Crimes Act by Act No 180 of 1983, which was assented to on 31 December 1983. It was part of a set of Acts assented to on that day of which another Act was the Mental Health Act 1983. Section 328ZB provides:

Where, upon 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 shall 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.

This section was not only enacted at the same time as the Mental Health Act, including Pt VII which relates to forensic patients; the section is referred to in that Part and in particular in s 118, which deals with the first review by the Tribunal of a patient's case, and gives it power to makerecommendations as to his detention, care or treatment or as to his release. In these circumstances it seems to me that the strict custody 'in such place and in such manner as the Court thinks fit' referred to in s 428ZB, although giving a power to the trial judge at the time when the verdict has been returned, does not limit or otherwise affect the powers of the Tribunal under Pt VII of the Mental Health Act.

The first section of the Mental Health Act dealing with persons the subject of an order under s 428ZB is s 118. That section requires that the Tribunal, within 14 days after the making of the order, review his case, and as soon as practicable thereafter make a recommendation to the Minister, either conditionally or subject to conditions, as to his detention, care or treatment or as to his release. Where a recommendation has been made the prescribed authority may make an order for the person's detention in such place, being a hospital, prison or other place in such manner as is specified in the order or, where the Tribunal has made a recommendation for his release, make an order, unconditionally or subject to conditions, for his release.

It will be seen that under this section the Tribunal's power to make recommendations is not limited to detention, care or treatment in any particular place, and that its recommendations may be unconditional or subject to conditions. Further, although, unless the Tribunal recommends release, the prescribed authority is empowered to make an order for the person's detention not only in a hospital, prison or otherplace, it can also order that the detention be in such manner as is specified in the order. I see no reason why under this provision, by itself, the Tribunal does not have power to make a recommendation authorising the granting of supervised day leave as the relevant medical authority thinks fit, not in order to enable the patient to obtain treatment at some other place, or from some other particular person, but as part of his treatment. If it made such a recommendation, I would have thought that the language of s 118(2)(a) does not prevent the prescribed authority from making an order in terms of the recommendation. The power of the Tribunal includes a recommendation in relation, inter alia, to treatment. The prescribed authority's power is to order the forensic patient's detention 'in such manner' as is specified in the order. In the light of the approach, albeit in a somewhat different context, to be found in Safford and other cases, I see no reason why that absence should be regarded as an interruption of the detention in the specified place.

URJ GRAHAM v STATE OF NEW SOUTH WALES (Hope AJA) 15

For reasons which are unexplained, the language of s 119 is somewhat different. The power of the Tribunal to make recommendations is not expressed to have attached to it a power to impose conditions, and its power in relation to detention, care or treatment is expressed to relate to detention, care or treatment in a hospital, prison or other place. I find it difficult to imagine that the Legislature intended that the powers of the Tribunal to make recommendations to the Minister under s 119 were more limited than the powers which it has unders 118. It would be odd if the Tribunal properly made a recommendation subject to a condition under s 118 but could not continue the operation of the condition under s 119. It must be remembered that, although the legislation is dealing with persons in respect of whom security is a very important consideration both in their own interests and in the interests of members of the public, it is also dealing with the care and treatment of forensic patients, and in a relevant although limited sense with restraints on their freedom. I have therefore concluded that the Tribunal would have the same power to make a recommendation as to supervised day leave under s 119 as it has under s 118. Under s 119(6) where the Tribunal has made a recommendation, the prescribed authority may make an order for the forensic patient's detention in such place and in such manner as are specified in the order, and in my opinion the 'manner' can properly include allowing the forensic patient to be taken on supervised day leave in the same way as I have concluded can be authorised by the prescribed authority under s 118(2).

Do then the special provisions of s 129 and 130 indicate a sufficient intention on the part of the Legislature to limit any leave to the circumstances referred to in those sections? It will be seen that the sections are in somewhat limited terms. They provide for what are described as absence in emergencies and absence to undergo medical investigation or treatment. They do not make provision for the circumstance that supervised leave of absence may itself be treatment, nor do theyexhaust the circumstances in which leave would otherwise be required as, for example, to attend court.

The periodical reviews of the Tribunal under s 119 would no doubt not be directed to treatment required unexpectedly or in emergent circumstances, as when the patient suffers an accident or suddenly becomes ill. However the Tribunal is required to make recommendations in respect of the forensic patient's treatment and without attempting to limit this power, it must at least include long term treatment as opposed to the type of treatment to which I have referred. The evidence shows that supervised day leave is a form of treatment and indeed can be an important form of treatment. In my opinion 'treatment-leave' is a different leave to that which the medical superintendent can authorise under ss 129 and 130, and is a proper matter to be the subject of a recommendation by the Tribunal.

T accordingly agree with the conclusions reached by Mahoney JA and I agree that the plaintiff should be directed to bring in short minutes of orders necessary to give effect to the conclusions of the Court.

The appellant shall within fourteen days bring in Short Minutes of the orders necessary to give effect to the conclusion of the Court that the appellant is entitled to a declaration that the Mental Health Tribunal may, within s 119(1) of the Mental Health Act 1983 recommend that she may have, and the Governor may within s 119(6) order that she have supervised day leave.

Solicitors for the appellant: MR W J ROBINSON: MENTAL HEALTH ADVOCACY SERVICE: LEGAL AID COMMISSION OF NSW

Counsel for the respondent: MR A W STREET Solicitors for the respondent: H K ROBERTS: STATE CROWN SOLICITOR