MAILES v DPP AND 1 OR

The case of Mr Mailes, having been referred to the Court pursuant to Section 24(1)(a) of the Mental Health (Criminal Procedure) Act 1990, the Tribunal determines, pursuant to Section 24(2) of the Act, that this person is:- (a) not suffering from a mental illness, and (b) is not suffering from a mental condition for which treatment is available in a hospital. REASONS Mr Mailes is a moderately intellectually disabled person who also suffers from communication disabilities as a result of hearing and speech defects. There is no evidence that he has a psychotic disorder although he has features of a personality disorder which continue to make him liable to outbursts of violence. He is currently being given antipsychotic medication to control this propensity for aggression. In the Tribunal's view Mr Mailes requires a structured and consistent environment within the correctional system rather than treatment and detention in a hospital. At present he is being detained at the Lithgow Correctional Centre - a maximum security prison. The staff at this facility are familiar with Mr Mailes and seem to have established a rapport with him. Mr Mailes is being provided with work tasks to occupy his time which are consistent with his level of intellectual functioning. Further vocational assessment and training needs to be undertaken to design a long term treatment program and placement for Mailes which includes substances abuse education and counselling." 7 The Plaintiff appealed to the Court of Criminal Appeal against the length of the limiting term Wood CJ at CL had imposed but that appeal was dismissed - R v Mailes [2004] NSWCCA 394. 8 The Court has not made any further significant orders. The current problem was placed before Wood CJ at CL on 10 June last and his Honour made a number of directions which have led to the proceedings before me. The Plaintiff has remained in custody and, taking the view that the Plaintiff is not a "forensic patient", the Tribunal has declined to review the Plaintiff since 19 February 2004. The proceedings before me have revolved around the question whether that view is correct. 9 The issues that arise require close attention to some of the provisions of the Mental Health (Criminal Procedure) Act 1990 and of the Mental Health Act 1990. In the interests of brevity it will be convenient to refer to these statutes as the MHCP Act and the MH Act respectively. The Acts have been amended by the Mental Health (Criminal Procedure) Act 2005 and where I have found it necessary to quote statutory provisions, I have quoted them as amended. None of the amendments involve matters of substance so far as the issues before me are concerned. 10 In the MHCP Act "forensic patient" is given the same meaning as in the MH Act 1990. In this regard the MH Act provides:- "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 subjection 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 s14(b)(ii) or 17(2) or the Mental Health (Criminal Procedure) Act 1990. 11 The MHCP Act is directed to the topic of persons whose fitness to be tried is in question. The Act sets out in detail a series of steps to be gone through in the course of the determination of that question and in light of the answer. Section 10, the first of the sections mentioned in the definition of "forensic patient", details one of those steps and deals with the procedure to be followed at an early stage when the question of a person's unfitness to be tried is first raised. So far as is relevant to that definition, s10(3)(c) provides:- (3) Before conducting an inquiry, the Court may do any one or more of the following: (c) remand the accused person in custody for a period not exceeding 28 days. 12 Section 14, the second of the sections mentioned in the definition provides, inter alia, that if an accused person is found unfit to be tried the Court must refer the person to the Mental Health Review Tribunal and may "remand the person in custody until the determination of the Tribunal has been given effect to" and may make an other order that the court considers appropriate. 13 Section 16 requires, that if a person has been referred to the Tribunal under s14, the Tribunal must determine on the balance of probabilities whether the person will, within 12 months of the finding of unfitness become fit to be tried. Section 17 deals with the situation where the Tribunal answers that question in the affirmative. Section 17(3) provides:- (3) If the Tribunal has determined: (a) that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in hospital and that the person, not being in a hospital, does not object to being detained in a hospital - the Court may order that the person be taken to and detained in a hospital, or (b) that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental conditional but that the person objects to being detained in a hospital - the Court may order that the person be detained in a place other than a hospital, for a period not exceeding 12 months. 14 There follow a series of sections which deal with the situation where the Tribunal has determined that a person will not be fit to be tried within 12 months. Before turning to these, which are not referred to in the definition of "forensic patient, and to s27 which is, I mention, albeit to put to some side because irrelevant to the issues I have to decide, the remaining sections referred to in the definition. 15 Sections 25 and 39 of the MHCP Act deal with the situation of an accused being found not guilty by reason of mental illness. Section 7(4) of the Criminal Appeal Act deals with the situation where, on appeal, it appears that an appellant was mentally ill so as not to be responsible according to law for his actions at the time of the events the subject of a charge. 16 I return to the sections dealing with the situation where the Tribunal has determined that a person will not be fit to be tried within 12 months. They include provision for the holding of what is called a "special hearing" into whether the person did commit the offence charged and the verdicts available at such a hearing. Sections 23, 24 and 27, the sections most relevant to the question before me provide:- 23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term , in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate of the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. (2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings. (3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings. (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court: (a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or (b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person. (6) When making a direction under subsection (5)(b), the Court is to take into account …

(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, or (b) in the case of a patient subject to a determination that the patient is unfit to be tried for an offence, as to the fitness of the patient to be tried for an offence, or (c) as to the patient's release (either unconditionally or subject to conditions) (2) The Tribunal must review the case of a forensic patient and make a recommendation to the Minister under this section if requested to do so by the Minister, the Attorney General, the Minister for Corrective Services, the Chief Health Officer or a medical superintendent. (3) If, in the case of a forensic patient subject to a determination that the patient is unfit to be tried for an offence, the Tribunal is, for the purpose of making a recommendation under this section, of the opinion that the patient has become fit to be tried for an offence, it must notify the Director of Public Prosecutions and the court that made the finding of unfitness. (3A) … 18 Sections 101 to 108 of the MH Act deal with the termination of a person's classification as a forensic patient in a variety of situations. Most are of no present relevance but ss103 and 104 should be quoted:- 103. A person who has been detained in a hospital, prison or other place following a special hearing under section 19 of the Mental Health (Criminal Procedure) Act 1990 ceases to be a forensic patient: (a) on the expiry of the limiting term (where that term is less than life) imposed in respect of the person, or (b) on unconditional release by order of the prescribed authority following a recommendation of the Tribunal, or (c) if 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 the person being classified as a continued treatment patient, whichever occurs first. 104. A person in respect of whom, after a finding that the person is unfit to be tried for an offence, the Tribunal has notified the court that made the finding and the Director of Public Prosecutions that it is of the opinion that the person has become fit to be tried for an offence (whether or not a special hearing has been conducted under section 19 of the Mental Health (Criminal Procedure) Act 1990 in respect of the offence) ceases to be a forensic patient: (a) on a finding, at a further inquiry by a court as to the person's unfitness, that the person is fit to tried for the offence, or (b) if the Director of Public Prosecutions advises the Minister that the person will not be further proceeded against in respect of the offence - on the person's release from detention pursuant to section 29 of the Mental Health (Criminal Procedure) Act 1990 , whichever first occurs. . 19 A number of the aspects of the definition of "forensic patient" stand out. The first is the tense used in the sub-paragraphs. Sub-paragraphs (a) and (b) include the expression "who is detained". Sub-paragraphs (c) uses the expression "who has been transferred". The juxtaposition of the two tenses argues strongly for operation being given to them. 20 A second aspect is the inclusion of words limiting the detention which falls within the definition to detention in particular circumstances. So far as sub-paragraph (a) is concerned, it is only detention "pursuant to an order under Sections 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 sub-section as applied by Section 5AA(5) of that Act)". 21 In light of this detailed specification of particular statutory provisions, it is at least difficult to conclude that detention pursuant to some other power or statutory provision is sufficient to constitute the person detained a "forensic patient". In particular it is difficult to conclude that any detention pursuant to s23 or s24, which one can only conclude were deliberately omitted from the definition of "forensic patient", brings a person within that term. 22 It is clear that s103 of the MH Act assumes that a person detained following a special hearing is a forensic patient. So does s104 which contemplates the Tribunal having notified the Director of Public Prosecutions that a person has become fit to be tried. The review contemplated by the Act as allowing the Tribunal to form such an opinion is that provided for by s82, a section complementary to s104 but which, however, applies only to forensic patients. 23 Section 80 of the MH Act also provides for the Tribunal's review of a person who has been the subject of a limiting term imposed after a special hearing and is not limited to someone falling within the definition of "forensic patient". However, by requiring in Section 80(2) that the Tribunal review a person's case "as soon as practicable" after the making of one of the orders contemplated by s80(1), the section envisages that there will be only one review after any such order. It should perhaps be mentioned that there are other sections of the MH Act that provide for review by the Tribunal but they deal with particular situations and are of no present relevance. 24 It should be noted that s23 does not in terms provide for the imposition or making of any custodial or detention order. What the section does firstly is to require the Court to "indicate" whether if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment and, if so, then to "nominate" the period which is the court's best estimate of the sentence that would have been appropriate in that situation. It goes on in sub-section (2) to say that if the Court indicates it would not have imposed a sentence of imprisonment it "may impose any other penalty or make any other order it might have made on conviction", words which stand in stark contrast to the indication and nomination referred to in sub-section (1). The difference is maintained in sub-section (3) which provides for an appeal in the case of a penalty or order made under sub-section (2) but is silent on the topic of any appeal from an indication or nomination under sub-section (1). (The opportunity to appeal from a decision as to the length of a limiting term arises because of the definitions of "conviction" and "sentence" in the Criminal Appeal Act - see R v Mailes [2004] NSWCCA 394.) 25 Sub-section 5 provides that a limiting term takes effect from the time nominated, unless the court directs that it be taken to have commenced at an earlier time and while if there were no other relevant provision, one might be tempted to interpret this as indicating that the nomination operated as a custodial or detention order, the sub-section does not say so. Upon the principle that the liberty of the subject is not to be taken away except by clear words, I would not regard sub-section 5 either on its own or combined with the other provisions of s23 as operating so as to justify someone being kept in custody. 26 Section 24 however does provide for the making of a custodial order. It says that if the Court has nominated a limiting term, the Court "may make such order with respect to the custody of the person as the Court considers appropriate". The section also provides that if it has nominated a limiting term the Court "must" refer the person to the Tribunal and, if the Court does so, the Tribunal "must" determine certain things and "must" notify the Court of its determination. 27 Before reflecting on the ambit or consequences of the power in s24 to make a custodial order, attention should be given to s27. That deals with the situation after the Tribunal has notified the Court of the determination s24 required the Tribunal to make. (Given the obligations on the Tribunal, the curious use of the introductory word "if" can properly be ignored or interpreted as "when".) Depending on what determination the Tribunal has made, the section provides that the Court "may" order that person be detained in a hospital or other place. 28 The terms in which the provisions of ss24 and 27 empowering the Court to make a custodial order are expressed are not such as to define the inter-relationship between them. The requirement for the Tribunal to make a determination and report and the terms of s27 indicate clearly that the Court's powers are not exhausted at the stage contemplated by s24. On the other hand, s24(1)(b) is expressed in broad terms and one would expect that in many situations an order could be made under that section which would not need revisiting after the Tribunal reported. 29 That said, the fact that an order under s24 can be revisited provides an argument that such orders are intended to be of only an interim nature, a view reinforced by the absence of reference to s24 in the definition of "forensic patient". Clearly the relevant provisions of the MH Act and the MHCP Act contemplate that there will be a deal of ongoing review of persons who come within the ambit of the Acts and there is no logical reason to exclude those who happen to be the subject of an order under s24 unless those orders are of only an interim nature. 30 That Wood CJ at CL's final order affecting the Plaintiff was of only that nature is apparent from the terms in which it is couched, viz:-. "Pending notification of the determination of the Tribunal and also pending further order of the Court, I order that the defendant be detained in a Correctional Centre." 31 On behalf of the Plaintiff it was submitted that the Plaintiff had become a "forensic patient" when, on 10 April 2002 he had been found unfit to be tried and that Section 15 of the MHCP Act presumed this state to continue. So far as is relevant Section 15 provides:- "It is to be presumed: (a) That a person who has, in accordance with this Part, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities determined to be the case." 32 However, this argument ignores the terms of the definition of forensic patient which simply does not incorporate a paragraph including within the term "forensic patient", a person unfit to be tried. According to the remarks of Wood CJ at CL in R v Mailes (2003) 142 A Crim R 353; [2003] NSWSC 707 at [4], the Plaintiff remained in custody. His Honour said that this was pursuant to the Plaintiff's earlier conviction but that has been set aside, and I am content to assume that the Plaintiff's then custody was pursuant to s14. If so, he then became a "forensic patient", but once that order had run the course dictated by s14 for such orders, "until the determination of the Tribunal (whether or not the Plaintiff will during the ensuing 12 months become fit for trial) has been given effect to" the Plaintiff ceased to be detained pursuant to it and, subject to the operation of any other order made, ceased to be a forensic patient by virtue of it. 33 The definition of forensic patient refers to a person "who is detained … pursuant to" orders under specified sections. It is just not possible to ignore the word "is", nor the limitations in the sections under which detention orders may have been made. 34 In so concluding I do not ignore a further argument on behalf of the plaintiff that the MH Act in sections 101 to 108 specifies a number of specific circumstances when a patient's status as a "forensic patient" can be terminated and, given the clear intention that the situation of such patients should be the subject of regular review by the Tribunal, one should infer that the status could not end in some other way. 35 On behalf of the Plaintiff reliance was also placed on statements in proceeding in the Court of Criminal Appeal involving the Plaintiff. In R v Mailes [2001] NSWCCA 155 at [94], Wood CJ at CL, with the concurrence of the Chief Justice and Greg James J said:- "The Procedure Act is linked to the Mental Health Act 1990, (the Health Act") so far as persons who are found unfit, or who become the subject of a special hearing, in accordance with Sections 18 to 21 of the Procedure Act, become "forensic patients", who then fall within the application of Chapter 5 of the Health Act. In each case such persons are subject to review and assessment by the Mental Health Review Tribunal, … a tribunal constituted under the Health Act." (sic) 36 In R v Mailes [2004] NSWCCA 394; (2004) 150 A Crim R 365, (2004) 62 NSWLR 181, Dunford J, with whom Adams and Howie JJ agreed, said at [15]:- "If the Accused is detained in a hospital, prison or other place, the accused is a "forensic patient". 37 In the latter case, the Court also endorsed reasoning in an earlier case of R v Mitchell (1999) 108 A Crim R 85. The gravamen of the decision in that case was that a judge fixing a limiting term was not concerned with the division of the period into minimum and additional terms but only with the totality of these and what factors were relevant in that regard. However, in the course of its reasons the Court said (at [15]:- "Once the limiting term (provided for under Section 23(1)(b) of the Mental Health (Criminal Procedure) Act) has been nominated, the court refers the accused to the Mental Health Review Tribunal (the Tribunal) and makes such orders with respect to custody as it considers appropriate: s24(1). The Tribunal determines the appropriateness of hospital treatment and notifies the court accordingly: s24(2), (3). The court may make an order as to the custody of the accused: s27. If the accused is detained in a hospital, prison or other place, the accused is a "forensic patient": Sch 1, Mental Health Act 1990 (NSW). Thereafter the continued detention of the accused is determined by procedures established by the Mental Health Act … " 38 However in both of these cases, although the Court was considering the scheme of the MHCP Act, it was not required to decide the specific issue posed for me nor did it direct attention to the arguments bearing on that issue. Given these factors, it is to me plain that the remarks relied on on behalf of the Plaintiff were rather assumptions or summaries not intended to be definitive. In neither case could the Court have intended to give the definition of "forensic patient" the breadth of operation implicit in the words used without more detailed reference to the precise terms of the definition. However, if that conclusion be wrong, then it seems to me that in their generality the remarks to which I have referred were made per incuriam and I am not obliged to follow them. 39 It was urged that I should adopt a purposive approach to construction of the legislation, that one of its purposes was to ensure that there was regular review of the situation of persons such as the Plaintiff and this argued for the view that once he achieved the status of a "forensic patient" the Acts should be construed so that he remained such. My attention was also directed to the Second Reading Speech and the inadvertence rule of statutory construction referred to by Wood CJ at CL in R v Mailes [2001] 53 NSWLR 251; [2001] NSWCCA 155 at [208] et seq. 40 In the circumstances of this case I find none of these matters or principles of assistance. To my mind the operation of the definition of "forensic patient" is clear and such mischief as is said to exist in the case of the Plaintiff is easily cured by one of the procedures that the MHCP Act itself contemplates, viz. the making of an order under s27. So long as the Plaintiff's incarceration is pursuant to the order made by Wood CJ at CL on 23 August 2003, the Plaintiff is not a "forensic patient" and no basis exists for directing the Tribunal to review his situation or process him as such. However, power exists to make a further order, this time under s27 and, given the terms of the definition, from that time he will become a "forensic patient". 41 I have reached the above conclusion on the basis of my own review of the provisions of the MH and MHCP Acts. However, it gives me some comfort to note that Sperling J has also taken the view that it is an order under s27 that makes someone in the Plaintiff's situation a "forensic patient" - see R v Adams [2003] NSWSC 142 at [25-31]. My review and the conclusions that followed have also enabled me to put to one side the history of the legislation on which counsel for the Tribunal also relied. 42 The argument advanced on behalf of the Plaintiff was that he is now a "forensic patient". While he took an opposite stance on that issue, the Director urged that I should now make him one by making an order under s27. As both parties urge that that should be the Plaintiff's status and my view of the Acts are that that is the appropriate situation for someone in the Plaintiff's position, it seems to me desirable that I now make an order under s27. The terms of the Tribunal's determination of 19 February 2004, and Wood CJ at CL's earlier orders seem to me to lead to the conclusion that the order I should make is that:- "Pursuant to s27 of the Mental Health (Criminal Procedure) Act, Graham Edward Mailes be detained in a place other than a hospital" 43 However, during the hearing the parties concentrated on the substantive issue and not on the form of orders that should be made. In these circumstances, what I propose to do is to indicate the orders that seem to me appropriate, to publish these reasons and to stand the proceedings over for a short period in order that the parties may raise any reservations they have, consistent with the reasons, to the orders I propose. The orders that seem to me appropriate are:- (i) Declare that the Plaintiff is not presently a "forensic patient" within either the Mental Health Act, 1990 or the Mental Health (Criminal Procedure) Act 1990. (ii) "Pursuant to s27 of the Mental Health (Criminal Procedure) Act, Graham Edward Mailes be detained in a place other than a hospital" (iii) Otherwise the summons is dismissed. 44 Given the basis of the Tribunal's refusal hitherto to treat the Plaintiff as a "forensic patient", and the fact that there is no evidence that the Tribunal has not adhered to its statutory obligations, it does not seem to me necessary or appropriate to make the second order sought in the summons. **********

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