TD, BY HER TUTOR, THE PROTECTIVE COMMISSIONER OF NSW v STATE OF NSW

Supreme Court of NSW|2011-02-18|Before: Hall J

Introduction 1HIS HONOUR: On 30 April 2010, I delivered judgment on liability in this matter: TD v State of NSW [2010] NSWSC 368. The defendant, the State of NSW (the State), subsequently filed a Notice of Motion on 25 June 2010 to re-open on the ground that I had referred to and dealt with the provisions of s.27 of the Mental Health (Criminal Procedure) Act 1990 ( "the Act" ) beyond the ambit of the submissions of the parties. 2On 10 September 2010 I delivered an interlocutory judgment in respect of the Notice of Motion. I considered, at [7] of that judgment, that s.27 Act was critical to the matter at hand and, on that basis, counsel should have the opportunity to make further submissions, particularly in light of the limited judicial consideration upon the construction of s.27 in the context of the scheme established by the Act. 3Mr G P Craddock SC, who appeared on behalf of the State, submitted that the asserted error in relation to s.27 meant that the determination of liability in favour of the defendants was wrong and should be set aside.

The defendant's submissions 11In the judgment delivered on 30 April 2010, I stated:- " I am of the opinion that, in light of the abovementioned authorities, the proper construction of s.27 is that the Court has a discretion as to whether to make an order in terms of s.27(a) or (b) or not to make an order for detention under either provision . As noted above, in the latter event, the person concerned (the plaintiff in the present proceedings) would be entitled to be released ." 12Mr Craddock submitted that s.27 cannot be construed so as to confer an absolute discretion on the Court as to whether an order under s.27 ought be made. At [31] of the written submissions on behalf of the State, it was submitted that s.27 "... is directed towards determining the place of detention following the expert findings of the Tribunal " and that "... the plaintiff was denied her liberty by reason of the nomination of the limiting term [per s.23] together with the order for custody made under s.24 " . (Written Submissions at [33]). 13In support of that submission, Mr Craddock drew my attention to the provisions of the Act, and cognate legislation, the Mental Health Act 1983 (as it was then). An extract of the relevant speech of the then Minister for Health was set out in the defendant's written submissions at [16]. In summary, it was noted that the Act represented a legislative measure to mediate the somewhat difficult tension between protecting those with severe mental illness, on the one hand, and protecting the public from those who commit violent crimes on the other. 14Mr Craddock contended that the Act's purpose was to make transparent and accessible the mechanisms for dealing with mentally ill offenders, whilst ensuring that such offenders would not be simply let free to commit further offences. 15It was, accordingly, submitted that it would be an absurd construction of s.27 to conclude that it conferred an absolute discretion upon the Court not to make any order and allow an offender simply to be released. Mr Craddock noted at [18]-[23] of his written submissions that the Act already substantially provides for a procedure of discharge. 16If one were to construe s.27 as providing such a discretion, Mr Craddock submitted the Court would be exercising the power without any relevant machinery in which to accord the offender any procedural fairness (ie there being no provision for a hearing in s.27). Furthermore, the judge making such an order would, in effect, be doing so blind to whether or not the offender was "dangerous" in the sense envisaged by the legislation. That is because there is no mechanism in s.27 that allows for the judge to refer the offender for further assessment by the Mental Health Tribunal, which must make such determinations to assist the judge under s.23. 17Mr Craddock submitted that James J in R v AN (No 2) [2006] NSWCCA 218; (2006) 66 NSWLR 523 was wrong in determining that s.27 conferred a discretion upon the judge to make no order at all with respect to the detention of a person who the Tribunal determined suffered from a mental illness or other mental condition. He also observed that the observations of James J were expressly obiter: at 530.

The plaintiff's submissions 18It was submitted by Mr A Naylor for the plaintiff that, in accordance with the construction adopted by James J in AN (No 2) (supra), s.27 conferred a discretion in a court to either make an order pursuant to (a), that is, that a person be detained in a hospital, to (b), be detained in a place other than a hospital (for example, a prison) and (c) a discretion to make no order at all. It was submitted that s.27 provides both the power to choose the place of detention as well as the power to detain. 19Mr Naylor observed that the power under s.24 is a power that comes into effect after a " limiting term " is imposed under s.23: R v Adams [2001] NSWSC 1042; (2001) 126 A Crim R 264 per Sperling J at [31]. An order under s.24, it was submitted, is spent once an order is made under s.27. An order under s.27(1)(a) has the effect that the person in relation to whom the order is made becomes a "forensic patient" as defined in the Dictionary to the Mental Health Act . Chapter 5 of that Act then operates. There is no reference in s.24 of the Mental Health (Criminal Procedure) Act . 20In the written submissions of Mr T Game SC and Mr A Naylor, it was contended that there is no risk of an absurd result in construing s.27 as being the source of the power to detain (at [14]) as the Court that makes the initial order for a limiting term to be imposed under s.23 must be the same Court that makes any order under s.27. On that basis, the Court will have before it any and all risk assessments by the Mental Health Tribunal, and, must take into account the need to protect the community pursuant to s.21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 21Mr Naylor also emphasised that the word "may" in s.27 is a permissive term which contemplates a discretion in a judge as to whether to make an order or not.

Consideration 22In determining the scope of power under s.27 of the Act, it is necessary to consider the relevant provisions that fall under Part 2 of that Act. That Part contains provisions for the conduct of special hearings in respect of an offence, the procedures to be followed after the completion of the special hearing and in the event that an accused person is found, on the limited evidence available, to have, in fact, committed the offence charged (or some other offence available as an alternative). 23The Act then provides, in s.24, for the consequences of nomination of a limiting term. That section is set out in paragraph [8] above. 24Following the determination by the Mental Health Review Tribunal pursuant to an order made under s.24(1)(a), if a court is notified by the Mental Health Review Tribunal of its determination in respect of a person under s.24(3), then the Court may make orders as provided by s.27. 25The issue raised in the present proceedings is whether the plaintiff was deprived of her liberty by virtue of the order made under s.24(1)(b) or whether, as was contended on her behalf, she was deprived of her liberty by virtue of the order made by the Court under s.27 of the Act. 26The submissions made on behalf of the defendant, and to which I have referred above, were, of course, directed to supporting the former proposition, that is to say, that the plaintiff's loss of liberty arose by virtue of the order made under s.24 and that the order made under s.27 merely determined the place at which she was to be detained. The defendant submitted that the power under s.27 is limited to the making of an order specifying the place for her detention and the order had no other operative effect so far as the deprivation of her liberty is concerned. 27I expressed a contrary view in the judgment delivered on 30 April 2010. 28I have since had the benefit of detailed submissions for the defendant on the question as to whether or not the order made under s.27 did or did not operate so as to deprive the plaintiff of her liberty. 29The defendant submitted, as noted above, that, although the issue was one considered and dealt with in AN (No 2) (supra), the observations of the Court on the question of s.27 were obiter only. 30I accept that the dicta of James J who delivered the principal judgment of the Court of Criminal Appeal (Simpson and Rothman JJ agreeing) was obiter but that nonetheless this Court ought to follow the interpretation on the provisions of s.27 set out in the judgment of James J. I have formed that opinion on the following grounds. 31First, the question of the construction of s.27 was considered by his Honour in the context of the scheme established by the Act. Secondly, although obiter, his Honour's reasons provide an in-depth examination of the relevant statutory provisions. Thirdly, there is no identifiable basis, in my opinion, for this Court not following and applying the reasoning and conclusions of the Court in AN (No 2) (supra). 32The circumstances in AN (No 2) were somewhat unusual in a number of respects. The applicant had been charged, when only 13 years of age, of committing two offences against the same complainant. A judge of the District Court found the applicant, by reason of intellectual disability, was unfit to be tried. 33After the necessary steps had been taken under the Act, a special hearing under s.21 of the Act took place. A finding was made, on the limited evidence available, that the applicant had committed both of the offences charged. 34A limiting term was determined pursuant to s.23. The District Court judge made an order under s.24 that the applicant be referred to the Mental Health Tribunal. 35The applicant appealed to the Court of Criminal Appeal against the limiting term. Leave to appeal was granted, the limiting term quashed and a new limiting term was imposed: see R v AN [2005] NSWCCA 239. 36An order, however, was not made under s.24(1)(b) for the applicant's detention. 37The matter came back before the Court of Criminal Appeal in AN (No 2) (supra) and the question was the source of power which the Court had to make an order for the detention of the applicant. 38In his detailed reasons, James J identified the particular matters which led his Honour to the conclusion that the Court had power under s.27 to make an order for the detention of the person in question. 39His Honour stated at [48]:- "In my opinion, s.27(b), on its proper interpretation, confers a power to order that a person be detained, as well as power to determine where the person should be detained ..." 40James J then identified four grounds for the above conclusion. They may be summarised as follows:- (1) The dictionary in Schedule 1 to the Act, "forensic patient" is defined as meaning "a person who is detained in a hospital, prison or other place ... pursuant to an order" under the particular sections of the Act, including s.27. However, the reference to relevant provisions does not include s.24. (2) That in Mailes v DPP & Mental Health Review Tribunal [2006] NSWSC 267, Hulme J, after referring to the definition of "forensic patient" in Schedule 1 to the Mental Health Act, held that a person detained pursuant to an order under s.24 of the Act is not a forensic patient. James J agreed with that conclusion of AN (No 2) (supra) at 531, [50]. (3) That if a person becomes a forensic patient, which would happen if an order is made under s.27, then the provisions in Part 2 of Chapter 5 of the cognate Mental Health Act were applicable. These contain the provisions in s.80(1) in which there is express reference to an accused person "... who has been ordered (under section 27 of the Mental Health (Criminal Procedure) Act 1990) to be detained in a hospital or other place" : s.80(1)(b). (4) In relation to the provisions for review of "forensic patients" set out in s.82 and s.83 of the Mental Health Act , James J stated at [53]:- "It would seem to me odd, if a person's becoming a forensic patient and becoming subject to the elaborate review provisions in Pt 2 of Ch 5 of the Mental Health Act could depend on the making of an order which merely provided for the place in which a person should be detained, as distinct from an order providing for the person's detention." 41His Honour went on to state that it would make "good sense" for a Court to have power under s.27 to decide what order should be made for the person's future custody or detention. His Honour added at [54]:- "... Even if the court has made an order under s.24(1)(b) with respect to the custody of the person, which the Court, in the light of the information it then had available to it, considered to be appropriate, the court, by the time it considers what order (if any) it should make under s.27 of the Act, will have received the determination made by the Mental Health Tribunal pursuant to s.24(2) and is, accordingly, likely to have further information about the person in question." 42An additional matter relevant to the construction and operation of s.27 was, James J noted, the practice of Courts making orders under s.24(1)(b) of the Act:- "... The making of orders under s.24(1)(b) which are merely interim orders and cease to have effect on the Court being notified of the determination of the Tribunal, would be consistent with the Court, on being notified of the determination of the Tribunal, having power under s.27 to make an order for the detention of the person in question. I conclude that the Court can now make an order under s.27(b) of the Act for the detention of the applicant and not merely an order providing for the place in which any detention of the applicant should occur." 43I, with respect, consider that the reasoning of James J in respect of s.27(b) provides an extremely persuasive and compelling basis for construing the power under s.27 as his Honour did, namely, that it is a power to effect the detention of a person (thereby depriving that person of their liberty) and not merely a provision empowering a Court to provide for the place of detention. The decision in Adams (supra) and in AN (No 2) (supra) confirms that an order made under s.24 is in the nature of an interim order only. 44In light of that conclusion and the basis upon which it has been reached, it is not necessary for me to embark upon the further question, also considered by James J in AN (No 2) (supra), namely, whether there was a discretion not to make an order under s.27. It is sufficient to observe that his Honour's reference to the word "may" in the section and that it is possible to conceive of circumstances in which it would be appropriate not to make any order under s.27 are persuasive matters in support of the conclusion that there is scope for a court declining to make an order under s.27. However, it is a matter upon which it is not necessary for me to express a concluded view. 45In those circumstances, I am unable to accept the submission urged by the defendant in relation to the construction of s.27. I accept the submissions made by Mr Naylor of counsel on behalf of the plaintiff. 46In those circumstances, I have determined that there is no basis upon which the conclusions expressed in my judgment of 30 April 2010 require review. Accordingly, the conclusion therein expressed to the effect that there was no lawful basis for the plaintiff to be detained in a prison or correctional centre is confirmed. 47The Notice of Motion filed on 25 June 2010 is dismissed.

Damages 48Since I reserved my decision in relation to the question of construction of s.27, my associate was sent a letter dated 23 May 2011 from Sasha Lowes, solicitor, Legal Aid Commission of NSW, which contained a number of annexures. 49Counsel for the parties advised, during the course of the hearing that an attempt would be made to agree on quantum of damages in the event that liability was determined in favour of the plaintiff. 50The parties have since reached agreement on quantum which is reflected in draft short minutes of order that have been provided. The terms of the orders are expressed to be "in the event that the Court finds in favour of the plaintiff on the question of liability" . 51The short minutes of order provided an alternative set of orders in the event that the Court found in favour of the defendant on liability. 52I have been provided with an affidavit by Sasha Jane Lowes who has carriage of the matter for the plaintiff. The affidavit is in support of an application by the plaintiff under s.76 of the Civil Procedure Act 2005 for approval of the settlement of the quantum of damages in the proceedings, subject to a final determination of liability. 53The affidavit of Ms Lowes establishes that the plaintiff is a person under a legal incapacity within the meaning of s.75 of the Civil Procedure Act . A copy of the NSW Guardianship Tribunal determination of 28 March 2002 committing the management of the plaintiff's estate to the Protective Commissioner of NSW, now called the NSW Trustee & Guardian, is attached to her affidavit (Annexure SJL-1). 54The NSW Trustee & Guardian has consented to act as a tutor for the plaintiff in the proceedings. 55The parties have, as I have indicated, agreed on the quantum of damages plus costs, as agreed or assessed. 56Ms Lowes' affidavit establishes that both Mr Naylor of counsel and herself are of the opinion that the quantum of damages as agreed between the parties is beneficial to the plaintiff and that the Legal Aid Commission has recommended to the plaintiff's tutor that she agree to the settlement of the matter. 57An advice of Mr Naylor dated 6 April 2011 was exhibited to the affidavit (Exhibit SJL-2). The advice provides a basis for concluding, as I do, that the proposed judgment amount represents a reasonable settlement of the plaintiff's claim. 58I, accordingly, propose pursuant to s.76 of the Civil Procedure Act, to approve the judgment amount set out in the draft short minutes of order. 59The affidavit also establishes that the NSW Trustee & Guardian consents to the settlement. 60In support of the affidavit, there has also been filed on behalf of the plaintiff, the affidavit of Catherine Phang, principal legal office, NSW Trustee & Guardian, sworn 29 March 2011. 61According to Ms Phang's affidavit, the records of the NSW Trustee & Guardian indicate that the plaintiff suffers from a moderate intellectual disability and a psychiatric condition. As a consequence, the NSW Guardianship Tribunal made orders on 28 March 2002, in particular:- (1) That the estate of the plaintiff be subject to management under the provisions of the Protected Estates Act . (2) The management of her estate be committed to the Protective Commissioner (NSW Trustee & Guardian). 62Ms Phang explained in her affidavit at paragraph 4 that on 1 July 2009, the Protected Estates Act was repealed and replaced by NSW Trustee & Guardianship Act 2009. The order made on 28 March 2002 in respect of the plaintiff has continued in force. 63Mr Phang, as principal legal officer employed by the NSW Trustee & Guardian has provided instructions on the plaintiff's behalf throughout the proceedings. 64Pursuant to the NSW Trustee & Guardianship Act, the NSW Trustee & Guardian will manage any settlement monies awarded to the plaintiff. 65Accordingly, I propose to make an order for payment of the judgment monies to the NSW Trustee & Guardian for the management of the judgment monies on TD's behalf. 66I, accordingly, make the following orders:- (1) The notice of motion filed on 25 June 2010 is dismissed. (2) Judgment and verdict for the plaintiff on the plaintiff's pleaded cause of action in false imprisonment. (3) The plaintiff discontinues all other actions against the defendant in relation to the events giving rise to these proceedings. (4) The Court approves the settlement of the quantum of damages agreed between the parties in the sum of $80,000 plus costs, as agreed or assessed. (5) The defendant is to pay the plaintiff damages in the sum of $80,000 plus costs, as agreed or assessed. (6) The judgment monies are to be paid to the NSW Trustee & Guardian for management under the Protected Estates Act . 67I grant leave to either party to apply in respect of the form and terms of the orders set out above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2011

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