(c) Section 27 orders
65 The provisions of s.27 are critical to the issue of liability. The section comes into operation following upon the determination by the Tribunal after a limiting term is imposed. Following notification by the Tribunal to the Court of its determination in respect of a person under s.24(3), the issue of the person's detention or otherwise will be determined by order of the Court. Under s.27, the Court may:-
"27. Orders Court may make following determination of Mental Health Review Tribunal after limiting term is imposed
If a Court is notified by the Mental Health Review Tribunal of it determination in respect of a person under s.24(3), the Court may:-
(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering form a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital - order that the person be taken to and detained in a hospital , or
(b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (1) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital - order that the person be detained in a place other than a hospital ." ( emphasis added)
66 The order made by Woods DCJ on 24 June 2002 under s.27 was expressed to be made upon the basis of the Tribunal's notification under s.24(3), namely, that the plaintiff "is a person suffering from a mental illness". It directed that the plaintiff's detention be one "in a hospital". That order was made under s.27(a). Section 3 of the MH(CP) Act provided that "hospital has the same meaning as in the Mental Health Act 1990".
67 Section 3 and the Schedule to the MH Act 1990 defined "hospital" to mean:-
"(a) Any premises the subject of an order in force under s.208 by which the premises are declared to be a hospital; or
(b) An authorised hospital."
68 The relevant declarations made by the Director General of the New South Wales Department of Health pursuant to s.208 of the MH Act 1990 (published on 4 June 1999), as earlier noted, declared the following premises within Long Bay Prison Hospital, a "hospital" for the purposes of the MH Act 1990:-
"Ward A
Ward C, beds 1 to 15 in the East Wing only, and
Ward D, best 1 to 15 in the East Wing only."
69 The declaration did not extend to bed (or cell) 16 of Ward D.
70 I accept the submission for the plaintiff that the word "hospital" in s.27(a) of the MH(CP) Act is not interchangeable with the word "prison". Both words, as observed in the plaintiff's submissions, are used in the MH(CP) Act, eg, s.35 Transfer of prisoners.
71 In AN (No 2) (supra), James J noted, at [47], that the language of the crucial part of s.27, namely, "the court may … order that the person be detained in a place other than a hospital" is open to the interpretation either that the section confers a power to order both detention and a place of detention or the interpretation that s.27(b) merely confers a power to order a place of detention.
72 In that respect, James J observed 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 a power to determine where the person should be detained …"
73 James J set forth his reasons for reaching that conclusion. His Honour, firstly, referred to the definition of "forensic patient" in the Dictionary in Schedule 1 to the MH Act 1990 which is defined as meaning "(a) A person who is detained in a hospital, prison or other place … pursuant to an order" under certain sections of the MH(CP) Act which includes s.27 but which did not include s.24.
74 His Honour referred to the observations of RS Hulme J in Mailes (supra) in which his Honour held that a person detained pursuant to an order under s.24 of the Act is not a forensic patient. That conclusion followed from the terms of the definition of "forensic patient" with which James J agreed.
75 If a person did become a forensic patient, which would happen if an order is made under s.27, James J observed that Part 2 of Chapter 5 of the MH Act 1990 then became applicable.
76 Section 80, in that Part, prescribes the power of the Tribunal to review cases of persons found unfit to be tried. Section 82 conferred power in the Tribunal, at least every six months, to review cases of forensic patients whilst s.83 was concerned with notice of recommended releases.
77 Following reference to those provisions, James J continued at [53] and [54]:-
"53. It would seem to me odd, if a person's becoming a forensic patient and becoming subject to the elaborate review provisions in Part 2 of Chapter 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 .
54. Furthermore, 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. 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." (emphasis added)
78 A little later in the judgment, James J stated:-
"56. 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."
79 Accordingly, an order made by a court under s.27 is an order that operates in respect of the person's liberty in terms of a detention duly authorised by the order. The section is the source of the power to decide what order should be made for a person's future custody or detention. It is that order, following receipt by the Court of a notification by the Tribunal of its determination in respect of a person under s.24(3), which will determine both the question as to whether the person is detained and, if made, the place at which the detention is to occur.
80 A related matter of particular relevance to the present case is whether or not the statutory scheme under the MH(CP) Act, in particular, the above provisions that confer the power to make detention orders (s.27(a) and (b)), vests in the Court a discretion not to make an order under s.27(a) or (b) or whether the Court is confined, in its discretion, to ordering detention in a hospital or in a place other than a hospital and not a power to make no order under either s.27(a) or (b).
81 That was a matter that arose for decision in AN (No 2) (supra). James J observed that if no order is made under s.27(b) and if there was no continuing order under s.24(1)(b), the applicant in that case would have been entitled to be released, there being no warrant for his being held in custody.
82 On that question his Honour observed that, in certain provisions of the Act, the legislature used the word "must" where it intended to confer a power which the donee of the power would be obliged to exercise. Other provisions where the legislature intended to confer a power which the donee of the power might, at its discretion, exercise or not exercise, the legislature used the word "may": see [60].
83 James J observed that, such little authority as existed, supported the view that a court has a discretion whether to make an order under s.27(b). His Honour, in that respect, referred to the observations of Sperling J in Adams (supra) at 14, [31]. Following reference also to the decision of Regina v Tas (District Court, Keleman DCJ, 1 October 1997, unreported) and the remarks on sentence of Mathews J Regina v Boyle (18 September 1992, unreported), his Honour stated at [62]:-
"In my opinion, it is possible to conceive of circumstances in which it would be appropriate not to make any order under s.27. An example might be the circumstances in Regina v Boyle …"
84 In this latter respect, reference was made to the fact that the circumstances in that case were such that there may be no point in causing the review procedures in Part 2 of Chapter 5 of the MH Act 1990 to become applicable to the offender.
85 In AN (No 2) (supra), the Court of Criminal Appeal proceeded upon the basis that it was in the position of determining whether or not an order should be made under s.27(b). James J, having noted at [77] that, if the Court did not make any order under that provision, the applicant would be entitled to be released, ultimately concluded that, as a matter of discretion, it was open to the Court to order the applicant to be detained in a juvenile justice detention centre and that the Court should make an order to that effect.
86 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.
87 In the light of that conclusion, I do not accept the contention made on behalf of the State as to the asserted consequences of the nomination of a limiting term. I also do not accept the submission made as to the limited nature of the discretion said to exist under s.27. In that latter respect, it was contended (t.35):-
"… The way that limiting term works, it's a little hard to construe the possibility of any residual discretion in a judge to do other than simply choose the place of custody when making a determination under s.27. Which brings us back to … the question that's really only theoretical, which is whether the limiting term of itself has the effect of denying liberty. We say it does."
88 With respect, that contention runs contrary to the construction that has been adopted in the authorities concerning s.23, s.24 and s.27 of the MH(CP) Act to which reference has been made above.
89 The terms of the order made by Woods DCJ in this case under s.27, of course, was the source of the power to detain and then within the limitations prescribed by it. By that order, the only lawful authority it conveyed was for the plaintiff's detention in a "hospital" (as defined by law).
90 In asking then what did the order of Woods DCJ authorise - detention in a "prison" or detention in a "hospital" as defined, the answer is clearly the latter and not the former. The order neither expressly nor impliedly authorised the plaintiff to be lawfully detained in a prison (a place that could have been authorised only under s.27(b)). The detention was to be, and only to be, on premises that were specified in or as declared in an order made under s.208 of the MH Act 1990 and published in the Gazette.
91 In relation to the question of lawful detention, there has long been recognised a distinction between the place and/or nature of confinement, imprisonment or detention and the conditions of confinement, imprisonment etc.
92 In Collins v Downs (unreported, 14December 1982), Roden J stated at 5:-
"In Arbon v Anderson … in which earlier authority such as Cobbett v Grey (1849) 4 Ex 729 and Osborne v Millman (1886) 17 QBD 14 were considered, what appears to be a significant distinction was made between, on the one hand, the nature or place of imprisonment, and on the other, the conditions of imprisonment. This, I believe, is an important distinction to bear in mind when considering the other cause of action pleaded here by the plaintiff."
93 Roden J then went on to deal with the plaintiff's case based on false imprisonment in that case (at 5):-
"… I earlier referred, that there is a right of action for false imprisonment available to a [sic] convict prisoner if, during the term of the sentence imposed upon him when his imprisonment or otherwise would be lawful, he is wrongly subjected to imprisonment of a nature or in a place not authorised. In this regard, the distinction mentioned above between nature or place of the imprisonment and the conditions of imprisonment is, I believe, critical."