Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Skapik [2025] NSWCCA 19 Hearing dates: 4 February 2025 Date of orders: 24 February 2025 Decision date: 24 February 2025 Before: Stern JA at [1]; Garling J at [84]; N Adams J at [85]. Decision: (1) Extension of time until 10 October 2024 for the question of law to be submitted is granted. (2) The answer to the stated question of law on the case stated is "No". Catchwords: CRIME – meaning of the phrase "mental illness within the civil law of the State or Territory" in s 20BQ of the Crimes Act 1914 (Cth) – whether this is to be determined with reference only to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW) Legislation Cited: Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes Legislation Amendment Act (No. 2) 1989 (Cth) Criminal Appeal Act 1912 (NSW) Mental Health Act 1958 (NSW) Mental Health Act 1962 (WA) Mental Health Act 1977 (SA) Mental Health Act 1981 (WA) Mental Health Act 1983 (ACT) Mental Health Act 1983 (NSW) Mental Health Act 1990 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health Ordinance 1983 (ACT) Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW) Cases Cited: Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469; [1908] HCA 94 Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18 CCR v PS (No 2) (1986) 6 NSWLR 622 DW v JMW [1983] 1 NSWLR 61 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 Gala v Preston (1991) 172 CLR 243; [1991] HCA 18 Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36 Kelly v Saadat-Talab (2008) 72 NSWLR 305; [2008] NSWCA 213 Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCA 220 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 R v M'Naghten (1843) 8 ER 718 R v Porter (1933) 55 CLR 182; [1933] HCA 1 R v Rohan [2024] HCA 3 RAP v AEP [1982] 2 NSWLR 508 Roads and Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317 Skapik v R [2024] NSWDC 427 Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Taylor v Attorney-General (Cth) (2019) 268 CLR 224; [2019] HCA 30 Tritton v Clarke [2018] NSWCCA 31 Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118; [1966] HCA 40 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Texts Cited: Australian Law Reform Commission, Sentencing (Report No 44, 25 August 1988) Category: Principal judgment Parties: Rex (Applicant) Daniel Skapik (Respondent) Representation: Counsel: R Sharp KC and C J Tran (Applicant) D McMahon (Respondent) Solicitors: Commonwealth Department of Public Prosecutions (Applicant) Just Defence Lawyers (Respondent) File Number(s): 2022/00325224 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2024] NSWDC 427 Date of Decision: 03 September 2024 Before: Scotting DCJ File Number(s): 2022/00325224 HEADNOTE [This headnote is not to be read as part of the judgment] At the request of the Commonwealth Director of Public Prosecutions (the Crown), by stated case dated 10 October 2024, Scotting DCJ submitted the following question of law for determination by this Court: "For the purpose of s 20BQ(1)(a) of the Crimes Act 1914 (Cth), was the question of whether [Mr Skapik] was suffering from a mental illness within the meaning of the civil law of the State to be determined with reference only to the definition of "mental illness" in section 4 of the Mental Health Act 2007 (NSW)?" Section 20BQ of the Crimes Act 1914 relevantly confers various sentencing options upon a court where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, the person charged is suffering from "a mental illness within the meaning of the civil law of the State or Territory". The Crown contended that the answer to the stated question was "yes" because the expression "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) means, and only means, "mental illness within the meaning of the State or Territory law providing for the involuntary detention of the mentally ill" (civil commitment law). It was said that the relevant definition for this purpose in New South Wales was s 4 of the Mental Health Act 2007, which defines a "mental illness" as "a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person" that is characterised by certain symptoms. Mr Skapik contended that the expression "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) of the Crimes Act 1914 is simply a reference to mental illness as that term is understood as a matter of State or Territory civil, as opposed to criminal, law. The Court (Stern JA, Garling and N Adams JJ agreeing) held, in answering the stated case question in the negative: (1) The text of s 20BQ does not support the Crown's contentions as to construction. There is nothing in the language used by Parliament that indicates any intention to tie the concept of mental illness only to mental illness for the purpose of civil commitment law. Further, given the range of sentencing options available under s 20BQ, and the breadth of the notion of "intellectual disability", it would be surprising if Parliament had intended the sentencing options conferred by s 20BQ to be conditional upon a person having a mental illness of a character and severity which would justify civil commitment under State or Territory law. Whilst there is some obscurity in the language "within the meaning of the civil law of the State or Territory", there is authority for the words "civil law" being used to refer to a body of law which is distinguished from the criminal law. Parliament would be presumed to be aware of the common law concept of the 'civil', as opposed to the 'criminal', law: [14]-[26]. Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469; [1908] HCA 94; Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42; Barker v The Queen (1983) 153 CLR 338; [1983] HCA 18, cited. (2) Caselaw does not provide any great assistance on the question of construction raised by the stated case, although the approach of Allsop P in Kelly v Saadat-Talab illustrates that civil courts can readily ascribe a meaning to the term "mental illness" without recourse to a statutory definition: [27]-[29]. Kelly v Saadat-Talab (2008) 72 NSWLR 305; [2008] NSWCA 213; R (Cth) v Petroulias (No 36) [2008] NSWSC 626, considered. (3) Matters of statutory context provide additional support for the conclusion that Parliament did not intend the expression "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) to have the meaning contended for by the Crown. It is likely that Parliament intended the words "within the meaning of the civil law" to distinguish mental illness for the purpose of ss 20BQ, 20BS and 20BV from the particular meanings of "mental illness" that were, as at the date of the introduction of these sections, well established within the criminal law as applying to the availability of a verdict of acquittal because of mental illness and to questions of fitness to plead: [30]-[41]. (4) On balance, and acknowledging that there are some pointers in both directions, having regard in particular to the definition of a mentally ill offender in the Australian Law Reform Commission, Sentencing (Report No 44, 25 August 1988), that report does not support the Crown's contentions as to the construction of s 20BQ(1)(a): [42]-[53]. (5) Having regard to State and Territory legislation dealing with civil commitment when s 20BQ was introduced, there would have been no reason for Parliament to identify civil commitment law, as opposed to civil law more generally, as the locus of the definition of "mental illness" in s 20BQ(1)(a): [54]-[63]. (6) The better view is that Parliament used the words "mental illness within the meaning of the State or Territory" in s 20BQ(1)(a) to direct attention to the meaning of "mental illness" in the State or Territory as a matter of civil, as opposed to criminal, law: [77]-[78]. JUDGMENT 1. STERN JA: At the request of the Commonwealth Director of Public Prosecutions (whom for convenience I will refer to as the Crown), by stated case dated 10 October 2024, Scotting DCJ submitted the following question of law for determination by this Court pursuant to s 5B of the Criminal Appeal Act 1912 (NSW): "For the purpose of s 20BQ(1)(a) [erroneously described as s 20QB(1)(a)] of the Crimes Act 1914 (Cth), was the question of whether the Applicant was suffering from a mental illness within the meaning of the civil law of the State to be determined with reference only to the definition of "mental illness" in section 4 of the Mental Health Act 2007 (NSW)?" 1. Section 20BQ of the Crimes Act 1914 is set out in full below. It relevantly confers various sentencing options upon a court where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, the person charged is suffering from "a mental illness within the meaning of the civil law of the State or Territory". The Crown's contention is that the answer to the question is "yes" because the expression "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) of the Crimes Act 1914 means, and only means, "mental illness within the meaning of the State or Territory law providing for the involuntary detention of the mentally ill". The Crown accepts that its proposed construction requires that the words "civil law" in s 20BQ(1)(a) are read as "civil commitment law", meaning civil laws authorising the involuntary admission to, or detention in, a hospital on account of mental illness. The Crown says that this reading of s 20BQ(1)(a) is supported by the text and statutory context of s 20BQ and ensures that the words "within the meaning of the civil law" have real work to do. 2. For his part, Mr Skapik contends that the expression "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) of the Crimes Act 1914 is simply a reference to mental illness as that term is understood as a matter of State or Territory civil, as opposed to criminal, law. This, Mr Skapik submits, is not limited to legislative provisions such as s 4 of the Mental Health Act 2007. 3. Given the limited question of law for determination, there is no need to set out the factual or procedural background. This is set out in the decision of Scotting DCJ: Skapik v R [2024] NSWDC 427. 4. The Crown requires an extension of time for submitting the question of law. This was not opposed and should be granted. 5. For the reasons that follow, the Crown's contention should be rejected. The answer to the question of law submitted in the stated case should be "no". Jurisdiction and discretion 1. The Crown seeks no consequential relief but contends that this Court should answer the question of law submitted as there is a public interest in clarifying the proper construction of s 20BQ(1)(a) of the Crimes Act 1914. 2. Neither the Crown nor Mr Skapik made any submissions as to whether the Court has power under s 5B(2) of the Criminal Appeal Act to answer the question of law submitted. Nonetheless, this Court must satisfy itself that it has jurisdiction in any case brought before it: see eg Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446 (Isaacs ACJ); [1924] HCA 36. Concessions as to jurisdiction do not bind the court: Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [196] (Hayne J). 3. Section 5B of the Criminal Appeal Act is in the following terms: 5B Case stated from District Court (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court. 1. As is clear from s 5B(2), a question of law may be submitted even after the appeal proceedings have been disposed of. Thus, the answer to the question may have no consequential effect upon the outcome of the proceedings (unless orders are made under s 5B(3)). This Court held in Tritton v Clarke [2018] NSWCCA 31 at [9] (White JA, Hoeben CJ at CL and Fullerton J agreeing) that the question submitted must be a question of law that arises or arose on the appeal. That requirement is plainly met in the present case. Moreover, the question raises a point of principle which may be of general importance in the conduct of criminal trials and does not depend upon factual assessments particular to the proceedings: see, by analogy, Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 ("Attorney-General v X") at [36]-[44] (Spigelman CJ, Priestley JA agreeing) considering s 101A of the Supreme Court Act 1970 (NSW). I am also satisfied that it is appropriate as a matter of discretion to answer the question of law submitted by the stated case: see Attorney-General v X at [16], [18]-[23] and Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCA 220 at [112]-[120] (Bathurst CJ and Bell P, Johnson, Garling and Lonergan JJ agreeing), considering s 5AE of the Criminal Appeal Act. Relevant principles 1. There was no dispute as to the relevant principles of statutory construction. Ultimately the task is one of discerning what Parliament is taken to have intended: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ("Project Blue Sky") at [78] (McHugh, Gummow, Kirby and Hayne JJ). The surest guide to the legislative intention is the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). As the plurality explained in Project Blue Sky at [69]-[70], the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" and a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals". 2. Moreover, statutory construction always requires consideration of context and purpose. As Gageler J said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [37], "[t]he task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context…". Text Division 8 of Part 1B of the Crimes Act 1914 1. Consistent with these principles, the starting point when answering the question of law submitted must be the text of s 20BQ, which is found in Division 8 of Part 1B of the Crimes Act 1914. This provides: 20BQ Person suffering from mental illness or intellectual disability (1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court: (a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and (b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law; the court may, by order: (c) dismiss the charge and discharge the person: (i) into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or (ii) on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first‑mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or (iii) unconditionally; or (d) do one or more of the following: (i) adjourn the proceedings; (ii) remand the person on bail; (iii) make any other order that the court considers appropriate. (2) Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence. (3) Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB (other than an order covered by subparagraph 20AB(1AA)(a)(viia)) or 21B in respect of the person in respect of the offence. 1. The text of s 20BQ does not support the Crown's contentions as to construction for six reasons. 2. First, there is nothing in the language used by Parliament that indicates any intention to tie the concept of "mental illness within the meaning of the civil law of the State or Territory" only to mental illness of a character or severity which would permit involuntary admission or detention in a hospital under State or Territory law (which, for convenience, I will refer to as civil commitment). The words "within the meaning of the civil law of the State or Territory" are incapable on their face of being read so as to connote such a limited definition. Further, had Parliament intended to limit the ambit of "mental illness" for the purpose of s 20BQ as contended by the Crown, Parliament could, and presumably would, readily have said so. 3. Second, the sentencing options conferred by s 20BQ are available on account of both mental illness and intellectual disability. Given the breadth of the undefined notion of "intellectual disability" (and noting that the Crown does not contend that "intellectual disability" is intended to pick up any statutory definition) it would be curious for Parliament to have intended to constrain the definition of "mental illness" only to that applicable for the purpose of civil commitment laws. 4. Third, where the prerequisites in s 20BQ(1) are satisfied, a range of sentencing options are available to the court. Section 20BQ(1) does not, however, permit the court to make an order requiring involuntary admission or detention in a hospital. Having regard to this, it would be surprising, to say the least, if Parliament had intended the sentencing options conferred by s 20BQ to be conditional upon a person having a mental illness of a character and severity which would justify civil commitment under State or Territory law. The Crown's contention that the sentencing options conferred by s 20BQ "closely resembles civil commitment" should be rejected. The options available under s 20BQ fall well short of involuntary admission or detention in hospital. 5. Fourth, even where the person charged is found to be suffering from a mental illness within the meaning of the civil law of the State or Territory, the court's discretion to make an order under s 20BQ(1) is not enlivened unless the court is satisfied that it would be more appropriate to deal with the person under Division 8 of Part 1B of the Crimes Act 1914, rather than dealing with the person "otherwise in accordance with law". Thus, whilst as the Crown submitted, serious consequences may flow from a finding of mental illness under s 20BQ(1)(a), those consequences will not flow unless the court considers it appropriate for the person to be so dealt with and exercises its discretion to make one of the orders permitted by s 20BQ. 6. Fifth, s 20BQ is limited to proceedings before a court of summary jurisdiction. This necessarily limits the category of case in which s 20BQ(1)(a) will apply. In that context, it is likely that Parliament intended a simple and efficient process by which Local Courts could readily determine whether the sentencing options in s 20BQ are available to them. It is unlikely that Parliament intended the determination of whether a person had a mental illness for the purposes of s 20BQ(1)(a) to require consideration of how the concept of mental illness was defined for the purpose of civil commitment laws of the particular State or Territory. This is particularly so given that, as set out at [54]-[65] below, as at 17 July 1990 when s 20BQ came into effect (having been introduced by s 2(14) of the Crimes Legislation Amendment Act (No. 2) 1989 (Cth) (the 1989 Amending Act)) only two State Acts dealing with civil commitment defined mental illness. 7. Sixth, as already set out, there is some obscurity in the language "within the meaning of the civil law of the State or Territory". As the Crown submits, this is not an expression generally found in legislation in Australia. There is, however, some authority for the words "civil law" being used to refer to a body of law which is distinguished from the criminal law. Thus, in Barker v The Queen (1983) 153 CLR 338 at 370; [1983] HCA 18, Dawson J said: "Trespass is, of course, a creature of the civil law and its meaning must be derived from cases in tort. However, its transposition to the field of crime brings with it at least one modification which is made necessary by the general principle of the criminal law that a crime requires a guilty mind or mens rea as well as a guilty act or actus reus. This principle must be applied to the trespass which now forms part of the offence of burglary." 1. Similarly in the law of contempt there was, as at 1989, a well-established distinction between "civil" as opposed to "criminal" contempt: see, eg, Witham v Holloway (1995) 183 CLR 525 at 538-9 (McHugh J); [1995] HCA 3. 2. A recognition of civil law as a body of law other than that of the criminal law can be seen in Taylor v Attorney-General (Cth) (2019) 268 CLR 224; [2019] HCA 30 at [112] where Edelman J said of the relator proceeding in English criminal law that it "came to follow, broadly, a similar pattern to that of the civil law", and later described the English criminal tradition becoming "aligned with the tradition for civil law". Also reflecting the usage of the term civil law as distinguishing the criminal law, in Roads and Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317 at [68], Handley AJA (Giles and McColl JJA agreeing) described negligence as "a term of art in the criminal and civil law"; see also, Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 130 (Taylor J); [1966] HCA 40 and Gala v Preston (1991) 172 CLR 243 at 270-271 (Brennan J); [1991] HCA 18. 3. Whilst some of these cases post-date the introduction of s 20BQ into the Crimes Act 1914, they reference a historical distinction between criminal and civil law. 4. Parliament would be presumed to be aware of the common law concept of the 'civil', as opposed to the 'criminal', law. In utilising the language "the civil law", and notwithstanding that this is not a term generally used in legislation, Parliament might be taken to be referencing its meaning as a matter of general law, including as it changes from time to time, unless there is some indication to the contrary: Attorney-General for NSW v Brewery Employees Union of NSW (1908) 6 CLR 469 at 531(O'Connor J); [1908] HCA 94; Aid/Watch Inc v Federal Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 at [23] (French CJ, Gummow, Hayne, Crennan and Bell JJ). 5. Section 20BR, the only section in Division 8 of Part 1B of the Crimes Act 1914 other than s 20BQ, provides: 20BR Means by which court may be informed For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself. 1. Section 20BR clearly permits considerable flexibility as to how a court of summary jurisdiction is to form a judgement that a person is suffering from a mental illness for the purpose of s 20BQ(1)(a). The flexibility which s 20BR confers is consistent with Parliament intending that a court of summary jurisdiction be able to implement s 20BQ in a simple and efficient way. This suggests that the inquiry under s 20BQ(1)(a) is not one that necessarily requires input from a medical professional. That provides some support for an approach to the meaning of "mental illness" in s 20BQ(1)(a) that avoids technicality and reflects community understanding of mental illness. Case law on the meaning of "mental illness" in s 20BQ 1. There is limited caselaw addressing the meaning of "mental illness" in s 20BQ(1)(a). In Kelly v Saadat-Talab (2008) 72 NSWLR 305; [2008] NSWCA 213 ("Saadat-Talab") (where the question was whether s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) was picked up as a federal law by s 68 of the Judiciary Act 1903 (Cth)), Allsop P at [30] (Ipp J agreeing at [31]) said: "For the avoidance of doubt I should add one matter which arose in debate. The mental illness spoken of in s 20BQ relates, as I would read the provision, to any underlying condition and someone would not cease to be mentally ill because of a stable regime of medication." 1. Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [186] held that, for the purpose of s 20BV of the Crimes Act 1914, the words "mental health within the meaning of the civil law of New South Wales" meant mental illness within the meaning of the Mental Health Act 2007. 2. In neither case was there argument addressing the question of law submitted in the stated case. Neither authority provides any great assistance on the question of construction raised by the stated case, although the approach of Allsop P in Kelly v Saadat-Talab illustrates that civil courts can readily ascribe a meaning to the term "mental illness" without recourse to a statutory definition. Legislative context 1. Sections 20BS and 20BV, which also use the expression "a mental illness within the meaning of the civil law", were also introduced by the 1989 Amending Act. As a general proposition, where the same language is used in different sections of a statute, there would need to be a reason not to give the same words the same meaning: R v Rohan [2024] HCA 3 at [25] (Gageler CJ, Gordon and Edelman JJ). 2. Section 20BS(1)-(4) provides: 20BS Hospital orders (1) Where a person is convicted in a State or Territory, on indictment, of a federal offence and the court before which the person is convicted is satisfied that: (a) the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and (b) the illness contributed to the commission of the offence by the person; and (c) appropriate treatment for the person is available in a hospital in that State or Territory; and (d) the proposed treatment cannot be provided to the person other than as an inmate of a hospital in the State or Territory; the court may, without passing sentence on the person, make an order (in this section called a hospital order) that the person be detained in a hospital specified in the order for a period specified in the order for the purposes of receiving treatment specified in the order. (2) A court must not make a hospital order unless, but for the mental illness of the person, the court would have sentenced the person to a term of imprisonment. (3) A court must not specify a period of detention in a hospital that is longer than the period of imprisonment to which the person would have been sentenced had the hospital order not been made. (4) Where the court orders a person to be detained in a hospital for a specified period, the court may fix a lesser period of detention during which the person is not to be eligible to be released from the hospital. 1. As is apparent, s 20BS enables the court to order that a person be involuntarily detained in a hospital. That of itself might support the Crown's proposed construction of the expression "mental illness within the meaning of the civil law of that State or Territory" as being limited to mental illness which justifies involuntary admission or detention in a hospital under the law of the State. 2. However, a hospital order has a somewhat different operation to a provision authorising civil commitment. A hospital order only authorises detention of someone who would, in any event, have been sentenced to imprisonment for the relevant period. Moreover, the requirements in s 20BS(1)(b)-(d) ensure that the circumstances in which a person can be made subject to a hospital order are constrained. That suggests that Parliament intended s 20BS to have its own independent sphere of operation and not to reference civil commitment laws. That, to some extent, tends against the Crown's proposed construction. 3. Section 20BV provides for the making of psychiatric probation orders without passing sentence. Such orders cannot be made unless the person, or their legal guardian, consents to the proposed treatment. Section 20BV(1) provides: 20BV Psychiatric probation orders (1) Where a person is convicted in a State or Territory of a federal offence and the court is satisfied that: (a) the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and (b) the illness contributed to the commission of the offence by the person; and (c) appropriate psychiatric treatment for the person is available in a hospital or other place in the State or Territory; and (d) the person consents to the order being made; the court may, without passing sentence on the person, make an order (in this section called a psychiatric probation order) that the person reside at, or attend at, a specified hospital or other place for the purpose of receiving that psychiatric treatment. 1. As with s 20BQ, it would be surprising for Parliament to have intended to make psychiatric probation orders, to which the offender must consent, available only to those whose mental illness was such that they could be made subject to civil commitment. In these circumstances, it would have been somewhat incoherent for Parliament to have so limited the availability of such orders. 2. These matters of statutory context provide additional support for the conclusion that Parliament did not intend the expression "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) to have the meaning contended for by the Crown. 3. Rather, it is likely that Parliament intended the words "within the civil law" to distinguish mental illness for the purpose of ss 20BQ, 20BS and 20BV from the particular meanings of "mental illness" that were, as at 17 July 1990, well established within the criminal law as applying to the availability of a verdict of acquittal because of mental illness and to questions of fitness to plead. 4. As a matter of common law, from well before 17 July 1990, it was clearly established that a plea of insanity turned upon a mental illness of a very particular character and effect: R v M'Naghten (1843) 8 ER 718 at 722; R v Porter (1933) 55 CLR 182; [1933] HCA 1; Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56. Moreover, in New South Wales, the defence of mental illness was governed by s 428ZA of the Crimes Act 1900 (NSW), which incorporated a concept of mental illness involving the person being "mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made". 5. From well before 17 July 1990, it was also clearly established that mental illness for the purpose of establishing unfitness to plead required something beyond mental illness per se: see eg Ngatayi v The Queen (1980) 147 CLR 1 at 9 (Gibbs, Mason and Wilson JJ); [1980] HCA 18. 6. It can readily be understood why, when introducing a provision such as s 20BQ(1), which permits the dismissal of a charge on account of mental illness, Parliament would have wanted to ensure that such definitions were not picked up. 7. Some support for a construction of the words "within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a) intended to distinguish the meaning of "mental illness" in that section from that in the criminal law is also apparent from the fact that the words "mental illness" without that further description can be found in ss 20BB-20BC and 20BJ (also introduced by the 1989 Amending Act), which are found in Division 6 "Unfitness to be tried" and Division 7 "Acquittal because of mental illness" of the Crimes Act 1914. Without reaching any conclusion as to the intended meaning of "mental illness" in those sections, it can simply be observed that the different language used by Parliament in those Divisions is consistent with the use of the words "within the meaning of the civil law" seeking to ensure that definitions of "mental illness" such as those in the criminal law (discussed above) were not incorporated into s 20BQ(1)(a). Extrinsic material going to purpose 1. The outline of the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989, which became the 1989 Amending Act, said that one of the 13 main purposes of the bill was: "to provide new procedures for magistrates courts when dealing summarily with federal matters where the defendant is mentally ill or intellectually disabled". 1. Whilst only little weight can be put on this given that this was offered by way of summary only, there is nothing in this characterisation of the purpose of the bill that suggests that those options were only available for a limited category of mentally ill defendant. 2. The second reading speech of Senator Bolkus, Minister for Consumer Affairs, introducing the bill that became the 1989 Amending Act makes it clear that the amendments introduced were in part prompted by recommendations made by the Australian Law Reform Commission (the Commission), Sentencing (Report No 44, 25 August 1988) (ALRC Report): "In late 1988 the final report of the Australian Law Reform Commission on Sentencing (ALRC 44) was tabled in Parliament. It is therefore timely that further and more significant amendments be made. … The Bill provides a new regime for dealing with persons who are found unfit to plead, or unfit to be tried or not guilty on the grounds of mental illness. Sentencing courts are also being given additional options for persons who are mentally ill or intellectually disabled. The Bill gives magistrates courts greatly increased options when dealing with cases summarily. Hospital orders will be available in lieu of imprisonment, where mental illness has contributed to the commission of serious offences. Special bonds will also be available-psychiatric probation orders (for mentally ill offenders) and program probation orders for intellectually disabled offenders. The new sentencing options of hospital orders and bonds give effect to the Australian Law Reform Commission's recommendations." 1. The ALRC Report dealt with sentencing options for offenders who had been convicted of an offence but, owing to illness or disability, were considered primarily to require treatment rather than punishment: ALRC Report at [200]. The Commission made recommendations as to the matters that are the subject of ss 20BS and 20BV but did not deal expressly with the matters that are the subject of s 20BQ. As the Commission did not propose a draft bill, the ALRC Report provides some guidance as to purpose but does not provide any material assistance as to the language used by Parliament in s 20BQ. 2. Emphasising the importance of distinguishing between mentally ill and intellectually disabled offenders, the Commission said that a "mentally ill offender is one who suffers from an identifiable or recognisable illness that is often treatable and may be an intermittent rather than a permanent state": ALRC Report at [201]. There is nothing in the ALRC Report that suggests an intention to limit the availability of the recommended sentencing options to those who suffered from mental illness of a character that would make a person liable to involuntary admission or detention in a hospital. 3. Under the heading new sentencing options, the Commission said at [204]: "Every jurisdiction in Australia has either recently reformed its laws for the mentally ill and intellectually disabled, is doing so, or proposes to do so in the near future. In some jurisdictions special sentencing options are now available to courts sentencing mentally ill and intellectually disabled offenders. These new options are not, however, available to federal or Australian Capital Territory offenders. In framing the following recommendations the Commission has tried to ensure that federal offenders will not only have existing new options open to them, but also that they will be able to pick up suitable new options that will inevitably emerge from the reforming activity in the various jurisdictions. Similarly, the Commission has sought to ensure that innovations in this area of sentencing are also available to ill and disabled federal and Australian Capital Territory offenders." 1. It is apparent from this that the Commission framed its recommendations so as to enable federal and Australian Capital Territory offenders to have the benefit of available State and Territory sentencing options for mentally ill offenders, and to have the benefit of such options that may emerge in the future. That is also made plain in the Commission's introductory summary of the major themes of the report. Under the heading: "mentally ill and intellectually disabled offenders", the Commission stated that a number of recommendations were made "in order to give federal and Australian Capital Territory offenders access to recent State and Territory innovations" including hospital and psychiatric probation orders: ALRC Report at page xxiv; see also at [200]. Even though there was no specific consideration of what became s 20BQ, that underlying purpose of the Commission's recommendations, and the fact that the Commission's recommendations provided important context for the 1989 Amending Act, might suggest that Parliament did not intend to make the sentencing options introduced by the 1989 Amending Act narrower than those available at that time under State or Territory law. 2. As regards hospital orders, which were introduced by s 20BS, the Commission said these were "an amalgam of sentencing powers and the powers that exist in most jurisdictions to commit involuntarily persons suffering from a mental illness to hospital for treatment": ALRC Report at [205]. In that context, the Commission said that a person "who is subject to a hospital order will have the same status as an involuntarily committed mental patient within the relevant jurisdiction". In the footnote to this the Commission observed that: "In some jurisdictions, there is a special 'forensic patient' status created for these people: it involves discharge procedures slightly different from those applying in the case of persons involuntarily committed under civil law: see eg Mental Health Act 1986 (Vic) Pt 4 Div 4." 1. The Crown contends that this footnote, which is the only reference to the words "civil law" in the ALRC Report, suggests that Parliament intended the expression "mental illness within the meaning of the civil law" to mean mental illness as defined in legislation authorising involuntary admission or detention to hospital. I do not agree. The body of civil law, understood as something other than criminal law, would include legislation such as that authorising the involuntary detention of mental health patients. That does not mean that the words "within the meaning of the civil law" were intended by Parliament, to refer only to such legislation. 2. The Commission also dealt expressly with psychiatric probation orders, introduced in s 20BV: ALRC Report at [210]. The Commission described these as "a less restrictive form of sentencing disposition than a hospital order" and said that the imposition of treatment conditions through the probation mechanism had the advantage of ensuring that this sentencing option was available to all federal and Australian Capital Territory offenders "who are mentally ill": ALRC Report at [210]. Because the "available evidence suggests that treatment is most successful when undertaken voluntarily", the Commission recommended that a condition that the offender attend at a specified place and receive treatment should not be imposed unless the offender has consented: ALRC Report at [211]. Given that such treatment would thus be voluntary, it is difficult to see any justification for restricting the availability of psychiatric probation orders to offenders whose mental illness was sufficiently serious to justify civil commitment. 3. As regards psychiatric probation orders, the Commission added that: "[i]n particular, all the protections found in the Mental Health Ordinance 1983 (ACT) for people subject to civil treatment orders should be provided": ALRC Report at [211]. The reference to "civil" treatment orders under the Mental Health Ordinance 1983 (ACT), rather than to "custodial treatment orders", suggests the Commission was not intending necessarily to align its recommendations with existing (or future) laws relating to civil commitment. Further, use of the term "civil treatment order" is consistent with both the Crown's contention as to construction and with the Commission distinguishing between the civil and criminal law. 4. On balance, and acknowledging that there are some pointers in both directions, having regard in particular to the definition of a mentally ill offender in the ALRC Report at [201]: see [46] above, the ALRC Report does not support the Crown's contentions as to the construction of s 20BQ(1)(a) of the Crimes Act 1914. Historical context Mental health legislation in the States and Territories as at 17 July 1990 1. Given the Crown's contentions, definitions of "mental illness" in State or Territory civil commitment laws as at 17 July 1990 may assist in ascertaining what Parliament intended by the words "mental illness within the meaning of the civil law of the State or Territory" in s 20BQ(1)(a). In this regard, the Court was assisted by a joint note from the parties (the Historical Note) setting out relevant parts of legislation regulating civil commitment in the States and Territories as at 17 January 1990 (albeit that s 20BQ did not come into effect until 17 July 1990). I have relied upon the Historical Note save where indicated below. 2. Recognising that the term "mental illness" was not defined in most State and Territory civil commitment laws as at 17 July 1990, the Crown submitted that s 20BQ(1)(a) was intended to pick up the "concept" of mental illness for the purpose of the civil commitment law of the State or Territory, irrespective of whether "mental illness" was defined for that purpose. 3. Turning then to what that would have meant as at 17 July 1990 when s 20BQ(1) came into force, whilst in New South Wales, the Mental Health Act 1983 (NSW) (the 1983 Act) remained in force at that date (but was repealed with effect from 3 September 1990 by the Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW)), s 5 of the 1983 Act, which identified the concept of a "mentally ill person" for the purpose of civil commitment, never came into effect (as it was to commence upon proclamation: s 2(2) of the 1983 Act, but remained unproclaimed): B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 ("Medical Superintendent of Macquarie Hospital") at 446 (Kirby P), 458 (Priestley JA), 461-462 (McHugh JA). Thus, whilst the Historical Note suggested that the concept of mental illness in civil commitment laws in New South Wales was to be identified by looking at s 5 of the 1983 Act, that provision was not in effect at the material date. 4. Rather, in New South Wales as at 17 July 1990, the power of civil commitment was to be found in s 12 of the Mental Health Act 1958 (NSW) (the 1958 Act): CCR v PS (No 2) (1986) 6 NSWLR 622 at 632 (Powell J); Medical Superintendent of Macquarie Hospital at 446 (Kirby P). This turned on a person being shown to be a "mentally ill person", defined in s 4 of the 1958 Act to depend, in part, upon a person being in need of "care, treatment or control for his own good or in the public interest" and for the time being is "incapable of managing himself or his affairs" owing to "mental illness". The term "mental illness" was not defined but the term "mentally ill" was to have a meaning corresponding to the defined term "mentally ill person". There is no good reason why Parliament would have intended the definition of a person being "mentally ill", which corresponded to the meaning of a "mentally ill person" in s 4 of the 1958 Act, to apply as regards s 20BQ(1)(a). 5. Even had civil commitment been governed by Part 5 the 1983 Act and by the definition of "mentally ill person" in that Act, that would not have supported the Crown's contentions as to construction. The definition of a "mentally ill person" in s 5, which was relevant for the purpose of authorising civil commitment in hospital under Part 5, relied upon whether a person was in need of care, treatment or control for their own protection or for the protection of others for stated reasons, involving particular conduct or identified risks which were "owing to the person's mental illness" or (in s 5(1)(a)(v)) to a "manic-depressive illness". Mental illness was not defined although the 1983 Act did include detailed provision as to how it was to be determined that a person was a "mentally ill person" including by, at s 5(2), identifying matters that did not make a person a "mentally ill person". The Crown expressly eschewed a contention that the definition picked up by s 20BQ(1)(a) was that of a "mentally ill person" in s 5 of the 1983 Act, contending instead that it was the concept of mental illness upon which that definition depended that was picked up. But the difficulty with that contention is that there was no specific content given to this undefined concept that would explain why Parliament would wish to pick it up for the purpose of s 20BQ(1)(a). 6. It should also be noted that the preamble to the 1983 Act suggests that the concept of "mental illness" in that Act was not intended to be limited to civil commitment. Instead, it recognised that "the provision of services in respect of persons with mental illness requires both community care facilities and hospital facilities" and that "opportunity should be given for persons with mental illness to have access to appropriate care". 7. For completeness, and whilst not referred to in the Historical Note, as at 17 July 1990, the Mental Health Act 1990 (NSW) had received royal assent but was not yet in effect. That included a definition of "mental illness", which required that the relevant condition "seriously impair" a person's mental functioning and include one or more of a list of symptoms: s 3 and Schedule 1. That definition applied for the purpose of civil commitment, but also for other purposes including the availability of certain treatments: Chapter 7. 8. Looking more broadly to the mental health statutes in the various States and Territories which were in effect as at 17 July 1990, only two States had statutory definitions as at 17 July 1990. The Mental Health Act 1977 (SA), at s 5, included a definition of "mental illness", being "any illness or disorder of the mind". That definition was relevant for the purposes of civil commitment but also for other purposes including guardianship orders: s 26 and the offence of ill-treatment or wilful neglect of a person who is suffering from a mental illness: s 44. The Mental Health Act 1981 (WA) included, in s 3(1), a definition of mental illness, being "a psychiatric or other illness or condition that substantially impairs mental health, but does not include a handicap whereby a person is an intellectually handicapped person". This provision was not, however, ever brought into effect. The Mental Health Act 1962 (WA) had a definition of "mental illness" being "a psychiatric or other illness that substantially impairs mental health". That definition was used in s 29 which provided for civil commitment, but was also relevant for other purposes, including permitting informal admission under s 27 and admission on referral under s 28. 9. In addition, s 4 of the Mental Health Act 1983 (ACT) included a definition of "mental dysfunction", being "a disturbance or defect, to a severely disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion". This was used for the purpose treatment orders, which included but was not limited to civil commitment orders. 10. Having regard to this survey, there would have been no reason for Parliament to identify civil commitment law, as opposed to civil law more generally, as the locus of the definition of "mental illness" in s 20BQ(1)(a). Put another way, there was nothing particular about the definition or concept of "mental illness" in State or Territory legislation dealing with civil commitment that Parliament would have sought to pick up in s 20BQ(1)(a). 11. Without attempting a comprehensive survey of caselaw in the States and Territories interpreting the term "mental illness", it can also be observed that the meaning of the term "mental illness" in the 1958 Act had received some judicial consideration. In RAP v AEP [1982] 2 NSWLR 508 ("RAP v AEP") at 509-510, Powell J adopted a broad definition of this term for the purpose of s 38 of the 1958 Act, which provided for the appointment of a committee where "it is proved… that a person is mentally ill and incapable of managing his affairs…". His Honour held that, where used in that Act, the phrase "mental illness" referred to "a mental illness in the classical sense of being a 'disease of the mind'". Subsequently, in DW v JMW [1983] 1 NSWLR 61 ("DW v JMW") at 66, Powell J adopted a broad definition of the concept of a "disease of the mind" for the purpose of s 39 of the 1958 Act, embracing "as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination". 12. It is unclear from the Crown's submission whether this common law interpretation of the meaning of "mental illness" in the 1958 Act, was intended to be picked up by s 20BQ(1)(a) given that it was not an interpretation specifically reached for the purpose of a civil commitment law. This difficulty underscores the artificiality of the Crown's contention as to construction. New South Wales sentencing provisions analogous to ss 20BQ and 20BS of the Crimes Act 1914 1. As I have already noted, the Commission's recommendations were directed to ensuring that mentally ill federal and Australian Capital Territory offenders were able to avail themselves of sentencing options available (and which would become available) to State and Territory offenders (see [47]-[48] above). Having regard to this, and to the statements in the second reading speech at [44] above that the 1989 Amending Act was passed to give effect to the Commission's recommendations, the available sentencing options as a matter of New South Wales State law may provide some assistance on the question of construction raised in the stated case. Further, as Allsop P observed in Saadat-Talab at [20]: "The context of the introduction of s 20BQ was that there were provisions to similar effect in New South Wales (the Crimes Act (NSW), s 428W and s 428X). Queensland's provision dealt only with detaining persons in hospital: Mental Health Services Act 1974 (Qld), s 29A." 1. Sections 428W and 428X of the Crimes Act 1900 provided as follows as at 17 July 1990: 428W Persons suffering from a mental illness or condition (1) Where, at the commencement or at any time during the course of the hearing of proceedings before a magistrate, it appears to the magistrate: (a) that the defendant is developmentally disabled, is suffering from a mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of the Mental Health Act 1958, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Chapter than otherwise in accordance with law, the magistrate: (c) may dismiss the charge and discharge the defendant: (i) into the care of a responsible person, unconditionally or subject to conditions, (ii) upon the condition that the defendant attend upon a person or at a place specified by the magistrate for assessment of the defendant's mental condition or treatment, or both, or (iii) unconditionally, or (d) may do any one or more of the following: (i) adjourn the proceedings, (ii) grant the defendant bail in accordance with the Bail Act 1978, (iii) make any other order that the magistrate considers appropriate. (2) A decision under subsection (1) (c) to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. 428X Mentally ill persons (1) Where, at the commencement or at any time during the course of the hearing of proceedings before a magistrate, it appears to the magistrate that the defendant is a mentally ill person within the meaning of the Mental Health Act 1958, the magistrate (without derogating from any other order the magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise): (a) may order that the person be taken by a member of the Police Force to, and be detained in, an admission centre within the meaning of the Mental Health Act 1958 to be examined and dealt with under that Act as if the person were a person admitted to and detained in an admission centre under section 12 (1) of that Act, or (b) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person. … 1. Whilst s 428X constrained the power of a magistrate to make a hospital order by reference to the definition of a "mentally ill person" in the 1958 Act, there was no similar limitation on a magistrate's power under s 428W. It is difficult to see why Parliament would have intended the powers in s 20BQ of the Crimes Act 1914 to be available to a narrower cohort of mentally ill offender than would have fallen within the ambit of s 428W of the Crimes Act 1900. That would have been inconsistent with the overarching purpose of the Commission's recommendations in the ALRC Report that sentencing options available in the States and Territories be available to federal and Australian Capital Territory offenders: discussed at [48] above. 2. I would add that the express reliance in s 428X upon the definition of a "mentally ill person" does not suggest that Parliament intended that the definition of "mental illness" in s 20BS of the Crimes Act 1914 pick up the concept of mental illness in civil commitment laws. As is apparent from the terms of s 20BS, Parliament chose to include a range of preconditions to the making of a hospital order, which reflect similar themes but are not identical to those in s 428X of the Crimes Act 1900. This supports the conclusion that the s 20BS was not intended simply to pick up concepts from a State law such as s 428W. 3. For completeness, I note that both ss 428W and 428X were repealed by the Miscellaneous Acts (Mental Health) Repeal and Amendment Actwith effect from 3 September 1990 when the Mental Health (Forensic Provisions) Act 1990 (NSW), and the relevantly similar ss 32 and 33 of that Act, came into effect. Section 4 of the Mental Health Act 2007 1. Given the terms of the question of law submitted by the stated case, it is necessary also to address s 4 of the Mental Health Act 2007. This provides: mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms— (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d). 1. Given the Crown's contentions as to the meaning of s 20BQ(1)(a), the significance of the definition of "mental illness" in s 4 is that s 12 of the Mental Health Act 2007 precludes the involuntary admission or detention of a person unless, amongst other things, they are "a mentally ill person or a mentally disordered person" and s 14 defines "mentally ill person" by reference to the person "suffering from mental illness". However, as is apparent, when dealing with civil commitment, the Mental Health Act 2007 relies both on the concept of a mentally ill person and that of mentally disordered person: s 12. Thus, even as regards civil commitment, the powers of detention are not limited to patients suffering from a mental illness as defined in s 4. 2. Under the Mental Health Act 2007 there are, moreover, further requirements which must be satisfied for a person to be characterised as a "mentally ill person" so as to be liable to civil commitment. Section 14 provides: 14 Mentally ill persons (cf 1990 Act, s 9) (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary— (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account. 1. Section 16 sets out certain words or conduct that may not indicate mental illness. 2. As is apparent, that a person might meet the definition of "mental illness" in s 4 of the Mental Health Act 2007 is neither necessary nor sufficient for civil commitment on account of mental health to be permissible. Nor does that definition include the important terms of ss 14(2) and 16, which determine how mental illness, or whether a person is a mentally ill person, is to be determined. Given this, it is not clear why the specific terms of s 4 of the Mental Health Act 2007 alone should determine the meaning of "mental illness" for the purpose of s 20BQ(1)(a). Adopting that construction does not lead to conformity as between the availability of the disposition options in s 20BQ and the availability of civil commitment under New South Wales law. 3. It should also be noted that sentencing options broadly equivalent to those in s 20BQ(1) are now made available for New South Wales offenders by Division 2 of Part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Those options are available to magistrates where the defendant has a "mental health impairment or a cognitive impairment, or both": s 12. Those definitions are materially different to the definition of mental illness in s 4 of the Mental Health Act 2007. Conclusion as to construction 1. In light of the analysis set out above, the Crown's contentions as to construction should be rejected. Considerations of text and context point strongly in the opposite direction. 2. In the context of Division 8 of Part 1B and of the Crimes Act 1914 more broadly, and whilst the words "the civil law of the State or Territory" are not generally found in legislation, the better view is that Parliament used the words "mental illness within the meaning of the State or Territory" in s 20BQ(1)(a) to direct attention to the meaning of "mental illness" in the State or Territory as a matter of civil, as opposed to criminal, law. In that way, Parliament was seeking to ensure that the very specific concepts of mental illness developed to determine whether a criminal defendant is fit to be tried, or should be acquitted because of mental illness, did not guide the construction of "mental illness" in s 20BQ(1)(a). 3. That accords with a general law understanding of the words "civil law" and best reflects the legislative context and history, in particular having regard to the use of the words "mental illness", without the additional words "within the meaning of the civil law of the State or Territory", in Divisions 6 and 7 of Part 1B of the Crimes Act 1914. 4. Whilst the Crown contended that there was a need for certainty as to the meaning of "mental illness" in s 20BQ(1)(a), as is apparent from the decisions of Powell J in RAP v AEP and DW v JMW, that certainty may be afforded by a definition of mental illness as developed by the courts of the relevant State or Territory for the purposes of laws other than the criminal law, which in New South Wales would not be limited by the definition in s 4 of the Mental Health Act 2007. Moreover, the Crown's proposed construction, tied as it is to "civil commitment for mental illness", itself gives rise to some uncertainty as it is unclear to what extent the various statutory criteria governing such powers in the States and Territories must be incorporated within the concept of "mental illness" for this purpose of civil commitment laws. More particularly, the Crown's contention that the proper meaning of "mental illness" for the purpose of s 20BQ(1)(a) involves "accurately identifying the class of laws intended to be described by the distinctive and bespoke language of s 20BQ(1)" itself involves some uncertainty. 5. Whilst it may follow that different definitions of mental illness are applicable in different States or Territories, that would also follow upon the Crown's proposed construction. Indeed, that is an inevitable consequence of Parliament's choice of words in s 20BQ(1)(a). 6. The question of law submitted in the stated case should be answered "no". Conclusion 1. I propose the following orders: 1. Extension of time for the question of law to be submitted until 10 October 2024 is granted. 2. The answer to the stated question of law on the case stated is "No". 1. GARLING J: I agree with the orders proposed by Stern JA and with her Honour's reasons. 2. N ADAMS J: I have had the considerable advantage of reading the draft judgment of Stern JA. I agree that the question of law should be answered in the negative for the reasons provided by her Honour. ********** Amendments 24 February 2025 - Amendment to coversheet. 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: 24 February 2025