GRAHAM v STATE OF NEW SOUTH WALES [1989] NSWCA 89

GRAHAM v STATE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P, MAHONEY JA and Hope AJA 30 August, 13 October 1989

[1989] NSWCA 89

MENTAL HEALTH — forensic patient — supervised day leave — whether Mental Health Review Tribunal has power to recommend such leave — whether Governor as designated authority may order such leave — consideration of the language and context of s 119(1) and (6) of the Mental Health Act 1983 — held: Mahoney JA, Hope A-JA; Kirby P dissenting) The power of the tribunal to make a recommendation to the Minister as to "the patient's continued detention care or treatment in a hospital prison or other place" extends to a power to make a recommendation that the patient have "supervised day leave" from "strict custody" and "detention" as a forensic patient in the designated mental hospital — scope and purpose of the Act and provisions therein as to modification of "strict custody" discussed by Kirby P and Mahoney JA.

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

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

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

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

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

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