TAS v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA, MEAGHER JA and COLE JA 7 February 1997 [1997] NSWCA 305 MENTAL HEALTH CRIMINAL PROCEDURE ACT Priestley JA. Before the Court is a summons seeking orders of various kinds which has to an extent been superseded by the claimant having put before the Court more limited orders which the claimant now seeks. The opponent to the proceedings is the District Court of New South Wales on whose behalf a submitting appearance has been filed. As a consequence the opponent is not represented before the Court today. The Attorney General has sought leave to appear to assist the Court should that be necessary in view of the opinions the Attorney has formed about the matter, and leave has been granted. The Court has before it both the claimant and the Attorney General who could, had the position required it, have been a contradictor to the argument and application of the claimant. The Attorney has indicatedthat there is no argument which he sees proper to present against the making of the orders sought by the claimant. It was proposed that the claimant be indicted for indictable offences. Prior to the indictment being presented, the question of his fitness to plead arose and a jury determined that he was unfit to plead. This brought into effect the procedures required by the Mental Health Criminal Procedure Act of 1990. Those procedures were thereafter followed and resulted in a finding on the limited evidence available that the claimant had committed the offences charged. The judge then nominated a limiting term pursuant to the decision on the charges. That meant that the claimant had to be referred to the Mental Health Review Tribunal following which the Judge was empowered to make such order with respect to the custody of the claimant as the Court considered appropriate. The matter was referred to the Tribunal with the claimant being allowed to remain at liberty pending the following out of the procedures under the Act. Pursuant further to those procedures, the Tribunal made a determination that the claimant was suffering from a mental condition for which treatment was available in a hospital and that the claimant did not object to being detained in the hospital. The procedure then required the Tribunal to notify the Court of its determination. There was some delay in that happening and by the time thematter came before the Court the judge who had nominated the limiting term had retired and the matter was dealt with by another judge. That judge had to perform the function imposed upon the Court by s 27 of the Act and without the claimant being given an opportunity to be heard, the Court ordered under s 27(a) that the claimant be taken to and detained in a hospital. The proceedings before this Court are for the quashing of that order on the ground that the claimant did not have an opportunity to be heard before the order was made. 2 UNREPORTED JUDGMENTS The claimant wished to support the case today by two arguments, one involving the construction of s 27(a) and the other on the simple basis that because of the effect upon the claimant of the making of an order, it was an order of a kind that required he be given an opportunity to be heard before the Court decided whether to make it or not. This Court is of the view that that second ground is sound and because of that view, is prepared to make the orders sought by the claimant, viz that the order of the District Court made on 30 July 1996 under s 27 of the Mental Health Criminal Procedure Act 1990, be quashed and that the matter be remitted to the District Court for reconsideration according to law. The Court expressly refrains from entering upon the question of construction of s 27 which the claimant was wishing to argue in support of the application. The only matter of construction involved in the Court's decision today, if you can call it a question of construction, is that the sectionhas an effect of a kind upon a person affected by it which requires that that person be given the opportunity of being heard before any order under it is considered by a Court. Because of the nature of the proceedings, it seems advisable to note that the material before the Court and upon which the Court has based its decision today, was contained in affidavits by Mr Mendon sworn on 28 August 1996 and 11 October 1996 and of the claimant sworn on 18 October 1996. Because of the claimant having been found some time ago to be unfit to plead, a question arose whether this Court should enquire into the capacity of the claimant to engage legal representation for the present proceedings. The material before the Court suggested that although the claimant's intellectual abilities are impaired in some ways and his emotional stability is also impaired, he nevertheless is quite competent to give instructions for the conduct of proceedings such as those now before the Court. Counsel for the claimant submitted that the test for fitness to plead to offences of the kind the claimant was charged with, is different from the test the Court should apply in determining whether a person is competent to engage representation in proceedings such as the present. That appears to be a sound submission. Further, Counsel told the Court that his instructing solicitor had spoken to and obtained instructions from the claimant in recent times and that heappeared to be competent to give such instructions. The Court doesn't think it necessary therefore to pursue that matter any further. The orders earlier stated are made by the Court. No order for costs is sought or made. Orders accordingly. Counsel for the claimant: G CRADDOCK Solicitors for the claimant: TERRY MURPHY - LEGAL AID COMMISSION OF NSW Counsel for the opponent: PJ SAIDI Solicitors for the opponent: STATE CROWN SOLICITOR