MAILES v DPP AND 1 OR [2006] NSWSC 267

New South Wales Supreme Court

CITATION : MAILES v DPP AND 1 OR [2006] NSWSC 267 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 2 December 2005

JUDGMENT DATE : 10 April 2006

JUDGMENT OF : Hulme J at 1

DECISION : See paragraph 43

Graham Edward Mailes PARTIES : Director of Public Prosecutions Mental Health Review Tribunal

FILE NUMBER(S) : SC 13022 of 2005

COUNSEL : Plaintiff: T Evers Defendant: Dan Howard SC

Plaintiff: S O'Connor Legal Aid Commission SOLICITORS : Defendant: S Kavanagh DPP Defendant: IV Knight Crown Solicitor

LOWER COURT DATE OF DECISION : 02/12/2005

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Monday, 10 April 2006

13022 of 2005

Graham Edward MAILES v DIRECTOR OF PUBILC PROSECUTIONS and MENTAL HEALTH REVIEW TRIBUNAL

JUDGMENT 1 HULME J: By Summons filed on 12 July 2005, the Plaintiff sought orders:- 1. A declaration as to Mr Mailes' status as a forensic patient under the Mental Health Act 1990. 2. An order requiring the Mental Health Review Tribunal process Mr Mailes as a forensic patient. 3. Such further or other orders as the Court sees fit. 4. Costs. 2 The Summons named as Defendants the Director of Public Prosecutions and the Mental Health Review Tribunal. The Tribunal filed a submitting appearance and the ultimate contest was between the Plaintiff and the Director. To understand the issues that arise, it is helpful to have some regard to the factual background. 3 On 28 March 1996 the Plaintiff was arrested on a charge of murder. On 14 May 1999 he was found guilty and sentenced to imprisonment. On 19 October 2001 an appeal against conviction was allowed and a new trial ordered. 4 On 10 April 2002, pursuant to the procedures contemplated by sections 6 to 12 of the Mental Health (Criminal Procedure) Act 1990, the Plaintiff was found to be unfit to be tried. As required by s14 of that Act, the Court referred him to the Tribunal. On 1 August 2002 the Tribunal made a determination under Section 16(1) of the Act. That determination and reasons for it were in the following terms:- DETERMINATION