Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v TD [2013] NSWCA 32 Hearing dates: 15 November 2012 Decision date: 26 February 2013 Before: Bathurst CJ at [1]; Basten JA at [8]; Barrett JA at [78]; Hoeben JA at [96]; Sackville AJA at [98] Decision: (1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - habeas corpus - plaintiff detained in a prison - court order authorised detention in a hospital - whether habeas corpus available to plaintiff - relationship between habeas corpus and false imprisonment - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27 MENTAL HEALTH - District Court nominated "limiting term" in respect of plaintiff - District Court ordered that plaintiff be detained in a hospital - plaintiff detained in a prison - whether person has residual liberty after nomination of limiting term - whether court has discretion to decline to make order with respect to custody of person after nominating limiting term - discussion of R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27 TORT - false imprisonment - plaintiff detained in a prison - court order authorised detention in a hospital - whether plaintiff had residual liberty to be vindicated by tort of false imprisonment - relationship between habeas corpus and false imprisonment - whether false imprisonment available where plaintiff detained in the wrong place - Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24 and 27 Legislation Cited: Civil Procedure Act 2005 (NSW), s 72 Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 Crimes (Administration of Sentences) Act 1999 (NSW), ss 4, 72, 232, 261, 262; Parts 2, 3, 4 Interpretation Act 1987 (NSW), s 33 Mental Health Act 1990 (NSW), ss 79, 80, 84, 89, 95; Ch 5; Dictionary Mental Health (Criminal Procedure) Act 1990 (NSW), ss 3, 8, 9, 10, 11, 11A, 14, 16, 17, 18, 19, 20, 22, 23, 24, 27, 80, 84 Mental Health Regulation 2000 (NSW), cl 19 Prison Act 1952 (UK), s 12 Prisons Act 1952 (NSW), ss 27, 39 Cases Cited: Arbon v Anderson [1943] KB 252 Cobbett v Grey (1849) 4 Exch 729; 154 ER 1409 Collins v Downs (1982, unrep, NSWSC, Roden J) Day v The Queen [1984] HCA 3; 153 CLR 475 Darcy v State of New South Wales [2011] NSWCA 413 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; 127 CLR 106 Julius v Bishop of Oxford (1880) 5 App Cas 214 Kelleher v Corrective Services Commission of NSW (1987) 8 NSWLR 423 Osborne v Milman (1886) 17 QBD 514 Osborne v Milman (1887) 18 QBD 471 Powch v The Queen [1987] HCA 41; 163 CLR 496 R v Adams [2003] NSWSC 142; 58 NSWLR 1 R v Templeton [1956] VLR 709 Regina v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 Ruddock v Taylor [2005] HCA 24; 222 CLR 512 Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 Scavage v Tateham (1601) Cro Eliz 829; 78 ER 1056 TD v State of New South Wales [2010] NSWSC 368 Yorke v Chapman (1839) Ad & E 207; 113 ER 80 Texts Cited: M Groves "Administrative segregation of prisoners: powers, principles of review and remedies" (1996) 20(3) Melbourne University Law Review 639, at 660n DC Pearce and RS Geddes Statutory Interpretation in Australia (7th ed, 2011) at [11.6]-[11.12] Sappideen and Vines Fleming's The Law of Torts (10th ed, 2011) at [2.80] Category: Principal judgment Parties: State of New South Wales (Appellant) TD, by her tutor, the Protective Commissioner of NSW (Respondent) Representation: Counsel: Mr G P Craddock SC/Mr S A Beckett (Appellant) Mr T A Game SC/Mr A P Naylor (Respondent) Solicitors: Crown Solicitors (Appellant) Legal Aid NSW (Respondent) File Number(s): CA 2008/289362 Decision under appeal Jurisdiction: 9111 Citation: TD, by her Tutor, the Protective Commissioner of NSW v State of NSW [2011] NSWSC 763 Date of Decision: 2011-07-22 00:00:00 Before: Hall J File Number(s): SC 2008/289362 HEADNOTE [This headnote is not to be read as part of the judgment] In 2001 the respondent was charged with robbery and assault with intent to rob. Her fitness to be tried was in doubt and a special hearing under the Mental Health (Criminal Procedure) Act 1990 (NSW) was held. On 2 May 2002 Woods DCJ found, on the limited evidence available, that she had committed the offence of assault with intent to rob. His Honour set a "limiting term" of 20 months pursuant to ss 22(1)(c) and 23(1) of that Act, and ordered that she be detained at Mulawa Correctional Centre. Section 24 of the Mental Health (Criminal Procedure) Act relevantly provided: "(1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Mental Health Review Tribunal, and (b) may make such order with respect to the custody of the person as the Court considers appropriate." Pursuant to a referral, the Mental Health Review Tribunal determined that she was suffering from a mental illness. Pursuant to s 27, on 24 June 2002 Woods DCJ ordered that the respondent be taken to and detained in a hospital. For 16 days in July 2002, the appellant detained the respondent in cell 16 of D Ward at Long Bay Prison. Although the cell was described as part of Long Bay Prison Hospital, it was not gazetted as a hospital. The respondent brought proceedings in the Supreme Court for damages for unlawful imprisonment. The appellant (state) contended that the nomination of a limiting term deprived the respondent of her liberty. The appellant further contended that once the respondent had been lawfully deprived of her liberty, she could only complain of the place in which she was detained, which was said to be an insufficient complaint to make out the tort of false imprisonment. The primary judge upheld the respondent's claim and awarded damages. The issues for determination on appeal were: (i) whether, on the proper construction of the Mental Health (Criminal Procedure) Act, the determination of a limiting term deprived the respondent of her liberty, and (ii) if so, whether the respondent had nevertheless made out the elements of the tort of false imprisonment. The Court held, dismissing the appeal: In relation to (i) 1. Once the Court had nominated a limiting term, s 24(1)(b) required the Court to order that the respondent be held in custody. The word "may" in s 24(1)(b) only gave the Court discretion to determine the terms of the custodial order. There was no discretion to order that the respondent not be detained at all. Nor does the power under s 27 to identify the place of detention include a power to release the person. Accordingly, the respondent, once subject to a limiting term, was deprived of her liberty: [3] (Bathurst CJ); [43], [46] - [47] (Basten JA, Hoeben JA agreeing). 2. Nothing in the statutory language indicates that a s 24(1)(b) order loses its force once the power to make a new order under s 27 is enlivened. However, there is no need to express any concluded view on the matter: [84] - [86] (Barrett JA). 3. Neither s 23 nor s 24 expressly require that a person the subject of a limiting term must be kept in custody for the entirety of the term. Even if they do, once an order under s 27 is made, it becomes the only lawful authority for continued detention of the person; the order under s 24(1)(b) is spent: [108] - [109] (Sackville AJA). R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 considered. In relation to (ii) 4. An order entitling the State to deprive a person of his or her liberty did not justify detention in any place the State, or its relevant officer, deemed appropriate, desirable or convenient. The lawfulness of the detention depended upon compliance with the terms of the order. The order made under s 27 required the respondent to be detained in a hospital. There was no order or authority justifying detention in a prison, which is where the respondent was ultimately detained. The mere fact that the respondent could and should have been detained in another place did not prevent the detention being unlawful. The necessary elements of the tort of unlawful imprisonment were thus made out: [4]-[5] (Bathurst CJ); [54], [64], [74] - [76] (Basten JA, Hoeben JA agreeing); [88], [93] (Barrett JA); [106] (Sackville AJA). Cobbett v Grey (1849) 4 Exch 729; 154 ER 1409; Kelleher v Corrective Services Commission of NSW (1987) 8 NSWLR 423 discussed; R v Templeton [1956] VLR 709; Day v The Queen [1984] HCA 3; 153 CLR 475 referred to; Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 distinguished. Judgment 1BATHURST CJ: I have had the advantage of reading the judgments of Basten JA, Barrett JA, Hoeben JA and Sackville AJA in draft. 2As Basten JA and Barrett JA have pointed out, the principal submission of the State was that by the time the District Court had made an order under s 27(1) of the Mental Health (Criminal Procedure) Act 1990 ("the Act") specifying the place of detention of the respondent, the respondent had already been deprived of her liberty by virtue of an earlier order for her detention under s 24 of the Act. The State contended that in these circumstances her detention at a place other than that specified in the order under s 27(1) of the Act, whilst unlawful, did not deprive her of her liberty. As such, the State submitted that it was not liable for the tort of wrongful imprisonment. 3In that context, the State contended that the Court of Criminal Appeal in R v AN (No 2) [2006] NSWCCA 218; (2006) 66 NSWLR 523 was incorrect to the extent that it determined that s 27 of the Act conferred power on the Court in its discretion to make an order for detention. Instead, the State contended that the power to do so resided in s 24 of the Act following nomination of a limiting term under s 23. On this view, s 27 of the Act merely enables the making of an order as to the place of custody. 4This submission was advanced to support the proposition that detention in a place other than that nominated in the order under s 27 of the Act could not give rise to the alleged liability. This is because an order for custody had already been made under s 24 and the respondent had been detained as a result of that order. 5The analysis carried out by Basten JA and Barrett JA demonstrates, in my opinion, that this proposition is incorrect. I would only add that I do not consider that the decision of the House of Lords in Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 is contrary to their analysis. I agree with Basten JA that what was determinative in that case was the provision of s 12(1) of the Prison Act 1952 (UK), which provided that a prisoner sentenced to imprisonment "may be lawfully confined in any prison." So much was clear from the speech of Lord Bridge of Harwich (at 163-164), the speech of Lord Jauncey of Tullichettle (at 175) and the judgment of Taylor LJ in the Court of Appeal, Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 at 119-120. As Lord Jauncey pointed out (at 175), one of the distinguishing features of Ex parte Hague and the 19th Century cases of Cobbett v Grey (1850) 4 Exch 729 and Osborne v Milman (1886) 17 QBD 514, referred to by Basten JA and Barrett JA in their judgments, was that in the latter cases there was a statutory requirement as to where the prisoners should be confined. That is the effect of the order under s 27 of the Act in the present case. 6In these circumstances it is not necessary to decide if R v AN (No 2) supra correctly states the scope of s 27 of the Act. In that case James J, with whom the other members of the Court agreed, imposed an order for detention under s 24(1)(b) of the Act and made a direction as to the place of detention under s 27(b): R v AN (No 2) supra at [86]-[87]. What was said by the Court of Criminal Appeal in that case as to the power to make an order under s 27(b) of the Act for detention was dicta. To the extent that this Court disagreed, it would also be dicta. In my opinion, the question should be dealt with in a case where it directly arises. 7Subject to these matters, I agree with the reasons of Basten JA, Barrett JA and Sackville AJA and the orders which they propose. 8BASTEN JA: The State of New South Wales accepts that, for two periods totalling some 16 days in July 2002, it unlawfully detained the respondent in a prison, rather than a hospital. Whilst conceding that the respondent may then have been entitled to orders remedying the situation, the State denied that it was liable in damages for her unlawful imprisonment. The reason for that conclusion, the State submitted, lay in the respondent's liability to deprivation of her liberty in any event. 9The State's submission was rejected by Hall J in the Common Law Division: TD v State of New South Wales [2010] NSWSC 368. That judgment was given in answer to a separate question as to liability. Quantum is no longer in issue, the respondent's entitlement (if upheld) having been agreed in an amount of $80,000. Both because of the amount involved and because the judgment below was not final but interlocutory, the State sought and obtained a grant of leave to appeal. For the reasons which follow, the appeal should be dismissed. 10The primary judge made an order prohibiting disclosure of information tending to identify the plaintiff in the proceedings before him (the present respondent), pursuant to s 72 of the Civil Procedure Act 2005 (NSW). It is common ground that the same approach should apply in relation to the proceedings in this Court. However, s 72 having been repealed, an order to the same effect should be made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). (1) Background 11The present claim for unlawful imprisonment arose out of an allegation that in November 2000 the respondent snatched a bag containing $15 from a 78-year-old female pensioner. The act caused an abrasion to the arm of the victim. In July 2001 the respondent was indicted on a charge of robbery and in November 2001 on a further (alternative) charge of assault with intent to rob. 12The respondent is an Aboriginal woman who suffered from chronic schizophrenia and a mild to moderate developmental disability. The present proceedings were brought by the Protective Commissioner as her tutor. 13In July 2001, the first charge came before Hock DCJ for a determination as to the respondent's fitness to be tried, in accordance with s 14 of the Mental Health (Criminal Procedure) Act 1990 (NSW) (since renamed the Mental Health (Forensic Provisions) Act 1990(NSW)). She was found unfit to be tried and was referred to the Mental Health Review Tribunal ("the Tribunal") for that body to determine whether she would become fit to be tried within 12 months from the date of the determination of Judge Hock. 14A further fitness hearing was conducted in respect of the second charge. Backhouse DCJ found the respondent unfit to be tried and she was referred to the Tribunal to determine whether she would be fit to stand trial within 12 months. In respect of each matter, the Tribunal determined that she would not become fit to be tried within the respective 12 month periods. 15The findings of the Tribunal triggered a power in the Attorney General (acting with the advice of the Director of Public Prosecutions) to decide that a "special hearing" should be held in respect of each offence or that no further proceedings would be brought: Mental Health (Criminal Procedure) Act, s 18. The Attorney directed that a special hearing be conducted. Upon completion of that hearing, Woods DCJ found that, on the limited evidence available, the respondent had committed the second offence, namely assault with intent to rob. On 2 May 2002, he further concluded that, if fit to be tried and found guilty, a sentence of imprisonment would have been imposed and nominated the term (known as a "limiting term") of 20 months, pursuant to ss 22(1)(c) and 23(1). The limiting term was fixed to commence on 24 November 2000, being (presumably - the evidence before this Court was unclear) the date when the respondent was taken into custody, and to expire on 23 July 2002, a little less than three months after the completion of the special hearing. 16As a result of the nomination of a limiting term, the Court was required to refer the respondent to the Tribunal for it to determine whether the respondent was suffering from mental illness and, if so, whether treatment was available in a hospital and whether she agreed to go to a hospital: s 24. Pending a determination by the Tribunal, Judge Woods directed that the respondent be detained at Mulawa Correctional Centre. 17On 30 May 2002 the Tribunal determined that the respondent was suffering from mental illness (chronic schizophrenia) and was mildly to moderately intellectually disabled. On 24 June 2002 Woods DCJ ordered that the respondent be taken to and detained in a hospital. 18On 1 July 2002 the respondent was transferred to Long Bay Prison and detained in D Ward, cell 16, which, although described as part of Long Bay Prison Hospital, was not gazetted as a hospital under the Mental Health Act 1990 (NSW) (since replaced by the Mental Health Act 2007 (NSW)). She remained there until 12 July 2002. 19On 12 July 2002 the Tribunal reclassified the respondent as a "continued treatment patient", under s 89(1) of the Mental Health Act. She was then transferred to Rozelle Hospital. However, she immediately absconded and, upon recapture, after being briefly returned to Rozelle Hospital, was transferred back to D Ward, cell 16, at Long Bay. From 12 July until 16 July 2002 she remained in that cell at Long Bay. On 16 July 2002, she was discharged from Long Bay and taken to a lodge in Darlinghurst where a placement for her had been found. 20The chronology of events set out above is derived from the agreed statement of facts tendered before the primary judge. The critical paragraph in that document (par 34) should be set out in full. "On 4 June 1999 there was published in the NSW Government Gazette, No 66, an order by the Director-General of the Department of Health declaring beds 1-15, only, of the East Wing of D Ward, Long Bay Prison Hospital, to be a 'hospital' pursuant to s 208 of the Mental Health Act 1990. During both the First Detention Period [being 1-12 July] and Second Detention Period, [12-16 July] cell 16 within D Ward did not form part of a 'hospital' within the meaning of the MHCP Act or the Mental Health Act 1990." (2) State's submissions and decision of primary judge 21The State's contention was that the nomination of a limiting term, pursuant to s 23 of the Mental Health (Criminal Procedure) Act, had the effect of depriving the respondent of her liberty. Whilst acknowledging that the Court was thereupon required to refer the respondent to the Tribunal and that the Tribunal was to make findings under s 24 which would result in a further order of the Court under s 27, the State said that the only purpose of the further process was to identify the place of detention. Once the Tribunal had made its findings, the orders available to the Court under s 27 assumed that the person would continue to be detained, but required that the order specify whether it be in a prison, hospital or other place. It was not open to the court, the State submitted, to release the prisoner. (Sections 24 and 27 are set out at [40] and [42] below.) 22The question of release was to be determined pursuant to the provisions of the Mental Health Act. Once an order had been made under s 27, the person in detention became a "forensic patient" within the meaning of that term in the Dictionary to the Mental Health Act. A forensic patient detained in a hospital or other place became subject to review under s 80(2) to determine whether he or she had become fit to be tried for an offence and whether "the safety of the person or any member of the public will be seriously endangered by the person's release". If satisfied that the person had not become fit to be tried and that neither her safety nor that of any member of the public would be seriously endangered by her release, the Tribunal was required to make a recommendation to the Minister for the person's release: s 80(4). In the case of a recommendation for release, further steps would be taken by the Minister, including notification of the Attorney General, who may indicate objection to release: s 84. It followed, the State submitted, that the question of release of any person subject to a limiting term was in the hands of the Minister, and the critical criterion to be assessed by the Tribunal was dangerousness. That scheme, it was said, was inconsistent with any residual discretion in the court to order release, once the limiting term had been nominated and was running. 23The final step in the State's argument was that the respondent, having lost her entitlement to liberty at the relevant time, could only complain about the place in which she was detained. That, it was submitted, was a question as to the conditions of detention, a factor which did not go to the lawfulness or unlawfulness of the detention itself, for the purposes of the tort of false imprisonment. 24The primary judge took a different view. The conclusion, with which the State took issue on appeal, was expressed in the following terms: "[94] At the time of the making of the order under s 27, the plaintiff had not, by reason of the limiting term, been deprived of her right to liberty. The order made under s 24 was not a final order but was an interim order. Her detention, its nature and place for the period of the limiting term was determined at the point in time at which the power under s 27 was exercised by the District Court. [95] In other words, the order made by Woods DCJ was both an order for the plaintiff's detention and an order that specified both the nature and the place of the plaintiff's detention ('a hospital'). It did not authorise her detention in any other place that could have been ordered under s 27(b). The distinction between a place that is a 'hospital' as declared and some other place is, of course, one of importance, not only from the perspective of the treatment of a person with mental illness but as a matter of law in determining what constitutes lawful detention." 25In reaching that conclusion, the primary judge considered himself bound by authority to take a different view from that proposed by the State of the operation of those provisions. 26The authorities upon which reliance was placed treated the use of the word "may" in the chapeau to s 27 as conferring a discretionary power which did not involve an obligation to make one of the orders specified in paragraphs (a) and (b), as appropriate. Thus, in R v Adams [2003] NSWSC 142; 58 NSWLR 1 at [31] Sperling J stated that the Court "might not be obliged to make any order at all". However that was not a course proposed in that case and it is clear that no final view was being expressed as to that possibility. 27The primary judge also referred to the authority of Regina v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523. The procedural history of AN (No 2) was complex and included an appeal to the Court of Criminal Appeal from the limiting order made in the District Court. That appeal was upheld and the limiting order was varied, but the Court did not make any order with respect to the custody of the appellant pursuant to s 24(1)(b), pending a determination by the Tribunal. The principal issue in AN (No 2) was whether the Court, differently constituted, could make an order of the kind which had clearly been intended to be made on the earlier occasion: at [43]. In the principal judgment, delivered by James J, reference was made to the submission that no order for detention could be made under s 27 if there were no extant order requiring the person to be detained in custody: at [45]. Against the possibility that no order were to be made under s 24(1)(b), James J concluded that there was a power conferred by s 27 allowing the Court to order "both detention and a place of detention", rather than "merely ... a power to order a place of detention": at [47]-[48]. The former, broader, power involved the assumption that there was a power to determine whether a person be detained: at [48]. His Honour returned to that issue at [55], stating: "The making of orders under s 24(1)(b) which are merely interim orders and cease to have effect on the Court being notified of the determination of the Tribunal, would be consistent with the Court, on being notified of the determination of the Tribunal, having power under s 27 to make an order for the detention of the person in question." 28He then stated that if no order were made under s 27, "and if there is no continuing order under s 24(1)(b), the applicant would be entitled to be released, there being no warrant for his being held in custody": at [57]. Noting (at [59]) that the legislation used the word "may" in conferring a power to make an order with respect to custody in s 24(1)(b), but used the mandatory form "must" in dealing with the referral to the Tribunal under s 24(1)(a), James J held that "the conclusion is inescapable that in the Act, when the legislature intended to confer a power which the donee of the power would be obliged to exercise, the legislature used the word 'must' and 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'": at [60]. (There was an erroneous reference in [59] to s 24(2), when s 24(1)(b) was intended, but nothing turns on that.) 29James J clearly adopted that construction as central to his reasoning, concluding that if the Court did not make an order under s 27, the applicant would be entitled to be released: at [77]. 30The primary judge concluded, in accordance with orthodox principle, that he was bound to follow the construction adopted by the Court of Criminal Appeal: at [86]. Recognising that it might be necessary to challenge the reasoning in AN (No 2) in order to succeed in the present appeal, the Court was invited to sit a five judge bench. For the reasons set out below, the construction adopted in AN (No 2) was erroneous, but that conclusion does not dictate the outcome of the present case. (3) Proper construction of section 27 31There are three principles of statutory construction which all have work to do in the present case. First, close attention must be paid to the language used in the legislation. Secondly, in taking that course it is appropriate to bear in mind that the building blocks of communication are not words but sentences. Thirdly, attention must be paid to the context in which the language is used. All of these principles are subsumed within the direction in s 33 of the Interpretation Act 1987 (NSW) to adopt a construction that would promote the purpose or object underlying the Act. 32The issue of construction turns on the variable use in the legislation of mandatory and directory terminology. Specifically the question turns on the use of the word "may" in s 27. There are numerous examples of the variable use of the word "may" in statutes: DC Pearce and RS Geddes Statutory Interpretation in Australia (7th ed, 2011) at [11.6]-[11.12]. 33As will be seen, the two limbs of s 24(1) (set out at [40] below) adopt both mandatory and directory language respectively. However, the use of "must" in paragraph (a) is readily explained by the fact that there are only two possibilities available, that is either to refer the person to the Tribunal or not to do so. The mandatory form is used because only one of the alternatives is permitted. The circumstances in relation to an "order with respect to the custody of the person" envisages a range of possible orders. The use of "may" to confer a power does not necessarily import a discretion not to exercise the power if engaged. Thus, it is well understood that the power may be attended by an obligation to consider its exercise, or in fact to exercise it: Julius v Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; 127 CLR 106. In the latter case, Windeyer J, dealing with a power in relation to assessment of income tax which stated that "the Commissioner may allow ... a private company ... a further rebate" in its assessment in certain circumstances, stated at 134: "Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled? This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'." 34A broader inquiry into the occasions on which the drafter of the legislation used "must" or "may" suggests a degree of flexibility which is unlikely to be determinative of the scope of a particular power as to the circumstances in which it need not be exercised. The best guide to the proper construction of a particular provision is to be derived from a contextual reading of the various provisions, by reference to the underlying purpose and structure of the legislation. 35The Act provides for an inquiry to be undertaken where a question arises as to the fitness of a person to be tried for an alleged offence, whether before or after arraignment: ss 8 and 9. The powers of the court, available before the inquiry is conducted, include the power to grant bail or to remand the accused in custody for a period not exceeding 28 days: s 10(3). The question of fitness to be tried is then determined either by a jury or by the judge if the person so elects: ss 11 and 11A. Where the person is found unfit to be tried the person must be referred to the Tribunal which must decide whether the person will become fit to be tried within a period of 12 months: ss 14(a) and 16. Whilst that process is underway, there is again power to grant bail or remand the person in custody: s 14(b)(ii) and (iii). 36After determining whether the person will become fit to be tried and whether the person is suffering from mental illness or from a mental condition for which treatment is available in a hospital, the Tribunal is required to notify the court of its determination: s 16(3). If the finding is that the person will not become fit within the specified period, the Tribunal must also notify the Attorney: s 16(4). In the case of a person found likely to become fit within the specified period, the court has a further power to grant bail: s 17(2). Alternatively, the court may order that the person be detained in a hospital or another place, depending on the finding as to mental illness or mental condition made by the Tribunal: s 17(3). Although it is said that the court "may take the action set out in subsection (2) or (3)" the section clearly requires that the status of the person, whether to be held in custody or granted bail, must be determined and the court must make an order under one provision or the other: s 17(1). 37With respect to a person who will not be fit to plead within 12 months, the Attorney is then given alternative powers, namely to direct that a special hearing be conducted or that no further proceedings will be taken: s 18(a) and (b). Again the power to take one step or the other is conferred by the word "may" but it is clear that the obligation to take one step or the other is mandatory: if the person could be left in a legal limbo, one would expect the legislation to refer expressly to that possibility. The nature of a special hearing is identified in the following terms: "19 Court to hold special hearing on direction of Attorney General (1) If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged." 38Where no further proceedings are to be taken, the Court must order the release of the person: s 20. 39The outcome of a special hearing is defined in the following terms: "22 Verdicts at special hearing (1) The verdicts available to the jury or the Court at a special hearing include the following: (a) not guilty of the offence charged; (b) not guilty on the ground of mental illness; (c) that on the limited evidence available, the accused person committed the offence charged; (d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged." 40Where the person is found to have committed the offence charged, the following steps are required: "23 Procedure after completion of special hearing (1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term, in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. ... (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court, after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time. 24 Consequences of nomination of limiting term (1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Mental Health Review Tribunal, and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness; or (b) the person is suffering from a mental condition for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital. (3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person." 41Although the statute speaks in terms of the court nominating a limiting term, it is clear that the term is to be treated as equivalent to a sentence in the sense that it requires a deprivation of liberty. The statute envisages that the term may be reduced by any period of custody or detention which has already occurred: s 23(4). In describing the term as "taking effect" from a specific date, it is envisaged that there will be a continuing period of custody or detention. In these circumstances, the power in s 24(1)(b) to make an order "with respect to" the custody of the person, without any reference to a power to grant bail, is not discretionary in the sense that the person need not be subject to custody. The order will no doubt identify the period of custody by reference to the term nominated, the date from which the term takes, or has taken, effect and the date upon which it expires. It may also be appropriate to order the place in which the person is to be detained. In that provision, "may" indicates a conferral of power to make orders, the terms of which will vary with the circumstances of the case, but not the imposition of a discretion to order that the person not be held in custody. 42The further function of the Tribunal under s 24(2) involves a repeat of the function of the Tribunal in respect of the period pending a determination as to whether there should be a special hearing, under s 16(2). Once the Tribunal has notified the court of its determination, further powers are conferred on the court. "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 its determination in respect of a person under section 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 from 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 (a) 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." 43The purpose of the power conferred by s 27 is to allow the court to determine the place in which the person is to be detained. The terms of the order are constrained by the determination made by the Tribunal, which will engage either of the alternatives specified. The use of "may" involves the conferral of a power, to be exercised according to the circumstances of the case. There is no indication that the power is discretionary in the sense that the court may decline to order that the person be detained at all. 44Thereafter the court has no further role in respect of the detention of the person, just as it would have no further role in respect of detention after imposing a sentence of imprisonment. The person would thereafter be a "forensic patient" and subject to the Mental Health Act, Ch 5. The key provisions of the Mental Health Act, as in force at the relevant time, were as follows: "79 Other legislation relating to criminal proceedings involving persons who may be mentally ill or suffering from some other mental condition The Mental Health (Criminal Procedure) Act 1990 contains provisions relating to persons involved in criminal proceedings who may be mentally ill or suffering from some other mental condition. Some functions of the Tribunal relating to such persons are contained in this Chapter. 80 Tribunal to review cases of persons found unfit to be tried (1) This section applies: (a) to an accused person who has been found, after an inquiry by a court, to be unfit to be tried for an offence and ordered (under section 17 of the Mental Health (Criminal Procedure) Act 1990) to be detained in a hospital or some other place, and (b) to an accused person in respect of whom, after a special hearing by a court, a limiting term has been imposed and who has been ordered (under section 27 of the Mental Health (Criminal Procedure) Act 1990) to be detained in a hospital or other place. (2) The Tribunal must, as soon as practicable after the making of any such order, review the person's case and determine whether, in its opinion: (a) the person has become fit to be tried for an offence, and (b) the safety of the person or any member of the public will be seriously endangered by the person's release. (3) If the Tribunal is of the opinion that a person has become fit to be tried for an offence, it must notify the Attorney General accordingly and at the same time furnish a copy of the notification to the Director of Public Prosecutions. (4) If the Tribunal is of the opinion that a person has not become fit to be tried for an offence and is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person's release, the Tribunal must make a recommendation to the Minister for the person's release. 89 Classification as continued treatment patient (1) The Tribunal, after reviewing under this Chapter the case of a forensic patient who would, by virtue of the operation of this Act or any other law, cease to be a forensic patient within 6 months after the date of the review and who is: (a) a person who has been detained in a hospital, prison or other place following a special hearing under section 19 of the Mental Health (Criminal Procedure) Act 1990, or (b) a person who, while serving a sentence of imprisonment has been transferred to a hospital from a prison, may classify the person as a continued treatment patient. (2) If, after reviewing under this Chapter the case of any such person the Tribunal classifies the person as a continued treatment patient, it is not necessary for the Tribunal to make any recommendation that would otherwise be required to be made as a consequence of the review." 45Section 17 (referred to in s 80(1)(a)) deals with persons found to be fit to be tried within 12 months and is not relevant for present purposes. (The operation of s 80 in respect of such persons is obscure, but no inference relevant for present purposes can be drawn from that operation. The purpose of s 80(2)(a) and (3) in respect of a person who has already been dealt with pursuant to a special hearing is similarly obscure and may be disregarded.) The obligation of the Tribunal was to recommend release on finding that the person will not be a serious danger to herself or others: s 80(4). That recommendation was made to the Minister. The procedures for consideration of the recommendation were dealt with in s 84 and, if release is to occur, it is undertaken by "the prescribed authority", the identity of whom was not discussed in submissions, but was clearly not a court: see Mental Health Regulation 2000 (NSW), cl 19(1). 46The scheme of the two Acts is thus inconsistent with the proposition that a person subject to a limiting term, once imposed, can be released from detention by a court. It follows that the power under s 27 to identify the place of detention does not include a power to release the person. The imposition of the limiting term will lead, in the case of a person previously on remand, to an order with respect to his or her custody, pursuant to s 24(1)(b). It is only the place of custody which is to be varied following the determination as to the person's mental state, made by the Tribunal pursuant to a referral under s 24(1)(a). 47The approach adopted by the State, as summarised above, should be accepted. The reasoning in AN (No 2) is in this respect clearly wrong and should not be followed. (4) Lawfulness of detention 48It follows that the imposition of a limiting term had the effect, as the State submitted, that the respondent was no longer entitled to be at large. However, it does not follow that her detention at any particular point in time was lawful. 49The contention of the State that the tort of unlawful imprisonment was not made out in these circumstances was based on two propositions. The first was that because, during the relevant period, the respondent had not been entitled to her liberty, she had no claim to damages. She had no entitlement to "residual liberty". The second proposition was that once deprived of one's liberty, the detention does not become unlawful because of unlawful treatment or the imposition of unlawful conditions. (a) elements of tort 50In identifying the elements of the tort, the State referred to a statement from C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, 2011) at [2.80]: "The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is." 51In Darcy v State of New South Wales [2011] NSWCA 413, after setting out that passage from Fleming, Whealy JA (with whom Allsop P and Beazley JA agreed) noted that the elements of the tort of false imprisonment "require proof by the plaintiff of a restraint imposed by the defendant which amounts to imprisonment" and that "[u]pon the proof of such imprisonment, the defendant, to escape liability, needs to establish legal justification": at [143]. (In contradistinction to the facts in Darcy, there was no question of the respondent consenting to being detained in a prison, even if that were, in principle, possible.) 52In acknowledging that the respondent was unlawfully detained, the State conceded that she would, at the relevant time, have had public law remedies available to her to require compliance with the orders of Judge Woods. However, it was submitted, correctly, that an entitlement to orders in the nature of prerogative relief did not carry with it an entitlement to damages. The point in issue, however, was slightly different: the question was whether, assuming that relief in the nature of habeas corpus could have been obtained, the conditions of engagement were different from the elements of the tort of false imprisonment. In support of the latter contention, the State called in aid the reasoning of Black CJ in Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491, dealing with the availability of relief for asylum seekers rescued by the MV Tampa, but not permitted to disembark in Australia. His Honour held: "[69] When this question arises in the context of habeas corpus, however, it may well require a different answer than when it arises in other contexts, such as false imprisonment. It is clear from the authorities that, unlike an action for false imprisonment, it is not necessary to show actual detention and complete loss of freedom to found the issue of a writ of habeas corpus. Rather, custody or control are the requisite elements .... [70] It is important, too, that a distinction is drawn between the elements of the remedy of habeas corpus and those of false imprisonment. The first is based on an action for release in order to be brought before the Court; the second is a tort involving the notion of fault and the attribution of liability...." 53Putting to one side the question of the need for complete loss of freedom, which is not in issue in the present case, the point of distinction between the remedies is somewhat fragile. True it is that the procedural purpose of habeas corpus is to bring the person before the court, but the substantive issue on application for the writ concerns the lawfulness of the applicant's detention. Nor is it entirely correct to say that the tort of false imprisonment involves fault or some other special element concerning attribution of liability. The tort is, as noted by Kirby J in Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [140], one of strict liability. Kirby J continued: "the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant". 54There is no doubt about the complete deprivation of liberty; it follows that the State was required to justify the lawfulness of the respondent's detention. It did so by reliance on the order made by Judge Woods. However, an order entitling the State to deprive a person of his or her liberty does not justify detention in any place the State, or its relevant officer, deems appropriate, desirable or convenient. The lawfulness of the detention depends upon compliance with the terms of the order. (b) residual liberty and conditions of detention 55In support of both propositions on which it relied, the State called in aid the reasoning of the House of Lords in Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58. Mr Hague was a prisoner serving a sentence of 15 years at Parkhurst Prison when the Deputy Governor, believing him to be a troublemaker, ordered that he be transferred to Wormwood Scrubs and held for 28 days in segregation from other prisoners: at 155-156. He challenged the legality of his segregation and sought damages for false imprisonment. The Court of Appeal held that the segregation order was invalid (because the Governor of one prison had no power to order segregation in another prison) but refused damages for unlawful imprisonment. 56On appeal to the House of Lords, Lord Bridge of Harwich concluded that a prisoner lawfully within a prison could not complain that his legal rights were infringed "by a restraint which confines him at any particular time within a particular part of the prison": at 162-163. Lord Bridge considered the case that the claimant was unlawfully imprisoned involved either a claim based on some form of "residual liberty" or a claim that breach of prison rules could result in the imprisonment becoming unlawful. Since neither of these claims could be justified, he concluded that the action was based on a breach of the prison rules, which was not an available cause of action: at 163 and 165-166. 57The reliance of the State on Ex parte Hague is not determinative of this case. Critical to the conclusion in that case that the imprisonment was not unlawful were the terms of s 12(1) of the Prison Act 1952 (UK), which provided that a person sentenced to imprisonment "may be lawfully confined in any prison": Ex parte Hague at 162. 58The circumstances of the present case bear a similarity to those of Cobbett v Grey (1849) 4 Exch 729; 154 ER 1409. The complaint upon which Mr Cobbett was successful was that the defendants "compelled him to go from and out of a certain room in the Queen's Prison, called No 2, where he was of right lodged, to and along divers passages, &c, into another part of the prison more confined, dark and insalubrious, being part of the said Queen's Prison limited by law as a prison or place for the separate confinement of debtors remanded ... on the ground of fraud ...": at 1409. The case did not turn on the difference in the conditions of confinement (or the company to be had in those conditions), but rather on the legal distinction between the liabilities to custody in the two parts of the prison. The claims for trespass and false imprisonment were upheld. 59The State submitted that Cobbett had not been followed in Ex parte Hague. However, that submission should not be accepted: the House of Lords in Hague recognised the principle in Cobbett, but found it inapplicable in the circumstances in issue before it. 60The second full opinion in Ex parte Hague was delivered by Lord Jauncey of Tullichettle, in the course of which he dealt with two cases relied on by the applicant, including Cobbett (at 175D-E): "The two remaining 19th century cases were Cobbett v Grey (1850) 4 Exch 729 and Osborne v Milman (1886) 17 QBD 514, in both of which prisoners complained that they were falsely imprisoned in a part of a prison in which they could not lawfully be confined. In Arbon v Anderson [1943] KB 252, 254, Goddard LJ analysed these two cases and concluded that both related to the nature of the imprisonment rather than to the conditions thereof. In [Hague in the Court of Appeal [1992] 1 AC at 118H-120C] Taylor LJ again analysed the two cases and concluded that both depended upon the strict classification of prisoners at the time and the statutory requirements as to where they should be confined dependent upon their classification. I entirely agree with his careful analysis of these two cases and do not feel that I can usefully add anything thereto." 61Thus, Lord Jauncey accepted the distinction drawn by Goddard LJ in Arbon between the conditions of imprisonment and the nature of the imprisonment: see also Collins v Downs (1982, unrep, NSWSC, Roden J). To be imprisoned in the wrong part of a prison, where there is strict classification, according to law, is a false imprisonment for which damages may be awarded. There is nothing in Hague which throws doubt upon that distinction: on the contrary, it was upheld. 62The circumstances in respect of the respondent are somewhat stronger than those in Cobbett. This was not a case in which she was held in one part of a prison, rather than another. Rather, she was held in a prison when the law required that she be detained in a hospital. The fact that she may have been treated in the same way as she would have been in a hospital (as to which there was no material before the Court) might affect the quantum of damages, but not the answer to the legal question. 63In Kelleher v Corrective Services Commission of NSW (1987) 8 NSWLR 423, an unlawful transfer of a prisoner from the Central Industrial Prison to Goulburn Training Centre was held not to affect the validity or operation of a lawful order for his committal to prison pending trial and the authority of the consequential warrant. The trial judge (Lee J) had declared that the transfer was "without lawful authority" and had ordered that Mr Kelleher be returned to his former custody at the Central Industrial Prison. An appeal from those orders was dismissed. (There was no claim for damages in respect of the period during which he was held at Goulburn Training Centre.) 64Prior to Kelleher, the circumstances in which a person, lawfully committed to a prison pursuant to a valid warrant, may thereafter cease to be held in lawful custody, had been considered in R v Templeton [1956] VLR 709 and Day v The Queen [1984] HCA 3; 153 CLR 475. These cases demonstrate that the lawfulness of the custody will turn upon (i) the relevant statutory provisions, (ii) the terms of the order or warrant of commitment and (iii) the manner in which what had commenced as lawful custody may have become unlawful: Powch v The Queen [1987] HCA 41; 163 CLR 496 at 498 (Mason CJ, delivering the judgment of the Court). These factors need to be addressed in turn. (i) relevant statutory provisions 65The Act under which the order was made, the Mental Health (Criminal Procedure) Act, defined a hospital as having the same meaning as in the Mental Health Act: s 3(1). The relevant definitions, to be found in the Dictionary to the Mental Health Act, provided as follows: "hospital means: (a) any premises the subject of an order in force under section 208 by which the premises are declared to be a hospital, or (b) an authorised hospital. ... authorised hospital means premises in respect of which a licence has been granted to any person under Division 2 of Part 1 of Chapter 8." 66There was little reference in the course of argument as to the legal consequences of being detained in a prison rather than a hospital. For example, not having been committed to a correctional centre, the respondent was not an "inmate" within the terms of s 4(1) of the Crimes (Administration of Sentences) Act 1999 (NSW). She was not, therefore, in the custody of the general manager of the correctional centre in which she was held: s 72(1). In 2005 that Act was amended to give the Commissioner the care, control and management of "offenders" held in custody in accordance with Parts 2, 3 or 4 of that Act: s 232(1)(a1). However, she would not have fallen within that provision either. It is at least doubtful whether any person in control of a prison or any correctional officer exercising functions under the Crimes (Administration of Sentences) Act had any power with respect to the respondent at all. It is inconsistent with the structure of that legislation that any person may be detained in a prison, lawfully, unless they are committed to a correctional centre by warrant or order of a court. There is, therefore, at least doubt as to whether it was correct to say that she had no right to be released from prison. The standard provisions relating to warrants in respect of persons committed to a correctional centre (see ss 261 and 262) were not applicable. 67The provisions of the Mental Health Act dealing with forensic patients held in Long Bay Prison Hospital (s 95(3) and (4)) were also not applicable to her because she was not so detained. 68Nor was there any warrant for her transfer to a hospital, as distinct from the order of Judge Woods. The process by which a person would be transferred from a prison to a hospital, pursuant to an order of the kind made in this case, was not explored. Thus, whilst the legal consequences of the respondent's detention in a prison rather than a hospital cannot be finally determined, they are not to be dismissed by the factual assertion that the cell in which she was detained was in fact next to a cell which was a gazetted hospital. (ii) terms of order 69Judge Woods, on nominating a limiting term, and before the determination of the Tribunal, ordered that the respondent be detained at Mulawa Correctional Centre. That order, made under s 24(1)(b), was the subject of a warrant executed by a clerk of the District Court. Following notification of the determination of the Tribunal, a further order was made by Judge Woods, on 24 June 2002. There was no warrant or other authority for a transfer. The order was in the following terms: "In accordance with s 27 of the said Act, I therefore order that [the respondent] be taken to and detained in a hospital." 70This order should be construed (there being no submission to the contrary) as picking up the language of the statute under which it was made. The order did not permit or authorise detention in any place which was not a hospital under the Mental Health Act. Had it purported to do so, there might have been a question as to its validity. 71There was no dispute that the order made by Judge Woods on 24 June 2002 was valid and effective in its terms. It required the respondent to be detained in a hospital, which included any premises falling within the definition in the Mental Health Act. No overriding statutory provision was relied upon, permitting her detention in a prison. On that basis, the State, appropriately, conceded that her detention was unlawful. (iii) manner in which custody became unlawful 72The respondent was not initially detained in compliance with the valid order of 24 June 2002. From 24 June 2002 until she was transferred to a lodge on 16 July 2002, the respondent was held in a hospital only for a short period on 12 July 2002. No issue was raised as to the validity of the detention between 24 June and 1 July 2002 when she continued to be held at Mulawa. For the remainder of the period, she was detained in a prison. (5) Conclusions 73It may be accepted that, other than in truly exceptional circumstances, lawful detention will not cease to be such because of the conditions in which the person is held. As demonstrated by Cobbett v Grey, and accepted in Ex parte Hague, that does not mean that a person can be held otherwise than in a place to which he or she is committed. The schemes provided for detention in this State under the Mental Health (Criminal Procedure) Act and the Mental Health Act, in relation to forensic patients, and under the Crimes (Administration of Sentences) Act in respect of prisoners, support that conclusion. 74The authority to detain the respondent depended upon a combination of the limiting term nominated by Judge Woods on 2 May 2002 and, following the notification of the Tribunal's determination of 30 May 2002, the requirement that the detention be at a place ordered by the District Court pursuant to s 27 of the Mental Health (Criminal Procedure) Act. Thus, from 24 June 2002 the respondent was to be detained in a hospital. 75During the periods complained of, the respondent was not held in a hospital, but in a prison. There was no lawful order or authority justifying detention in a prison, nor did the statutory scheme for detention of inmates and offenders operate with respect to the respondent. Accordingly that detention was, as conceded by the State, unlawful. 76The mere fact that the respondent could and should have been detained in another place did not prevent the detention being unlawful. The necessary elements of the tort of unlawful imprisonment were thus established. It follows that the decision of the primary judge was correct and the appeal must be dismissed. 77The Court should make the following orders: (1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs in this Court. 78BARRETT JA: As Basten JA explains at [54] of his reasons, it was for the appellant, as defendant in the Common Law Division proceedings, to show that it had lawful justification for the involuntary detention to which the respondent was subjected during the relevant period in July 2002, that is, detention in the particular cell at Long Bay that was not part of a "hospital" as defined by the Mental Health Act 1990. 79The primary judge decided that the appellant had failed to establish such lawful justification. His Honour's decision was correct. 80Such authority as the appellant had to detain the respondent came from the Mental Health (Criminal Procedure) Act 1990 as in force at the relevant time. The applicable provisions of that Act are set out in the judgment of Basten JA and need not be repeated. 81The making by the District Court of the orders of 2 May 2002 and 24 June 2002 caused the appellant to have statutory power (as well as a statutory duty) to deal with the respondent in accordance with the orders. 82The order of 2 May 2002 directed that the respondent "be detained at Mulawa Correctional Centre". This was, in terms of s 24(1)(b) of the Act, "an order with respect to the custody of the person" and therefore an order authorised by that section. 83The order of 24 June 2002 was that the respondent "be taken to and detained in a hospital". That order was in precisely the terms contemplated and allowed by s 27(a). By force of s 3(1), "hospital" had, in s 27(a), the same meaning as in the Mental Health Act 1990. 84It was said in R v AN (No 2) [2006] NSWCCA 218; (2006) 66 NSWLR 523 at [55] that an order under s 24(1)(b) ceased to have effect once the power to make a new order under s 27 was enlivened; and that this was so whether or not that power was exercised. That matter is of continuing importance because those and related provisions remain in force in what is now the Mental Health (Forensic Provisions) Act 1990. 85I must say that I see nothing in the statutory language to indicate that a s 24(1)(b) order somehow loses the force the Act gives it just because the court becomes able to act anew under s 27. It seems clear enough, however, that, once the court does so act and, pursuant to s 27, orders either that the person be taken to and detained in a hospital or that the person be taken to and detained at some other place, that new order supersedes and displaces the earlier s 24(1)(b) order. 86There is no need to express any concluded view on these matters. The point of significance, for present purposes, is that neither the order made under s 24(1)(b) on 2 May 2002 nor the order made under s 27(a) on 24 June 2002 directed or permitted detention of the respondent at the place at which she was in fact held during the relevant period in July 2002. One order specified Mulawa Correctional Centre; the other a "hospital" in the Mental Health Act sense. The particular cell at Long Bay was within neither of these specifications. 87In Scavage v Tateham (1601) Cro Eliz 829; 78 ER 1056, a justice of the peace held a suspect in the justice's own house rather than in the common gaol of the county which was subject to gaol delivery. In Yorke v Chapman (1839) Ad & E 207; 113 ER 80, a person imprisoned for debt and held in a strong room of the debtors' prison alleged that the conditions for close confinement in that room were not satisfied. Cobbett v Gray (1849) 4 Exch 729; 154 ER 1409 was a case in which a person was held in one part of a prison when the authority for his imprisonment allowed confinement only in another part. In Osborne v Milman (1887) 18 QBD 471, a person committed to prison for practising as a solicitor without being duly qualified was subjected to labour as a convicted criminal when the law required that he be treated as "a misdemeanant of the first division". 88In each of those cases, an action for false imprisonment was held to be maintainable on the footing that lawful authority for detention in one place or of one kind did not extend to detention in another place or of another kind. 89A sentence of imprisonment may, by statute, have the effect that the person concerned may not only be held in custody but also placed in any prison and under any conditions there prevailing, according to administrative decisions duly made. In his article "Administrative segregation of prisoners: powers, principles of review and remedies" (1996) 20(3) Melbourne University Law Review 639, Matthew Groves summarised the general position thus (at 660n): "Australian statutes tend to create a presumption placing anyone subject to a sentence of imprisonment in the legal custody of, and subject to the directions of, the head of the corrections department. That person is normally also given a power to locate and transfer prisoners as he or she thinks fit." 90The New South Wales provisions referred to by the learned author were s 27 and s 39(1) of the Prisons Act 1952 (now repealed) which he saw as having the same broad operation as s 12(1) of the Prison Act 1952 (UK), the provision pivotal to the decision of the House of Lords in R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58: "A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison." 91New South Wales provisions affecting persons sentenced to imprisonment and creating administrative discretions concerning placement and conditions are now found in the Crimes (Administration of Sentences) Act 1999 and regulations thereunder. Section 232(1) of the Act states that the Commissioner of Corrective Services "has the care, control and management" of all offenders held in custody pursuant to Parts 2, 3 and 4 of the Act. The Crimes (Administration of Sentences) Regulation 2008 makes detailed provision with respect to the exercise of that function. Extensive as the statutory authority is, however, it obviously has limits. The Commissioner could not, for instance, follow the example in Scavage v Tateham (above) by detaining a prisoner in the Commissioner's own house. 92The respondent, of course, was not a person upon whom a sentence of imprisonment had been imposed. The District Court had conducted a "special hearing" under s 19 of the Mental Health (Criminal Procedure) Act. Having done so, the court acted pursuant to s 23(1)(b) to nominate a "limiting term". That nomination had the effect that certain further statutory processes were required and certain statutory powers became exercisable. It did not, of itself, authorise or justify detention. 93Among the statutory powers that became exercisable were those created by s 24(1)(b) and s 27(a). Orders were made under those sections. They authorised detention of the respondent at particular places only. Neither the court's nomination of a "limiting term" nor any other circumstance created any kind of overarching authority to detain that existed independently of the specific authority arising under each of s 24(1)(b) and s 27(a). 94By proving that the District Court had nominated a "limiting term" and had made the orders of 2 May 2002 and 24 June 2002, the appellant did not establish lawful justification for the detention in the particular cell at Long Bay to which the respondent was subjected in July 2002. Proof of those matters did not warrant a conclusion that that detention was in accordance with the Mental Health (Criminal Procedure) Act as in force at the relevant time or otherwise authorised by law. 95The orders that Basten JA proposes should be made. 96HOEBEN JA: I have had the advantage of reading the reasons of Basten JA. I agree with the orders proposed by his Honour. 97As Basten JA has observed (at [30]), the correctness or otherwise of the reasoning in Reg v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 does not dictate the outcome of the present appeal. For that reason, I do not think it necessary to express a view as to whether the reasoning is correct. 98SACKVILLE AJA: I have had the advantage of reading the reasons of Basten JA. I agree with the orders proposed by his Honour. I wish briefly to state my reasons for agreeing with the orders. I do not repeat Basten JA's account of the facts and the relevant legislation. 99On 2 May 2002, Woods DCJ made orders as follows: (i) an order under s 23(1)(b) of the Mental Health (Criminal Procedure Act 1990 ("MH (CP) Act") nominating a limiting term of 20 months in respect of the offence found to have been committed by the respondent; (ii) an order under s 23(5) of the MH (CP) Act, directing that the limiting terms be taken to have commenced on 24 November 2000, with an expiration date of 23 July 2002; (iii) an order under s 24(1) of the MH (CP) Act, referring the respondent to the Mental Health Review Tribunal; and (iv) an order under s 24(1)(b) of the MH (CP) Act, directing that the respondent be detained at the Mulawa Correctional Centre. 100On 24 June 2002, his Honour made an order under s 27(a) of the MH (CP) Act in the following terms: "In the matter of [TD], the Court has received a notification from the Mental Health Review Tribunal under section 24(3) of the [MH (CP) Act] that she is a person suffering from a mental illness. In accordance with s 27 of the said Act, I therefore order that [TD] be taken to and detained in a hospital." 101The State's arguments proceeded by the following steps: (i) The orders of 2 May 2002 ("First Order") required the respondent to be kept in custody until the expiry of the limiting term on 23 July 2002. (ii) The effect of the First Order was that the respondent was deprived of her liberty until she ceased to be a "forensic patient" by reason of the expiry of the limiting term: Mental Health Act 1990, s 103(a). (iii) The order of 24 June 2002 ("Second Order") merely nominated the place at which the respondent was to be detained until the expiry of the limiting term. The Second Order did not deprive the respondent of her liberty; the deprivation occurred by reason of the First Order. (iv) The placement of the respondent in a prison rather than a hospital admittedly contravened the terms of the Second Order and was therefore unlawful. Nonetheless, the unlawful placement did not deny the respondent the liberty she no longer had. (v) It is an essential element of an action for false imprisonment that the defendant's acts deprive the plaintiff of his or her liberty. In this case, the acts of the State, although unlawful, did not deprive the respondent of her liberty. Accordingly, while she may have had public law remedies available (such as a writ of habeas corpus), the respondent's action based on false imprisonment had to fail. 102I agree with Basten JA that even if the first three steps of the State's argument are accepted, it does not follow that the respondent's claim in false imprisonment must fail. Mr Craddock SC, who appeared with Mr Beckett for the State, acknowledged that the decision in Cobbett v Grey (1849) 4 Exch 729; 154 ER 1409, was squarely against the State's argument. 103In that case an order was made under a rule having the force of statute for the confinement of a debtor in a particular part of a prison appropriate to his classification. The custodian removed the debtor to a different, less salubrious part of the prison limited by law to debtors of a different classification (those who failed to file a statement of affairs). It was held that the removal of a prisoner from one part of a prison to another in which by law he could not be confined was a trespass: at 736; 1412, per Parke B. 104Later authorities distinguish between the situation in Cobbett v Grey and that in which a prisoner is lawfully confined within the defined bounds of a prison but is moved by the custodian, without the sanction of prison rules, from one part of the prison to another, where the regime is more stringent. In the latter case, as shown by Reg v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58, the prisoner cannot claim damages for false imprisonment. The critical factor in Ex parte Hague, was that the governing legislation provided that the prisoner "may be lawfully confined in any prison": at 162-163, per Lord Bridge; at 175, per Lord Jauncey. Thus the claim in Ex parte Hague concerned merely the conditions of imprisonment, rather than the nature of the imprisonment: at 176, citing Arbon v Anderson [1943] KB 252, at 254, per Goddard LJ. 105The basis of this distinction is that the tort of false imprisonment has two ingredients: "the fact of imprisonment and the absence of lawful authority to justify it": Ex parte Hague, at 162. As Allsop P observed in Darcy v State of New South Wales [2011] NSWCA 413, at [2]: "[t]he question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law." It is not surprising that the law carefully scrutinises the terms of an order providing for a person's detention or imprisonment to ensure that he or she is kept in custody in an authorised place of confinement. 106In the present case, the First Order provided for the respondent to be detained at Mulawa Correctional Centre. The Second Order provided that the respondent was to be detained in a hospital. The Second Order, insofar as it stipulated a hospital as the place of detention rather than a prison, clearly supplanted the First Order. Whatever the continuing effect of the First Order or the specification of Mulawa Correctional Centre as the place of detention, it could no longer justify the detention of the respondent in a prison. Accordingly, the respondent's detention in a prison, once the Second Order had come into effect, was unlawful. The unlawful detention concerned the nature of the respondent's imprisonment, not the conditions of her imprisonment within an institution to which she was lawfully confined. It follows that, in accordance with the authorities, the respondent established the elements of the tort of false imprisonment and the primary Judge was correct so to hold. 107As Basten JA has noted (at [30]), the correctness or otherwise of the reasoning in Reg v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523, does not dictate the outcome of the present appeal. For that reason, I do not think it necessary to express a view as to whether the reasoning is correct. However, I make the following observations. 108Neither s 23 nor s 24 of the MH (CP) Act expressly provides that a person in respect of whom the Court has nominated a limiting term must be kept in custody for the entirety of that term. Section 24(1)(b), which provides that the Court "may make such order with respect to the custody of the person as the Court considers appropriate", also does not expressly state that the order is to be made on the basis that the person will necessarily be held in custody until the expiry of the limiting term. 109It may well be that when the legislation is read as a whole, the powers conferred by ss 24 and 27 of the MH (CP) Act are to be construed as limited to determining where the person is to be kept in custody and the conditions under which he or she is to be detained, rather than permitting the person to be released from custody before the expiry of the limiting term. But that does not necessarily mean that an order under s 24(1)(b) cannot be expressed to continue only until a further order is made under s 27. If an order under s 24(1)(b) can be made in this form, once an order under s 27 is made the only lawful authority for the continued detention of the person would be the s 27 order. In these circumstances, the original order made under s 24(1)(b) would be spent. ********** 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: 26 February 2013