Attorney General of New South Wales v X and Anor [2013] NSWSC 1392

Supreme Court New South Wales

Medium Neutral Citation: Attorney General of New South Wales v X and Anor [2013] NSWSC 1392 Hearing dates: 18 September 2013 Decision date: 20 September 2013 Jurisdiction: Common Law Before: Johnson J Decision: The Court: (i) declares that the decision of the Mental Health Review Tribunal ("the Tribunal") dated 30 July 2013, made following a forensic review of X on 25 June 2013 under s.46(1) Mental Health (Forensic Provisions) Act 1990 ("the Act") is valid, (ii) declares that the order for variation to conditional release made by the Tribunal under the Act in relation to X on 19 December 2012, the continued application of which was noted in the Tribunal decision of 30 July 2013, has, and will continue after 25 September 2013 to have, full force and effect according to its tenor, (iii) declares that the order made on 26 September 2011 by the District Court of New South Wales under s.39 of the Act ("the District Court order") does not limit the time period during which the conditional release order of 19 December 2012, or any further order made by the Tribunal varying or substituting that order, has or will have operative effect, (iv) declares that the District Court order does not have the effect that, after 25 September 2013, X will cease to be a forensic patient under the Act. No order is made as to costs. Catchwords: CRIMINAL LAW - attempted armed robbery - verdict of not guilty by reason of mental illness - conditional release order under s.39 Mental Health (Forensic Provisions) Act 1990 - Judge specifies order to operate for two years - claim for declaratory relief by Attorney General - relationship between power of court under s.39 and powers of Mental Health Review Tribunal under Part 5 of Act - nature and effect of conditional release order under s.39 - whether District Court order operates to bring to end status of person as forensic patient - determination that it does not - continuing power of Tribunal to exercise powers and functions under Part 5 - appropriateness of declaratory relief - discretionary considerations - declaratory relief granted Legislation Cited: Crimes Act 1900 Criminal Appeal (Mental Illness) Amendment Act 1986 Criminal Appeal Act 1912 Interpretation Act 1987 Mental Health (Criminal Procedure) Act 1990 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 1983 Mental Health Act 1990 Mental Health Act 2007 Mental Health Legislation Amendment (Forensic Provisions) Act 2008 Supreme Court Act 1970 Cases Cited: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363