Director of Public Prosecutions v Khoury [2014] NSWCA 15

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions v Khoury [2014] NSWCA 15 Hearing dates: 9 August 2013 Decision date: 13 February 2014 Before: Bathurst CJ at [1]; Beazley P at [25]; Basten JA at [26]; Macfarlan JA at [76]; Simpson J at [77] Decision: (1) Declare that - (a) the District Court having given a verdict at a special hearing that on the limited evidence available, the respondent had committed the offences with which he had been charged; (b) the District Court having nominated a limiting term to take effect from 3 July 2011 and to expire on 2 July 2016; (c) the respondent having been referred to the Mental Health Review Tribunal pursuant to s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990; (d) that Tribunal having determined that the respondent is a person suffering from mental illness, the District Court was required, pursuant to s 27(a) of the Mental Health (Forensic Provisions) Act 1990 to order that the respondent be taken to and detained in a mental health facility. (2) Declare that the failure of the District Court to so order constituted a constructive failure to exercise the jurisdiction conferred on it under the Mental Health (Forensic Provisions) Act, s 27. (3) Direct that the Director of Public Prosecutions take such steps as he shall consider appropriate to have the matter relisted before the District Court for the purpose of making appropriate orders under s 27 of the Mental Health (Forensic Provisions) Act. [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: MENTAL HEALTH - person charged unfit to stand trial - person found guilty of charges on limited evidence in special hearing - trial judge nominated limiting term - Mental Health Review Tribunal determined offender suffering from mental illness - discretion whether to order detention in mental health facility or other place - whether discretion extends to power to make no order -whether legislative scheme consistent with power of court to release person - Mental Health (Forensic Provisions) Act 1990 (NSW), s 27