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; MENTAL HEALTH - person charged unfit to stand trial - person found guilty of charges on limited evidence - trial judge nominated limiting term - person referred to Mental Health Review Tribunal to determine whether suffering from mental illness - whether court can permit conditional release pending determination - person released on bail - whether question appropriate for determination - bail order expired - inutility in deciding question - Mental Health (Forensic Provisions) Act 1990 (NSW), s 24; WORDS AND PHRASES - "may" - whether requires choice between two options or permits non-exercise of power - Mental Health (Forensic Provisions) Act 1990 (NSW), s 27
• Legislation Cited: Bail Act 1978 (NSW), s 6; Crimes (Administration of Sentences) Act 1999 (NSW), s 254; Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 12, 47; Interpretation Act 1987 (NSW), ss 5, 9, 33; Mental Health Act 2007 (NSW), s 150; Ch 6; Mental Health Act 1990 (NSW), Ch 9; Mental Health (Criminal Procedure) Act 1990,ss 24, 27; Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28, 29, 30, 39, 40, 42, 43, 44, 45, 46, 47, 51, 52, 53, 73, 74, 75, 77A; Pt 2; Pt 5, Div 2; Supreme Court Act 1970 (NSW), s 69; Uniform Civil Procedure Rules 2005 (NSW), r 59.10
• Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27; Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; Certain Lloyd Underwriters v Cross [2012] HCA 50; 87 ALJR 131; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; 127 CLR 106; Julius v Bishop of Oxford (1880) 5 App Cass 214; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; 86 ALJR 862; R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523; R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31; R v Lavender [2005] HCA 37; 222 CLR 67; R v Mailes [2004] NSWCCA 394; 62 NSWLR 181; R v Orcher [1999] NSWCCA 356; 48 NSWLR 273; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140; State of New South Wales v TD [2013] NSWCA 32; Ward v Williams [1955] HCA 4; 92 CLR 496
• Category: Principal judgment
• Parties: Director of Public Prosecutions (NSW) (Applicant); George Khoury (First Respondent); District Court of New South Wales (Second Respondent)
• Representation: Counsel: Ms N A Adams SC/Ms J E Davidson (Applicant); Mr M J Ierace SC/Mr S A Fraser (First Respondent); Solicitors: Solicitor for Public Prosecutions (Applicant); O'Brien Solicitors (First Respondent); Crown Solicitors Office (Second Respondent)
• File Number(s): 2013/131651

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-01-29 00:00:00
• Before: Robison DCJ
• File Number(s): 2009/2128

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Khoury ("the respondent"), who suffers from paranoid schizophrenia, stabbed two of his nephews at a family wedding: the nephews had approached the respondent to calm him down when he began to behave bizarrely. The respondent was arrested and charged with two counts of wounding with intent to inflict grievous bodily harm.

The respondent was found unfit to plead and a special hearing was called in lieu of a trial. At the special hearing, the respondent was found to have committed the offences charged. As required by the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), the trial judge nominated a "limiting term", which provided an estimate of the appropriate sentence had the matter proceeded to trial. The nomination of a "limiting term" required the respondent to be referred to the Mental Health Review Tribunal to determine whether he suffered from mental illness: s 24(2). The respondent was placed on bail, pursuant to s 24(1)(b) of the Act, pending the determination by the Tribunal.

Once the Tribunal has made a determination, the trial judge "may" order that a person be detained in a mental health facility, if the person is found to have a mental illness or consents to being detained in a mental health facility. The trial judge, believing he had discretion under s 27 not to make such an order, declined to make an order, allowing the respondent to enjoy unconditional liberty.

The Director of Public Prosecutions brought proceedings by way of judicial review, challenging both the order made by the trial judge to grant conditional release under s 24(1)(b) and the failure of the trial judge to make an order under s 27. The issues for determination were:

(i) whether s 27 provides a discretion regarding detention; and

(ii) whether s 24 permits conditional release pending a determination by the Tribunal.

The Court held, allowing the review:

In relation to (i)

(per Bathurst CJ; and Basten JA, Beazley P, Macfarlan JA agreeing)

1. Having determined a limiting term, the Court has no residual power to cause the release of a forensic patient by simply declining to make an order under s 27. Section 27 does not confer a discretion on the court to make no order at all. Section 27 confers the power to determine the place where the person, held by the Tribunal to be suffering from mental illness, should be detained, not whether he or she should be detained at all: [23], [47], [58]

R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523 not followed; State of New South Wales v TD [2013] NSWCA 32 considered.

(per Basten JA, Beazley P, Macfarlan JA agreeing)

2. A linguistic approach alone does not dictate this result. While the term 'may' is commonly used in many statutes to confer a discretionary power, its use is relevant, but not decisive. Furthermore, an examination of the variable uses of 'must' and 'may' within Pt 2 of the Act, provides no clear solution: [45]

Julius v Bishop of Oxford (1880) 5 App Cas 214; Ward v Williams [1955] HCA 4; 92 CLR 496; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; 127 CLR 106; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 referred to.

3. The respondent's reliance on the principle that, in a case of ambiguity or uncertainty, where a power of deprivation of liberty is concerned a construction favourable to the liberty of the individual should be preferred, is not applicable here. The concern here is not the conflict between the interests of the State and those of the individual; rather, it relates to the functions that have been conferred, respectively, on the court and the Tribunal: [46]-[47]

R v Einfield [2008] NSWCCA 215; 71 NSWLR 31 considered and distinguished.

4. While the Director was successful regarding the proper construction of s 27, there was nothing to set aside or quash. A declaration was made that there had been a constructive failure to exercise the jurisdiction conferred under s 27: [70], [71], [75].

(per Simpson J dissenting)

5. Section 27 does not mandate an order of detention with no discretion to decline to make either order: [110]. This conclusion is not dictated solely by the use of the word 'may' in s 27 as distinct from the use of the word 'must' in other provisions of the Act: [111]. Rather, this conclusion is based on the nature of the functions allocated to the Tribunal and the court, respectively, under the Act. To accept a construction of s 27 as providing no discretion as to whether detention should be ordered would deny the existence of a judicial function: [134].

In relation to (ii)

(per Bathurst CJ)

6. Section 24 of the Forensic Provisions Act operates when a limiting term has been set. In those circumstances s 24(1)(b) is designed to provide the court with the power to order the form of custody in which the person is to be held pending determination by the Tribunal: [17].

(per Basten JA, Beazley P, Macfarlan JA agreeing)

7. It is not appropriate to address the proper construction of s 24 (except where relevant to s 27) because any relief granted would have no practical consequence for the respondent. As a consequence of the order under s 27, the bail order under s 24(1)(b) has expired: [69]

(per Simpson J)

8. A court may make such an order under s 24(1)(b) as to custody as it considers appropriate. The orders available to the court under s 24(1)(b) include granting bail (with or without residential or other conditions), remanding in custody, or dispensing with bail. There is no warrant for reading into s 24 a presumption that the person must be compulsorily detained: [129].

Judgment

1 BATHURST CJ: I have had the advantage of reading in draft the judgments of Basten JA and Simpson J. As each of their Honours have dealt in detail with the legislative scheme contained in the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act) and the relevant provisions of the Act in question, I can state my reasons shortly.

2 I agree with each of Basten JA and Simpson J at [45] and [131] respectively that the use of the word "may" in the chapeau to s 27 is not determinative of the question of whether the Court is obliged to make an order under s 27 of the Act after receiving a notification of a determination by the Mental Health Review Tribunal (the tribunal) under s 24(3). In considering that question regard must be had to the language of the provision and the scope and object of the whole statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] and [93]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]; Certain Lloyd Underwriters v Cross [2012] HCA 50; (2012) 87 ALJR 131 at [23]-[30], [68] and [88]. This is particularly important in a case such as the present where the section in question forms part of a complex scheme to deal with persons who by reason of mental illness or a mental condition are unfit to be tried for a crime which they are accused of committing.

3 Section 27 of the Act provides as follows:

"If a Court is notified by the 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 mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility - order that the person be taken to and detained in a mental health facility, 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 mental health facility - order that the person be detained in a place other than a mental health facility."

4 The scheme adopted by the Act involves a number of steps. Once the question of unfitness to stand trial has been raised, it is necessary for the Court to determine whether or not to hold an inquiry on the question (ss 8(1) and 9). It is a precondition to the conduct of such an inquiry that the Court is satisfied that the issue is raised in good faith (s 10(2)).

5 It is relevant to note that at this stage the Court has power to dismiss the charge. That power is contained in s 10(4) of the Act which provides as follows:

"10(4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released."

6 If the person is found to be unfit to be tried following an inquiry, the Court is obliged to refer the matter to the tribunal (s 14(a)). The Court has a power to grant bail, conditional or otherwise, remand the person in custody until the determination of the tribunal has been given effect or make such other order as the Court considers appropriate (s 14(b)). If an order is made remanding the person in custody or granting conditional bail, the person becomes a forensic patient (s 42(a)). However, the tribunal's powers upon referral from the Court are limited to determining whether a person will be fit to stand trial within a period of 12 months. If the tribunal does make such a determination, it is required to make a determination under s 16(2) of the Act. The tribunal is required to notify the Court of its determination and has the power to make a recommendation to the Court as to the care and treatment of the person the subject of the determination (s 16(3) and (3A)).

7 Section 17 of the Act has no application when the tribunal has determined that the person in question will not be fit to stand trial within the 12 month period. Further unlike s 17, which makes specific provision for the grant of bail or custody of a person the tribunal has concluded would become fit to be tried during the period of 12 months, the legislation says nothing as to the powers of the Court between the determination under s 16 that a person would not be fit to be tried during that period and the convening of a special hearing under s 19. It would seem to me that in those circumstances the Court would have power to continue any bail granted under s 14.

8 If a person is found by the tribunal to be unfit to plead within a period of 12 months the next step is a special hearing. After receiving notification under s 16(3) that a person on the balance of probabilities would not be fit to plead within 12 months, the Court is required to hold a special hearing unless the Director of Public Prosecutions advises that no further proceedings will be taken against the person (s 19(1)(b)). If such advice is received the Court must order the release of the person (s 20). The person then ceases to be a forensic patient if he or she is being held in custody at that time (s 52(4)).

9 I agree with Simpson J that a special hearing is not the equivalent of a trial of an accused. So much is made clear by s 19(2) of the Act which provides as follows:

"19(2) A special hearing is a 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."

10 Procedures to be adopted on or after a special hearing are set out in ss 21 to 23 of the Act. If the finding is that on the limited evidence available the accused person is guilty of an offence, the procedure to be adopted is set out in s 23. The following subsections are of particular relevance:

"23(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.

(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.

...

(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:

(a) 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, or

(b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.

...

(7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of a forensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person."

(Emphasis in original)

11 There are a number of matters which should be noted. First, there is no obligation to impose a limiting term. This is made clear by s 23(2). If no limiting term is imposed, the Court is obliged to notify the tribunal under s 23(7). If the person at that time is a forensic patient he or she ceases to be one (s 52(1)(b)).

12 Second, s 23(5) makes specific provision for when the limiting term is to commence.

13 Third, s 28 of the Act deals with the effect of a finding at the special hearing that the person has committed the offence. This section provides as follows:

"28(1) If, following a special hearing, an accused person is found on the limited evidence available to have committed the offence charged or some other offence available as an alternative, the finding, except as provided by subsection (2), constitutes a bar to any other criminal proceedings brought against the person for the same offence or substantially the same offence.

(2) Nothing in subsection (1) prevents other criminal proceedings referred to in that subsection from being commenced at any time before the expiration of any limiting term nominated in respect of a person unless, before the expiration of the limiting term, the person has been released from custody as an inmate (within the meaning of the Crimes (Administration of Sections) Act 1999) or discharged from detention as a forensic patient.

(3) If, pursuant to other criminal proceedings referred to in subsection (1), an accused person is convicted of the offence or substantially the same offence as that which, at a special hearing, the person was found to have committed, the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods relating to the offence) are to be fully taken into account in determining any period of any sentence or the terms of any disposition consequent on the conviction."

14 The effect of s 28 is that if no limiting term is nominated there is no power to bring any further proceedings for the same offence against the person in question.

15 Fourth, as I have indicated, up to the time that a limiting term is nominated, the Court has power to grant bail to the accused or remand the person in custody. The function of the tribunal is limited to making a determination under s 16(1) and (2) of the Act and if it decides to do so recommend care or treatment of the person under s 16(3A).

16 Section 24 of the Act only operates if a decision is made to set a limiting term. The effect of nominating such a term means that a judge has determined that a custodial term is appropriate rather than a penalty or other order under s 23(2).

17 In these circumstances s 24(1)(b) in my opinion is designed to empower the Court to order the form of custody in which the person is to be held pending the determination of the tribunal under s 24(2).

18 It is in that context that s 27 falls to be considered. Once it is recognised that a judge has determined that a limiting term was appropriate as distinct from some other order then it seems to me apparent that s 27 is directed to the place of custody not the question of whether a nominated limiting term should be served. It would be incongruous in my view if a judge having determined a limiting term was appropriate could in effect reverse his decision simply by not making an order under s 27.

19 Further, it seems to me that the Act makes it clear that once the Court has determined that a limiting term is appropriate any power to release the person prior to the expiration of the term is vested in the tribunal. Section 45 of the Act provides for an initial review by the tribunal following the making of orders under s 17(3) or s 27 of the Act. That review is limited to the question of whether a person is fit to be tried. It is true that s 45(4) envisages the person ceasing to be a forensic patient prior to the review but that subsection in my opinion is designed to deal with a situation where an order has been made under s 17(3) but subsequently unconditional bail has been granted under s 17(2), the person thereby ceasing to be a forensic patient.

20 The review provided for in s 45 is limited to the question of fitness for trial. Of greater importance are s 46 and s 47. Section 46 provides for further reviews whilst s 47, among other things, empowers the tribunal after a review to order the person's release either conditionally or unconditionally. If a person is released unconditionally he or she ceases to be a forensic patient (s 51(1)(a)). It is true that that section contemplates release by order of the Court but that in my opinion ensures the section extends to circumstances where a person is released on bail or by an order of a Court on an appeal brought under s 77A of the Act.

21 The importance of the function of the tribunal to order the release of a forensic patient is emphasised by the fact that the tribunal cannot order such release unless the Forensic Division of the tribunal, which is responsible for considering whether or not to release a forensic patient, includes a person who is a holder or former holder of a judicial office (s 73(3)). The tribunal has power to impose conditions on such release (s 75) and may set conditions on the applications of victims (s 76). The Attorney General and the Minister for Health are entitled to be heard on any application for the release of a forensic patient. Further there is a right of appeal by leave to the Court of Appeal against a refusal to order a release (s 77A(4)). The Court of Appeal in those circumstances has power to make the order that it considers should have been made by the tribunal (s 77A(9)).

22 In those circumstances the Act in my opinion provides a harmonious scheme for dealing with persons who are unfit to be tried. Up to the time of the conclusion of a special hearing the Court has power to grant bail, conditional or otherwise, or remand a person in custody. The Court is not obliged to fix a limiting term. However, if it does, its function thereafter is limited to nominating an interim place for custody pending the tribunal's determination under s 24(3), and following such determination, making one or other of the orders prescribed in s 27.

23 It does not seem to me that having determined a limiting term as appropriate the Court has a residual power to cause the release of a forensic patient by simply declining to make an order under s 27. The power to release a forensic patient during the currency of the limiting term is vested in the tribunal to be exercised at least taking into account the matters in s 74 of the Act.

24 For these reasons I agree with the construction placed on s 27 of the Act by Basten JA. I also agree with the relief proposed by his Honour for the reasons given by him.

25 BEAZLEY P: I agree with the reasons of Bathurst CJ and the reasons of and orders proposed by Basten JA.

26 BASTEN JA: On 17 May 2008 the first respondent, Mr George Khoury, attended a family wedding. Mr Khoury suffered (and still suffers) from paranoid schizophrenia. During the wedding he began to behave bizarrely. When two of his nephews approached him in an attempt to calm him down, he stabbed each with a knife. He was arrested and charged with two counts of wounding with intent to inflict grievous bodily harm. He did not stand trial, having been found unfit to plead. However, at a special hearing he was found to have committed two offences of wounding with intent to cause grievous bodily harm. The trial judge, as required by the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Forensic Provisions Act"), nominated a "limiting term", being an estimate of the sentence the Court would have considered appropriate had the matter proceeded as a criminal trial.

27 Once a limiting term has been nominated, the person must be referred to the Mental Health Review Tribunal ("the Tribunal") for it to determine whether the person suffers from a mental illness. That determination was made. The matter then came back before the trial judge, Robison DCJ, for him to determine what order should be made following the determination of the Tribunal. On 29 January 2013, almost five years after the original incidents, the trial judge, understanding that he had a discretion in that regard, decided to "make no order". The result was that Mr Khoury thereafter enjoyed unconditional liberty.

28 The Director of Public Prosecutions sought to challenge that determination, and an earlier determination granting the first respondent conditional liberty while the Tribunal was considering whether he suffered from a mental illness. As there was no right of appeal, the Director brought proceedings by way of judicial review in this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). (The District Court was joined as the second respondent, but it is convenient to refer to Mr Khoury as "the respondent".)

29 The question for this Court is whether the trial judge acted according to law in declining to make an order under s 27 of the Forensic Provisions Act. The Director of Public Prosecutions submitted that the trial judge was obliged to make an order for Mr Khoury's detention and thus acted without jurisdiction in deciding not to do so. The Director invited the Court to "quash" the determination not to make an order and remit the matter to the District Court for it to make an appropriate order, according to law. The Director's construction of the Forensic Provisions Act should be accepted.

30 In exercising a discretion to allow the person to be unconditionally at large, the trial judge acted consistently with an analysis of the relevant statutory provisions accepted by the Court of Criminal Appeal in R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523. This Court was constituted as a five judge bench in order to consider the correctness of that authority. A similar step had been taken in State of New South Wales v TD [2013] NSWCA 32, but the correctness of the decision in AN (No 2) ultimately did not require determination in that case. I expressed the view in TD that AN (No 2) was, with respect to the construction of s 27 of the Forensic Provisions Act, wrong and should not be followed: at [46]-[47]. The matter has now been addressed in comprehensive submissions by Ms Adams, the Crown Advocate, and Mr Ierace SC, the Senior Public Defender. Mr Ierace raised issues which had not been addressed in TD and it is appropriate to reconsider both the view and the reasoning in that case.

Structure of Forensic Provisions Act

31 Questions of mental capacity can arise at three stages in the course of criminal proceedings. First, in the order in which matters will be addressed, there may be a question as to whether the person charged is fit to stand trial. Secondly, there may be a question as to whether an accused person should be found not guilty of the offence charged, by reason of mental illness. Thirdly, mental illness may be a significant factor in sentencing: even though it does not negate guilt, mental illness may reduce moral culpability, and continuing mental illness may also render a period of incarceration more onerous. The present case is concerned only with the first stage, namely fitness to be tried.

32 Where a genuine question as to the fitness of an accused to be tried has arisen, the course to be taken is prescribed. The pathways divide, depending on the outcomes at each step, but in the present case the following pathway was taken. The judge was required (step 1) to undertake an inquiry in relation to the respondent's fitness to be tried: Forensic Provisions Act, ss 10-12. The result of the inquiry being that the respondent was unfit to be tried, the court was required (step 2) to refer him to the Tribunal and make consequential orders: s 14. The function of the Tribunal (step 3a) was to determine whether, on the balance of probabilities, the respondent would become fit to be tried within a period of 12 months: s 16. The Tribunal was to notify the Court of its determination. Depending on the outcome of that proceeding, the Tribunal may have a further function. Thus, if the Tribunal had determined that the respondent would become fit to be tried, it would also have had to determine (step 3b) whether he was suffering from mental illness or from a mental condition for which treatment is available in a mental health facility.

33 The functions of the court, when notified of the Tribunal's determination, depend on which of the alternatives has been found. If the person is likely to become fit within 12 months, the Court is required (step 4a) to determine the person's custodial sentence for the period, not exceeding 12 months: s 17. (This alternative did not arise in the present case, but it will be necessary in due course to consider the statutory provisions with respect to release or detention provided for in s 17.) In fact, the Tribunal determined that Mr Khoury would not become fit to be tried within 12 months and notified the Court accordingly. Subject to obtaining advice from the Director of Public Prosecutions, the Court was then required to conduct a "special hearing" (step 4b): s 19. A special hearing is to be conducted "as nearly as possible as if it were a trial of criminal proceedings": s 21(1). The hearing will usually be conducted by a judge alone, but there is power for the accused person to elect to have a jury. (That did not happen in this case.)

34 The judge found "on the limited evidence available" that Mr Khoury had committed the offence charged, a verdict available under s 22(1)(c). Where it has been found that the person "committed the offence charged" two further steps are to be taken, which are central to the issues in the present case. First, the Court must determine (step 5a) whether it would have imposed a sentence of imprisonment (had it been a normal trial) and, if so satisfied (step 5b), "must nominate a term, in this section referred to as a limiting term ... 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": s 23(1)(b). The trial judge held that, at a normal trial, he would have sentenced Mr Khoury in respect of each offence to a term of imprisonment, each to run concurrently with the other, and fixed that term at five years.

35 Having nominated a limiting term, the Court must again refer the person to the Tribunal (step 6): s 24(1)(a). The Tribunal is then to determine (step 7) whether or not the person is suffering from a mental illness or a mental condition for which treatment is available in a mental health facility: s 24(2). That is precisely the same exercise which was to be undertaken at step 3b, when the Tribunal was dealing with the person following a finding of unfitness to be tried: s 24(2) mirrors s 16(2). Why the finding at step 3b is only made where the Tribunal is satisfied that the person would become fit to be tried within 12 months, is obscure. The bifurcation of functions between the Tribunal and the court is, in each circumstance, the same; however, if the Tribunal had made a finding as to mental illness or mental condition, prior to the Court nominating a limiting term, an extra step (and hence unnecessary delay) would have been avoided. The point is not without significance, because the need for a second referral to the Tribunal imposes on the Court the additional function (step 6b) of determining what should be done with the person whilst awaiting the further determination of the Tribunal. This raises a question as to the proper construction of s 24(1), to which it will be necessary to return.

36 Once the Tribunal has determined (as in this case) that the person is suffering from mental illness, it notifies the Court of that finding: s 24(3). The next, and final, step (step 8) is taken by the Court pursuant to s 27. Because the main issue in this case is the proper construction of s 27, it is convenient to set it out in full:

27 Orders Court may make following determination of Tribunal after limiting term is imposed

If a Court is notified by the 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 mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility - order that the person be taken to and detained in a mental health facility, 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 mental health facility - order that the person be detained in a place other than a mental health facility.

37 The question of construction turned on the use of the term "may" in the chapeau. Did it confer a discretionary power, which the Court might decline to exercise? Or did it confer a power coupled with a duty, thereby requiring the Court to make one or other of the proposed orders, depending on which precondition was satisfied?

Construction of s 27

38 The term "may" is commonly used to confer a power which is discretionary in the sense that, even if engaged, it need not be exercised. Indeed, that may be its primary use: Interpretation Act 1987 (NSW), s 9(1). However, a contrary intention may be indicated in a specific statutory context: Interpretation Act, s 5(2). That qualification is important: in any specific context, a purposive approach should be adopted so that a construction that promotes the purpose or object of the particular Act shall be preferred to one that does not: Interpretation Act, s 33. There are in fact many circumstances where the conferral of a power is accompanied by a duty to exercise it once the preconditions for its engagement are fulfilled: Julius v Bishop of Oxford (1880) 5 App Cas 214; Ward v Williams [1955] HCA 4; 92 CLR 496; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; 127 CLR 106; cf Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140. The question is, which construction is to be preferred with respect to s 27?

39 The arguments addressed both linguistic and purposive approaches. The linguistic approach had two limbs. First, it emphasised the primary usage of "may"; secondly, it relied on the differential use of "may" and "must" within the Forensic Provisions Act.

40 The first limb in the argument may be accepted as relevant, but it is not decisive. The second limb is superficially attractive, but does not stand up to examination. An examination of the statute suggests that the peremptory "must" is used when there is no alternative: see, eg, with respect to referral to the Tribunal, ss 14(a), 24(1)(a); with respect to the functions of the Tribunal, s 16(1), (2), (3) and (4), s 24(2) and (3); with respect to the other functions of the Court, ss 20, 23(1)(a) and (b) and 30(2)(a). By contrast, the word "may" is routinely used in circumstances where a choice is to be made. Section 14 provides an example:

14 Person found unfit to be tried

If, following an inquiry, an accused person is found unfit to be tried for an offence, the proceedings brought against the person in respect of the offence must not, except for the purpose of doing any of the things referred to in paragraph (b), be recommenced or continued and the Court:

(a) must refer the person to the Tribunal, and

(b) may discharge any jury constituted for the purpose of those proceedings and may, pending the determination of the Tribunal under section 16, do any one or more of the following:

(i) adjourn the proceedings,

(ii) grant the person bail in accordance with the Bail Act 1978,

(iii) remand the person in custody until the determination of the Tribunal has been given effect to,

(iv) make any other order that the Court considers appropriate.

41 Under s 14(b), it is clear that once the accused person is found to be unfit to be tried, but before other steps have been taken, the custodial status of the person must be resolved, either by granting bail or remanding the person in custody. However, it does not follow from the use of the word "may" that the Court is, in a particular circumstance, being given the option of doing nothing. Under s 14, it is not only the custodial status of the person which must be resolved: once the person has been referred to the Tribunal, it is clear that the power to adjourn the proceedings and make necessary consequential orders is attended by a duty to act - neither the proceedings nor the person can be left in limbo.

42 In some cases it may appear that there is a choice either to take the identified step or not to take the step. Section 17, which applies where the Tribunal determines that the person will become fit to be tried within 12 months, is indirectly relevant to the present case:

17 Orders Court may make following determination of Tribunal that person will be fit to plead within 12 months

(1) If the Court is notified by the Tribunal of its determination that a person will, on the balance of probabilities, become fit to be tried during the period of 12 months after the finding of unfitness and of its determination in relation to the matters set out in section 16(2), the Court may take the action set out in subsection (2) or (3).

(2) The Court may grant the person bail in accordance with the Bail Act 1978 for a period not exceeding 12 months.

(3) If the Tribunal has determined:

(a) 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 mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility - the Court may order that the person be taken to and detained in a mental health facility, or

(b) 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 mental health facility - the Court may order that the person be detained in a place other than a mental health facility,

for a period not exceeding 12 months.

(4) As soon as practicable after the grant of bail under subsection (2) or the making of an order under subsection (3), the Registrar of the Court is to notify the Tribunal of the grant of bail or the terms of the order.

43 The Court may either grant bail under s 17(2), or make an order under s 17(3). (Section 17(3) is in relevantly identical terms to s 27.) Thus it is clear that in a case where the proceedings are on hold for a period of up to 12 months, the Court is given alternative powers: it may grant bail or order that the person be detained. To provide that the Court "may take the action set out in subsection (2) or (3)" - see s 17(1) - does not imply that the Court need do neither. The person is not to be left in limbo. In s 17(1), "may" is coupled with a duty to act, but it is a duty accompanied by a choice.

44 The same reasoning applies to s 17(3). The person is not to be detained if granted bail, but if not granted bail then the Tribunal may order detention either in a mental health facility (if the person is suffering from a mental illness or condition) or in some other place (if the person is not suffering from a mental illness or condition or, if suffering from a mental condition, objects to being detained in a mental health facility). In that situation, the person may be returned to a correctional centre, but his or her status will now depend on the finding of the Tribunal and not the mere fact that he or she was charged with a criminal offence and remanded. If the court declines to grant bail, it must make an order under s 17(3).

45 This analysis does not lead to any necessary conclusion as to the proper construction s 27, although it is in form identical to s 17(3). The more limited conclusion is that a linguistic analysis of the variable use of "must" and "may" within Part 2 of the Forensic Provisions Act, by itself, leads to no clear solution.

46 A purposive construction has a number of elements: it was not eschewed by the respondent. Thus, he called in aid the well established principle of construction that in a case of ambiguity or uncertainty, with respect to powers involving deprivation of liberty, a construction favourable to the liberty of the individual should be preferred: R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 at [92] (Bell JA, Hulme J and Latham J), citing various authorities, including Spigelman CJ in R v Orcher [1999] NSWCCA 356; 48 NSWLR 273 at [16].

47 While the general approach to be preferred is clear, its application in the present case does not support the approach of the respondent. This is not a case in which the interests of the State and the individual are in conflict. Rather, it is a case of bifurcated functions: some functions have been conferred on the court and others on the Tribunal. Thus, there was no dispute ultimately in this Court as to the relevance of the matters taken into account by the trial judge in deciding that the respondent should not be detained but should be unconditionally at large. The real question was whether that difficult decision, in the case of a man found to be suffering from a form of paranoid schizophrenia, was to be made by the Court or by the specialist tribunal. Thus, the only question was on which body the statutory power to release had been conferred. For the reasons explained in TD at [35]-[46], once a limiting term had been nominated and the Tribunal had determined that the person was (or was not) suffering from mental illness, the power of the Court was restricted to determining the place in which he or she should be detained and not whether he or she should be detained.

48 That conclusion followed from two specific aspects of the legislative scheme. The first was the nature of a "limiting term". The limiting term is analogous to a sentence of imprisonment: it can only be nominated in circumstances where the court would, in criminal proceedings, have imposed a sentence of imprisonment; it is the "best estimate" of the sentence that would have been imposed. Further, it is subject to appeal as if it were a sentence. In determining its length, the court may take into account periods spent in custody or detention and, in order to take such periods into account, may direct that it is to "be taken to have commenced at an earlier time": s 23(1)-(5). Further, where there is more than one such term, the commencement date is to be calculated bearing in mind that a sentence of imprisonment will be accumulated upon non-parole periods: s 23(6).

49 Subject to the possibility (rarely available) of bail pending appeal, the commencement of a sentence of imprisonment is not deferred: a warrant of commitment will issue forthwith. Because of the extra stage required by the Forensic Provisions Act, the equivalent step cannot be taken immediately but must await a further determination of the Tribunal. Section 24 makes provision for the next step (6b):

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 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 mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility.

(3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person.

50 Once that further step has been taken, s 27, set out at [36] above, is engaged. Apart from its treatment as equivalent to an appropriate sentence of imprisonment, for the reasons which follow the scheme of the legislation is inconsistent with the power of the trial judge to release a person subject to a limiting term who has been found to be mentally ill.

51 First, leaving to one side an ambiguity in s 24, which operates before a finding of mental illness in the case of a person not fit to be tried, references to the grant of bail are restricted to those found in ss 14 and 17. The former deals with a person who has been found to be unfit, but whom the Tribunal has not yet concluded will or will not become fit to be tried within 12 months. Once the Tribunal has determined that a person will not become fit to be tried within that period, either the Director must decide not to proceed further with respect to the offence, in which case "the Court must order the release of the person" (s 20) or the Court will convene a "special hearing". When making an order for bail or for detention under s 17 (for a person who probably will become fit to be tried) the Court has the findings of the Tribunal under s 16(2) in relation to the mental illness or mental condition and may also have a recommendation "as to the care or treatment of the person", under s 16(3A). (There appears to be a lacuna with respect to the powers to deal with a person found unfit to be tried, but for whom a special hearing is to be held: the powers under s 14(b) only extend to the period "pending determination of the Tribunal under section 16".)

52 Following completion of the "special hearing" and the recording of a verdict, there will be another period, pending the making of findings under s 23 with respect to a limiting term. (Again, there appears to be a lacuna as to the court's powers with respect to the person during that period.)

53 Once a limiting term, analogous to a sentence of imprisonment, has been nominated, what is not known is whether the Tribunal will find the person to be suffering from a mental illness or mental condition. It might be thought consistent with the legislative scheme that there would no longer be a power to permit the person to be conditionally at large. However, the precise scope of the orders which may be made under s 24(1)(b) is unclear. Even the availability of bail is unclear. Under the Bail Act 1978 (NSW) bail may be granted "to an accused person", in effect, during any period between the time the person was charged and the determination of any appeal, in respect of an offence. Although senior counsel for the respondent submitted that the period between the imposition of a limiting term and the finding of the Tribunal under s 24(2) constituted an "adjournment ... during the course of a trial", for the purposes of s 6(c) of the Bail Act, that proposition might be thought doubtful. However, for reasons which will be explained below, it is not necessary or appropriate in this case to determine the proper construction of s 24, except to the extent that it bears on the proper construction of s 27. Thus, this case will not determine the validity of the order made by the trial judge on 11 August 2011 continuing conditional bail.

54 A conclusion that the powers of the Court, under the bifurcated jurisdiction, do not extend to the release of a person suffering from a mental illness, during the period of the limiting term, must depend on an equivalent power being vested in the Tribunal. That depends upon the person being a "forensic patient" during the relevant time. Section 42 of the Forensic Provisions Act, provides:

42 Forensic patients

For the purposes of this Act, the following persons are forensic patients:

(a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under:

(i) section 14, 17 (3), 24, 25, 27 or 39, or

(ii) section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act),

(b) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section.

55 For present purposes, nothing depends on paragraph (a)(ii) or (b). From the moment that a person is detained or conditionally released under s 14, having been found unfit to be tried, the person will be a forensic patient until that status ceases. That is consistent with the fact that, pursuant to s 14, the criminal proceedings cannot be continued (or recommenced) except for the purpose of discharging a jury, adjourning the proceedings and granting bail or remanding the person in custody (or other, presumably consequential, orders thought appropriate by the court). The person ceases to be a forensic patient if found likely to become fit within 12 months and granted bail under s 17(2), but remains a forensic patient if detained under s 17(3). However, subject to a possible qualification, once a limiting term has been nominated under s 23, even conditional release under s 24(1)(b) will not take the person outside the definition.

56 Otherwise, a forensic patient ceases to be such if released unconditionally, or, if released on conditions, once the conditions have expired: s 51. In the case of a person who has been detained, the status will cease, either when the limiting term expires, or when the person is classified as a involuntary patient: s 52. In addition, though not relevant for present purposes, the status will cease if the person becomes fit to be tried or the relevant charges are dismissed: s 52(3) and (4).

57 Procedures for the review and release of forensic patients are to found in Pt 5, Div 2 of the Forensic Provisions Act. In the case of a person the subject of an order under s 17(3) or s 27 (involving detention) the Tribunal "must review a person's case as soon as practicable" after the order is made: s 45(1). Further reviews must take place every six months, but may take place at any time: s 46(1). Section 47 provides:

47 Orders and recommendations on further Tribunal reviews

(1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to:

(a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or

(b) the patient's release (either unconditionally or subject to conditions).

(2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release.

(3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act.

(4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence.

(5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person:

(a) has become fit to be tried for an offence, or

(b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence.

58 Subject to one possible qualification arising from the terms of s 51, the scheme of the Act is entirely consistent with the proposition that once a limiting term has been fixed and a person has been found to be suffering from a mental illness or from a mental condition, an order should be made by the court that the person be detained pursuant to s 27: it is inconsistent with the legislative scheme that the court can simply release a person unconditionally (or even conditionally) once that stage has been reached.

59 The possible qualification arises from the fact that a person may cease to be a forensic patient if released unconditionally "in accordance with an order by the Tribunal ... or by order of a court": s 51(1)(a). On one view, that could be thought to include a refusal to make an order for detention under s 27. There are two reasons for not accepting such a construction of s 51(1). The first is that s 27 makes no reference to a person being "released unconditionally" or otherwise: such release is not an order expressly contemplated by the section. Secondly, a person who has been found not guilty by reason of mental illness is within the definition of "forensic patient": such a person may be released by order of the court under s 39 of the Forensic Provisions Act. Further, appeals from Tribunal decisions may result in such orders by the Supreme Court or this Court: see s 77A. Accordingly, it is not necessary to construe s 27 to include a power to order unconditional release, in order to give s 51(1)(a) work to do.

60 The respondent contended that there were two further reasons why s 27 should be read as conferring a discretion on the Court with respect to whether to make any order at all as to the detention of the person. Those arguments were raised in the context of construing s 24(1)(b), but would, if sound, operate with respect to s 27.

61 The first submission was that a limiting term, if back-dated, could have expired by the time that it was nominated. If that were the case, it would be necessary that the Court have power not to order the person's detention. Such a possibility must be conceded, as must the consequence. It does not, however, affect the construction of s 24 or s 27. Indeed, such an assumption implicitly governs other aspects of the Act, including the definition of "forensic patient". Thus a person may cease to be a forensic patient if, having been detained, the limiting term expires: s 52(2)(a). It must be inferred that a person who has not been detained would cease to be a forensic patient once the limiting term expired. Each of ss 24 and 27 is premised on the continuing existence of a limiting term.

62 The second consideration relied upon by the respondent was that there might be rare cases (including the present) where detention in custody would be contrary to the objectives and purpose of the legislation. This submission should not be accepted for two reasons. The first is that there would be an incongruity in a criminal court imposing a sentence of imprisonment when satisfied that the person should not be detained at all. (Cases of suspended sentences may be disregarded for present purposes.) If in an hypothetical criminal sentence a term of imprisonment would not be imposed, there can be no nomination of a limiting term. There is no reason to suppose that in determining whether to impose a limiting term, in accordance with s 23(1), the trial judge should not have regard to the limited moral culpability of the person and the possible consequences for the person of a custodial term. Once those factors have been taken into account and a limiting term has nevertheless been nominated, the remaining question is where the detention should occur, the options being in a mental health facility or some other specified place.

63 The second reason is that if care and treatment (when balanced against other considerations) appear to favour the conclusion that the person not be detained, the legislative scheme suggests that the body which should make that determination is the Tribunal, not the court. The fact that the Tribunal is required to consider the person's case "as soon as practicable after ... an order is made under section 27" avoids the complaint that there may be a significant period before appropriate care and treatment is considered. Whatever the delay which might result from inadequate resources, there is no reason to suppose that the legislature implicitly anticipated such a problem and, without referring to it, conferred a power on the court to assess such questions, rather than the specialist Tribunal which is established under Chapter 6 of the Mental Health Act 2007 (NSW) (and previously under Chapter 9 of the Mental Health Act 1990 (NSW)).

Relief

64 The first order sought by the Director was that the record of the District Court "be removed" to this Court and "the determination that no order pursuant to s 24(1)(b) of the Mental Health (Forensic Provisions) Act 1990 ... would be made in respect of the first respondent quashed".

65 There is no need to remove a matter from a lower court: although such an order formed part of the prerogative writ of certiorari, it is obsolete, at least since the enactment of s 69 of the Supreme Court Act. Further, there is a real issue as to the utility of a quashing order in respect of the decision of the trial judge under s 24(1)(b), made on 11 August 2011, which involved continuing the respondent's bail until 21 October 2011. The matter was later adjourned, and the order extended, until 29 January 2013, when the s 27 order was made. The order under s 24(1)(b) is thus long since spent.

66 There is now (since 15 March 2013) a requirement that proceedings for judicial review be commenced within three months of the date of the decision: Uniform Civil Procedure Rules 2005 (NSW), r 59.10. On the assumption that this procedural rule applies to decisions made before its commencement, the Director sought an order extending time to challenge the decision. There was, however, no affidavit filed in support of an extension of time and the matter should be dealt with on a discretionary basis if no relief is appropriate.

67 The purpose of the Director in seeking to challenge the earlier decision was, no doubt, to obtain a ruling from the Court as to the scope of the orders available under s 24(1)(b). The Director's submission was that, a limiting term having been nominated, which had not expired, the Court's power to make an order "with respect to the custody of the person" did not include the power to grant bail, or otherwise permit conditional or unconditional release. The arguments favouring the Director's construction are threefold. First, unlike s 14, s 24(1)(b) does not refer to the power to grant bail under the Bail Act and, a limiting term having been nominated, is it at best unclear that the Bail Act has any continuing operation. Secondly, if the person were to be released unconditionally, he or she would cease to be a "forensic patient" within the definition in s 42, although, if the person were released conditionally, or kept in detention, the person would be a forensic patient. That at least militates against there being an implied power to release unconditionally. Thirdly, the purpose of the referral of the person to the Tribunal under s 24(1)(a) is to determine whether the person is suffering from a mental illness or a relevant mental condition. Once it is accepted that an order under s 27 will not involve release from custody, there is little basis for implying a power to release on an interim basis. The only reason for the additional stage is that the determination by the Tribunal, which could otherwise have been made under s 16 when determining whether the person is likely to become fit to be tried within 12 months, is not carried out at that stage. The apparent reason for giving the Court a degree of flexibility under s 24(1)(b) is not to allow release from custody, but to allow an interim choice of appropriate custody where the body responsible for determining whether the person is suffering from mental illness (or a mental condition) has not yet made that determination.

68 The principal argument against that approach is that the need for flexibility should be understood to extend to an order that the person not be detained in custody at all.

69 It is unfortunate that there is uncertainty as to the scope of a provision of this kind and that its determination in the present case would lack any practical consequence for the respondent. Nevertheless, the inutility makes it inevitable that, were the case to be determined as the Director contends, no order would be made. It is, therefore, inappropriate to determine a question as to the proper construction of s 24(1)(b).

70 The second order sought is a quashing of the determination that no order should be made pursuant to s 27. In addition, the Director sought a declaration that the trial judge fell into error in failing to make an order under s 27.

71 If a tribunal fails to exercise a power where a legal duty is engaged, an order in the nature of mandamus might provide appropriate relief. The refusal to make an order was a constructive failure to exercise jurisdiction, because the proffered reason for not exercising the power was legally erroneous. The refusal to exercise the power where there is a duty to do so will at least involve an error of law on the face of the record, as the record includes the reasons for decision: Supreme Court Act, s 69(3) and (4). Indeed, such an erroneous determination of the scope of the court's jurisdiction involves jurisdictional error: Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; 86 ALJR 862 at [34] (French CJ) and [65] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). But the failure to make an order leaves nothing to set aside or quash.

72 Little attention was paid in the course of argument to the consequences of granting specific forms of relief. There may have been a practical reason for that: the evidence before this Court indicated that Mr Khoury was no longer in the country, having returned to his native Lebanon. Whether he intends to return to Australia is not known. On 11 August 2011 the trial judge nominated a limiting term of five years and directed that "the term is to take effect from 3 July 2011 and to expire on 2 July 2016". Such a term was imposed concurrently for each offence. One question is the effect of any order on the period of the limiting term. If a person subject to a term of imprisonment is unlawfully absent from custody, the term is extended by the period of the unlawful absence: Crimes (Administration of Sentences) Act 1999 (NSW), s 254. There is no such provision with respect to a person who is or should be the subject of a detention order under the Forensic Provisions Act. Further, there is a question as to the effect of a declaration that no valid order was made under s 27: prior to that point, Mr Khoury was subject to conditional bail, which included reporting conditions and no doubt other conditions which are not known to this Court. It may, perhaps, be assumed that any order under the Bail Act ceased to operate on 29 January 2013, when the matter returned to the District Court for the last time.

73 It is, at least in a practical sense, also unfortunate that the determination of the Tribunal under s 24(3) of the Forensic Provisions Act, made on 20 October 2011, was not acted upon until January 2013. The reason is, apparently, at least in part because Mr Khoury sought leave to appeal from the determination of the Tribunal that he was suffering a mental illness, pursuant to s 77A(1) of the Forensic Provisions Act. Harrison J refused to grant leave to appeal on the basis that he was not a "forensic patient" because he had been released pursuant to s 24(1)(b), albeit subject to conditions, whereas the reference in s 42 to a person "released from custody subject to conditions" referred, Harrison J held, only to release of a person found not guilty by reason by mental illness, pursuant to s 44 of the Forensic Provisions Act. Some of the procedural history to this matter is set out by Harrison J, although the history provides no adequate justification for the delay in dealing with Mr Khoury pursuant to s 27.

74 Although the Director has been successful in respect of his principal argument, given the nature of the proceedings and the public interest in the clarification of the jurisdiction of a court dealing with a person under the Forensic Provisions Act, it is appropriate that there be no order as to the costs of the proceedings in this Court.

75 The appropriate course in these circumstances is for the Court to decline to grant quashing orders, but to make a declaration and other orders in the following terms:

(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.

76 MACFARLAN JA: I agree with Basten JA.

77 SIMPSON J: The summons commencing these proceedings was filed on 29 April 2013, by the Director of Public Prosecutions (NSW) ("the Director"). It names George Khoury as first respondent, and the District Court of NSW as second respondent. The Director seeks orders in the nature of certiorari and declarations with respect to two determinations made by Robison DCJ on 11 August 2011 and 29 January 2013. The determinations were made under s 24(1)(b) and s 27(a) of the Mental Health (Forensic Provisions) Act 1990 (to which, in the interests of consistency with the judgment of Basten JA, I will refer as "the Forensic Provisions Act"). The issue raised by the summons concerns the proper construction of those two provisions. Put briefly, the issue is whether the provisions confer a discretion, or impose a duty, to make the orders for which they provide.

78 The District Court of NSW has played no part in the proceedings.

79 The long title of the Forensic Provisions Act is:

"An Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions and the care, treatment and control of such persons."

It is fair to say that the provisions of the Forensic Provisions Act represent an attempt on the part of the legislature to achieve at least two objects, which do not necessarily coalesce easily, and to balance two sometimes competing interests. One object or interest is the disposition of charges of criminal offences. It is in the public interest that that disposition be achieved. The other object is to recognise and accommodate the fact that, by reason of mental disorder or infirmity, some individuals charged with criminal offences are not in a position to answer those charges, and that a trial of those charges in the ordinary way would or could be productive of unfairness. Any resultant conviction of the person charged could not necessarily be regarded as safe.

80 In order to understand the issues, it is necessary to understand the complicated procedural regime prescribed by Pt 2 of the Forensic Procedures Act that operates with respect to the prosecution of criminal offences where an issue arises as to the fitness of the person accused to be tried.

The procedure under the Forensic Provisions Act

81 The procedure prescribed diverges from time to time, depending upon the outcome of various inquiries and determinations. Before outlining the procedure, I make some preliminary observations.

82 The Forensic Provisions Act is not primarily concerned with the state of mind of the person charged at the time of the alleged offence[s]. Its primary concern is with the state of mind of that person at the time of the prosecution of the charge[s].

83 The Forensic Provisions Act interconnects with the Mental Health Act 2007, and, to a lesser extent, with the Crimes (Administration of Sentences) Act 1999. By s 140 of the Mental Health Act a Mental Health Review Tribunal ("the Tribunal") is constituted. The Tribunal consists of a President, one or more Deputy Presidents, and may include other members, all of whom may be appointed as full-time or part-time members. The members are to be appointed from:

• Australian lawyers;
• psychiatrists;
• persons having, in the opinion of the Governor, other suitable qualifications or experience, including at least one of whom is to be selected from a group of persons nominated by consumer organisations (s 141).

The members appointed to the Tribunal are to include at least one woman, and at least one person of ethnic background. For the purpose of exercising its functions, the Tribunal is to be constituted by one or more members nominated by the President (s 150(1)). The Tribunal has a significant role to play in the procedures prescribed by the Forensic Provisions Act for dealing with persons who are charged with offences but who are or may be unfit to be tried.

84 The Forensic Provisions Act divides the procedures between a court in which criminal proceedings are commenced (being the Supreme Court or the District Court) and the Tribunal. In some instances the language used in specifying the procedures is the language of discretion - the court or the Tribunal "may" exercise a power to act in a specified way (see Interpretation Act 1987 (NSW), s 9(1)). In other instances the language used is the language of mandate - the court or the Tribunal "must" act in the specified way. That distinction is of some, but not critical, significance with respect to the issues raised by the summons. In the following outline, I will therefore, in that respect, replicate the language used in the Forensic Provisions Act.

85 The procedures prescribed are as follows (for the sake of clarity, I will at times paraphrase from the various provisions of the Forensic Provisions Act and omit some unnecessary detail and repetition):

Where a question of unfitness of a person accused of crime to be tried is raised (whether before a trial commences, or during the course of a trial):

(i) the court must determine whether an inquiry should be conducted into the fitness to be tried of the person accused (s 8 and s 9);

(ii) the court may take any one or more of a number of procedural steps, such as adjourning the proceedings, granting bail, or remanding the person accused in custody for up to 28 days, discharging any jury that has been constituted for the purpose of the trial, and taking steps in order to ascertain the psychiatric condition of the person accused (s 10(3)). The court is also empowered to make any other order it considers appropriate (s 10(3)(g)).

Where the court determines that an inquiry should be conducted:

(iii) the court must, as soon as practicable after that determination is made, conduct such an inquiry (s 10(1)).

The purpose of the inquiry is to determine whether the person accused is unfit to be tried for the offence charged. The question of unfitness is to be determined by judge alone (s 11).

Where the determination following the inquiry is that the person accused is fit to be tried:

(iv) the criminal proceedings are to recommence or continue in accordance with appropriate criminal procedures. The Forensic Provisions Act ceases to have any application (s 13).

Where the determination is that the person accused is unfit to be tried:

(v) the court must refer that person to the Tribunal (s 14(1)(a)).

One consequence of a referral under s 14(1)(a) is that the person accused is, for the purposes of the Forensic Provisions Act, classified as a "forensic patient" (s 42). Such a classification has consequences, to which I will come.

On the determination of unfitness, the proceedings must cease, except that the court may:

(vi)  discharge a jury, if a jury has been constituted;

• adjourn the proceedings;

• grant bail in accordance with the Bail Act 1978;

• remand the person accused in custody until the determination of the Tribunal has been given effect to; or

• make any other order that the court considers appropriate (s 14(1)(b)).

On a referral to the Tribunal under s 14(1)(a):

(vii) the Tribunal must, as soon as practicable, determine whether, on the balance of probabilities, the person accused will, within a period of 12 months (after the court's finding of unfitness) become fit to be tried for the offence (s 16(1)).

If the determination of the Tribunal is that, on the balance of probabilities, the person accused will, within 12 months, become fit to be tried:

(viii) the Tribunal must further determine whether or not the person accused:

• (a) is suffering from a mental illness; or

• (b) is suffering from a mental condition for which treatment is available in a mental health facility;

if the Tribunal determines that the person accused is suffering from such a mental condition, and the person is not in a mental health facility the Tribunal must determine:

• (c) whether the person accused objects to being detained in a mental health facility (s 16(2)).

(ix) The Tribunal must notify the referring court of its determination under s 16(2) (s 16(3)), and

(x) The Tribunal may make a recommendation to the court as to the care or treatment of the person accused (s 16(3A)).

["Mental illness" is not defined in the Forensic Provisions Act; "mentally ill person" is given the same meaning as that phrase is given in the Mental Health Act - that is, a person suffering from a mental illness (that has certain attributes). Although "mental illness" is also defined in the Mental Health Act, that definition is not expressly adopted by the Forensic Provisions Act. "Mental condition" is defined in the Forensic Provisions Act as:

"a condition of disability of mind not including either mental illness or developmental disability of mind."

"Mental health facility" is also given the same meaning as that phrase is given in the Mental Health Act.]

If the determination of the Tribunal is that the person accused will not become fit to be tried within 12 months after the finding of unfitness:

(xi) the Tribunal must notify the Director of that determination (s 16(4)).

Where the court is notified by the Tribunal of its determination that the person accused will, on the balance of probabilities, within 12 months of the finding of unfitness, become fit to be tried:

(xii) the court may grant bail in accordance with the Bail Act for a period not exceeding 12 months (s 17(2)).

Where the Tribunal has determined:

• that the person accused is suffering from a mental illness; or

• that the person accused is suffering from a mental condition for which treatment is available in a mental health facility and that the person accused, not being in a mental health facility, does not object to being detained in a mental health facility:

(xiii) the court may order that the person accused be taken to and detained in a mental health facility for a period not exceeding 12 months (s 17(3)(a)).

Where the Tribunal has determined:

• that the person accused is not suffering from a mental illness or from a mental condition (as described above); or

• that the person is suffering from such a mental condition but objects to be detained in a mental health facility:

(xiv) the court may order that the person be detained in a place other than a mental health facility for a period not exceeding 12 months (s 17(3)(b)).

As soon as practicable after the grant of bail, or the making of an order under either s 17(3)(a) or s 17(3)(b).

(xv) the Registrar of the court is required to notify the Tribunal (s 17(4)).

On the making of an order under s 17(3)(a) or s 17(3)(b), the person accused is classified as a forensic patient (s 42).

As soon as practicable after an order is made under s 17(3):

(xvi) the Tribunal must review the person's case. The purpose of the review is to determine whether, in the opinion of the Tribunal, the person has become fit to be tried (s 45(2)).

Where, on review under s 45(2), the Tribunal determines either:

• that the person has become fit to be tried, or

• that the person has not become fit to tried, and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried:

(xvii) the Tribunal must notify the court (s 45(3)).

Where the Tribunal notifies the court that the person accused will not, within 12 months after the finding of unfitness, become fit to be tried:

(xviii) the court is, as soon as practicable (unless advised by the Director that no further proceedings will be taken) to conduct a "special hearing" (s 19(1)(b)).

The purpose of the special hearing is to determine, so far as can be achieved, and bearing in mind the "limited evidence" available, whether it can be proved, to the criminal standard, that the person accused committed the offence charged (or any available alternative). If it cannot be so proved:

(xix) the person accused is to be acquitted (s 19(2)).

The special hearing is to be conducted by judge alone, unless election is made for jury by the accused person on appropriate (and appropriately understood) legal advice, or by a legal practitioner representing that person, or by the prosecution (s 21A).

The verdicts available at a special hearing are:

• not guilty of the offence charged;

• not guilty on the ground of mental illness;

• that, on the limited evidence available, the accused person committed the offence charged;

• that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged (s 22(1)).

Where the verdict is that the person accused is not guilty on the ground of mental illness:

(xx) the person is to be dealt with as though such a verdict had been returned at a normal trial (s 25).

A finding that, on the limited evidence available, the person accused committed the offence[s] charged or an available alternative constitutes a "qualified finding of guilt" and does not constitute a basis for conviction; it does constitute (subject to a presently immaterial qualification) a bar to further prosecution for that offence, and has other consequences not presently material (s 22(3)).

Where the verdict is not guilty:

(xxi) the person accused is to be dealt with as on an acquittal at a normal trial (s 26).

After a special hearing:

where the verdict is that, on the limited evidence available, the accused person committed the offence charged (or some available alternative).

(xxii) the court must indicate whether, if the special hearing had been a normal trial of a person fit to be tried, it would have imposed a sentence of imprisonment (s 23(1)(a)).

If the court indicates that it would have imposed a sentence of imprisonment:

(xxiii) the court must nominate a limiting term (s 23(1)(b)).

A "limiting term" is the best estimate of the sentence the court would have considered appropriate following a normal trial of criminal proceedings where the person accused was fit to be tried and found guilty (s 23(1)(b)).

In nominating a limiting term, the court may, if it thinks fit, take into account any periods in which the person accused has been held in custody or detention prior to, during or after the special hearing, where those periods of custody or detention were related to the offence (s 23(4)).

If the court indicates that it would not, following a normal trial of criminal proceedings, have imposed a sentence of imprisonment:

(xxiv) the court may impose any other penalty or make any other order that would have been available following a normal trial of criminal proceedings (s 23(2)); and

(xxv) the court must notify the Tribunal that a limiting term is not to be nominated (s 23(7)).

A limiting term takes effect from the time when it is nominated unless the court otherwise directs. The court may direct that the limiting term take effect at an earlier or later time (s 23(5)). If the court directs that the term commence at a later time than the time when it is nominated, it is to take into account that a sentence of imprisonment imposed in a normal trial of criminal proceedings may, unlike a limiting term, be subject to a non-parole period, and, (if applicable) also take into account the provisions of s 47(4) and s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (concerning accumulation of sentences).

Where the court has nominated a limiting term:

(xxvi) the court must refer the person to the Tribunal (s 24(1)(a)), and

(xxvii) the court may make such order with respect to the custody of the person as it considers appropriate (s 24(1)(b)).

On an order being made under s 24(1)(b) with respect to the custody of the person, the person is classified as a forensic patient.

On referral of the person to the Tribunal:

(xxviii) the Tribunal must determine whether or not the person:

• (a) is suffering from a mental illness (s 24(2)(a)); or

• (b) is suffering from a mental condition for which treatment is available in a mental health facility (s 24(2)(b));

if the Tribunal determines that the person is suffering from such a mental condition, and is not in a mental health facility:

• the Tribunal must determine whether or not the person objects to being so detained (s 24(2)(b)).

(xxix) The Tribunal must notify the referring court of its determination under s 24(2): (s 24(3)).

Where the court is notified, pursuant to s 24(3), that 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 mental health facility and, not being in a mental health facility, does not object to being so detained:

(xxx) the court may order that the person be taken to and detained in a mental health facility (s 27(a)).

Where the Tribunal has determined:

• that the person is not suffering from mental illness or from a mental condition as described above; or

• that the person is suffering from such a mental condition but objects to being detained in a mental health facility:

(xxxi) the court may order that the person be detained in a place other than a mental health facility (s 27(b)).

Where an order has been made under either s 27(a) or s 27(b) the person is classified as a forensic patient (s 42).

As soon as practicable after an order has been made under s 27(a) or 27(b):

(xxxii) the Tribunal must review the case of the person (s 45(1)(b)).

The purpose of the review is to determine whether, in the opinion of the Tribunal, the person has become fit to be tried (s 45(2)).

Where, on review under s 45, the Tribunal determines either:

• that the person has become fit to be tried for the offence, or

• that the person has not become fit to be tried, and will not during the period of 12 months after the finding of unfitness by the court, become fit to be tried:

(xxxiii) the Tribunal must notify the referring court and the Director (s 45(3)).

Where the Tribunal notifies the court that it is of the opinion that a person who has been found to be unfit to be tried for an offence has become fit to be tried, and whether or not a special hearing has been conducted:

(xxxiv) the court is to obtain the advice of the Director as to whether further proceedings will be taken in respect of the offence (s 29(1)(a)); and

(xxxv) unless advised by the Director that no further proceedings will be taken, the court is, as soon as practicable, to hold a further inquiry into the person's fitness to be tried (s 29(1)(b)).

86 An order under any of ss 14, 17(3), 24 or 27 results in the classification of the person as a forensic patient, and brings that person within Pt 5 of the Forensic Provisions Act. The objects of that Part are:

"(a) to protect the safety of members of the public,

(b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,

(c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,

(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e) to give an opportunity for those persons to have access to appropriate care." (s 40)

These objects reflect focus upon the second of the objects referred to at the commencement of these reasons - the resolution of criminal charges against individuals whose mental disorder or infirmity precludes the procedures that would otherwise be prescribed by the criminal law.

The Tribunal must review the case of each forensic patient at least every six months, but may do so at any time (s 46(1)) and must do so where requested to do so by a relevant Minister or other relevant health official (s 46(2)).

After such review:

(xxxvi) the Tribunal may make an order as to:

• the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place (s 47(1)(a)); or

• the patient's release, either unconditionally or subject to conditions (s 47(1)(b)).

87 The power of the Tribunal to order release of a forensic patient is circumscribed. It must not make an order for release of a forensic patient who has been remanded in custody pending return to court, but may make a recommendation to the court as to the person's release (s 47(2)).

88 The Tribunal's power to release is further subject to the overriding direction of s 43. It may not make such an order unless satisfied, on the evidence available, that the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and that other care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available to the patient, or that the patient does not require care.

89 For the purpose of the exercise of the Tribunal's functions under the Forensic Provisions Act, a Forensic Division of the Tribunal is constituted (s 73). The Forensic Division of the Tribunal consists of:

• the President or a Deputy President;

• a member who is a psychiatrist, a registered psychologist or other suitable expert in relation to a mental condition;

• a member who has other suitable qualifications or experience (s 73(2)).

90 The Tribunal must not order the release of a forensic patient under the Forensic Provisions Act unless it is constituted by at least one member who is the holder or former holder of a judicial office (s 73(3)).

91 A person ceases to be a forensic patient, and is thereupon not subject to review or supervision by the Tribunal:

• if released unconditionally in accordance with an order of the Tribunal, or by an order of a court (s 51(1)(a));

• if released conditionally in accordance with an order of the Tribunal or by an order of a court, and the time specified for compliance with the conditions has expired (s 51(1)(b));

• if, pursuant to s 22(1)(a), found, after a special hearing, to have committed the offence, but no limiting term is nominated (s 52(1)(b));

• on the expiration of any limiting term that is nominated (s 52(2)(a));

• if classified as an involuntary patient under s 53 (s 52(2)(b));

• if found by both the Tribunal and the court to be fit to be tried (s 52(3));

• if the charges are dismissed (s 52(4)(a));

• if the Director notifies the court that no further proceedings in respect of the charge or charges are to be taken (s 52(4)(b)).

Division of functions - the court and the Tribunal

92 The division and sequence of functions between the court and the Tribunal may be seen in the following Table, using the numbering system above and omitting some references:

Applicable section of the Forensic Provisions Act	The court	The Tribunal
8, 9	(i) must determine whether an inquiry into fitness to be tried should be conducted
10, 11	(ii) may take procedural steps (iii) must conduct any such inquiry into fitness to be tried and must determine fitness/unfitness to be tried
14	(v) must refer a person found unfit to be tried to the Tribunal; and (vi) may make consequential orders
16		(vii) must, as soon as practicable, determine whether a person referred to it under s 14(1)(a) as having been found unfit to be tried will, on the balance of probabilities, become fit to be tried within 12 months; and, if so: (viii) must determine whether the person is suffering from mental illness; or is suffering from a mental condition for which treatment is available in a mental health facility, and (if so, and the person is not in a mental health facility) whether or not the person objects to being detained in such a facility; (ix) must notify the referring court of decision; (x) may make a recommendation to the court as to the care or treatment of the person; (xi) must notify the Director of the determination.
17	If the Tribunal determines that the person is likely to become fit within 12 months: (xii) may grant bail; (xiii), (xiv) may make orders with respect to detention.
45		as soon as practicable after orders made by court under s 17(3): (xvi) must review the person's case to determine whether the person has become fit to be tried; (xvii) must notify the court of its determination.
19, 22	where the Tribunal notifies the court that the person will not, within 12 months of the finding of unfitness, become fit to be tried: (xviii) is to conduct a special hearing and return a verdict.
	[steps (xix)-(xxi) omitted]
23	where the verdict is that, on the limited evidence available, the person committed the offence: (xxii) must decide and indicate whether the court would, after normal trial of criminal proceedings have imposed a sentence of imprisonment; if so: (xxiii) must nominate a limiting term; if not: (xxiv) may impose any other penalty or make any other order [step (xxv) omitted]
24(1)	where the court has nominated a limiting term, it (xxvi) must refer the person to the Tribunal; and (xxvii) may make such order with respect to custody as court considers appropriate
24(2)		(xxviii) must determine whether or not the person is:  suffering from mental illness; or  is suffering from a mental condition for which treatment is available in a mental health facility; if so, and the person is not in a mental health facility, determine whether or not the person objects to being detained in a mental health facility; (xxix) notify court of determination
27	(xxx), (xxxi) may make orders that the person be detained in a mental health facility or other place
45		as soon as practicable after orders made by a court under s 27: (xxxii) must review the person's case to determine whether the person has become fit to be tried; (xxxiii) must notify the court of its determination
29	If the Tribunal has notified the court that it is of the opinion that a person who has been found unfit to be tried has become fit to be tried (unless the Director advises that no further proceedings will be taken): [step (xxiv) omitted] (xxxv) as so on as practicable, the court "is to" (? must) hold a further inquiry as to the person's fitness to be tried
46		at not less than 6 month intervals: must review the case of each forensic patient
47		After review under s 46: (xxxvi) may make an order:  as to the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place; or  order the patient's release either unconditionally or subject to conditions

The salient provisions for the purpose of these proceedings are s 24 and s 27. They are set out below at [99].

The relevant factual background

93 On 17 May 2008 Mr Khoury stabbed his two nephews, causing significant injury to each. He was charged with two counts of wounding with intent to inflict grievous bodily harm, and, as alternatives, two counts of reckless wounding. After a few days in custody he was released on bail. On 11 February 2009 he was committed to stand trial in the District Court. On 15 March 2010 a jury trial commenced, but on 21 March Mr Khoury was admitted to Sutherland Hospital as an involuntary patient under the Mental Health Act. The jury was discharged the following day. As a consequence of Mr Khoury's admission to hospital, a question arose as to his fitness to stand trial. Pursuant to s 9 of the Forensic Provisions Act, the District Court determined that an inquiry should be held into his fitness to be tried. On 20 September 2010, after an inquiry constituted under s 10, the applicant was found unfit to be tried. Pursuant to s 14, he was referred to the Tribunal.

94 On 24 December the Tribunal, pursuant to s 16, determined that, on the balance of probabilities, Mr Khoury would not, during the period of 12 months after the finding of unfitness, become fit to be tried. Commencing on 23 May 2011, in accordance with s 19, Robison DCJ conducted a special hearing. On 27 May 2011, pursuant to s 22(1)(c), Robison DCJ delivered a verdict that, on the limited evidence available, Mr Khoury committed the principal offences charged. In accordance with s 22(3) those verdicts constituted qualified findings of guilt. Robison DCJ adjourned the matter to Friday, 5 August, and continued bail. On 5 August 2011, after hearing evidence, Robison DCJ adjourned the proceedings to Friday, 11 August 2011, and again continued bail. Other than the grant of bail, his Honour made no order with respect to custody. The Forensic Procedures Act makes no express provision with respect to custodial arrangements or treatment of a person (who, by s 42, is now a forensic patient), after the verdict of a special hearing, and pending consideration of what course is to be taken under s 23.

95 On 11 August 2011, pursuant to s 23(1)(a), Robison DCJ indicated that, had the special hearing been a normal trial of criminal proceedings against a person who was fit to be tried, he would have imposed a sentence of imprisonment. Pursuant to s 23(1)(b), in respect of each offence, he nominated a limiting term of 5 years; pursuant to s 23(5)(a) he directed that each term take effect from 3 July 2011 and expire on 2 July 2016. The nominated limiting terms were therefore to operate concurrently. Pursuant to 24(1)(a), he referred Mr Khoury to the Tribunal and directed the Registrar to forward information to the Tribunal. He made an order continuing bail with additional (reporting) conditions. That decision is the subject of prayer 1 of the summons. The Director contends that Robison DCJ had no power under s 24(1)(b) to make any order with respect to Mr Khoury's custody other than one of detention.

96 On 16 September 2011, pursuant to s 24(2)(a), the Tribunal determined that Mr Khoury was suffering from a mental illness.

97 It was not, however, until 29 January 2013, having been notified by the Tribunal of its determination under s 24(2)(a), that Robison DCJ considered what course to take under s 27. His Honour set out the whole of the section, and noted:

"... the Court is not to obliged to make an order under s 27(b) of the Act, see for example what was said by the Court of Criminal Appeal in R v AN (No 2) [2006] NSWCCA 218."

He considered that it was only in exceptional circumstances that the court would decline to make a custodial order under s 27. He considered this case to be in that category and declined to make an order. The consequence was that Mr Khoury was released unconditionally.

98 That decision is the subject or prayer 2 of the summons. The Director contends that Robison DCJ had no power to decline to make a detention order under s 27; the only orders available under that section are, pursuant to sub-para (a), for detention in a mental health facility, or, pursuant to sub-para (b), for detention in a place other than a mental health facility. Given that the Tribunal had determined that Mr Khoury was suffering from a mental illness, s 27(a) dictated that Robison DCJ order that he be taken to and detained in a mental health facility. Section 27(b) is of no application.

99 The s 27 decision effectively overtakes the s 24 decision, such that there is no practical utility in making the order sought with respect to the s 24 decision. The s 24 issue is, nevertheless, of some significance.

100 In each case, the issue is one of statutory construction. The two sections are in the following terms:

"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 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 mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility.

(3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person.

27 Orders Court may make following determination of Tribunal after limiting term is imposed

If a Court is notified by the 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 mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility-order that the person be taken to and detained in a mental health facility, 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 mental health facility-order that the person be detained in a place other than a mental health facility."

101 Also of importance are s 23, s 29(1), s 47 and s 51(1), which are relevantly in the following terms:

"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.

(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.

(3) ...

(4) ...

(5) ...

(6) When making a direction under subsection (5) (b), the Court is to take into account that:

(a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and

(b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999).

(7) ...

29 Action to be taken on notification that person is fit to be tried

(1) If the Tribunal has notified the Court that it is of the opinion that a person who has been found to be unfit to be tried for an offence has become fit to be tried for the offence (whether or not a special hearing has been conducted in respect of the offence), the Court:

(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and

(b) is to hold a further inquiry as to the person's fitness as soon as practicable unless the Director of Public Prosecutions advises that the person will not be further proceeded against in respect of the offence.

(2) ...

(3) ...

(4) ...

47 Orders and recommendations on further Tribunal reviews

(1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to:

(a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or

(b) the patient's release (either unconditionally or subject to conditions).

(2) ...

(3) ...

(4) ...

(5) ...

51 Termination of classification as forensic patient on unconditional release

(1) A forensic patient ceases to be a forensic patient if any of the following events occurs:

(a) the person is released unconditionally in accordance with an order by the Tribunal under this Part or by order of a court,

(b) if the person has been released in accordance with such an order subject to conditions-the time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with expires.

(2) ..."

102 Since 1 March 2009, this Act has been known as the Forensic Provisions Act. To a substantial extent, its provisions replicated near identical provisions that had previously been contained in the Mental Health (Criminal Procedure) Act 1990 ("the MH (CP) Act"). To the extent of the re-enactment, case law on the MH (CP) Act is applicable to the Forensic Provisions Act. (The Forensic Provisions Act, additionally, unlike the MH (CP) Act, constituted the Forensic Division of the Tribunal, and, for the first time, gave the Tribunal some, although limited, power to release forensic patients, as set out above.)

103 There are two relevant previous decisions with respect to the provisions now under consideration, one in this Court and one in the Court of Criminal Appeal. The first is R v AN (No 2) [2006] NSWCCA 218; 66 NSWLR 523, referred to in the judgment of Robison DCJ of 29 January 2013. That case concerned the MH (CP) Act. Although there are textual differences, the relevant provisions are not, in substance, materially different from s 24 and s 27 of the Forensic Provisions Act.

104 It is unnecessary to recount the somewhat complicated procedural history of AN (No 2). It is sufficient to say that AN, who was a juvenile, was found by the District Court to be unfit to be tried, that a special hearing was conducted at which he was found, on the limited evidence available, to have committed the offences charged, and that the judge indicated that, had the special hearing been a normal trial of a person fit to be tried, he would have imposed sentences of imprisonment. He therefore nominated limiting terms as his best estimate of the sentences that he would have imposed following a normal trial.

105 The Tribunal determined, pursuant to s 24 of the MH (CP) Act, that AN was not suffering from a mental illness or a mental condition for which treatment was available in a hospital.

106 Before the Court was notified of that finding, the proceedings were interrupted by an application by AN for leave to appeal to the Court of Criminal Appeal against the limiting term that had been nominated. That application was granted, and the Court of Criminal Appeal reduced the limiting term. At this time, no decision had been made by the District Court pursuant to s 27 of the MH (CP) Act. Issues arose in the Court of Criminal Appeal as to the construction of s 27 in two respects, of which only one is presently relevant.

107 The issue was whether, under s 27, the Court was obliged to make an order under either sub-para (a) or (b), or whether it had a discretion to make no order, with the effect that AN would be released from detention. Because the Tribunal had determined that AN was not suffering from a mental illness or relevant mental condition, the applicable sub-paragraph was s 27(b). Otherwise, the question which there arose was identical to the question which arises in the present application. The position adopted by the Crown in AN (No 2), was that taken by the Director in the present application - that, notwithstanding the use of the apparently permissive "may" in s 27, the court was obliged to make a custodial order.

108 The Court of Criminal Appeal held that it was open to a court acting under s 27(b) to decline to make a detention order. James J, with whom Rothman J and I agreed, said:

"59 I do not consider that the submissions made by the Crown can overcome what appears to me to have been the deliberate choice by the legislature of the word 'may' in the opening words of s 27. The provisions of the [MH (CP)] Act are replete with uses of the word 'may' and the word 'must'. Section 24 of the [MH (CP)] Act is a good example. Subs (1) of s 24 provides that a court 'must' refer the person to the [Tribunal]. Subs (2) provides that the court 'may' make such order with respect to the custody of the person as the court considers appropriate.

60 In my opinion, the conclusion is inescapable that in the [MH (CP)] 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'."

The Court of Criminal Appeal concluded that, in exercising power under s 27, the Court retained a discretion not to make a detention order. The substance of the argument in that case, and the substance of the reason for the conclusion, lay in the use of the word "may" as it appears in the chapeau to s 27.

109 In State of NSW v TD [2013] NSWCA 32, Basten JA expressed the view that that conclusion was "clearly wrong" ([47]). His Honour said:

"46 The scheme of the two Acts [the MH (CP) Act and the Mental Health Act] 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)."

Although TD was a decision of a five judge bench of this Court, the other members of the Court did not find it necessary to resolve that issue.

110 I have come to the conclusion, as did the Court of Criminal Appeal in AN (No 2), that s 27 does not mandate that an order for detention under either s 27(a) or s 27(b) must be made, with no discretion to decline to make either order.

111 This conclusion does not depend solely or even primarily upon the use of the word "may" in s 27 as distinct from the use of the word "must" in other provisions. I acknowledge that there are, throughout the Forensic Provisions Act, occasions when the word "may" has been used, when, clearly, a court or the Tribunal is obliged to take the action (or one of the actions) specified. An example is s 14. In s 14(a), the peremptory "must" is used - the court is obliged to refer the person to the Tribunal. In s 14(b) the apparently permissive "may" is used, but in circumstances where, at least as a matter of practicality, at least two of the actions contemplated are necessary, and must be taken - the jury must be discharged, and the proceedings must be adjourned. In other provisions, the peremptory is conveyed by the words "is to" - for example, s 29 (the court is to obtain the advice of the Director and is to hold a further inquiry into fitness). It is not consistency in the use of language in the Forensic Provisions Act that leads me to the view to which I have come.

112 Although the argument was largely directed to the use of the word "may" in s 27 (and in s 24(1)(b)) contrasted with the word "must" in other provisions, I do not accept that the question of construction is so limited. In R v Lavender [2005] HCA 37; 222 CLR 67, Gleeson CJ, McHugh, Gummow and Hayne JJ said:

"19 The issue is one of the meaning of the Crimes Act [1900, (NSW)]. It turns upon the meaning of s 18 and, in particular, s 18(2)(a). As is so often the case, the meaning of the statutory provision is influenced powerfully by context. The error in the Court of Criminal Appeal resulted from paying insufficient regard to that context, probably because of the way the case was argued."

And see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355.

113 The context includes the circumstance that the provisions in question provide for involuntary detention. As such, they should be construed beneficially to the person potentially subject to deprivation of liberty. In R v Orcher [1999] NSWCCA 356; 48 NSWLR 273, at [16], Spigelman CJ, with whom Grove and Sully JJ agreed, recorded a submission that referred to:

"... the well-established principle of statutory construction that an ambiguous statutory provision which affects the liberty of the subject should not be read to restrict liberty."

It is apparent from the context that the Chief Justice accepted that that principle was well established.

114 In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476, Gleeson CJ said (at [30]):

"[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be 'subject to the basic rights of the individual'."

115 Later, in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, his Honour said:

"19 ... In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that '[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'.

20 A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament."

116 There is no doubt that, under the Forensic Provisions Act, Parliament has conferred upon the courts a power to order detention of a person found to have committed an offence, in respect of which a limiting term has been nominated. However, the observations in the cases quoted also are applicable to whether that detention was intended to be mandatory: that is, whether, in the circumstances mentioned, the court has or has not the discretion to decline to order detention.

117 The context in which s 24 and s 27 appear includes the following:

(1) s 23:

the function allocated to a court by s 23 arises after a special hearing has been conducted at which a person who is unfit to be tried has been found to have committed the offence charged. In those circumstances, the court is required to:

(i) indicate whether, if the special hearing had been a normal trial of criminal proceedings of a person fit to be tried, it would have imposed a sentence of imprisonment (s 23(1)(a)); and, if so,

(ii) make its best estimate of the sentence that it would have considered appropriate after a "normal trial", of a person fit to be tried; and

(iii) nominate a "limiting term" in accordance with that assessment.

118 The steps that precede the s 23 exercise are:

(i) a finding by the court of unfitness to be tried (s 10);

(ii) determination by the Tribunal that the person will not, within 12 months, become fit to be tried (s 16(4));

(iii) conduct by the court of a special hearing (s 19);

(iv) a finding by the court that the person committed the offence charged (s 22(1)(c)).

119 It is to be noted that, pursuant to s 16(2), it is only if the Tribunal determines that the person will become fit to be tried within 12 months that it is required further to determine whether he or she is suffering from a mental illness or relevant mental condition. If the Tribunal determines that the person will not, during that time, become fit to be tried, its only function, at that time, is to notify the Director and the court (sub-ss 16(3), (4)). It may, but it is not obliged to, make a recommendation to the court concerning the person's care or treatment (s 16(3A)).

120 Perhaps curiously, but significantly, there is no requirement that the Tribunal perform the exercise of determining the person's mental state after a s 22 verdict that the person committed the offence, and before the court proceeds to the s 23 exercise.

121 Accordingly, at the time the court makes its assessment of the sentence that would have been appropriate had the person been fit to be tried, it will not necessarily have information concerning the person's mental condition at that time, and will not have the Tribunal's assessment of that condition.

122 Also relevant is the circumstance that a court imposing a term of imprisonment after a normal trial has at least two non-custodial options available under the Crimes (Sentencing Procedure) Act 1999. One is to make an Intensive Correction Order (s 7); the other is to suspend execution of the sentence (s 12).

123 Just as a verdict under s 22(1), that the person committed the offence charged, does not constitute a conviction (s 22(3)(a)), the nomination of a limiting term does not constitute a sentence. It is, at most, a hypothetical sentence.

124 The language of s 23(1)(b) is critical. The task of the court is to "nominate" a limiting term - that is, to make its best estimate of the sentence it would have considered appropriate if the person, being fit to be tried, had been convicted at a normal trial. The task of the court is not to "impose" a term. "Impose" is language appropriate to sentencing. "Nominate" is not.

125 It has not been uncommon in the decisions with respect to this legislation for the word "impose" to be substituted for the word "nominate" when s 23(1)(b) has been considered. In my opinion that is an error. It is not surprising that that error is made - the drafter of the Forensic Provisions Act adopted the word "impose" in s 52, in relation to the termination of the classification of a person as a forensic patient. In my opinion that is a drafting error. What the court does under s 23(1)(b) is to nominate a hypothetical sentence.

126 Deciding what sentence would have been appropriate in a set of circumstances that does not exist is not the same exercise as deciding whether or not the person should, in the set of circumstances that does exist, spend time in involuntary detention. It is in respect of the latter decision that the non-custodial options under the Sentencing Procedure Act are relevant.

127 Nowhere in the Forensic Provisions Act is there any warrant for reading s 23(1)(b) as carrying in it any presumption that a person in respect of whom a limiting term has been nominated must serve all or any part of that term in compulsory detention. Power to make such an order is conferred by s 24 and s 27, the construction of which is the subject of these proceedings. A mandate to make such an order is not to be found in either provision.

128 It has been held that the nomination of the limiting term sets out the boundaries of any period of detention ordered pursuant to s 27: R v Mailes [2004] NSWCCA 394; 62 NSWLR 181. That is in accordance with s 52(2)(a) of the Forensic Provisions Act, providing that the person ceases to be a forensic patient on the expiration of the limiting term.

(2) s 24:

after a limiting term has been nominated, the court must refer the person to the Tribunal for the purpose of assessment of his/her mental condition. Pending that assessment, the court may make such order as to custody as it considers appropriate.

129 At this stage of the proceedings, the charges have not been disposed of; the person has not been convicted. He or she remains subject to the criminal justice system. Accordingly, the orders available to the court under s 24(1)(b) include granting bail (with or without residential or other conditions), remanding in custody, or dispensing with bail. Again, there is no warrant for reading into s 24 a presumption that the person must be compulsorily detained.

(3) s 51:

s 51(1)(a) envisages unconditional release of a forensic patient in accordance with an order of a court; s 51(1)(b) envisages conditional release of a forensic patient in accordance with an order of a court. Unless either s 24 or s 27 admits of such an order (or both do), the Forensic Provisions Act confers no power on a court to make an order for unconditional or conditional release. I appreciate that Basten JA considers that following an appeal to the Supreme Court under s 77A, a relevant order may be made such as to come within s 51(1)(a). With respect, I find it difficult to accept that such an order is within the contemplation of s 51. It appears to me to give a strained construction to s 51(1). Section 77A permits appeals by leave to the Supreme Court from any determination of the Tribunal. It does not permit appeals from orders of a court. Sub-sections (4) and (6) of s 77A permit, in the particular cases specified, appeals to the Court of Appeal with respect to determination of the Tribunal as to the release of a person. Throughout Pt 2 and Pt 5 of the Forensic Provisions Act, "court" is used to refer to either the District Court or the Supreme Court, being the court in which the criminal proceedings against the person accused are commenced and the court in which the functions spelled out in Pt 2 are performed. I cannot accept that an "order of a court" in s 51(1) was intended to refer only to an order of the Supreme Court or the Court of Appeal following a s 77A appeal, and not to an order of a court under Pt 2.

(4) s 47:

s 47 authorises the Tribunal, after reviewing the case of a forensic patient, to make an order as to the patient's "continued detention" or release. Its power to make an order for release is circumscribed by sub-s (2) of s 47 and by s 43. More importantly, the Tribunal is not, even then, given power to make an order for detention. Its power is to order that detention ordered by a court be continued.

130 A comparison of s 17 and s 27 does not support the thesis that "may" is used where the relevant provision provides for a choice of options, of which at least one must be made. Section 17(3)(a) provides that where the Tribunal has made a determination of mental illness or relevant mental condition, the court may order detention in a mental health facility. If that sub-paragraph provides for a choice, it is only between detention or no detention. Section 17(3)(b) provides that where the Tribunal's determination is that the person is not suffering from mental illness or a relevant mental condition, it may order detention in a place other than a mental health facility. Again, the only choices are between detention and no detention.

131 At first glance, s 27 appears to be in identical terms to s 17. But it is not. In s 27, unlike s 17, the word "may" appears in the chapeau to the section. It is this that gives the aura of a choice of two places of detention. It is probably the case that the drafter intended to replicate s 17. But even if that is not so, no choice is given. Section 27(a) and s 27(b) declare the form of detention depending upon the determination of the Tribunal as to the person's mental status. Section 27(a) dictates the form of detention available to a person found to be suffering from a mental illness or relevant mental condition; s 27(b) dictates the form of detention of a person not found to be suffering from either condition. Sections 27(a) and 27(b) are mutually exclusive, dependent upon the determination of the Tribunal as to the person's mental state. If the Director's contention is correct, that leaves no scope for choice. If the word "may" implies a choice, it is between detention and no detention.

132 From the analysis of the functions of the court and the Tribunal above, it can be seen that the tasks allocated to the court are, in their essence, traditionally judicial functions - conducting an inquiry into fitness to be tried, determining fitness or unfitness, granting bail and making other consequential orders, deciding whether a sentence of imprisonment would have been imposed upon a person fit to be tried in normal criminal proceedings, nominating a limiting term, imposing any other penalty. In particular, the power to make orders with respect to detention (s 17(3), s 24, s 27) is a quintessentially judicial function. The tasks allocated to the Tribunal are of the specialist nature one would expect of a specialist Tribunal whose members include psychiatrists. They are to make an assessment of the likely future fitness of the person, the mental health status of the person, and, after a detention order has been made by the court under s 17 or s 27 - but only after such an order has been made - to keep the forensic patient under regular periodic review, with a circumscribed power to release (s 45). Until an order has been made under s 17(3)(a) or (b), the Tribunal has no power to determine the custody of a person accused, or of a forensic patient. Until the point of a s 17 order (if one is made) the custodial position of the person is in the hands of the court. Until that point, the role of the Tribunal is, essentially, to keep the court informed of the mental health status of the person.

133 A number of other provisions of the Forensic Provisions Act are of particular interest. Section 29 proceeds on the basis that the Tribunal has notified the court that it is of the opinion that a person who has been found (by a court) to be unfit to be tried has become fit to be tried. Notwithstanding such a finding by the Tribunal, s 29 requires the court, unless the Director advises that he does not intend to take further proceedings, to hold a further inquiry as to the person's fitness. That makes it plain that, ultimately, the question of fitness is one for judicial determination.

134 The construction of s 24 and s 27 for which the Director contends would have the consequence that, once a limiting term has been nominated, in the sense discussed above, all power with respect to the person's custody would move from the hands of a judicial body to an administrative body. In making an order under s 17 or s 27 a court would be no more than a rubber stamp. That is not, in my opinion, in accordance with the division of functions, judicial and specialist administrative, set out at length above. Making an order for detention is a judicial function to be performed judicially. To require an order to be made automatically following upon an assessment of a hypothetical circumstances is to deny the judicial aspect of the function.

135 On the contention of the Director, the nomination of a limiting term would result in automatic detention, in full-time custody, with no discretion in the judge, no matter what the circumstances, to make a non-custodial order of the kind mentioned above. Neither of those options is available to a court exercising power under s 27.

136 It is also significant that the Tribunal must not order the release of forensic patient unless it is constituted by at least one member who is the holder, or former holder, of judicial office (s 73(3)). This is a further indication that issues of detention and release are judicial, or quasi-judicial, questions. The same restriction does not apply to other functions of the Tribunal.

137 Senior counsel who appeared for the Director accepted that the construction of s 24 and s 27 for which she contends admits of potential anomalies. Two examples were raised during the course of argument, and remain valid.

138 On the Director's construction, pursuant to s 24, even a person in respect of whom a limiting term had been nominated, but which had expired, would be required to be detained. In order to deal with this anomaly, Basten JA suggests that s 24 ought to be read by adding after the words "limiting term", the words "that is still current" or reading into s 24 a premise that there was in existence a current limiting term. I respectfully disagree. In my opinion there is no warrant for reading additional words into s 24. Moreover, that cannot solve the s 27 problem.

139 Section 27 provides only for detention in either a mental health facility, or "a place other than a mental health facility". It has commonly been assumed that "a place other than a mental health facility" means, or at least includes, a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999. Whether that assumption is correct or not does not arise for determination in this application.

140 The example given in argument was of a very serious crime, which would have called for a lengthy term of imprisonment, the perpetrator of which subsequently suffered serious brain damage and was in satisfactory residential or home care. On the Director's construction, that person would have to be detained either in a mental health facility, or some other place, presumably a correctional centre. "Detained" is not defined, but implies coercion of the kind supported by law enforcement authorities. Compulsory "detention" is not ordinarily amenable to non-custodial residential facilities.

141 I have concluded that neither s 24 nor s 27 ought to read as restrictively as is proposed on behalf of the Director. The tenor, and the context, of the Forensic Provisions Act do not exclude a discretion in the court to decline to make a detention order in appropriate circumstances.

142 The construction I propose has the advantage that it is not necessary to read into s 24 or s 27 any additional words, or to imply a premise on which the sections are based.

143 It may be accepted, as Robison DCJ accepted, that the occasions on which such a discretion would be exercised would be rare. That is not to deny its existence.

144 It follows that the order I propose is that the summons be dismissed.

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Amendments

25 February 2014 - Amending Macfarlan J to Macfarlan JA
Amended paragraphs: Headnote

Decision last updated: 25 February 2014