TAS v DIRECTOR OF PUBLIC PROSECUTIONS [1996] NSWCA 515

TAS v DIRECTOR OF PUBLIC PROSECUTIONS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY ACJ 5 September 1996

[1996] NSWCA 515

Mahoney ACJ. This matter is a summons seeking prerogative relief in relation to an order made by his Honour Mr Justice Blanch on 30 July 1996 whereby he directed that the applicant, Mr Ali Tas, be taken to and detained in a hospital in terms of the Mental Health (Criminal Procedure) Act 1990.

The matter comes before me because procedures have been followed which have led to the determination of a Mental Health Tribunal within terms of s 24(2)(b) of that Act: a copy of the determination and findings of that Tribunal have been placed before me.

The tribunal noted that Mr Ali Tas did not object to being detained in a hospital, and presumably made an order under s 24(2)(b) and notified the court under s 24(3).

When the matter came before his Honour Mr Justice Blanch his Honour made an order in terms of the order which has been placed beforeme that Mr Ali Tas be taken to and detained in a hospital. His Honour apparently exercised the jurisdiction under s 27 of the Act.

The contention is that Mr Ali Tas was not given notice of the application made to the judge for that order, or which led to that order, and that he was entitled to be given notice of the making of the application and would be entitled to oppose the making of the order.

It has been said from the bar table that the original orders made under the Act in February 1995 were made by his Honour Judge Saunders, a judge of the District Court, but his Honour has since retired and that matter, in due course, came before his Honour Mr Justice Blanch in July 1996 to be dealt with consequent upon the retirement of Judge Saunders.

It has been said from the bar table — although it is not proved in evidence I did not doubt the correctness of it — that the matter was dealt with by Mr Justice Blanch as a matter in chambers and his Honour apparently took the matter to be a routine matter and the order to be made to be a beneficial order for Mr Ali Tas.

It would appear that Mr Ali Tas objects to being taken to hospital notwithstanding what is said in the terms of a document being the findings of the Tribunal on 27 July 1995. These matters are to be determined and the court will, in due course, need to determine whether, in the technical sense, there was procedural unfairness such as would warrant a relief to quash the order of 30 July 1996.

In the meantime it is sought to obtain a stay of the effect of the order pending the determination of that matter before this Court.

Mr Saidi, who appears for the Attorney General and at this stage is assisting the court — the category in which he will ultimately appear is to be determined in due course — has indicated, as far as he understands the matter — and his understanding at the moment I note to be limited — he sees no objection to the making of such order.

2 UNREPORTED JUDGMENTS

I will, therefore, make an order that, pending the determination of this matter or further order, the order made by Mr Justice Blanch on 30 July 1996 be stayed and not carried into effect.

The proceedings before this Court, as I understand it, have been listed for

5 hearing on 14 October 1996 and, if necessary, the continuation of this stay may be considered on that occasion.

Costs of today will be costs in the proceedings.

Orders accordingly.