Wedge v Commissioner of Corrective Services & Ors [2006] NSWSC 998

Wedge v Commissioner of Corrective Services & Ors [2006] NSWSC 998

The plaintiff's detention still derived from the commitment warrants and the unrevoked parole orders made by the sentencing court. The orders under ss97 and 100A of the Mental Health Act 1990 were administrative steps that transferred and maintained him in a hospital but did not change the basis of his detention or override the parole orders. Until the s86 process had occurred, by Tribunal review and recommendation and any Ministerial order, the Mental Health Act procedures did not make his release a matter for the Minister rather than the existing parole orders. As the non-parole period had expired and the parole orders had not been revoked, the plaintiff was entitled to be released.

Jurisdiction
Australia
Judgment Date
26 September 2006
Procedural Posture
Summons Seeking a Declaration and Relief in the Nature of a Writ of Habeas Corpus / Judgment After Hearing on the Urgent Release Issue; Other Relief Not Determined
Outcome
The plaintiff is entitled to release.
Legal Topics
['habeas Corpus' 'parole Order' 'forensic Patient' 'transfer From Prison to Hospital' 'mental Health Review Tribunal' 'non Parole Period']
['criminal Law' 'prison Administration' 'mental Health Law'] ['habeas Corpus' 'parole Order' 'forensic Patient' 'transfer From Prison to Hospital' 'mental Health Review Tribunal' 'non Parole Period']

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Procedural Posture

Summons Seeking a Declaration and Relief in the Nature of a Writ of Habeas Corpus / Judgment After Hearing on the Urgent Release Issue; Other Relief Not Determined

Legal Issues

  1. 1 ['Whether the plaintiff ceased to be a forensic patient when his non-parole period expired and the parole orders came into effect.' 'Whether administrative steps under ss97 and 100A of the Mental Health Act 1990 were sufficient to override unrevoked parole orders made by the sentencing court.' 'Whether the plaintiff was entitled to release before any review and recommendation by the Mental Health Review Tribunal and any order by the Minister under s86 of the Mental Health Act 1990.']

Ratio Decidendi

The plaintiff's detention still derived from the commitment warrants and the unrevoked parole orders made by the sentencing court. The orders under ss97 and 100A of the Mental Health Act 1990 were administrative steps that transferred and maintained him in a hospital but did not change the basis of his detention or override the parole orders. Until the s86 process had occurred, by Tribunal review and recommendation and any Ministerial order, the Mental Health Act procedures did not make his release a matter for the Minister rather than the existing parole orders. As the non-parole period had expired and the parole orders had not been revoked, the plaintiff was entitled to be released.

Court Disposition

The plaintiff is entitled to release.

Orders

  • ['The plaintiff is entitled to be released.' 'The parties were invited to frame an appropriate declaration and, if necessary, any consequential order.']