Supreme Court Judge Highly Critical of Incarceration of Mentally Ill in Prison

R v White [2007] VSC 142 (7 May 2007)

The incarceration in prison of a person with a severe psychiatric illness may amount to a violation of the Victorian Charter of Human Rights, according to Bongiorno J of the Supreme Court of Victoria. Peter White was charged with murder but found not guilty on the grounds of mental impairment on 5 March 2007. Following Mr White’s trial it was intended that he be treated in a secure facility, the Thomas Embling Hospital, but he was instead remanded in prison due to a lack of available beds. According to Bongiorno J, unfortunately that means that Mr White will continue to be confined in a prison where he ought not to be. It is not appropriate for people who have been found not guilty on the ground of mental impairment to be imprisoned. He has no moral or legal culpability in respect of Mr Hatton’s death. He is ill and should be treated as such. It is not insignificant that his continued incarceration in a prison would appear to be contrary to the spirit, if not the letter of the Charter of Human Rights and Responsibilities. Justice Bongiorno went on to say that ‘this state of affairs is unsatisfactory and ought to be looked to by the executive as a matter of some urgency. It is not the first time this situation has arisen and it ought to be remedied as soon as possible.’ Given the lack of beds, Bongiorno J stated that he had ‘no alternative but to continue Mr White's incarceration in a prison until a bed becomes available at Thomas Embling’. His Honour went on to say, however, that if this did not occur within a ‘reasonable time the matter will be listed again when consideration can be given to what remedy is available to Mr White to relieve him of his present unfortunate situation.’ The HRLRC considers that Mr White’s continued detention in a prison raises serious issues under the Victorian Charter, including in relation to the right to freedom from cruel treatment (s 10), the right to liberty and security and freedom from arbitrary detention (s 21) and the right to humane treatment when deprived of liberty (s 22). There is a clear body of jurisprudence to the effect that lack of access to adequate health care in detention may violate these rights and that a government will not be excused from what are otherwise breaches in the prison context ‘simply by pointing to a lack of resources that are provided by other arms of government’ from the UN Human Rights Committee (see, eg, Mukong v Cameroon, UN Doc CCPR/C35/D/265/1987), the European Court of Human Rights (see, eg, Keenan v United Kingdom (2001) 33 EHRR 913; Price v United Kingdom (2001) 34 EHRR 1285; McGlinchey v United Kingdom (2003) 37 EHRR 821) and the UK courts under the Human Rights Act 1998 (see, eg, (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770). The full text of the decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/142.html. Phil Lynch is Director of the Human Rights Law Resource Centre

Detailed case note.

The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/142.html.