Ms Joanne Darcy has a mild intellectual disability. In 1996, she was convicted of a minor criminal offence. She was 19 years old at the time, and the Magistrate hearing her criminal matter ordered that she attend at Kanangra, on the NSW mid-north coast, for psychological assessment.
Ms Darcy was subsequently detained at Kanangra for six and a half years, against her will and against the express wishes of her guardian, the Office of the Public Guardian. Nearly everyone involved in her care at the time considered that this was an inappropriate placement and that Ms Darcy should have been living in supported accommodation in the community. However, various government departments failed to agree on and fund such a placement.
Acting on behalf of Ms Darcy, PIAC lodged a claim of false imprisonment against the State of NSW in the District Court. The matter was heard in 2010. Judge Johnstone ruled that during her time at Morisset, Ms Darcy was not subjected to a ‘complete deprivation of her liberty’ and therefore had not made out her claim for unlawful imprisonment.
Ms Darcy appealed from the decision of Judge Johnstone to the Court of Appeal. The appeal was heard in December 2011. The Court of Appeal accepted that Ms Darcy had been detained at Kanangra, but determined that the detention was lawful because the Office of the Public Guardian had ‘tacitly consented’ to it.
The NSW Court of Appeal noted that the Public Guardian had stated in its correspondence with the Department of Community Services and others that it ‘did not consent’ to Ms Darcy staying at Kanangra. However, the Court reasoned that the Public Guardian’s conduct amounted to ‘tacit consent’, or an ‘acceptance of the residential status quo’, because it never demanded her release.
PIAC sought special leave to appeal to the High Court on behalf of Ms Darcy, arguing that there had been no express determination by the Public Guardian regarding Ms Darcy’s detention and that tacit consent should not be construed as a determination. The High Court, however, declined to grant leave to appeal, bringing Ms Darcy’s fight for justice to an end.
Ms Darcy now lives in supported accommodation in the community. PIAC is very grateful to Dr Chris Birch SC and Kellie Edwards, who were the counsel representing Ms Darcy.
District Court and NSW Supreme Court of Appeal decisions
High Court special leave transcript (includes decision)