Reported Decision: 72 NSWLR 305
New South Wales
Court of Appeal
CITATION: KELLY v SAADAT - TALAB [2008] NSWCA 213 HEARING DATE(S): 30 September 2008
JUDGMENT DATE:
6 November 2008JUDGMENT OF: Allsop P at 1; Ipp JA at 31; Handley AJA at 32 DECISION: (1) Leave to appeal granted;
(2) Notice of appeal to be filed within 10 days;
(3) Appeal allowed;
(4) Judgment of the Common Law Division is set aside and in lieu thereof there is substituted an order that the respondent’s appeal to the Common Law Division be dismissed;
(5) The respondent is to pay the appellant's costs of the proceedings in this Court, and in the Common Law Division, but is to have a certificate under the Suitors Fund Act in respect of the costs in this Court.CATCHWORDS: CRIMINAL LAW (C’wlth) – Sentencing – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act. - FEDERAL JURISDICTION – Criminal law – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act. LEGISLATION CITED: Crimes Act 1914 (Cth
Crimes Act 1990 (NSW)
Crimes Legislation Amendment Act (No. 2) 1989
Criminal Code Act 1995 (Cth)
Judiciary Act 1903 (Cth)
Mental Health (Criminal Procedure) Act 1990 (NSW)
Mental Health (Criminal Procedure) Amendment Act 2005 NSW (No. 109)
Mental Health Act 1958 (NSW)
Mental Health Services Act 1974 (Qld)
Migration Act 1958 (Cth)CATEGORY: Principal judgment CASES CITED: Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38; 223 CLR 251
Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1
Austral Pacific Group Limited (In liquidation) v Airservices Australia [2000] HCA 39; 203 CLR 136
Australasian Memory Pty Limited v Brien [2000] HCA 30; 200 CLR 270
Australian Securities and Investments Commission v DB Management Pty Limited [2000] HCA 7; 199 CLR 321
Balog v ICAC [1990] HCA 28; 169 CLR 625
Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268
David Grant & Co Pty Limited v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265
Dossett v TKJ Nominees Pty Limited [2003] HCA 69; 218 CLR 1
Downey v Trans Waste Pty Ltd [1991] HCA 11; 172 CLR 167
Garnett v Bradley (1878) 3 App Cas 944
Kartinyeri v Commonwealth [1998] HCA 52; 195 CLR 337
Leon Fink Holdings Pty Limited v Australian Film Commission [1979] HCA 26; 141 CLR 672
Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
Putland v The Queen [2004] HCA 8; 218 CLR 174
R v Wallis [1949]…
Continue reading Kelly v Saadat-Talab
Sign in free to access the full text
Details
- AGLC
- Kelly v Saadat-Talab [2008] NSWCA 213
- Case
- [2008] NSWCA 213
- Decision Date
CaseChat Overview and Summary
The appellant, the Commonwealth Director of Public Prosecutions, appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of the Common Law Division. The dispute concerned the sentencing of the respondent, Mr Saadat-Talab, who had been convicted of federal offences. The core of the disagreement lay in whether a New South Wales law, which allowed for an offender to be dealt with otherwise than in accordance with law due to mental illness, could be applied to a federal offender.
The primary legal issue before the Court of Appeal was whether section 68 of the *Judiciary Act 1903* (Cth) operated to incorporate and apply the provisions of the *Crimes (Mental Health Dispositions) Act 1997* (NSW) to the sentencing of a person convicted of federal offences in New South Wales. Specifically, the court had to determine if the New South Wales Act, which provided for a disposition other than a conviction and sentence in certain circumstances of mental illness, could be applied as a surrogate federal law.
The Court of Appeal reasoned that section 68 of the *Judiciary Act* was intended to apply the criminal law of the State in which the federal offence was committed, including the procedural and substantive aspects of sentencing. However, the court found that the *Crimes (Mental Health Dispositions) Act* (NSW) was not a law relating to the "punishment of offences" in the sense contemplated by section 68. Instead, it was a law that permitted a court to avoid imposing a punishment altogether in certain circumstances of mental illness, thereby altering the fundamental nature of the criminal process. The court concluded that the New South Wales Act could not be applied as a surrogate federal law in this context.
Consequently, the Court of Appeal granted leave to appeal, ordered that the notice of appeal be filed within 10 days, and allowed the appeal. The judgment of the Common Law Division was set aside, and in its place, an order was substituted dismissing the respondent's appeal to the Common Law Division. The respondent was ordered to pay the appellant's costs in both the Court of Appeal and the Common Law Division, with a certificate granted under the *Suitors Fund Act* in respect of the costs in the Court of Appeal.
The primary legal issue before the Court of Appeal was whether section 68 of the *Judiciary Act 1903* (Cth) operated to incorporate and apply the provisions of the *Crimes (Mental Health Dispositions) Act 1997* (NSW) to the sentencing of a person convicted of federal offences in New South Wales. Specifically, the court had to determine if the New South Wales Act, which provided for a disposition other than a conviction and sentence in certain circumstances of mental illness, could be applied as a surrogate federal law.
The Court of Appeal reasoned that section 68 of the *Judiciary Act* was intended to apply the criminal law of the State in which the federal offence was committed, including the procedural and substantive aspects of sentencing. However, the court found that the *Crimes (Mental Health Dispositions) Act* (NSW) was not a law relating to the "punishment of offences" in the sense contemplated by section 68. Instead, it was a law that permitted a court to avoid imposing a punishment altogether in certain circumstances of mental illness, thereby altering the fundamental nature of the criminal process. The court concluded that the New South Wales Act could not be applied as a surrogate federal law in this context.
Consequently, the Court of Appeal granted leave to appeal, ordered that the notice of appeal be filed within 10 days, and allowed the appeal. The judgment of the Common Law Division was set aside, and in its place, an order was substituted dismissing the respondent's appeal to the Common Law Division. The respondent was ordered to pay the appellant's costs in both the Court of Appeal and the Common Law Division, with a certificate granted under the *Suitors Fund Act* in respect of the costs in the Court of Appeal.
Orders
Orders of the court
(1) Leave to appeal granted; (2) Notice of appeal to be filed within 10 days; (3) Appeal allowed; (4) Judgment of the Common Law Division is set aside and in lieu thereof there is substituted an order that the respondent's appeal to the Common Law Division be dismissed; (5) The respondent is to pay the appellant's costs of the proceedings in this Court, and in the Common Law Division, but is to have a certificate under the Suitors Fund Act in respect of the costs in this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.