Kelly v Saadat-Talab

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.