Kesevarajah v The Queen

[1993] HCATrans 373

~

.

' ,

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M53 of 1993

B e t w e e n -

MUTHURAMA KESEVARAJAH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J GAUDRON J

Kesevarajah 1 9/12/93

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 12.36 PM

Copyright in the High Court of Australia

MR s.w. KAYE, QC:  May it please the Court, I appear with my

learned friend, MR D.M. SALEK, for the applicant.

(instructed by Paul B. Connor)

MR R.J.H. MAIDMENT:  May it please the Court, I appear with

my learned friend, MR D.J. LANE, for the

respondent. (instructed by M. Rozenes, QC, Director

of Public Prosecutions (Commonwealth))

DAWSON J:	Mr Kaye.
MR KAYE:	Could I provide to the Court materials including a

very short chronology, an extract of the Victorian

section and some four cases to which very brief

reference will be made in these submissions.

If the Court pleases, we submit that this

application raises some three issues, which are of

a nature as to attract special leave being granted

by this Court, those issues arising in relation to

the three questions are these: firstly, the jurisdictions in which the law prescribes that the jury, or a jury, and not the trial judge, shall

the question of the fitness of the accused man,

determine the inquiry as to the accused man's

fitness to plead; what is the proper definition and

demarcation of the role of the trial judge? We say

that issue arises in all - - -

GAUDRON J:	Why do they arise on appeal at all? There has been a trial, there has been a conviction. Is not
the question thereafter altogether different,
namely whether it can be said that there was a
fundamental defect, such that there was no trial at
all?
MR KAYE:	Precisely, Your Honour, and we say that there was

a fundamental defect at the commencement of the

Criminal Appeal misapprehended the role of the	trial, because the trial judge in the Court of	trial judge in relation to that issue and each
intruded very substantially into the role of the jury and took from the jury the role of the jury in
determining the issue. So effectively, I
respectfully submit that there was no proper trial
right from the outset. The second - - -

DAWSON J: But you are saying the point of public importance

is the definition of the trial judge's role?

MR KAYE: Precisely, Your Honour, and we say this arises in

relation to all six Australian States. It is a

role that has been entrusted to the jury at least

since the trial of Lunatic's Act in 1800. The

Victorian section indeed is virtually a replica of

Kesevarajah 2 9/12/93

section 2 of that Act. The other sections in the

interstate legislation are different, but still

repose the role in the role of the jury. The

slight exception is New South Wales which gives to

an accused man, under very strictly limited

circumstances, an election to have his fitness to be tried determined on inquiry by a judge and not

by the jury. We say that issue arose and

confronted the court at the commencement of this

trial and was not properly attended to.

GAUDRON J:	What was the defect at the beginning?
MR KAYE:	We say that basically what occurred at the

beginning was that the court went beyond

determining was there a serious issue and embarking

on that determination trespassed substantially, but

not wholly, into the province of the jury. In

essence there was the worst of two worlds; it got

itself into a limbo. We say that the facts threw
up a substantial issue that the court, in

endeavouring to resolve that issue, started to

embark on an inquiry, which is exclusively that of

the jury. Now the individual error that occurred

in this case was that that inquiry itself was

incomplete - - -

GAUDRON J: But was the error the holding that there was no

serious question to be tried?

MR KAYE:  Yes, Your Honour, but what produced that error was

an error of approach, that the court encroached

well beyond its fundamental role in identifying the

issue, it went about half-way along where a jury

would go, it pulled up short, it reconciled

conflicting reports of two psychiatrists on what

was mere speculation and said, well the issue has

dissolved itself. Now what we say is that, not

only did that produce in the individual facts of this case erroneous reasoning, because those two

conflicting reports could not be - - -

DAWSON J: Well, that is not quite the whole picture - it

may be the conclusion - but the conflict was

removed, to some extent, by an announcement by the

prosecutor, was it not?

MR KAYE: Well, we say yes, Your Honour; we would say that

announcement really points up the vice of what

occurred in this case. That announcement was based

on nothing more than speculation by Dr Arul, not

having had the opportunity to re-examine the
accused man before he made that pronouncement.

See, Dr Arul just some seven days prior to trial,

of course, had found that this is a man suffering

from a very acute psychosis, he was deluded and unfit to be tried. Dr Walton came to court and

Kesevarajah 3 9/12/93

said, "He is psychotic, he is delusional, but I

think he is fit to be tried", and without examining

Mr Kesevarajah, Dr Arul said, on the telephone,

"Well look, I will defer to Dr Walton; I will do so

on the basis that things may have changed. The man

has got a volatile condition, an unstable

condition". Now of itself, that pronouncement, we

say, was pure speculation, without re-examining

Kesevarajah and saying, "Well, he might have improved, but he is still unfit" or "He has

improved to the extent that I agree with

Dr Walton - - -

DAWSON J:  Who has the onus, if anyone, in this situation?

MR KAYE: Well, no one does apparently; there is conflicting

authority, but Justice Smith held there was

properly no onus; that what occurs before a jury is

an inquiry, and it is the very important role of

the jury to embark on that inquiry to ensure that

an accused man is fit to stand his trial. Now, the

courts have agitated the questions, both of onus of

proof and onus of persuasion, but - - -

DAWSON J:	The accused at this stage was unrepresented?
MR KAYE:	He was, yes, Your Honour.

TOOHEY J: But there are really two stages, are there not:

the question of onus, once the matter gets to the
jury, but there is a preliminary question as to how

it gets to the jury.

MR KAYE: Precisely, Your Honour, and we say that, given

that the lay entrusts to the jury the inquiry as to

whether a person is fit to be tried, that the

preliminary question is, is there an issue? Is

there a serious issue and not a fanciful issue?

TOOHEY J: But that must be an issue for the judge.

MR KAYE: Certainly, Your Honour.
TOOHEY J:	Now what triggers that off?
MR KAYE:	Any information that might come into the hands,

and might be properly put into the hands, of the

judge. In the adversarial system where each party

is represented, that may come from either side; in

this case it came from the prosecutor, announcing

to the court Dr Arul's report, which we say

reflected very bravely on the ability of this man

to stand his trial. And we say what really

occurred there was where the fundamental error in

the case occurred, because the court then heard

evidence from Dr Walton which contradicted that, he

then sought a reconciliation, and in doing so

Kesevarajah 4 9/12/93

really acted on .incomplete information and an

incomplete inquiry. And we say, as a matter of

logic, that cannot dissolve the issue; to dissolve

the issue, Dr Arul would have had to re-examine

Kesevarajah, would have had to state his reasons

had he changed his view and face questioning as to

just how volatile is this man. Now, once you get

to that stage you are really getting into the

province of the jury. Now, we recognize it is a

difficult question, but we say this case is really

a paradigm care of once the issue raises, it really
has to be put before a jury or you run the risk of

a type of error that occurred in this case of a

trial judge doing his best, but getting half-way

into a sort of limbo area where he is half informed

and makes a half-informed decision.

DAWSON J:  On whose behalf did Dr Walton examine the

accused?

MR KAYE:  I understand that the Crown had asked him to, in

light of what had been exposed by Dr Arul in his

report.

DAWSON J:  Dr Arul was the present psychiatrist, was he, or

a present psychiatrist?

MR KAYE:  Yes, he was a psychiatrist with the forensic

psychiatry unit, which I understand was the prison

psychiatrist.

DAWSON J:	So that it was initially raised by the Crown, the question, but then the Crown, on the basis of
Dr Walton's report, sought to take it no further?

MR KAYE:  Yes, Your Honour. And we say that the issue had

not been properly raised, could not be dissolved

other than on inquiry before a properly empaneled

jury. We say what really has happened in this case

is that the Court of Criminal Appeal accepted that

until the prosecutor announced Dr Arul's view from

the bar table, that there was a serious issue to be

tried in relation to be inquired into.

DAWSON J:	Dr Walton's views?
MR KAYE:	No, Dr Arul. Until the learned prosecutor stated

to -

DAWSON J:  Oh, it is the second view of Dr Arul, yes, I am

sorry.

MR KAYE: Yes,that there was a genuine issue, because there

was really a conflict between two psychiatrists and

it was a conflict really as to what was the result

of this man's psychosis; they were both in

agreement that the man was psychotic. Now we say,

Kesevarajah 9/12/93

as a matter of logic, the speculation from Dr Arul

cannot dissolve that issue; the issue in this
individual case must have continued and not be
unresolved until it was resolved before a jury. We

say that the vice of this case, and what is set in,

in this case, was this sort of half-baked, with

respect, inquiry, which went hal-fway, was

incomplete and based on speculation. And if this

practice were to become universal, and it is

certainly now sanctioned by our Full Court, that

one runs a risk of trial after trial where a trial

judge embarks half-way into the jury deliberation

and says, "Well, there is no longer an issue to be

tried, no longer an issue to be determined, and

shuts it off"·. But we say this is really a bad
precedent; it is a paradigm case of really a court

going too far and beyond what has to be a very

restricted bounds of its responsibility in this

issue.

TOOHEY J:  Mr Kaye, you put the matter in terms of two

conflicting medical opinions, at least initially,

but even on Dr Walton's report there was at least

the prognosis that the issue of fitness might

arise. The language was "in a few days time"; I am

not sure what is meant by that, but the question may not be answered simply by saying, well there

was a conflict of a medical opinion which was

resolved, however unsatisfactorily, by the Crown

prosecutor's remarks.

MR KAYE:  The difference between what Dr Arul had said on

23 January and what Dr Walton said he saw on

30 January could only really be resolved logically

by Dr Arul coming to the court and saying, "Yes,

this man, not only is he volatile, but he has

improved to the extent to which I now share

Dr Walton's view".

TOOHEY J: Well, maybe not; That is what I am putting to

you, that maybe it is not just a matter of one
medical practitioner against another.	Say that

Dr Arul had not examined the applicant at all and

there was Dr Walton's opinion that he was fit to

plead, but some issue as to fitness might arise

within a day or two and that itself might give rise

to an issue, I do not know.

MR KAYE:  Yes, Your Honour, I respectfully agree, because

what underlay that statement was a finding of a man
who was psychotic, which is, of course, a medical

term, and a man who is delusional, that very much

has the capacity to impact on the man's ability to
properly follow and understand what is going on

about him.

Kesevarajah 6 9/12/93

DAWSON J: But there is no conflict really, is there? If

Dr Arul had been called to give evidence, he	would
not have given it unless he examined the man
immediately before he gave it - - -

MR KAYE: Precisely, Your Honour.

DAWSON J:  - - - and he did not, so he said, "I defer to the

man who did examine him", before he gave evidence.

MR KAYE: Well, we say he deferred to him on a basis which

was speculative.	Now the speculation may very
well - - -

DAWSON J: But it is not speculative; he would have said,

"Before anyone can give evidence, they have to

examine the man. I have not; he has".

MR KAYE:  He said, "I examined him seven days prior and he

is in an acute psychotic state and delusional,

believing he was some god". He said - - -

DAWSON J:  But obviously he was not of the opinion that he

could not have changed on the basis of his

examination so as to become fit to plead in the

intervening time.

MR KAYE:  Yes, Your Honour; that was an acceptable

hypothesis, not the only hypothesis. It is quite

possible, for example, that things might have

changed - - -

GAUDRON J:  And the question was, not what the situation

was, but whether there was a serious question to be

tried.

MR KAYE: Precisely, Your Honour, and indeed, even if

Dr Arul came to court, examined Kesevarajah, and

said, "I agree now, he has improved", that does not

close off the issue; I respectfully agree.

GAUDRON J: But you would still have to go to the jury on

your submission.

MR KAYE:  Yes, Your Honour. By definition, a man with such

a psychosis would have to.

DAWSON J: But you would never know throughout the trial,

would you? You would have to have him examined

every day, on that basis. But I mean, it is

pointed out to me, the jury that tries the issue may take the length of trial into account. I am not sure that that is so. It is a question of

fitness to plead at any point of time, is it not?

MR KAYE:  Well yes, Your Honour, although impacting on that

has to be an ability to assist -

Kesevarajah	9/12/93
DAWSON J:	And really, what the jury here would be

considering is, fitness to plead.

MR KAYE:  Fitness to plead now, but taking into account the

fact that this man is wholly volatile and highly

unstable. You cannot just simply shine a light on

a moment and exclude everything that has preceded

it.

DAWSON J:  What is the issue that the jury would be

empaneled to try? Fitness to plead - that is

before the trial commences - or fitness to stand

trial?

MR KAYE:  The test which has been adopted in the court

really combines the two, Your Honour, and note that

they adopt the six Presser tests, the first two or
three of which go to his plea, his right of

challenge and his plea, with the residue go to his

ability to follow the evidence, instruct and make a

defence and put his case.

DAWSON J: Yes, but at the point of time at which they are

trying that issue or, as Justice Gaudron was

suggesting, throughout the trial? In other words,

he may be fit to do all of those things at the

moment, but we can foresee there is a possibility

or probability that he will not be able to maintain

that condition throughout the trial.	What do the
authorities say about that?

MR KAYE:  One could not get into a speculative position with

a jury, but where a man is highly volatile, such as

this man, we would say it would be a very highly

artificial inquiry just to shine a light on him

and, for example, if you took a man who is acutely

unstable - - -

TOOHEY J: It is not a jury question, is it, at that stage?

The trial has begun. Let us say counsel said,

"Look I just cannot get any instructions from my

client; he is incapable of communicating with me".

Does the judge say, assuming he is satisfied that

that is the position, "Well I better discharge the

jury and we will see what happens after that".

MR KAYE:	The issue then would be put before the jury.
TOOHEY J:	What issue?
MR KAYE:	The issue as to the accused man's fitness to

continue his trial. It is an ongoing issue and

under all - - -

GAUDRON J: But it is a separate jury that is empaneled

usually, is it not?

Kesevarajah	9/12/93
MR KAYE:	The authorities seem to suggest, Your Honour, or

the balance of them, that indeed, once the trial is underway, you put it to the trial jury, and we say,

in fact, that is what should have occurred at the

second stage of the trial when this issue re-

emerged on 27 May at the end of the trial. We say

that perhaps one has to take a slightly pragmatic

approach, but where a man is acutely psychotic and

unstable, the instability is such that you can

simply freeze five minutes in time and say, "He is

now here and now fit to plead, fit to make his

challenge, he might slip out of this state in five

minutes time". It is clearly an issue, there and

then, as to whether he is fit, not just for that

moment, but beyond. These are issues, Your Honour,

that -

DAWSON J: Yes, but it is a special jury which is empaneled

to try the question of fitness to plead, is it not?

MR KAYE:  Yes, Your Honour, at the commencement of the

trial.

DAWSON J: But if at any time during the trial it appears

that the person is insane - to use the words of the

statute - then the jury which is trying innocent or

guilt tries that issue, does it not?

MR KAYE:  Yes, Your Honour.

TOOHEY J: Is that clear, Mr Kaye, either in terms of the

statute or authority?

MR KAYE:  It seems to be clear by the statute and also, from

recollection, Justice Smith in Presser's case

prescribed that, or certainly stated that. He

empaneled a special jury, because that was at the commencement of the trial, but he remarked in his

reasons that if the issue arose in running, then it

goes to the jury, and from - - -

TOOHEY J:  You can see all sorts of problems if it did.

After all, if the accused is then called to give evidence bearing on his capacity, he could say all

sorts of things, when the intention is that perhaps

he not give evidence at all.

MR KAYE:  Indeed, Your Honour, and in the context of a trial

of this type, it just really accentuated the need
for the trial judge to take a great deal of care
before discounting it as being a serious issue at

that stage, because, of course co-accused could

have been affected by all this in running, and it

really brought into very sharp relief the need not
simply to resolve this issue by what is put

speculatively from the bar table, but on proper

analysis.

Kesevarajah 9 9/12/93

TOOHEY J:  Can you just five us the reference to the

statute; the section that you say deals with the

position where fitness arises after the trial has

begun?

MR KAYE:  The Victorian section we have extracted and had

typed and handed to Your Honours is section 393:

If any person indicted or presented for any

indictable offence is insane and is upon

arraignment so found by a jury lawfully

empaneled for that purpose so that such person
cannot be tried upon such indictment or

presentment, or if upon the trial of any
person so indicted or presented against such person appears to the jury charged with such

indictment or presentment to be insane, it

shall be lawful for the Court before whom any

such person is brought to be arraigned or

tried as aforesaid to direct such findings to

be recorded;

So that the latter part of that requirement seems

to repose the inquiry in the hands of the jury

before whom he is arraigned.	Now, we respectfully
agree that - - -

DAWSON J:  So that the scheme of things is, you decide

fitness to plead, and if he is fit to plead then

you commence the trial and if at any point during

the trial, or if at various points during the

trial, from my experience, you find the man is

looking shaky, the jury has to pronounce on that

issue, if it is a serious issue.

MR KAYE:  Yes, Your Honour. Indeed, that is what the

Full Court said in Khallouf's case should have

happened. The issue, in fact, that case had some

parallel to this: it arose at the beginning and by

virtue of a jury question, when the jury retired to

consider its verdict, it asked if Khallouf, because	he was unrepresented, had a sufficient mental state
to be in court, or something like that, and the
Court of Criminal Appeal held there, it having been raised at that stage, the matter should have been
put to the jury.

TOOHEY J: But your argument really does not turn on that

second aspect, does it?

MR KAYE:  Not the first argument, no. We say the issue

arose in this case twice. It arose at the
beginning and arose right at the tail end of the

case towards the end of the trial judge's charge,

where we say the learned trial judge simply

dismissed the issue as being irrelevant, and his colourful language was, "It was all over bar the

Kesevarajah 10 9/12/93

shouting" and we say that that was a serious error

that did not stand corrected by the Court of

Criminal Appeal. So that there was an initial

error and really the discussion before this Court
highlights, we would respectfully submit, the

acuity of this initial error because, in a

long-running trial where a man is very volatile,

the last thing you would want to be doing is

putting to a jury, in running, this type of issue

and it required careful scrutiny, and if in doubt

it go to a jury at the outset.

DAWSON J:  What the trial judge had, at the first point that

you are speaking about, was simply no one was

saying that he was not fit to plead. Indeed, one

psychiatrist, the one who gave evidence, was saying

that he was fit to plead.

MR KAYE: Well, we say as to that two things: that it is

for the court to assess whether he is fit to plead;

it is for the trial judge to determine, is there an

issue?

DAWSON J: But how did an issue arise when no one is saying

he is not fit to plead, and one psychiatrist, the

one who is called, saying he is.

MR KAYE: Well, we say firstly, the wrong question was asked

to the psychiatrist, just as in Khallouf's case,

the Full Court said, "The proper question which

should have been asked of Dr Walton was not, "Is he

fit to plead?", but "Is there an issue? Is there a

question, because of his psychosis?" But we say

that what occurred in this case cannot be divorced

from the context of Dr Arul's report where a mere

week before the man is acutely psychotic, so

psychotic he is delusional and he is unfit. And

that raises a question: you have two views, albeit

at different points of time, but not sharply

divorced in time.

DAWSON J:  But Dr Arul's view was subject to change and he

did change - - -

MR KAYE:  Well, he did not do it in an informed way,

Your Honour. The only informed way he could have

done it was on re-examination and it was based on

speculation. Now, very many psychiatrists can

diagnose psychosis in the same person and come to

different views as to whether they ought to stand

their trial or not.

DAWSON J:  Well it was not exactly based on speculation. I

do not know exactly what he said, but it seems to

have been, "Well I would accept that his condition can change for the better in seven days and I have not examined him - I have not examined him again -

Kesevarajah 11 9/12/93

therefore at this point I am not prepared to say, particularly in the face of Dr Walton's evidence,

that he is unfit to plead.

MR KAYE:  He said, "Things may have changed and if Dr Walton

has found he is fit to plead, then so be it."	Now
we say that is speculative; that cannot -

GAUDRON J: But, in any event, you say that is the wrong

question - - -

MR KAYE: Precisely, Your Honour.

GAUDRON J:  - - - because the question for the psychiatrist

is not whether he is fit to plead but, as you say,

whether there was a question to be tried as to his

fitness; whether there is a possibility that he may

not -

MR KAYE:  Yes, Your Honour, because that issue is left to

the jury and you cannot simply seize it off the

jury by resolving these reports and embarking in a

mini inquiry which goes half-way to where the jury

decide.

DAWSON J: Well, perhaps we can develop that at 2 o'clock.

The Court will adjourn until 2 o'clock.

MR KAYE:  Thank you, Your Honour.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

DAWSON J: Yes, Mr Kaye?

MR KAYE:  Thank you, Your Honours. In a nutshell, what we

are really saying in relation to this first issue

is that on 30 January Mr Keseverajah presented

himself for his trial before the trial judge. The

trial judge had before him a man who had been
diagnosed as psychotic and delusional, who was

unstable, who seven days prior had been diagnosed

as being too unfit to stand his trial and in all

those circumstances His Honour had before him a man

unrepresented. Now, what we say, in essence, is

that that, of itself, had to raise a sufficient

issue which required at law the judge to put it
before a jury, and we say any finding to the
contrary arose out of a misconception of the

content of the role of the trial judge by both the

Kesevarajah 12 9/12/93

trial judge and the Court of Criminal Appeal and a

flawed approach to that role.

GAUDRON J: Could I deflect you there? It is clear, is it,

that the State Act applies?

MR KAYE:  The question arose, Your Honour, before trial. We

would say that, as a matter of procedure,

section 68 of the Judiciary Act would invoke it.

It was accepted as applying by the learned trial

judge and, although I did not argue the matter on

appeal, I am instructed and understand that that

same proposition was accepted before the Court of

Criminal Appeal.

TOOHEY J: But do you mean applying and overriding federal

provisions?

MR KAYE:  Not overriding, but being the procedural section

that applied in a trial that was heard before the

Victorian Supreme Court. Just going to section 68

of the Judiciary Act - - -

GAUDRON J:  You see, if you look at the Crimes Act -

Commonwealth - you might think that it there set

out a code which dealt with all questions of

fitness to plead, no matter at what time they

arise, and leaves it to the judge alone to

determine.

MR KAYE:  The question then is, what is the court in those

circumstances, and we say it really leaves a vacuum

there, which would be determined by State

procedure. We say, in fact, if the Commonwealth

Crimes Act did apply, that the error still existed,

because the trial judge misapprehended what was a

issue which would have to be tried before him, and

he effectively cut the issue off at the pass,

without really having a full trial of the issue.

So a different, but just as substantial, wrong

would have occurred both at the outset of the trial

when it later emerged later in the trial, because

His Honour would have been saying to himself,

"There is no substantial issue, therefore I will

not bother trying it, will be that I do not impanel

a jury. I do not bother trying it myself".

So that, in a sense, if the assumption on which this case proceeded both before the trial

judge and the Court of Criminal Appeal were wrong,

it would not alter, we would say, the content of

our complaint, and that is that the trial judge and
the Court of Criminal Appeal really misapprehended

what type of issue has to raise itself before it is

properly resolved on a proper inquiry into a man's

fitness to be tried.

Kesevarajah 13 9/12/93

DAWSON J:	You say the Commonwealth Crimes Act only prescribes the consequences of the finding
MR KAYE:	Yes, Your Honour.

DAWSON J: Yes.

MR KAYE:  And it leaves a vacuum as to who makes the

determination as to insanity, as it is understood

for these purposes.

TOOHEY J: It does not leave a vacuum, does it? There might

be a question as to what is meant by the court.

MR KAYE:  Yes, Your Honour.

TOOHEY J: But that is not a vacuum.

MR KAYE:  Perhaps I used the word inadvisedly, Your Honour,

but - - -

TOOHEY J: Well, it may be of some importance. If it had

left a vacuum, then it would be easy to say that

the State provisions applied. If it does not, it

is a question then of asking what is meant by the

court.

MR KAYE: It does not make specific provision. It uses the

court in a general sense and we would say,

therefore, it would not be inconsistent with the
application of stay procedure by virtue of

section 68.

GAUDRON J: Well, except this, and perhaps nothing turns on

it, but the question that is raised under the

Commonwealth Crimes Act is, fitness to be tried,

not fitness to plead, and that seems to embrace a

somewhat larger consideration than might be taken

if you just concentrated on the notion of fitness

to plead.

MR KAYE: That may be so, Your Honour, although fitness to

plead at common law and under the State Act has,
perhaps whilst not being interpreted as widely as

that, goes beyond - - -

GAUDRON J:  But it may be that you do not get to what seems

to be involved in your Victorian Act, where you

have to have a question from day to day, or you may

have a question from day to day and time to time.

MR KAYE:  One would think, though, that even under the

Commonwealth Crimes Act, that if the decision that was made at the beginning of a trial, properly

made, that a man was fit to be tried, if -

GAUDRON J: That would cover the whole proceedings.

Kesevarajah 14 9/12/93

MR KAYE:  But if he, say., two weeks into his trial was

genuinely insane, yes, you would have to be retried

by the judge. The judge could not simply rest

himself on what had preceded and say, "Well, I

found this man fit to be tried, true it is he is

now totally insane, and I can continue to try him".

Fitness to plead has been used as a sort of a

catch-all phrase in Victorian law and in the common

law, but the tests which have been applied in

determining fitness to plead certainly extend

beyond the man's ability to handle himself up to

and including the time he actually makes his plea

to his arraignment and the last three tests of

Presser include an ability to follow the course of

proceedings and to give evidence and, if necessary,

and to make his defence.

So that there does seem to be involved not

simply a telescoping into one very short time-span,

at least some broader concept which we would say

would be sensible. It would be rather odd if a

court simply seized on 10 minutes of illumination

in a lifetime of darkness in a man's sanity. We

would think that would be a very odd interpretation

of the requirements in all the State statutes, not

just the Victorian statute. So that we would say

if the Commonwealth Act did apply, to answer

Your Honour's question, the issue would be stated a

little differently, but would come out the same, that is that the trial judge failed to apprehend
that there was an issue which should have been

properly tried; this time not in front of a jury,

but in front of himself.

GAUDRON J: Well, I would not have thought it was clear

whether it was in front of himself or in front of a

jury.

MR KAYE:	We would be saying that - - -
GAUDRON J: Well, I would not have thought it totally clear.

MR KAYE:  No, Your Honour. We would say section 68 would

apply and that seems to be the assumption that has
been adopted in this case, but even if that
assumption were wrong, and one had the very

difficult practical problem of having a presentment

involving a Commonwealth offence and a State

defence on the same presentment, and the court

really cut the Gordian knot and simply applied

section 68 and said, "That gives us the State

procedure", rather than applying two procedures at
the one time.

I think I have exhausted really what I desire to put in relation to what occurred at the

commencement at this trial. We say the issue

Kesevarajah 15 9/12/93

reraised itself near the end of the trial in events

that occurred between 25 and 27 May and came to a
head when the matters were actually brought to

His Honour's attention by the learned Crown

prosecutor on the 27th. Those matters, of course,

arise in the context of what we say is the warning

Dr Walton had given to the trial judge right at the

outset of the case, that is that this is a man who

is unstable and might not last the whole course of

the trial.	The issues reraise themselves up to the
27th.	The Court will recall that on 25 May the

accused man's counsel, Mr Bey, who was back in the
proceedings at that time, said he was having

trouble with Keseverajah; Dr Walton was examining

him, he was getting treatment and he had very

unusual views about how the case should proceed,

that is Keseverajah had those unusual views.	And,
on that day, Keseverajah sacked his counsel.

The next day counsel for co-accused sought to

bring to the attention of the trial judge a note

written by Keseverajah which, she said, that is the

counsel, impacted very much on what had been put the previous day. Now, the trial judge received the note, but did not read it; its contents are set

out in the appeal book and, unless highly

contrived, reflect very gravely on the man's

insanity - - -

DAWSON J:	Why did the trial judge not read it?
MR KAYE:	I really do not know, Your Honour.  There was a

debate as to whether he should and whether the

matter should be put to him by Keseverajah and

Mrs Morrish, who brought this matter to the judge's

attention, said, "Well, that is the whole point, he

cannot make that decision. He is not in a state to

make it", and we say the matter was really corning

to a head at that stage. The note itself, unless
highly contrived, was one which really did reflect

very gravely on the man's sanity, and it is set out

at page 97 of the appeal book.

Then the next day, which appears at page 50 of the appeal book, the learned prosecutor raised the

issue specifically before the trial judge and

stated that, at line 14, things had filtered

through to him:

which raised questions as to Mr. Keseverajah's

fitness at the moment, and there may be a

question as to whether he is fit to plead -

Now, what the prosecutor then did was submit to the

trial judge, "that issue is irrelevant now. It

does not need to be looked at because it is

Kesevarajah 16 9/12/93

irrelevant; we are at a late stage of the trial".

The learned prosecutor said at line 19:

It seems to me, Your Honour, that even

assuming that he is unfit to plead that there

is no reason why the trial should not

proceed -

and lower down the page he said:

he is not being deprived in any way of the

opportunity of presenting his defence - Now, we say the trial judge accepted that

submission at.the next page, page 51, at about

line 22, and said:

As to whether the court can proceed, I would

have though obviously it could, because at

this stage, I think as I said at an earlier

stage the matter would go to verdict even if

an accused were not here.	I mean the thing is
virtually over.
MR MAIDMENT: That's right.
HIS HONOUR:	Bar the shouting.

Now we say, in clear terms, what His Honour is

saying is, it does not even matter if he is not

present now, the matter can go to verdict.

TOOHEY J:  What happens when you are running an insanity

defence; these issues, capacity to communicate with

counsel; capacity to understand?

MR KAYE:  Those defences raise very specific issues on their

own - - -

TOOHEY J: Yes, I know, but - - -

MR KAYE:  - - - because in a way they raise a circular type

of defence where quite often you have the difficult

decision because your client tells you he does not

want it run and his instructions come from a man
who, himself, really lacks the capacity to give

those instruction. Now, in those - - -

TOOHEY J: But up until the time that the jury reaches a

verdict, the situation is not all that different

from the situation that exists here, is it?

MR KAYE:  It is different to this extent, that insanity

defence involves application of the M'Naughten

Rules, insanity for the purpose of fitness to be

tried and fitness to plead is a different type of

insanity and the courts have made that clear, that

Kesevarajah 17 9/12/93

a man can be insane under M'Naghten and yet fit to

stand his trial, because fitness to stand trial is

simply a minimal requirement of an ability to

understand what he is charged with; follow what he

is charged with; make his challenge to the jury;

follow the evidence and make his defence.

DAWSON J:  The point is that if a person is pleading

insanity as a defence, he nevertheless cannot be

tried unless he is fit to plead.

MR KAYE:  Yes, Your Honour, and whilst, no doubt, the two

impact on each other, there are different tests

that apply.

TOOHEY J: There must be a grey area somewhere and the

accused could move from one through to the other in

the course of the trial possibly.

MR KAYE: Without a doubt, Your Honour, and the court would

have to be very alert to that, but in this case

what the trial judge said at the end of the case
was, "Look, it is too late, it just does not matter

now. It is irrelevant". Now the Court of Criminal

Appeal, instead of tackling that issue and that

proposition, which we say is fundamentally wrong,

held at page 83 of the application book - it is

line 13 - that although the trial judge:

did not so hold in express terms, it is

implicit from his Honour's remarks that,

notwithstanding all the matters suggestive of

the contrary, he was of the opinion that there

was no real or substantial issue as to Rajah's

fitness to be tried at or about that time.

But we say there was no such matter implicit in

His Honour's remarks. We say it was crystal clear

from His Honour's remarks that he was adopting

quite a different approach, that the matter is irrelevant. We say that approach was wrong. We

say it was wrong as a matter of reality and wrong

as a matter of principle. As a matter of reality

there do potentially remain a number of matters in

which the accused man, either alone or by his

counsel may need to participate; matters such as

further exceptions, jury questions, request by

juries for transcripts of tapes, request by juries

to exhibits and, of course, matters which can arise
as to questions of discharge, either because they
cannot reach a decision or because something

untoward happens in relation to a jury.

A whole plethora of issues can arise at what

is a very critical part of a man's trial, at which

it would be wrong to say, "Well, it does not even

matter if he is not here any more." We also say,

Kesevarajah 18 9/12/93

as a matter of high principle, that the law for

centuries has set its face against this concept,

that where a man is on trial for a serious

indictable offence, it does not matter if he is
present or not, and we say when the authorities are

traced that they have time and again reiterated

that, right up to verdict and, indeed, in

Lawrence's case, which is the materials we have handed to the Court, up to and including sentence,

it is fundamental that he be entitled to be there;

that he be able to be there, understand and observe

what is happening to a matter which, of course,

vitally affects himself.

And we say any erosion of that principle, no

matter how late in a trial, is an erosion of a very

fundamental principle that strikes at the heart of

the criminal processes in this country. And we say

what really came from the mouth of the learned

trial judge, in this case, is a very grave

infraction of that very basis principle. We say

the content of the principle is such that, even

were an accused man in a position where his trial
was such that he could not be expected to

participate further and make any useful input,

he has an entitlement to be there and an

entitlement not just in body but also in mind,

because his physical presence would be irrelevant

if he was so deluded that he had no idea what was

going on.

We say that raises both a matter of error at

the end of this trial and a matter we say of
broader interest than beyond simply the narrow

confines of this case, and it throws up the content

of the requirement that, at all times a man should

be present, both mentally and physically, at his

trial. It is as if to say, well, at a very late

stage in the trial, if Keseverajah - they had
forgotten him at Pentridge and left him out in

prison; they said, "Oh, do not worry about that,

nothing left, all over bar the shouting".

DAWSON J:  I think we can appreciate that point, Mr Kaye.

MR KAYE:  Thank you. The only other matter is the question

of the proviso and we would say, in relation to the

first error, that it was a matter which really

occurred at the inception of the trial and, to

adopt what Your Honour Justice Gaudron said, it

would be no trial at all if conducted on a false

footing. At the end of that trial we say it is a

matter of substantial miscarriage, one which really

strikes at the essential requirements of justice.

If the Court pleases.

DAWSON J: Thank you, Mr Kaye. Mr Maidment?

Kesevarajah 19 9/12/93

MR MAIDMENT:  May it please the Court, it is our submission,

on behalf of the respondent, that the Full court

has not been shown to be in error on any of the

three bases upon which the judgment is attacked,

and alternatively, if it can be shown that there is

an issue as to whether the Full Court was in error,

that the Court should nevertheless refuse special

leave. It is our submission that the principles

which relate to fitness to plead, fitness to be

tried and the procedure to be adopted in either

instance, were well known by the learned trial

judge; were understood by the learned trial judge;

were well known by the Court of Criminal Appeal and

were understood by the Court of Criminal Appeal, as

whether the facts of this case have properly been applied to those legal principles.

they are indeed set out in the judgment of the

Now, in my respectful submission the

Full Court was entitled to conclude, as it did,

that the learned trial judge was entitled to reach

a conclusion at the outset of the trial that the

material before him did not disclose a real and

substantial issue as to fitness to plead. Now, it

may reasonably be said that the trial judge could,

and perhaps should, have insisted on the question

being put to Dr Walton, notwithstanding that you
are satisfied that each of the elements of the

Presser test are satisfied in respect of

Mr Keseverajah - - -

GAUDRON J: But did the trial judge not ask himself, in a

sense, the wrong question?

MR MAIDMENT: Well, with respect, if one looks at the full

course of the discussion and the evidence, as well

as what His Honour finally said, in my respectful

submission he has not. He has well understood that

there is a separate issue - there are two separate

issues; one is whether there is an issue to go to

the jury, and secondly, the issue that is for the	jury, and in my respectful submission that was made
very clear to him by reference to Khallouf and to Presser that there was - - -

GAUDRON J: Did His Honour understand that the question was

fitness to be tried, and not fitness to plead, in

this sense that one had to look to the probable

course of the trial, rather than just that

particular half hour or 20 minutes?

MR MAIDMENT: In my respectful submission, Your Honour, he

did, because each of the elements of the Presser

test - - -

Kesevarajah 20 9/12/93

GAUDRON J: Well then there was no evidence there on which

he could form a view, and the evidence suggested

that what was the position today might well not be

the position next week.

MR MAIDMENT:  In so far as the issue before him at the

beginning of the trial was fitness to plead, in my

respectful submission the question he had to

decide, was there an issue as at that time, as of

that moment, immediately prior to arraignment,

which should be left to the jury as to the

accused's fitness to plead. Now certainly one of

the elements, or some of the elements of the

Presser test which go to that question are directed

at the ability of the accused to instruct counsel,

to present his defence and so on and so forth.

GAUDRON J: But, you see, the material before the trial

judge was that he may well - the position today may

well not be the position next week. If you look to
the Commonwealth Crimes Act, it is at least

arguable and, I would have thought the preferable

view very likely is that you look to the probable

course of the trial and not to the position today.

MR MAIDMENT:  Yes, I follow the point Your Honour is

directing me to.

GAUDRON J: Because what is required under the Commonwealth

Crimes Act is, at a certain stage you project

forward for a further 12 months.

MR MAIDMENT: Certainly, yes. It is our submission - I have

had an opportunity to discuss this wit.h my learned

friend, Mr Kaye - that, as he submitted to the

Court, that the provisions of section 20A and 20AB,

and so on, are not triggered until the procedure

which has been long followed in this State for the

determination of that issue is exhausted.

GAUDRON J: But it may be a slightly different issue. It

may be that the procedures are to be adopted and

applied. But it may be that it is a slightly

different issue.

MR MAIDMENT:  Yes. Well, if I can put it this way,

Your Honour. It is our contention that the

question before His Honour was: is there a real and

substantial issue to go to the jury on the question

of fitness to plead? If he had determined - - -

GAUDRON J: Fitness to be tried.

MR MAIDMENT:  No, no. With respect, Your Honour, fitness to

plead, at the outset of the trial.

GAUDRON J:  Not under the Crimes Act.

Kesevarajah 21 9/12/93

MR MAIDMENT:  Your Honour, in my submission, one has to look

first of all at section 393 of the Victorian Act,

and it is not until one has determined first of all

that there is a real and substantial issue as to

fitness to plead to go to the jury, has then left

the matter to the jury and the jury has determined
that the accused is unfit to plead, that the court

then has to invoke the provisions of section 20B

and the succeeding section of the Crimes Act. Now,

I accept that those sections do not spell out the

procedure which must be adopted in order to trigger

those sections, but it is our submissions and, as I

understood my learned friend, his submission, that

section 68 of the Judiciary Act brings into play

the - - -

GAUDRON J:  The point I am trying to raise with you,

Mr Maidment, is that the fact that the evidence

before the trial judge was that although today the

accused could do all those things, but the position

might well change in a weeks time, left an issue

there. If you look at the issue, in terms of the

Crimes Act, as fitness to be tried and not fitness

to plead, it was still an issue there which could
not have been resolved by the evidence, as it then

stood.

MR MAIDMENT:  Yes. Well, I follow Your Honour's point, and

I simply submit that that is the wrong approach,

that the correct approach is the procedure that was

adopted, namely the two-tier approach. You look to

the procedure that is followed within the State as

to determine whether, first of all, there is an

issue to go to the jury, and secondly leave the
matter to the jury and if the jury determines that
the accused is unfit to plead, then the

Commonwealth provisions come into play in a case

where the accused is charged, amongst others, with

Commonwealth offences.

Now, if we are wrong about that, then we were

wrong about that at the trial and we were wrong

about that before the Full Court and each of the

courts below have got that wrong, but that is our

submission, although we do accept of course that

some of the elements in the Presser test do involve
the question of whether, at least in the immediate

future, the accused is capable of instructing

counsel and presenting his defence.

Now, if a person is fit, as at the beginning

of the trial then, in my submission, the question
of determining whether at some stage he might
become unfit is not one which a court should embark

on; is not required by the provisions of the Crimes

Act and it simply would place an unnecessary burden

on courts if they had to determine not just whether

Kesevarajah 22 9/12/93

a person was fit as at that time to plead, but

whether at some time in the future, because of past

mental illness and some fear that they may become
unfit in the future, that the court had then to

make a projection, as it were, over the next up to

12 months or, indeed, beyond the 12-month period

and, in my submission, read and construed

correctly, the approach that was adopted in

relation to the Crimes Act vis-a-vis section 393 of
the State Crimes Act and the State procedure was

the correct one.

DAWSON J:  When the accused became represented, which was a

day or so - it was immediately on the trial being

resumed, was it not?

MR MAIDMENT:  Yes. It was within a matter of days, and I

cannot now recall off the top of my head how many

days it was, but - - -

DAWSON J: But one would then have expected his own counsel

to have raised the question, if it arose, during
the trial, I suppose. Obviously his counsel was

getting instructions, or he felt he was.

MR MAIDMENT:  The issue could not be said to have arisen at

all, in my respectful submission, until, at least,

25 May, which was day 58 of the trial, and from the

time the trial proper started, counsel at no

stage - counsel who was representing Kesevarajah -

raised any question at all about fitness to plead,

fitness to be tried or tried to -

GAUDRON J: There were certain hints of it though, were

there not, on the last day on which counsel

appeared?

MR MAIDMENT:  Yes.

GAUDRON J:  And he asked for Dr Walton to come and examine him again.

MR MAIDMENT:  But that was the first occasion, in my

submission, when that issue could be said to have

arisen and that was day 58 of the trial and my

learned friend's second point, as it were, revolves

around the events which occurred between the

sacking and the recalling of Dr Walton to see

Mr Keseverajah and 27 May, the 60th day of the

trial, when I raised with His Honour certain

concerns that I expressed on that occasion. But up

till that time, in my respectful submission, there

had been nothing at all during the course of the

trial, which gave him the hint, either that the

original decision of the judge that there was no

issue to go to the jury as to fitness to plead, was

correct, or that the projection of Dr Walton that

Kesevarajah 23 9/12/93

the issue may arise again within a matter of days

had proved to be correct. So that there was

nothing at all to reagitate, as it were, the matter

until that point when counsel was sacked.

So that, in my submission, although one might

say that His Honour might have made further

inquiries, either of Dr Walton, or of Dr Arul, it

cannot be said that the learned trial judge was not

entitled to reach the conclusion that he did.

Indeed, on one view, one might say it is the right

decision, because all of the evidence available at

that stage pointed not just to his being fit in a
general sense, but pointed to the fact that, as at

that time, all of the conditions of the Presser

test were fulfilled. So he would be leaving to the

jury evidence which really pointed in one

direction, which I think was really one of the

matters that he expressed during discussion which led up to his decision that there was no real and

substantial issue to go to the jury. And the

Full Court said another judge might have reached a

different conclusion, but certainly, on that

material, the learned trial judge was entitled to

reach that conclusion.

GAUDRON J: That really approaches it on the basis that it

is simply a question of fact about which minds

might differ, but is it not really a question of

whether there is any evidence on which the jury

could find - that is not the precise question

either, but is it not more like that question?

MR MAIDMENT:  In my submission, that is ultimately what may

have determined it for His Honour. He said, "Well,

there is really no evidence upon which the jury

could conclude that this man was unfit, given that

all the evidence points in one direction.	It may
be that the report of last week points in a
different direction - - -

GAUDRON J: Yes, well except that the evidence really was

not well examined, if I may say so. Whatever

evidence there was there was not scrutinized,

examined or - - -

MR MAIDMENT:	With respect, Your Honour, the - I am not seeking here to blow my own trumpet, but I
carefully took Dr Walton through each of the elements of the Presser test, so that there was no
question that not only Dr Walton understood it -
what the test was - and he said, "Well, look he
still suffers from delusions; he is still psychotic
in my opinion, but he is nevertheless fit - - -

GAUDRON J: Yes, but before a jury the nature of the

delusions might have been explored in somewhat

Kesevarajah 9/12/93

greater detail and Dr Arul may have been asked to

conduct a further examination and express a further opinion, so one cannot necessarily approach it just

on the basis of the evidence given before the trial

judge.

MR MAIDMENT:  Your Honour, with respect, I accept what

Your Honour says entirely and, in hindsight, it might well have been better to insist on Dr Arul being called, further examination on further

questions being put to Dr Walton and, incidentally,

I take issue with my learned friend's argument that

His Honour was there trespassing on the jury's

territory. In my respectful submission he was

entitled, in.fact, bound, to make at least the

inquiries that he did on the material before him
in order to determine the question that he had to

determine and therefore he cannot be criticized for

trespassing. It was a proper exercise even though
the same material might ultimately have been put

before the jury had he determined there was a real

and substantial issue.

But although one might criticize His Honour

for not having conducted further inquiries before

satisfying himself there was no real and

substantial issue, in my submission, on the material before him he was entitled and the

Full Court was entitled to say he was entitled, to

conclude that there was no real and substantial

it is a matter of fact which the learned trial

issue and it is not a matter of discretion, as the

judge has to determine at that stage, and what this Court is being asked to do is really to review that

question of fact, and say, in effect, the learned

trial judge was not entitled on that material.	No
reasonable trial judge, acting judicially, was
entitled to reach that conclusion, and, in my

submission, even if the Court was of the view that

the trial judge was wrong, or may have been wrong, it is not a point, in my submission, which should attract the grant of special leave.

Unless there is any other matter the Court

would like me to deal with on that aspect, I will

move on to the second matter which relates to the

fitness to be tried, and one has to say that there

the issue is less tidy, if I might put it that way,

than the issue that arose at the beginning of the

trial, and less tidy in the sense that when I

raised the matter, I was apparently encouraging

His Honour, indeed it is clear that I was

encouraging His Honour to go on with the trial,

notwithstanding the possibility that he might find

that there was a real and substantial issue. In my

submission what I said there and what His Honour

Kesevarajah 25 9/12/93

said subsequently, has to be balanced against the

fact that, at the beginning of the trial albeit 60

days beforehand, His Honour had very carefully had

drawn to his attention the provisions of Khallouf and the consequences of a finding later on in the

trial that there was a real and substantial issue,

being the requirement that the learned trial judge

would have had then to put the matter to the jury

as to the accused's fitness to be tried.

So that he had been made aware of those

principles and, in my submission, it cannot be said

properly that he was unaware of those principles at

the time that discussion was taking place, and, in

my submission, looking at what the trial judge said

and at the stage of the trial it was said, and to

the reasoning of the Full Court which encompassed
not only those narrow events which occurred on the

27th, not even merely the events which occurred

between the 25th, when counsel was sacked, and the

27th, but, indeed, events which had occurred

throughout the course of the trial and indeed at
the beginning of the trial, the whole history of

the matter, the Full Court took into account in

determining that the judge, first of all, did

consider the question that he was bound to

consider, namely, was there then a real and

substantial issue for the jury to try as to the

accused's fitness to be tried at that point, but

that he was entitled to conclude, on the material
before him, that there was no real and substantial

issue.

Now, the court, of course, then went on to

deal with hypotheses which would have arisen on the

assumption that the Full Court was wrong in

reaching that conclusion, indeed that the trial

judge was wrong in the way he dealt with the matter

at that stage, and it is that reasoning which

raises the question of whether it was appropriate

in this case to have applied the proviso, had it

been necessary to do so. In my respectful

submission, what this Court is ultimately being

asked to say in respect of that issue is that it is

never appropriate for the Court of Criminal Appeal

to apply the proviso in circumstances where the

question of a person's fitness to be tried has

arisen and has not been properly dealt with by the
learned trial judge, and it is our submission that
this Court should not ultimately reach a conclusion

that the proviso should never be applied in those

circumstances. The proviso may be applied,

depending on the facts of the individual case, and,

in my submission, one is entitled to look back to

what Mr Justice Smith said in Presser about the

application of the Presser test when, in reference

to Sinclair's case, I think it was, he said that it

Kesevarajah 26 9/12/93

had been observed that strict application of the

test required really a very high standard to be
applied to an accused, and that the appropriate way

of looking at the application of the Presser test

was to apply it in a reasonable and common sense

way.

In my submission, what the Court of

Criminal Appeal was entitled to look at at that

stage, and indeed the learned trial judge was

entitled to look at, but more particularly in this

regard the Court of Criminal Appeal, was the stage

at the trial at which that issue may be said to

have arisen. Now it was within a very short

period, I think a few pages of the transcript was
the way the Full Court put it, of the end of the

learned trial judge's charge to the jury and at a

time when, I think I am right in saying, exceptions

had been taken by other accused, although

Kesevarajah, unrepresented as he was, had not

raised exceptions himself and, indeed, it was a

matter of some discussion between His Honour and
myself, when the issue was being canvassed, as to

what prejudice might flow from any lack of ability Kesevarajah may be suffering from to properly take

exceptions on his own behalf and as to whether that might shut him out from raising any points before a future appellate court, and I think I made it as

clear as I could, without specific instructions on

the point, that it was inconceivable that there

would be any objection from the Crown to either he

or counsel on his behalf taking those exceptions at

the appellate stage.

In my submission, the Court of Criminal Appeal

was also entitled to look back at the transcript of
what remained of the charge, what remained of the

proceedings after counsel had been sacked on 25 May

and to look at any possibility that there was an

issue which might have been dealt with differently,

or to invite further direction or to alter the	had Kesevarajah either been represented or been fit, supposing that he was unfit, to take exception
course of the trial in any way, shape or form, to
improve his chances - if I might put it that way -
of a jury verdict of acquittal. And the Court of
Criminal Appeal concluded and, in my submission,
rightly concluded, that there was nothing in the
transcript which demonstrated any such issue or
possibility of an issue, and indeed it is right to
say that no such issue was put forward by counsel
for Kesevarajah on the appeal or indeed, at any
other time, as having arisen during that period. In other words, there was no actual prejudice
demonstrated or at all, in my submission, even if
one assumes that the issue had arisen and had not

Kesevarajah 27 9/12/93

been properly dealt with by His Honour as to his

fitness to be tried.

Now, it may be said with some force, well, if

one makes an assumption - and indeed, I think my

learned friend at least in part put this - that the

accused may not have been effectively present

during that latter part of his trial and therefore
the error was so fundamental and went to the route

of the proceedings effectively to negate his ever

having had a proper trial right through to verdict,

then, on the basis of Wilde, so it might be said,

and other cases which deal with that topic, the
proviso would not ordinarily be applied, but, in my

respectful submission, it is not a case where one

is able to point to evidence to demonstrate that

Mr Kesevarajah was indeed not present, in the

relevant sense, at his trial.

DAWSON J: That is not the point; that is just a shorthand

way of saying that he is entitled to a trial where

he can understand what is going on - - -

MR MAIDMENT:	Yes.
DAWSON J:	- - - and give instructions and if he does not get that sort of trial, he does not get the sort of
trial he is entitled to, and that is what is put.

MR MAIDMENT:  Yes, certainly. In my respectful submission,

the -

DAWSON J:  And your submission is, well it does not really

matter if it is near the end.

MR MAIDMENT: Well, Your Honour, in my respectful

submission, the Full Court was entitled to say that

on the facts of this case, certainly one of those

facts being that it was near the end, that they

were entitled in those circumstances to apply the

proviso, and it comes back to my - - -

DAWSON J:  To say that it would not have mattered; that the

fact that he did not get the trial that he was

entitled to was not of any consequence, because the

result would have been the same.

MR MAIDMENT:  Your Honour, that might seem a harsh way of

putting it but, in my submission, one has to look

at the matter in a pragmatic way, if I might draw

on what has been said earlier today, in that one is

entitled to look at the outcomes if the matter was

to be decided in a different way. For instance, if

the matter that the learned trial judge had decided
that was an issue which had to go to the jury, he

may have put that matter to the jury; they may have

concluded that he was unfit to be tried, in which

Kesevarajah 28 9/12/93

case he would have been subject clearly to the

effects of section 20A of the Crimes Act in respect

of the Commonwealth charge; he would have been

subject to section 393 of the State Crimes Act in
respect of the trafficking charge and he would have
been detained at the Governor's pleasure and he
would have been detained, presumably, under the
provisions of the Commonwealth Crimes Act as well,

for whatever period was determined. So that that,

at the end of a 60 day trial, would have been his

fate, had the jury verdict gone against him.

On the other hand it may be that it would have

been appropriate to have stood the matter down for

a day or two, have allowed Kesevarajah to have been

treated, to have then sought advice from Dr Walton

or other psychiatrists to determine whether there

was then a real and substantial issue as to his

fitness to be tried and obviously, depending on

that determination, either would have gone to the

jury on that basis or not. But in the end,

ultimately, the Full Court was also entitled to

look, in my respectful submission, at the fact that

it was not a case here where, as in Khallouf, for

instance, Mr Kesevarajah clearly had been, or may

have been, unfit at a time when he could have

affected the course of the trial in any way that

was favourable to him. Khallouf's position was

that he must have or was likely to have been unfit

really throughout a trial, which he conducted

unrepresented, and that it could not be said with any degree of certainty, or at all, that his case

had been put properly before the jury or that he
had been ever fit to conduct his own defence, but

Kesevarajah's case - - -

DAWSON J: But the simple point you make is that it would

not have made any difference and therefore you can

provide the proviso. It is said against you, the

proviso cannot be applied because it means the

person does not get the trial he is entitled to.

Now that is a simple point, is it not?

MR MAIDMENT:	Yes.
DAWSON J:	We need not go into it in great detail.
MR MAIDMENT:	No, and the ultimate point that I make is that, even if the Full Court was wrong in saying
that it was appropriate in those circumstances or in any circumstances of similar nature to apply the proviso, this Court has to, in my respectful
submission, look at the case in the round and determine whether there has been a substantial
miscarriage of justice such as would invoke the grant of special leave. If the Court pleases.

Kesevarajah 29 9/12/93

DAWSON J: Yes, thank you. Mr Kaye.

MR KAYE:  Two brief matters: my friend, at one stage in

relation to the proviso, stated that there was no

evidence that had a jury had put to it at the end

of the trial the matter of Kesevarajah's sanity, it

would have found that he was still unfit to

continue, remind the court of the evidence given by

Dr Walton four bare days later. Dr Walton having

examined Mr Kesevarajah on 25 May, he gave evidence

on Mr Kesevarajah's plea on 1 June that he was

unfit to present his plea and that he was then

under treatment which had been commenced on 25 May,

and such was Kesevarajah's unfitness that he, in

fact, on 1 June he asked the trial judge to impose

the maximum penalty. So we say that what facts are

available would have very strongly suggested that a

jury may have concluded that at that late stage in

his trial, Kesevarajah was indeed unfit to proceed
with his trial.

In relation to the first issue, it is true that my learned friend put to Dr Walton the six

Presser tests. As we put before lunch, what really

was not addressed - and addressed in very important

specific terms - was, is there a question as to

this man's ability to stand trial. Not is he fit

to stand trial, but is there a question. That was the question which the Full Court in Khallouf said

should be asked, but we say the Full Court in

Kesevarajah really endorsed and sanctioned quite a

different approach and one which we say is

fundamentally wrong. We say it really gives rise

to conflicting approaches endorsed by the

Full Court, which will confront courts in the future.

DAWSON J:  Yes, thank you, Mr Kaye. We will defer giving a

decision in this case until we have heard the next

one.

MR KAYE: If the Court pleases.

AT 2.55 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Kesevarajah 9/12/93

UPON RESUMING AT 4.02 PM:

DAWSON J: There will be a grant of special leave in this

case.

AT 4.02 PM THE MATTER WAS ADJOURNED SINE DIE

Kesevarajah 31 9/12/93