Kesevarajah v The Queen

This matter concerned an application for special leave to appeal to the High Court of Australia by Muthurama Kesevarajah against the respondent, The Queen. The applicant sought to challenge his conviction, arguing that a fundamental defect existed at the commencement of his trial, which effectively meant no proper trial had occurred.

The core legal issues before the Court were twofold. Firstly, the applicant contended that the jurisdiction in which the law prescribes that a jury, rather than the trial judge, must determine the question of an accused person's fitness to plead. Secondly, the applicant sought to define the proper role of the trial judge in relation to this determination, arguing that the trial judge had intruded substantially into the province of the jury.

The applicant's argument was that the trial judge had misapprehended their role by embarking on an inquiry into the applicant's fitness to plead, which is exclusively entrusted to the jury. This role, it was submitted, has been a feature of English and Australian law since at least the Trial of Lunatics Act 1800. While acknowledging a slight exception in New South Wales, the applicant maintained that the general principle across Australian states is that the jury determines fitness to plead. The applicant argued that the judge, in attempting to resolve conflicting psychiatric reports, had encroached significantly into the jury's domain, leading to an erroneous conclusion that the issue had dissolved itself, thereby denying the applicant a proper trial.