Subramaniam v The Queen
[2004] HCATrans 257
[2004] HCATrans 257
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S588 of 2003
B e t w e e n -
KALA SUBRAMANIAM
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 5 AUGUST 2004, AT 10.06 AM
(Continued from 29/4/04)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Cogswell.
MR COGSWELL: May it please the Court, there are two preliminary matters which I just was not clear from a reading of the transcript whether we had cleared up: first, that there was a chronology of the history of mental health in the State of New South Wales to which I made reference, I think in answer to your Honour the Chief Justice’s question about the Richmond Report. It is a document that look likes that. Some of us think we may have handed it up, but others think maybe not.
GLEESON CJ: I think you had better hand up another copy.
MR COGSWELL: We have copies, your Honours.
GLEESON CJ: Thank you.
MR COGSWELL: The second preliminary matter was in response to Justice Kirby’s questions about having the correct version of the Act, so to speak, that we are talking about. We have extracted from the relevant website, the New South Wales Government legislation website, a version of the Act covering a period 1 January 2000 to 23 February 2003, which we say is the relevant period. We have copies of that as well.
KIRBY J: Why was the arrival of the First Fleet part of the history of mental health law in New South Wales? Are you suggesting that His Britannic Majesty’s Government had taken leave of their senses?
MR COGSWELL: I am not going to make any submission based upon that entry in the chronology, your Honour. My learned friend says it puts it in perspective. Your Honours, there remain the three grounds for me to address, and what I propose to do, subject to your Honours’ convenience, is to address first the question of the directions to the jury, which, I apprehended from reading the transcript and my recollection, was an issue which concerned at least some of your Honours; that is, a specific question as to whether or not his Honour the late Judge Luland had in fact complied in his directions with section 21(4) of the Mental Health (Criminal Procedure) Act 1990. That subsection is relatively short but important, and I will read it.
KIRBY J: Which is the subsection, I am sorry?
MR COGSWELL: Section 21(4). It reads:
At the commencement of a special hearing, the Court must explain to the jury –
and I add here, five things –
the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts.
We have set out that subsection in our witness submissions at page 13, paragraph 6.25. What I propose to do is to take your Honours to the passages in the transcript which we say together amount to compliance with that section, or, if not compliance, at least sufficient information was given to the jury during the course of the trial so as not to result in a miscarriage of justice in this particular case. May I commence at paragraph 6.27 of our written submissions and deal with, perhaps together, the first and second requirements, that is, the judge needs to tell the jury that the person is unfit to be tried, and, secondly, the meaning of unfitness to be tried.
Can I take your Honours to page 117 of the appeal book. Right at the foot of 117, we have a few things to explain before we get under way. The first requirement that the person is unfit to be tried is, we say, no more than that. His Honour needed to explain the fact that the person was unfit to be tried because the second requirement is the meaning of unfitness to be tried. So the first requirement needs to be seen in that context. We say it is complied with at page 118, line 8:
The reason it has been necessary to have a special hearing is because the accused has been found unfit to be tried.
Then the second requirement, namely, the meaning of unfitness, we say is complied with in the next few lines:
The reason she has been found unfit to be tried is because of her mental condition. No need for me to go into that, but that is the reason why she has been found unfit to be tried.
I should say immediately, that is as high as it gets in his Honour’s opening remarks to the jury on the second requirement.
McHUGH J: On the first requirement the judge did not tell the jury that she was unfit to be tried in accordance with the normal procedures, did he?
MR COGSWELL: Not at that point, your Honour, no. In fact, we need to go to, perhaps in respect of that and in respect of the second volume and I now fall back onto a submission about it not resulting in a miscarriage of justice. There was a question from the jury at 152. At the foot of 152, line 45, his Honour reads:
The question is can you clarify what made the accused unfit for trial.
That question is discussed and then at the foot of 153 in presence of the jury, his Honour convinces to answer that question in a way which we say deals with the second requirement; and I have not forgotten your Honour, Justice McHugh’s question about the normal requirements. It is there somewhere. I think we will come across it. At the top of 154:
previous trial…don’t really need to concern yourselves –
about this matter –
no resolution…proceeding again in this Court . . . to determine whether she was fit -
Dr Menzies’ diagnosis he reads out and then when the illness commenced and then importantly at about line 19:
It’s said by the doctor, that as a result of the first trial, and the subsequent proceedings, that the depressive illness, anxiety order –
which, perhaps, should read “disorder” –
has intensified and is to the point where it has made her unfit to be tried.
Then he mentions the Mental Health Review Tribunal.
Then the third requirement, your Honours – there is a passage in the opening – both the Crown Prosecutor and counsel for the defence opened to the jury. Your Honours do not have a copy of that transcript. We, however, between the last hearing and this hearing extracted a copy of the transcript and I have just made a copy of that available to my learned friend this morning. I propose to refer only to one or two passages, but I am going to refer to some remarks which counsel for the defence made to the jury in his opening which we say, although, of course, does not assist the question of compliance with section 21(4) because that is the judge’s obligation, insofar as this Court’s assessing whether or not non-compliance may have resulted in miscarriage, it assists that question. Mr Simpson said – and I am reading from page 5:
Now with the issue of unfitness to be properly tried, some of the issues that involves is that Ms Subramaniam is not able to give proper instructions to her counsel. She’s not able to properly follow the matters that are before the Court. It doesn’t mean that she’s an incapacitated person in any real sense, other than her ability in a trial is - she doesn’t have the abilities to follow what’s occurring, and that’s important for you to understand and it’s a matter that you must understand when assessing the evidence, the limited evidence, that will be before you.
Just before he sat down, Mr Simpson said:
But just remember that it is a special hearing, that as counsel there is limitations because of her unfitness ‑ ‑ ‑
McHUGH J: Mr Cogswell, what the section requires is that the authority of the judge must be behind these statements.
MR COGSWELL: I agree, your Honour.
McHUGH J: It is not for counsel, and it has to be done at the commencement of the proceedings so that the jury can evaluate the whole of the proceedings including counsel’s opening address.
MR COGSWELL: I appreciate that, your Honour. As I say, in at least in the parts which I have addressed, the highest that I can put it so far as 1 and 2 are concerned are the passages that I have referred to in his Honour’s opening remarks and there is a certain paucity about those opening remarks. However, my fall‑back position is that it may not have in this case, or I am inviting your Honours to conclude, that if there was an inadequacy in his Honour’s directions then it has not resulted in a miscarriage of justice because of the information which the jury were given from other sources, at least from defence counsel and at a later stage, namely, in response ‑ ‑ ‑
McHUGH J: But can you take into account the later stage? Take the cases where a magistrate can deal with indictable offences summarily if the accused consents. If the consent is not given at the time the statute requires, you cannot make it good by the magistrate after the accused has gone into evidence drawing attention to that fact and then the accused consenting. Procedures, particularly in criminal trials, have to be rigidly complied with. That is what the rule of law is about.
MR COGSWELL: I agree, your Honour. With respect, I agree. The example your Honour gives is an example where there might be a strict precondition and a particular specific event, namely, a consent, and it may be that in a case such as that, if it is not complied with, that the following steps cannot occur. What your Honours are doing in this case is ultimately assessing whether there has been a miscarriage in this case in that your Honours ‑ ‑ ‑
McHUGH J: No, it was more than that. There may be a question whether there has been a trial at all.
MR COGSWELL: Yes.
McHUGH J: Has there been a trial at all because this is a condition precedent?
MR COGSWELL: Well, your Honours, we say that it is important to look at the purposes for – all right, can I come back to that your Honour because what I am going to do is stand back in a moment and look at the provision itself to see how it should be read and we are going to submit that it, in fact, should be read down rather than necessarily requiring strict compliance. So perhaps what I should do is at least put before the Court what we say is the highest that it gets, so let me move to ‑ ‑ ‑
KIRBY J: It is pretty clear from the jury’s question that the jury was troubled by the whole procedure.
MR COGSWELL: Yes. Your Honour I would not for my part adopt that proposition. It is certainly troubled by the meaning of unfitness because that was their specific question. I do not accept that they were troubled by the whole procedure. The question appears to be clarify what made the accused unfit for trial, so that they are ‑ ‑ ‑
KIRBY J: That is going to the procedure they were engaged in for the trial because it is an unusual thing if a person ‑ ‑ ‑
MR COGSWELL: It is an unusual thing, but, your Honour, if I am right, at the time that the jury asked the question, the only thing which his Honour had told them at 118 about line 13 was that she was unfit to be tried because of her mental condition. Subject to what was said by Mr Simpson in his opening, it may be that they had very little information about just what made her unfit for trial ‑ ‑ ‑
KIRBY J: It is relatively unusual for juries to ask questions. They normally sit passively and leave it to the parties. The fact that they did this indicates that they were troubled by what was going on before them because it was so unusual.
MR COGSWELL: Yes. It is just that I do not adopt ‑ ‑ ‑
KIRBY J: It gives us a little clue. Normally the jury is as enigmatic as the sphinx, as they say.
MR COGSWELL: Precisely. It gives us a little clue.
KIRBY J: But here we have a little clue that they were troubled about that aspect.
MR COGSWELL: I agree. I accept that they were clearly troubled by that aspect, by at least the aspect of what amounted to a – why the accused was unfit for trial.
McHUGH J: But it is the importance of the explanation. When you are fit to be tried, it means that you are able to understand the nature of the charge, that you are able to plead to the charge, that you can understand the nature of the proceedings, that you can follow the course of the evidence in the proceedings and its effect, and that you have the capacity to make a defence. If the jury is not told what unfitness to be tried means, how can they evaluate the case under this special provision?
MR COGSWELL: I am going to come to that, your Honour, but, in brief, the answer is that we accept that normally it would be appropriate for a trial judge in giving a direction like this to elaborate somewhat on what ‑ ‑ ‑
McHUGH J: Only appropriate, Mr Cogswell? I mean, this is a departure from the ordinary course of a criminal trial; a special hearing in which a person is being tried for a serious criminal offence.
MR COGSWELL: Yes.
McHUGH J: And one would have thought there was a presumption that the statute, which takes away a person’s rights – which most people would regard as fundamental – should be interpreted strictly.
MR COGSWELL: Your Honour, can I just say two things, which I will come back to as well. One is, it is a special hearing. It is a creature of statute. Its comparison with a criminal trial is appropriate, but there are certain significant limitations, so we say one has to be careful in comparing it in all respects with a criminal trial.
The second thing, your Honour, is that it would be in compliance with the section for a judge to give the kind of direction which your Honour said in a normal case, but when I come to it I am going to develop the submission that, in this particular instance, a direction of the kind which your Honour just suggested, elaborating on the Presser grounds, would have been confusing and perhaps prejudicial for various reasons. In this instance, a minimal direction which his Honour gave was appropriate in the circumstances of this case. Having said that, can I just complete the reference to the transcript where we say that that subsection was complied with.
KIRBY J: Can I ask do you know does the Bench book now include a model instruction to juries?
MR COGSWELL: It does.
KIRBY J: Do we have access to that, or not?
MR COGSWELL: I think the answer is yes. I got a copy last night and my understanding is that there is now access on the JIRS site to the Bench book, which I assume is available to the High Court, and by that I meant it was restricted but I think it is now publicly available by the looks of it.
KIRBY J: And is this something that was prepared after this case was tried?
MR COGSWELL: I do not know the answer to that, but – yes, my learned junior, Mr Smith, tells me that the model direction was incorporated in the Bench book in May this year. Indeed, the document which I have in front of me which I just got last night has at the foot “May 04” and at the foot of the second page “May 05”; so that if it is of assistance to your Honours we may arrange for photocopies of that too.
KIRBY J: Well, if it is on the Web we can always get it ourselves.
MR COGSWELL: It does not assist me in the sense that there is some development of the meaning of “unfitness to be tried”.
KIRBY J: Well, one hopes that we all get wiser by experiences like this case and that, therefore, the fact that things have improved does not necessarily mean that it was not accurate at the time or, if it was not accurate, that that led to a miscarriage of justice.
MR COGSWELL: May I make this available at a later stage, your Honours.
GLEESON CJ: Yes.
MR COGSWELL: Thank you.
GLEESON CJ: Now, you were taking us through the parts of the transcript to which you wanted to refer to say that there had been compliance with the statute.
MR COGSWELL: Exactly. Thank you, your Honour. The third requirement, the purpose of a special hearing and we say that at 118, point 25, his Honour in that passage commencing “The ultimate situation will be this”, explains the purpose:
That you will be asked at the conclusion of the special hearing to determine upon the limited evidence that will be available to you and come to a verdict on the verdicts that will be available to you. The verdicts that will be available to you will be either not guilty, and if that be the case, the accused, like any other accused in any other trial, will be discharged. If however you find that the accused committed the charge on the limited evidence that will be placed before you, then it is open to you to make that special finding, that upon the limited evidence available, that she committed the offence . . . So that is the nature of this hearing that you are about to engage in, and that is what you will be called upon to do.
And then once again, I need to fall back onto the summing up which is at 333 and his Honour at 333 of the appeal book, commencing at about line 28:
Because of the nature of the case being a special hearing and it being found that she was not fit to be tried, she was indicted and she did not plead because she could not and it was therefore inferred that she pleaded not guilty. So, therefore you will now have to determine whether she is not guilty or whether, on the limited material that has been placed before you that she committed the offence charged…So, therefore accordingly it is your role and your responsibility to determine which of those verdicts is the proper verdict in respect of the count.
So that we say his Honour complied with the requirement to specify the purpose of the special hearing in those particular passages.
The next requirement is that his Honour must explain the verdicts available and we say in the two passages which I have just referred to, namely, 118 point 25 and in 333 around point 28 and following, there are clear references to the verdicts which were available. In this particular case, there were four available verdicts according to statute. Two are not relevant in this case, namely, a defence of mental illness. There was no suggestion in this case that Ms Subramaniam was suffering from any mental illness at the time of the alleged offence. Secondly, there was no alternative offence which the jury might have convicted her of to the principal offence. So that the only two available verdicts were not guilty or, on the limited evidence, that she committed the offence.
Now, the legal and practical consequences of the finding – the compliance we say there is at page 118, commencing at about line 33, 34:
And if you so make that finding –
that is, on the limited evidence –
then the legal and practical consequences of that will be that I then will have to determine what is to happen to the accused as a result of your finding, what penalty would be imposed, and where in fact she would be referred to in respect of that penalty.
McHUGH J: That hardly complies with what the statute itself requires, does it, in section 24, for example, or section 23? The court has to nominate a limiting term. Surely, the judge has to tell the jury that if he nominates a limiting term he must refer the person to a Mental Health Review Tribunal. I mean, there is good reason for this, Mr Cogswell. It may be before your time, but in the late 1960s and 1970s ‑ ‑ ‑
MR COGSWELL: It is, kind of, your Honour. Before my time at the Bar.
McHUGH J: ‑ ‑ ‑ there were cases where juries refused to accept the evidence of the Crown psychiatrist and evidence of the accused’s psychiatrist that the accused was insane. I remember particularly a case where a man had been convicted of the murder of his wife and was convicted. Out of prison, murdered his second wife. Everybody said he was insane. The jury refused to accept the evidence of the psychiatrist and found him guilty of murder. So it is very important that juries know what happens in this sort of case. I cannot believe that Parliament did not have that sort of problem in mind.
MR COGSWELL: I appreciate the force of what your Honour says. Our secondary submission, so far as compliance is concerned and so far as the legal and practical consequences are concerned, is to suggest that in fact strict compliance might require, for example, the legal – if his Honour was to explain the legal consequences, that may well require a direction in respect of section 22(3): a qualified finding of guilt is a bar to further prosecution, subject to section 28, subject to appeal in the same manner, and taken to be a conviction for the purpose of enabling the victim of the offence to claim compensation. Our fall‑back position, your Honour, is that the section has to be read down, because such a detailed direction would potentially be confusing and unnecessary at this stage of the trial, and may result in the jury being quite confused about what is likely to unfold so far as the purpose of the trial is concerned.
HAYNE J: What then, is this reading down that you say would have to occur?
MR COGSWELL: Reading down to the extent that, when his Honour said:
the legal and practical consequences of that will be that I then will have to determine what is to happen to the accused as a result of your finding, what penalty would be imposed –
and, in fact, if we take a step back, his Honour, at 118 about 26, he explains the legal and practical consequences of an acquittal, namely, “like any other accused” the accused is discharged. There is no problem with that; that is relatively straightforward. The problem I anticipate is with the legal and practical consequences of conviction, if I can call it that, a finding of guilt. His Honour there says:
the legal and practical consequences of that will be that I then will have to determine what is to happen to the accused as a result of your finding, what penalty would be imposed –
Now, that explains to the jury the options which his Honour has at 23(2) because what happens after a qualifying finding of guilt, as it is called, is that his Honour has to determine whether he is going to nominate a limiting term or, 23(2), the judge may impose a penalty, and that is the whole range of the normal penalties which may be imposed.
Your Honour, he complies with that. He tells them that that is what – we say it does not need to be any more complicated than that. He will impose a penalty if there is a finding of guilt. He does not need to say – it might be a fine or it might be a bond. Then he goes on to say:
and where in fact she would be referred to in respect of that penalty.
That, we say, is some indication of what his Honour may consider under section 23(1) concerning a limiting term. If his Honour was, in fact, to comply strictly with the section, his Honour should explain 23, explain 24, the consequences of nominating a limited term and of going off to the Mental Health Review Tribunal. He would not need to explain 25 in this case; 26 he has complied with; 27, and that is when it comes back from the Mental Health Review Tribunal. There are alternatives depending upon whether the person is suffering from mental illness or not, whether the person consents to being detained in hospital. Then there is 28, the effect on other proceedings which, in fact, qualifies to some extent section 22(3).
So we say the section needs to be read down because, if his Honour was to strictly comply with the requirement to explain the legal and practical consequences, then he would need to really explain all those provisions which at the beginning of a hearing such as this, we say, would be quite confusing and onerous for the jury and, indeed, perhaps counterproductive.
HAYNE J: What is the legal principle that you engage in aid of this proposition for reading down?
MR COGSWELL: Well, your Honour, the legal principle is that, if it were to be read literally, then strict compliance would require going through the sections which I have referred to. It would lead to a rather absurd result, namely, that in the running of a criminal trial a jury at the start of a trial would ‑ ‑ ‑
HAYNE J: We are not running a criminal trial, Mr Cogswell.
MR COGSWELL: I am sorry. Exactly, your Honour, exactly.
HAYNE J: That is just the point.
MR COGSWELL: I withdraw that, your Honour. I have fallen into my own trap. In the running of a special hearing, in the conduct of a special hearing, it would result in confusion for the jury and quite an onerous responsibility.
HAYNE J: Onerous responsibility for? Your sentence trailed off, Mr Cogswell, sorry.
MR COGSWELL: No, no.
HAYNE J: The fact that it is hard for the judge is irrelevant.
MR COGSWELL: You are right, your Honour, the sentence trailed off. So I will withdraw the sentence and replace it with, it would impose an unnecessary burden on the jury. For example, the jury have no role, I am reminded, in the sentencing of an accused – I am sorry, of a person who is the subject of a qualified finding of guilt, and to explain the various alternatives, which his Honour has, under 23, is unnecessary and confusing.
HAYNE J: Let me translate the proposition to a case of a kind where one might expect provisions of this kind would find their ordinary operation: murder. Let it be assumed further that the accused person is evidently unable to give any instruction or to follow any of the proceedings. The person is in such a disturbed mental state that that is self‑evident. What do you say to the proposition that a jury empanelled in these circumstances should be told, for example, that if, on the limited evidence that they will have to consider, they conclude that the offence is proved, a step that the judge will have to take is to fix the term of confinement that ordinarily would be imposed for a murder of the kind in question, and that that has the consequences that then flow through under the Act?
MR COGSWELL: Your Honour, that would be, I agree, an appropriate direction in a case such as that, in a murder trial.
HAYNE J: Now, what is the legal principle that would permit you to read the section down according to the nature of the charge laid, or the specifics of the condition of the accused person, or some consideration of that kind?
MR COGSWELL: I agree, your Honour, that is a difficult proposition to explain. I might need to come back to your Honour on that.
HAYNE J: Yes.
MR COGSWELL: I appreciate your Honour Justice McHugh asked that question right at the start about being unfit to be tried. The fact that the person is unfit to be tried, in accordance with the normal procedures – I might just ask my learned juniors to see if – my recollection is that that does appear somewhere.
Whilst that hopefully will be found, can I just turn to this question of what the appropriate direction might have been so far as the meaning of unfitness, that is Justice McHugh’s question about the Presser requirements and whether his Honour ought to – so the first observation is this, that there is no statutory definition of unfitness for trial. One needs to go back to Presser and Presser was confirmed, of course, by this Court – the Presser requirements in Kesavarajah.
The question is whether the – we say that normally it is appropriate for the trial judge to explain the Presser requirements, but in this case explaining the Presser requirements, we submit, would have been confusing, unnecessary and possibly prejudicial to the accused and we say that based upon evidence which will appear at pages 84 to 85 of the appeal book, your Honours.
At 84 and 85 there is a report from a medical practitioner called Dr Clark who is a consultant forensic psychiatrist and he summarises his findings on the fitness – the Presser criteria over 84 to 85. In summary, your Honours, he does not find that the accused in this case complied, or so to speak, with all of them. Not all of them applied to Ms Subramaniam and can I take your Honours briefly through them at the foot of 84, “She is able to plead”, he finds. However, she is unlikely to be able to “exercise the right of challenge”. The top of 85, No 3, she is able to “understand generally”. No 4, she is “able to follow the course of the proceedings and know what is going on”. However, No 5, that is the need to “understand the substantial effect of any evidence” -
She is unable to do this; she is paranoid in her thinking.
6. Needs to be able to make a defence known to the charge.
She is able to do this.
However, counsel needs to be able to:
through her counsel, by giving instructions, letting her counsel know what her version of the fact is.
She is unable to do this . . .
8. She need not have the mental capacity to make a defence but have sufficient capacity to be able to decide what defence she will rely upon.
She is able to do this.
9. To make her defence and her version of facts known to the court . . .
She is unable to do this -
and the doctor summarises it, she is not fit to plead. Now, a preliminary observation about those is that one might think that looking at ‑ ‑ ‑
KIRBY J: Remind me of what the Presser criteria are.
MR COGSWELL: I think they are reproduced in the CCA. In our written submission in 6.15 and it is taken from Kesavarajah, this Court’s statement of them in Kesavarajah, your Honour, which conveniently enumerates them, so at the foot of page 9 and the top of page 10 in our written submissions ‑ ‑ ‑
HAYNE J: And at 181 CLR particularly at 245.
MR COGSWELL: Exactly, 181 CLR 245 and we extracted that.
KIRBY J: You are referring to 6.15 of your submissions?
MR COGSWELL: That is right, paragraph 6.15.
KIRBY J: Now, how many submissions have you put in?
MR COGSWELL: Two.
KIRBY J: You get a bit confused in these things.
MR COGSWELL: I can understand that. There is a document called “Supplementary Submissions on Behalf of the Respondent”. That is not the document I am referring to. It is a document called “Written Submissions on Behalf of the Respondent” filed 23 April.
KIRBY J: Yes, very well, I have that.
MR COGSWELL: If your Honour goes to page 9 ‑ ‑ ‑
KIRBY J: Wait a moment. No, this one is also the original one, apparently. Do you have an extra copy of your supplementary submissions?
MR COGSWELL: I do not in my hand, but I am sure we can lay our hands on one, your Honour. I have the original file copy, your Honour. At the foot of page 9, there is an extract from the passage from Kesavarajah v The Queen (1994) 181 CLR 230 at 245, which Justice Hayne referred to.
HAYNE J: Now, in evaluating the evidence that is led before them, should the jury have available to them a statement of why it is that the particular accused was found unfit to plead?
MR COGSWELL: Not why, your Honour. What the jury needs to have before it is the information which the judge is required to give the jury in compliance with 21(4), so that insofar as that requires the judge to explain the fact that the person is unfit and the meaning of unfitness to be tried, that is the requirement, rather than why.
HAYNE J: So an abstract identification of circumstances that lead to a conclusion of unfitness to plead is sufficient, you say, unrelated to the particular facts of the particular accused?
MR COGSWELL: Yes, your Honour. That is what we say is all that the section requires ‑ ‑ ‑
HAYNE J: That is at the outset. It may perhaps, it may not perhaps, at the end of the trial be appropriate to give a more refined direction, but at the start tell them about the concept.
MR COGSWELL: Yes, your Honour. As I look at subsection (4), the fact that the person is unfit and the meaning of unfitness to be tried, I would imagine most judges would, as his Honour did, go a little bit beyond the meaning of unfitness to be tried and say why. In this case, his Honour referred to her mental condition. It would not surprise me if in many instances that is all the judge said, but, as happened in this case, the jury questioned what followed, saying, “Well, can you tell us a bit more?”, and that is what happened. So in fact, in this case, the jury got a more detailed version of what the content of that unfitness is, if I can call it that.
CALLINAN J: It might be necessary to explain, perhaps, some limited participation or something that happened during the trial.
MR COGSWELL: I am not sure that I follow, your Honour.
CALLINAN J: Well, there may need to be a more detailed explanation at the end, in order to explain why the accused person did or did not do something, or somebody on her behalf did or did not do something, during the trial.
MR COGSWELL: Yes.
HAYNE J: And presumably, in some, at least, of these special hearings, you will have the accused sitting there, apparently conferring with counsel, apparently giving instructions. So to even the moderately informed jury member, that might present an oddity.
MR COGSWELL: Yes, an inconsistency with what they are told about his or her fitness and what they observe about his or her behaviour. Now, that could have been a problem in this case, which brings me to the submission that I am developing about the difficulty his Honour faced in complying – well, at least in complying with the requirement to explain the meaning of unfitness for trial in accordance with the full Presser directions, which his Honour Justice McHugh raised. Can I take your Honours to page 85 of the appeal book, because what I am going to do is compare propositions 6 and 8, which I say amount to the same thing, almost, with propositions 7 and 9. We would suggest that 6 and 8 together are arguably inconsistent with 7 and 9.
HAYNE J: With a view to demonstrating what?
MR COGSWELL: The difficulty which his Honour faced in – the question of Justice McHugh was, “Well, ought the judge not go through the Presser requirements, essentially, and read them out?” Normally, we say yes, but in this case we say if his Honour had done that in fact, not all the Presser requirements were relevant. So if his Honour went through the Presser requirements, then, in order to maintain accuracy with what the situation and the evidence was in this case, it might be that you would have to explain, “Well, in fact she is able to make her defence known in this case and to decide what defence, but, on the other hand, she is unable to give instructions, nor is she able to make her version of the facts known”. Now, the jury ‑ ‑ ‑
HAYNE J: Well, does he go beyond saying, “Due to her mental condition her thinking processes are impaired”?
MR COGSWELL: Essentially he says that. He says, right at the start, “She’s unfit for trial due to her mental condition”. Now, the two components of that proposition, “unfit for trial” and “mental condition”, we say, with respect, comply with the suggestion which your Honour just made. The inference is that she is unfit for trial because her mental condition means that she is unable to face a trial in the normal way, but what his Honour did, we say, complies.
If his Honour went beyond that in this case and entered upon the Presser criteria, his Honour would have run into the difficulty, we say, of the evidentiary basis in this case, of apparent contradictions – apparent, arguable – on the face of the evidence, which, if his Honour had gone into that, would have been unnecessary, because the question of unfitness was not a matter for this jury to determine. The question of unfitness has already been determined by, in this case, a judge, or, in other cases, a jury. So it was unnecessary.
It would have been confusing, because the judge is saying, “Well, some apply and some do not”, and possibly prejudicial, which is perhaps the most serious matter, because the judge is explaining some things she can do and some things she cannot do. So if we consider Justice Hayne’s scenario of the jury perhaps observing her behaviour and comparing it with what they have heard, the jury may well be drawing prejudicial conclusions about the kinds of things which she is or is not able to do.
In other words, it is, in this case, a question of too much information. That is what we say – in this case. Now, generally, we would say it would be appropriate for the judge to give a direction which included either a summary of the Presser requirements or a list of the Presser requirements so that the jury knew what the meaning of it was, but not in this instance.
KIRBY J: Mr Cogswell, I will return Mr Smith’s submissions, I did have that document. I was looking for 6.1.5 instead of 6.15. I had it and had read the earlier submissions.
MR COGSWELL: I am relieved to hear that, your Honour. Also there was one slightly complicating factor here because, as your Honours will recall, there was a proper trial, if I can call it that, and a hung jury. In that case the accused, Ms Subramaniam, gave evidence so that she, in a sense, advanced a defence. So that this is not an instance where the defence may be a complete unknown so that a judge is trying to explain to a jury that it may be because the person accused cannot explain her defence to her counsel or make out a defence to her counsel, that that is obviously a problem, but in this instance that is not the case. There was a source, so to speak, which defence counsel could look to for a possible defence. Subject to any questions which your Honours have, that is all I propose to say about the ground of non-compliance with section 21(4).
The best we can do in answer to Justice McHugh’s question about whether his Honour explained unfitness to be tried in accordance with the normal procedures, we cannot find those words but at 118 point 12, the Attorney‑General has directed:
that she is unfit to be tried, that there be this special hearing. Now a special hearing is held as near as possible to that of a normal trial with its limitations because of the situation of the accused. The counsel will have the opportunity to cross-examine any of the witnesses that the Crown calls, and it will certainly be – the trial will be normal in that sense.
And at the foot of 117, the point we make here is that really the whole of the explanation over 117 to 118 is based upon the proposition that there is something different going on from the normal procedures so that when one’s specific reference at 118, around about point 20 in the context of that overall explanation we say that clearly tells the jury, in response to Justice McHugh’s question, that she is unfit for trial in accordance with the normal procedures.
May I turn to the third ground which is the question of whether the trial miscarried by reason of the Crown’s failure to place evidence before the jury, the nature and extent of the appellant’s mental illness and unfitness and we have developed our submissions on that over pages 17 to 20 of our written submissions and I do not need to elaborate very much. We make three essential submissions here. The first is based upon the Act. In this case we say the Act is not a source of a duty on the Crown in this instance. The second is based upon the common law that when one looks at the duty of the Crown at common law that does not provide a source for the duty which is suggested in this case, and the third is that, in this particular instance, it was inappropriate for the Crown to lead evidence. The first submission about the no source in the Act was developed at paragraph 6.36 and there is no need to say anything more about that.
The second submission which is about the common law is this, that if one looks at the duties of fairness which the common law imposes appropriately on the Crown, then the first question which we develop in 6.37 is to what fact in issue would the tender of medical material be relevant? We say that if the Crown tendered material which was not relevant to a fact in issue in the special hearing and one of the purposes of the special hearing is to determine whether the person should be acquitted or not, then the Crown presented material which was not in compliance with – rather that it did not go to a fact in issue - it would, we say, fail to fall short of the Crown’s duty for the proper presentation of the Crown case in accordance with the dictates of fairness.
The second submission we make at 6.38 is that the medical reports have been obtained by the defence and whether or not it was material that it should have put before the jury the Crown was not in a position to make that assessment as to whether that material which the defence obtained should go before a jury.
The third submission is to bear in mind that unlike a fitness hearing when there is a special provision that – fitness inquiry, I should say – fitness inquiry is non-adversarial. These are adversarial in the sense that a person is being prosecuted and the person can put up a defence and is represented by counsel. So that when one looks at, in this instance, the proposition that the Crown should have tendered some of the medical material, with the Crown being the prosecutor and the defence resisting the prosecution - the Crown Prosecutor, we note, had submitted that Dr Menzies was biased in favour of the appellant; that is at page 50 of the appeal book.
The reports also contained personal information about the appellant’s background and some of the reports contain material which was inaccurate and misleading so far as the Crown was concerned; for example, Dr Lucire’s report referred to this matter being a political persecution involving entrapment and improper motives by the DPP.
CALLINAN J: I see even Justice Simpson in the intermediate court at paragraph 75, AB 397, said Dr Menzies’:
report is redolent with suppositions about the facts of the case, and what could fairly be characterised as invective.
MR COGSWELL: Yes, now I am not sure she is talking about – sorry, your Honour was at 73?
CALLINAN J: Paragraph 75.
MR COGSWELL: Of the judgment ‑ ‑ ‑
CALLINAN J: Page 397.
MR COGSWELL: Yes, the balance of the report and I think she is talking about Dr Clark there.
CALLINAN J: Dr Clark, is it?
MR COGSWELL: Yes, Dr Menzies is the treating psychiatrist.
CALLINAN J: Yes, but Dr Clark had agreed with Dr Menzies.
MR COGSWELL: He had, but I suspect when she says at line 10 of the appeal book he wrote that that may well be Dr Clark rather than ‑ ‑ ‑
CALLINAN J: Dr Clark, I think that is right.
MR COGSWELL: Yes, I suspect that is right. Not only should those assertions not have been tendered to the jury in the first place but, of course, it was not for the Crown to tender that material. We also note that Dr Della Bruna’s report referred to these proceedings as being a “vendetta” at 109.
The last submission so far as the common law is concerned concerns the important role which was pointed out in a case called Zvonavic 54 NSWLR 1. At page 6, paragraph 15, and it was Chief Justice Spigelman I think:
In the circumstances the court must be, as the legislative scheme contemplates, particularly reliant on the legal practitioner representing the accused person.
And in the unreported judgment of Smith, which the extract is there:
at a special hearing the accussed’s legal representative has a greater power to make decisions, without receiving instructions from his client –
We say that when one looks at the particular role of defence counsel, as the Court of Criminal Appeal, in our submission, correctly points out, that it would be quite incongruous for the Crown Prosecutor in a special hearing to be tendering material about the extent of the appellant’s illness.
The final submission on the question of the ground concerning the Crown tendering material concerns what occurred in this particular case. It commences at 6.42 and we say it was overtaken by what occurred in this case. It would be convenient to take your Honours to 1 appeal book at page 152. We say the proposition which we are advancing is that any requirement, if it did exist, for the Crown to tender material relevant to the appellant’s medical condition was overtaken in this case by what happened. What happened commenced at the foot of 152 where we have the jury question:
can you clarify what made the accused unfit for trial.
SIMPSON: I think that will be done this morning your Honour through the witness –
His Honour was wanting reassurance that the witness would say just what was wrong with her. His Honour’s apprehension was that the jury wanted to know “just what is wrong with her”. Mr Simpson indicated that his Honour could give a direction and his Honour persists, with respect, “But they want to know why?” Mr Simpson agrees with the judicial direction and then he discusses with the Crown Prosecutor the question of Dr Menzies’ reports and the Crown Prosecutor suggests that he was going to ask them questions of the detective, but he now thinks that the judge should answer it:
the accused was suffering from anxiety and depression –
Then they go to Dr Menzies’ reports which are handed up at about line 40 and his Honour is looking at what Dr Menzies just said and then they discuss that. Then the jury comes back at the foot of 153 and his Honour then gives the direction at the foot of 153 and the top of 154.
So to the extent that defence counsel might have required the Crown to put before the jury in this case any evidence about the mental condition of the appellant, then defence counsel in the trial agreed with, indeed, suggested or was party to what happened in this case. So in the circumstances of this particular case it was not even necessary for the Crown to tender material which we say they are not required to do in any event.
That is all I propose to say about the third ground, except for this, to draw your Honours’ attention – and we were wondering whether we should do this at the start. In respect of these two grounds, we say that these two grounds, namely, the directions 21(4) and the ground that the Crown should have tendered material, were not subject to any determination by the CCA in this case. We made a supplementary submission on the day or the day before the last hearing, so perhaps I should ask your Honours whether your Honours have a two-page submission from us called “Supplementary Submission on Behalf of the Respondent”.
GLEESON CJ: Yes.
MR COGSWELL: Those supplementary submissions develop the argument that it would be appropriate in this case for this Court to revoke leave or, alternatively, remit these grounds to the CCA for consideration. The point was not taken at the special leave application itself because, as it happens, these two grounds were, can I say with great respect, and no disrespect at all to your Honours Justices McHugh and Callinan who granted special leave, that the two grounds were added in the judgment.
There was discussion at the special leave hearing about these two issues and then in the judgment, which was read by your Honour Justice McHugh, your Honours granted leave in this case but not on the admissibility of the listening device:
but we would grant leave on the first paragraph on ground 2, that:
The Court erred in failing to set aside the finding of the trial judge, Luland J that there should not be a stay in proceedings –
and we would give you leave to add two further grounds. One is that the trial miscarried by reason of the trial judge’s failure to direct the jury in respect of various matters and you will have to identify what those matters are in your ground of appeal. Also, that the trial miscarried by reason of the Crown’s failure to put before the jury evidence concerning the nature and extent of the applicant’s mental illness and unfitness to plead.
So those grounds were added, so to speak, at the and of the special leave hearing and in ‑ ‑ ‑
KIRBY J: But if they are relevant to whether there was a trial at all, as the statute ‑ ‑ ‑
MR COGSWELL: Yes, if they are relevant.
KIRBY J: ‑ ‑ ‑ commands, then this Court has to deal with them as relevant to that point, does it not?
MR COGSWELL: Yes. We say though that they are not of that relevance, that they are both procedural irregularities which might go to the fairness of the special hearing and they are matters which can be determined by the CCA.
KIRBY J: There has been some discourse in this Court in relation to the proviso. I do not know whether it is Wilde’s Case, but I know Justice McHugh has said it from time to time, that the proviso has application where there has been a trial.
MR COGSWELL: Yes.
KIRBY J: It hypothesises that the fundamentals of the trial have been observed and therefore you can apply the proviso, but where they have not, then the proviso is not engaged because the hypothesis is not fulfilled.
MR COGSWELL: That is right. It is Wilde’s Case.
KIRBY J: I remember once looking to whether or not there were many cases where that had actually been given effect and I could not, I think, find anywhere the default was so fundamental as to deprive what had happened of the character of a trial. I suppose that is bound up in the fact that our trials are conducted by professional judges.
MR COGSWELL: Yes.
KIRBY J: But do you know cases where ‑ ‑ ‑
MR COGSWELL: Wilde’s Case might have been an instance, your Honour – would your Honours pardon me for one moment?
KIRBY J: There has been some discussion of this. I do not know whether it was Festa or Conway ‑ ‑ ‑
MR COGSWELL: Festa 208 CLR 593 – and I do not think it is on our list of authorities, but I might be wrong – and there was some discussion by your Honours Justices McHugh, Kirby and Hayne about it, but just on specifically your Honour’s question – I am really looking for the citation for Wilde, which is one of the – here it is, Wilde v The Queen (1998) 164 CLR 365. Your Honour Justice McHugh refers to it – and I am just looking for the footnote.
KIRBY J: One would think it has to be a pretty fundamental error for you to say, “Well, it had the trappings, the judge was there in his wig, the barristers were there, the police officers were at the back of the court, the subject of the trial was there, but it was not a trial”. But this is a very peculiar proceeding here, and if certain preliminary requirements are not conformed to, well, I could understand how one might reach a view that the fundamentals of this peculiar procedure, perhaps because of its peculiarity, meant that what happened did not really amount to the sort of trial that Parliament had in mind.
MR COGSWELL: Yes. Your Honour, we say in response to that ‑ ‑ ‑
KIRBY J: Is this relevant? It does seem to be relevant to the last submission you just made.
MR COGSWELL: Yes.
KIRBY J: Because you seem to be engaging with that suggestion and saying, well ‑ ‑ ‑
McHUGH J: In Wilde, the majority of the Court said that:
The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.
KIRBY J: So the test is “going to the root of the proceedings”, which I suppose is a way of saying it is so fundamental that although it looked like a trial, it really was not a trial as Parliament has envisaged.
MR COGSWELL: Yes. Your Honour, can I respond to that by saying that had there been – I am going to argue that section 21(4), the requirement for the judge to give the direction, is not such a fundamental requirement, but if we were to look, for example, at some of the other provisions about the nature and conduct of a special hearing, for example, your Honour, section 21(2):
the accused person must, unless the Court otherwise allows, be represented –
So that if the accused was unrepresented, and if, for example, the accused person had been taken to have pleaded not guilty, if there was some confusion about that or misunderstanding, or there was some way a verdict or, rather, a plea of guilty to one of several counts, say, was entered, or if there was a denial – the accused person is entitled to give evidence – if, for example, there had been some error and the accused person was not entitled to give evidence, we say that section 21 is the section which one would look to in looking at the fundamental aspects of a special hearing, not a trial, if there was a failure to comply with those.
Whereas section 21(4), although expressed in mandatory terms, “At the commencement . . . must explain”, is something which a court may look to and decide that there was sufficient compliance or insufficient compliance. If there was insufficient compliance, which I am arguing, for example, then it might be that there has been no miscarriage of justice. So that is, we say, not a prerequisite.
McHUGH J: A good illustration of a case that goes to the root of the proceedings is probably Hildebrandt’s Case where he was charged with an offence on an aeroplane, tried in New South Wales, if I remember rightly and the evidence tended to establish the offence probably occurred when the plane was over Queensland. So there is no point taking – you are in the wrong court.
KIRBY J: But it has still been a trial. The legal point may be a good point but you see it is, in a sense, a judicial gloss on the statute of Parliament having said, “Well, we’re going to control”. Do you remember that when the Court of Criminal Appeal was established in England and then in New South Wales, there were great debates in the colony of New South Wales as to whether this should be happening because it was said by members of Parliament this will just be used by smart lawyers to take technical points and unmeritorious people are going to get off and not be hanged as they should be.
That is written up in a couple of articles in the Criminal Law Journal, in the early volumes of it. I think Mr O’Connor wrote some articles looking at the history of this and, therefore, one would think that when Parliament talks in sections of the Criminal Appeal Act, such as section 12, that you have to show this miscarriage of justice. When it is talking of the trial, it means essentially what has happened in the court, but we do have this authority in Wilde and when I actually looked for cases in this Court where the root of the proceedings had been the basis on which the Court has said we do not have to deal with the proviso because it is only engaged on the hypothesis, I do not think I could find anywhere that had actually been said to be the basis. The Court had sometimes mentioned it, but it dealt with it as if the proviso applied and said in any case there is no miscarriage.
McHUGH J: Another illustration is Crane v DPP [1921] 2 AC 299 where the appellant was indicted for receiving goods, another man was charged in a separate indictment with stealing the goods, the two prisoners were tried together and convicted, and the House of Lords held the proceedings were a nullity. As it turned out in that case, they held that the Court of Criminal Appeal could quash the conviction, but it could order a new trial because there had never been a trial.
MR COGSWELL: There had never been a trial in the first place.
McHUGH J: There had never been a trial.
MR COGSWELL: I am inclined, with great respect, to agree with Justice Kirby, that maybe that your Honour’s example of jurisdictionally the wrong court, it is a point that is taken and it is argued. Here, section 21(4) is in the nature of directions or – no, not directions, they are explanations, which is something that needs to be borne in mind. It is not so much a direction as an explanation which is required to be given so that it is an aspect of the trial, non-compliance is not something which deprives the status of the special hearing – I should say of a special hearing. That is our ‑ ‑ ‑
McHUGH J: Another illustration, if it occurred, is that illustration that I gave earlier about the failure to get the consent of the accused at the close of the prosecution case. That actually happened and the New South Wales Full Court I think it was prohibited any action on the conviction on the ground it was made without jurisdiction. It is a case called Beattie, I cannot remember who the other party was, but it was in the early 1960s.
MR COGSWELL: Early 1960s, yes. That is all we have to say your Honours about the supplementary submissions which means ‑ ‑ ‑
KIRBY J: It is the authority of the Court that if it goes to the root of the proceedings, then you do not get to the proviso. It is just not really a trial. What do you say about that principle in this case? You say that there were mistakes and if there were mistakes they are not of that quality.
MR COGSWELL: That if there were mistakes, they are not of that quality, yes.
HAYNE J: The other method of analysing it, which may or may not be consistent with Wilde, is to say that the question of substantial miscarriage presented by the proviso does not in every case require, for example, evaluation of the strength of evidence; rather, substantial miscarriage is such a wide expression that it may encompass consideration of whether there has been such a departure from proper procedures that the conclusion, substantial miscarriage, should follow regardless of whether, looking at the evidence that was led at that proceeding, conviction is likely, unlikely or no. It may, therefore, be that there are alternative paths to precisely the same destination, perhaps one not engaging the metaphors of going to the root of the trial.
GLEESON CJ: And Wilde does not say that you do not get to the proviso. What Wilde says is that where there has been a fundamental defect the proviso is not satisfied. There is an ambiguity in the proposition the proviso does not apply. What the majority said, at page 373, was:
Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.
Not that they require no consideration of the proviso.
MR COGSWELL: Yes, the proviso is not satisfied.
GLEESON CJ: Yes. It says:
If that has occurred . . . the accused has not had a proper trial and that there has been a substantial miscarriage of justice.
That is what the majority said in Wilde at page 373. Then they went on, in the next sentence, to say the application of the proviso is excluded because there has been a substantial miscarriage of justice. If the proviso applies, it produces the consequence that because there has been no substantial miscarriage of justice the error does not result in quashing of the conviction. But the majority in Wilde said that when you consider the proviso in the case of a fundamental defect you conclude that “there has been a substantial miscarriage of justice”.
KIRBY J: But it is the words that were then added, “the application of the proviso is excluded”, that is the source of intellectual difficulty for me. I have no difficulty in it being said that if there has not been a proper trial, there is then by that reason a miscarriage of justice, and therefore in the words of the proviso you apply it. It is going on to say that the proviso is excluded that I have difficulty with, myself.
McHUGH J: Given the statutory direction, I suppose, you really cannot say the statute does not apply. The statute says it has to be considered, but what Wilde seems to say is that in these cases of fundamental defects you do not evaluate the evidence. You do not evaluate the merits of the case.
HAYNE J: There may lie within this debate the seeds of the resolution of the conundrum to which Justice Brooking referred in rather colourful terms in a Victorian case ‑ ‑ ‑
McHUGH J: Gallagher.
HAYNE J: Gallagher, is it? Resolving reference to “miscarriage” in the body of the section and “substantial miscarriage” in the proviso.
MR COGSWELL: Yes.
GLEESON CJ: You cannot avoid consideration of the proviso, because it is in the statute. You are obliged to consider it.
MR COGSWELL: Yes.
KIRBY J: That has always been my difficulty with the expression that follows the reference to miscarriage in the passage in Wilde. Justice Gaudron very often said that error of law may be of such a quality as to amount to a miscarriage of justice on its own, without anything more, and that might be getting to the same thought.
McHUGH J: If the trial judge did not direct the jury on the standard of proof in a criminal trial, it would not matter how strong the Crown case was, you would just say there has not been a trial according to law.
MR COGSWELL: That is right.
McHUGH J: So you do not evaluate and say, “Oh, well, it didn’t really matter because any reasonable jury would have convicted on this evidence”. There just has not been a trial according to law.
MR COGSWELL: Your Honours, I am reminded in Festa, particularly your Honour Justice Hayne elaborated the – looked at the proviso in some detail and explored it‑ ‑ ‑
HAYNE J: I doubt I elaborated it, or at least not successfully.
KIRBY J: The difference in Carroll was that there indubitably Mr Carroll had been acquitted, whereas your client was acquitted of one count but convicted of the other.
MR EINFELD: No, she was not. Yes, or was found on the limited evidence.
KIRBY J: That is true. You correct me, and rightly, but she did not have the complete clearing of the slate that Mr Carroll did.
MR EINFELD: No, but she did on the relevant issue, your Honour, because the only issue ‑ ‑ ‑
KIRBY J: I appreciate your argument, but it is not quite the same.
MR EINFELD: I understand the anomaly. It adds another complication in this particular legislation, no doubt.
KIRBY J: Every case is different.
MR EINFELD: Yes, of course. I do well accept, of course, respectfully, the contrary view but I just say that in this particular case it is very difficult to see how, if it did go back for a new trial, the Court would not be persuaded that there should be a stay on an abuse of process ground on the matters that we have talked about. Of course, there will then be the argument that has been addressed right through the majority of this appeal, and that is this whole mental health aspect.
GLEESON CJ: That comes to the proposition, does it not, that an order for a new trial would be a futility?
MR EINFELD: Yes.
KIRBY J: But why would it be a futility? It upholds the law to have the trial conducted properly in a matter where the Attorney‑General, who had the power, considered that there should be a second trial. It would be being set aside on the hypothesis – unless you win on the stay – that the trial was not properly conducted. Usually, the solution to that that courts like this engage in is to order that it be done properly.
MR EINFELD: It is, but ‑ ‑ ‑
KIRBY J: We are a court of error. We are correcting errors.
MR EINFELD: Yes, I understand. It was not argued here – the Crown did not argue, and, we say, correctly – that because of the mandatory terms of section 19(1) of this Act the court does not have a residual discretion in relation to matters such as abuse of process. We say that the late Judge Luland’s judgment at 111 and 112 is completely inadequate to deal with the stay application. He just said, “I think there should be a trial”, effectively. Certainly, he did make brief mention of the medical condition, but when you look at what Justice Simpson did at 393 to 395, where she set out quite a lot of the chronology of medical history, it was a great deal more detailed than the judge gave at 111 and 112.
KIRBY J: In the case of Mackenzie, where the Court had to consider whether the third trial, I think it was, should be ordered, the factor that led the Court simply to leave it to the Director of Public Prosecutions was that Mr Mackenzie was a solicitor, and the belief that the Court expressed was that there may be public considerations that should be taken into account in exercising the discretion as to whether to order another trial. My understanding was that there was a third trial – I am not sure what the outcome was. I do not know whether that is relevant in this case.
MR EINFELD: I do not know that I could legitimately put a submission that because this appellant is waiting for admission as a lawyer that some different consideration should be applied ‑ ‑ ‑
KIRBY J: The argument was against you. It was that if there is a possibility that she might, in this special procedure, be found to have committed the offence, whether that ought to be on the public record and dealt with and dealt with by her before she is admitted as a practitioner.
MR EINFELD: Your Honour, the only answer to that is that a plea in bar, or some other preclusion, is very likely to succeed, we would submit – it is very powerful, anyway – at a new trial. Why would a futile new trial be ordered when there is every chance that one of the pleas in bar will succeed?
KIRBY J: There is also the possibility, which I would have thought would be strong, that after all that it has gone through and after all the years and the circumstances and so on, that the Court of Appeal in New South Wales or the professional authorities would not have been…..admitted simply because of what has occurred here, I do not know.
MR EINFELD: I do not know, but that remains to be seen, but a plea in bar, for example, if it was successful, results in her having a clean slate. We would submit that in view of that history – it is nine years since this matter took place – and the trials and all the hearings and all the stress and pressure, she should not be required to go back for the purposes of having another stress on the mental condition by another charge and then an argument of one of the pleas in bar to take place which has every chance of success. So we would submit that this Court is well seized of the matter and well able to give its own direction in all the circumstances and no one has argued that the mandatory terms of section 19(1) excludes the Court’s overriding discretion on abuse of process grounds. Unless the Court has any other matters, I think that will ‑ ‑ ‑
GLEESON CJ: Thank you, Mr Einfeld. We will reserve our decision in this matter ‑ ‑ ‑
MR COGSWELL: Your Honours, could I just say that the Bench Book we have managed to – I am sorry to interrupt your Honour – get copies of the relevant provisions in the Bench Book and I will make copies available to the Court. It comprises two components and one is the unfitness question and then some pages down is the commencement of the summing up. It is the commencement of the summing up which is relevant to the special hearings trial.
GLEESON CJ: Thank you. We will adjourn until 9.30 am tomorrow morning in Canberra and 9.30 am tomorrow morning in Sydney.
AT 12.25 PM THE MATTER WAS ADJOURNED
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