Subramaniam v The Queen - [2004] HCATrans 126

[2004] HCATrans 126

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, 29 APRIL 2004, AT 12.46 PM

MR M.R. EINFELD, QC: May it please your Honours, I appear with my learned friend, MR D.R.J. TOOMEY, for the appellant. (instructed by McCellands)

MR R.D. COGSWELL, SC: May it please the Court, I appear for the respondent with my learned friends, MR G.E. SMITH and MS J.A. QUILTER. (instructed by Solicitor of Public Prosecutions (New South Wales)).

GLEESON CJ: Yes, Mr Einfeld.

MR EINFELD: Your Honours, the appropriate starting point, as we see it, is to look at this legislation, which I can go through fairly quickly, except as to one or two sections where we will just delay briefly. The Act is the Mental Health (Criminal Procedure) Act 1990. It provides in the first instance, in the early sections, for the opportunity of a finding of an unfitness of a person to stand trial, and it says that it is to be determined on the balance of probabilities. It may be raised before or after arraignment, and it can be raised during a trial as well. Section 10(1)(a) provides that if:

the Attorney General determines that an inquiry should be conducted –

into this matter, he can also determine:

that there is no longer any need for such an inquiry –

He can make other decisions as well, and the court must not conduct such an inquiry unless it “has been raised in good faith”. When it does conduct it, it can do various things: adjourn it, grant bail, request a psychiatric report and various other matters.

The determination is dealt with in section 11, which provides that it can be determined by a jury and makes certain provisions in relation to that, and then, in 11A, makes provision that the question can be determined by a judge alone, and, in the conduct of the inquiry, the inquiry is not to be conducted adversarially, and there is no onus of proof. In this particular case, it was conducted by a judge alone.

When a person is found unfit to be tried by section 14, the matter must be referred to a mental health review tribunal, and certain consequences can flow from that which are not now relevant. There are some presumptions as to findings concerning unfitness in section 15 which, effectively, presume that a person will be unfit because of the finding until there is a contrary finding.

KIRBY J: Did these provisions come out of a report or some inquiry?

MR EINFELD: Yes, there can be reports from doctors ‑ ‑ ‑

KIRBY J: No, but did this reform or this legislation which has such unusual provisions come out of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Subramaniam v The Queen

Details

AGLC: Subramaniam v The Queen [2004] HCATrans 126
Case: [2004] HCATrans 126
Decision Date

CaseChat Overview and Summary

Subramaniam appealed his conviction for murder to the High Court of Australia. The prosecution's case was that the appellant, Subramaniam, had intentionally caused the death of his wife by stabbing her. The central issue at trial was whether the appellant had acted with the necessary intent to kill or cause grievous bodily harm.

The High Court was required to determine whether the trial judge had erred in law by failing to adequately direct the jury on the issue of intent, particularly in relation to the defence of provocation. The appellant argued that the jury should have been instructed that if they found provocation, they should consider whether it negated the specific intent required for murder, potentially leading to a verdict of manslaughter.

The Court held that the defence of provocation, if established, operates to reduce the crime of murder to manslaughter by negating the element of malice aforethought. However, it does not negate the specific intent to kill or cause grievous bodily harm. Rather, provocation provides a partial defence that excuses the unlawful killing. The jury's attention must be directed to whether the provocation was such as to cause an ordinary person to lose self-control and act as the accused did, and whether the accused did in fact lose self-control. The Court found that the trial judge's directions, when read as a whole, adequately conveyed the relevant principles to the jury.

The appeal was dismissed.

Orders