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

Copyright in the High Court of Australia

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 a report?

MR EINFELD:   I think it was, your Honour, yes.  I think there a law ‑ ‑ ‑

KIRBY J:   Perhaps you could have a look at that and give us a note on that.

MR EINFELD:   Yes.

KIRBY J:   I would also like to know something about the history of the legislation of New South Wales going back to the days of lunatics and how the common law dealt with the issue.

MR EINFELD:   We can have a look at that, too, your Honour.  Thank you.

HAYNE J:   Some, at least, of that is traced in Eastman, I think.

MR EINFELD:   Yes, some of it is referred to in Eastman.  Some of the history is referred to in Eastman, but we will have a look at the history going back to the earlier days.  Section 17 is not particularly relevant except in subsection (3), that if the Mental Health:

Tribunal has determined:

(a)      that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in hospital‑the Court may order that the person be taken to and detained in a hospital; or

(b)      that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital‑the Court may order that the person be detained in a place other than a hospital.

So that there is an immediate consequence from a finding.  The section ‑ ‑ ‑

KIRBY J:   Is the print that we have, which is the print in force at 26 September 1995, the correct print?

MR EINFELD:   No, I do not think it is, your Honour, but it is correct for relevant purposes.  There have been amendments, but so far as we have been able to see there are no amendments which affect this case.  Unfortunately, I think the print with which your Honours were supplied is not the latest print.  Maybe the Crown has a copy of ‑ ‑ ‑

KIRBY J:   It may be the print as at the date applying to the trial.

MR EINFELD:   Yes, this is the relevant print.

KIRBY J:   Perhaps you and the respondent could agree on that and let us know if that is the case.

MR EINFELD:   I think we probably can.  Yes, we will agree on that.  We did ask for the amendments and some amendments have been supplied.  They do not appear to be relevant to this hearing.  Then there is provided in section 19 an important section for this case:

If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must . . . conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative –

The first thing to say is that the Crown argues in its submissions - we will go to this a little later - that this is a presumption that the intent of the hearing is to provide an opportunity for the accused to be acquitted.

We say that is not the way to read it and we also say that the limited evidence that is being spoken of here is a limitation on the defence evidence, not on the Crown evidence.  The Crown produces all its evidence.  Therefore, the bearing down of this section is against the appellant and restricts the appellant’s position.  Indeed, the case is about a clash between words, between credits of various witnesses.  There is really no possibility of an acquittal if the witness on the Crown side is believed because the defence side does not make a case at all and does not give any evidence at all.  So that it is not a clause which provides a sort of onus in favour of an acquittal, as the Crown wishes to argue.  Continuing with section 19:

(2)      The question whether a person has committed an offence charged or any other offence available as an alternative . . . is . . . to be determined at a special hearing by a jury –

That is dealt with again in section 21A, which says that the matter can be heard by a judge alone if elected by the accused and “with the consent of the prosecutor”, which did not happen here, so there was a jury trial.  Then we have section 21, which is central to this case:

(1)      Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

(2)      At a special hearing, the accused person must, unless the Court otherwise allows, be represented by counsel or a solicitor and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person’s representation.

HAYNE J:   How does that work where by hypothesis the person is unfit?

MR EINFELD:   With great difficulty.  Presumably, your Honour, the accused person appoints a counsel but, as the cases seem to indicate, does not have to play any role in his or her instruction during the course of the hearing and there is even reference in the authorities for the fact that counsel in these circumstances are in a much broader role than would be the case in an ordinary circumstance.  But it gets more difficult as the clause goes on:

(3)      At a special hearing:

(a)      the accused person is to be taken to have pleaded not guilty in respect of the offence charged –

That is what happened here, but this jury was never told once in the hearing that the accused pleaded not guilty.  Although there are inferences that the trial has to be conducted on the basis of not guilty or offence proved, the fact is she was never arraigned at all, and in the Court of Criminal Appeal ‑ ‑ ‑

HAYNE J:   But how could she be?  Leave aside this particular appellant.

MR EINFELD:   Yes.

HAYNE J:   Take a case where a person is unfit to be tried because that person is in such psychological state as to be utterly irrational.  Now, the Act is going to be engaged, perhaps, in a case of that kind.

MR EINFELD:   Yes.

HAYNE J:   What is it that you say should occur?

MR EINFELD:   In those circumstances, possibly nothing.  But, your Honour, all the cases have to be decided on their individual facts.  You cannot make generalised provisions here because the unfitness will always vary.

HAYNE J:   Parliament has.  Parliament has assumed that there is going to be something approaching a criminal trial, on the hypothesis that the person is unfit to be tried.

MR EINFELD:   Yes.

HAYNE J:   Unfit to plead, that is a curious hypothesis.

MR EINFELD:   It is a curious hypothesis.

KIRBY J:   What was behind this?  Was there some event or was it just a feeling that people should not get out of their criminal acts without some sort of public trial?

MR EINFELD:   Yes.  There appears to be something of that kind in it, your Honour.

HAYNE J:   Or is it to deal - as 19 might perhaps suggest - with the case where, though charged and unfit, the Crown could not, on its evidence, make a case.  That is, it would lead to the diversion from the criminal system into the pure mental health system of those who, though charged with offence and unfit to plead, are demonstrated by this process to have, in effect, no case to answer.  The Crown could not, on its proof, satisfy a jury of guilt.

MR EINFELD:   This Act actually operates in the opposite way.  This Act makes provision that the Crown can present its case – and, by the way, there may be a distinction between “unfit to plead” and “unfit to be tried”.  The finding is “unfit to be tried” – there may be a distinction.  But, really, the opposite operates here.  The Crown presents a case which the appellant is completely unable to meet by reason of the fact of her condition.  In those circumstances, there is no hearing worthy of the name at all.  There is no trial as such.  It will vary between people.  There will be some people who will be able to plead, who can be arraigned, who could say, “Not guilty”, and understand what they were saying.  That is not this case.  This case is presented on the basis that this woman should not have been in court at all because she was a suicide risk – a serious suicide risk. 

GLEESON CJ:   That may be if you start off with the assumption that the primary objective of this entire exercise is to convict the guilty, but if the primary objective of the entire exercise is different, that is, to discharge from the criminal justice system – perhaps, as Justice Hayne says, into another system – the innocent, then maybe it takes on a different complexion.

MR EINFELD:   But there is no indication that that occurred.  In fact all the sections seem to be the opposite.  If you are acquitted, nothing happens at all, you are just treated exactly the same way as if you were acquitted in a criminal trial.  If you are convicted, there is a range – which we will come to in just a second – a range of penalties or sentencing options, shall we say, which are available and they exclude any further attention to the subject matter on which the person has been convicted.  I use the word “convicted” for shorthand; “Offence found proved” is the actual legislative form.

GLEESON CJ:   In the parliamentary materials, Mr Einfeld, the second reading speech about this legislation to ‑ ‑ ‑

MR EINFELD:   Yes, we will get them, your Honour.  We have not just at the minute, but we will get them, yes.  Section 21(3):

At a special hearing:

(a)      the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and

(b)      the counsel or solicitor, if any, who represents the accused person may exercise the rights of the person to challenge jurors –

So that matter is dealt with.  Then in (c), which is very important –

without limiting the generality of subsection (1) –

which is the nearest possible to the criminal proceedings –

the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings –

and I stop for a moment.  In this particular case, the defence was that she did not say anything that was false at all.  She was not driving the car.  Now, how do you raise a defence if you cannot give evidence?

GLEESON CJ:   Mr Einfeld, is that a convenient time?

MR EINFELD:   Yes, of course, I am sorry.

GLEESON CJ:   We will adjourn until 2.00 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ:   Yes, Mr Einfeld.

MR EINFELD:   Your Honours, thank you for the opportunity of the adjournment.  A few housekeeping matters we can deal with ‑ ‑ ‑

KIRBY J:   We normally allow lunchtime.

McHUGH J:   You have no special privileges.

HAYNE J:   We got lunch.

MR EINFELD:   That is very kind of you, thank you.  Very kind of you to give yourselves lunch.  Anyhow, we attach to our supplementary submissions the relevant legislation as at 14 February 2004.  Your Honour Justice Kirby referred to one of an earlier type which I do not think must have been ‑ ‑ ‑

KIRBY J:   We would have to be looking at it as it applied in the trial of your client.  Maybe that reprint is the right one, but I think it is important that you should agree about this and let us know either today or in the future because otherwise we are applying the wrong Act.

MR EINFELD:   What we are going to do is to hand up the Act that applied at the time of this trial in a number of copies and they may be helpful.  I do not think there are any relevant differences, but just in case there are.

CALLINAN J:   You say that it is different from what is provided by the respondent.

MR EINFELD:   I do not know what was supplied by the respondent.  I do not think that the respondents supplied any.  We supplied one, which is a later one ‑ ‑ ‑

KIRBY J:   Yes, you have a small‑typed version of it.

MR EINFELD:   With the small print, yes.

KIRBY J:   The respondent agrees with it.  This is the version of the Act that applied at the time of the trial.

MR EINFELD:   Yes.  The second thing that I wanted to hand up was two second reading speeches.  I had one of them before which did not seem to help at all, but that has been supplemented because my learned friend was good enough to give me an earlier one of an Act back in 1982, which was the forerunner of this legislation and which, much better than the one which was introduced at the time of this legislation, sets out the reasoning.  The reasoning is important and we will go to that in a minute.  Thank you.

KIRBY J:   Justice McHugh was mentioning a case of Mailes where, apparently, it is set out, too – some of the history.  At some stage, if we could have a citation ‑ ‑ ‑

MR EINFELD:   Yes.  We will quickly go to some of the observations of Justice Hayne in Eastman about this, too.

McHUGH J:   It is Mailes (2001) 53 NSWLR 251, and the history is set out at 287 and following.

MR EINFELD:   Thank you very much, your Honour.  If I could take your Honours to the larger of the two second reading speeches in size, which is back in 1982, which seems to better cover this matter than the later one.  At page 3005, on the right hand side, the Minister, who was Mr Brereton at the time, said – a number of Mental Health Bills were introduced at the same time, and this particular one that he is now talking about made amendments to the Crimes Act which have subsequently become the legislation that we are now dealing with.  At the top of page 3005, he said:

I turn now to the question of unfitness to be tried, which will be dealt with in a new part XIA of the Crimes Act.  It is a well‑established and fundamental principle of our criminal justice system that a person cannot be tried for an offence unless he is in a condition to defend himself, that is, unless he is fit to plead.  As this concept has developed, it has encompassed all persons who, for whatever reason, are unable to understand clearly the course and nature of the proceedings of the trial so as to make a proper defence, or to challenge a juror or to communicate adequately with a lawyer.  Although the original concept of fitness to plead was developed in regard to persons who were clearly insane, the notion of fitness to be tried has come to be understood as covering all persons who from whatever cause are unable to plead, understand the proceedings or communicate with others.  In 1836 in the case of Pritchard, Baron Alderson in addressing the jury in a trial relating to a prisoner who was deaf and dumb, said:

Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge, you ought to find that he is not of sane mind.  It is not enough that he may have a general capacity of communicating on ordinary matters.

At present, if an accused person is found unfit to plead –

and these are crucial words here –

the trial judge, in virtually all cases, will order that the accused be kept in strict custody in such place and manner as the judge thinks fit.  This means detention in a mental hospital or prison.  The major weakness in the present system is that a person may be detained indefinitely without having had an opportunity to present a defence case.  In particular, if a person is mentally retarded, he or she may never become fit in the future so as to come before a court for a trial.  He or she may never get out, in effect.

Other deficiencies in the existing system can be summarized as follows:  the onus of proof rule in fitness to plead hearings is not clear; the nature of fitness proceedings is not clear, for example, whether they are adversary proceedings or not; no procedure exists for compelling the Crown law authorities to indicate whether it is intended that charges will not be proceeded with against a particular person, and there is no review by an independent tribunal of the necessity for continued detention of a person detained as unfit.  It is towards overcoming these deficiencies that the provisions of part XIA of the bill, entitled “Unfitness to be tried for an offence”, are directed.  It is considered that the concept of unfitness to be tried is a more accurate statement of what is involved rather than fitness to plead.  Proposed clause 428B states that a person is unfit to be tried for an offence is because of disability he is incapable of understanding the nature or purpose of the proceedings brought against him; or he is incapable of communicating adequately with a person for the purpose of conducting a defence to those proceedings.  The preceding provision, proposed section 428A, defines disability to include –

these various subjects, which include mental illness.

To ensure that a person who is unfit to be tried is not incorrectly tried for an offence, proposed section 428C provides that the question of a person’s fitness may be raised by any party to the proceedings or by the court, that is, by the magistrate . . . or by the judge . . . Proposed section 428D specifies the standard of proof that must be satisfied in determining the question of fitness.  It is provided that a person will be unfit if, in all the circumstances, it is likely to result in unfairness to the accused person if the hearing of the proceedings were to commence or continue.  Though the question of a person’s fitness to be tried for an offence may be raised at any time during the course of the hearing, proposed section 428E provides that as far as practicable, the question shall be raised before or at the commencement of the proceedings.

Proposed section 428F compels the holding of an investigation as to whether a person is unfit as soon as practicable after the question is raised.  The question will be determined usually on the evidence of one or more doctors, or of a solicitor who has had difficulty communicating with the client.  If a person is found unfit, it must also be determined, on the balance of probabilities, whether the person will become fit to be tried within twelve months of the finding of unfitness.  To overcome the possibility of a person who is found unfit being lost in the system without the merits of his case ever being considered, proposed section 428I(2)(c) provides for the holding of a special inquiry.  The rationale behind this provision is that once a person is found unfit, no procedure currently exists to examine whether such a person committed the offence.  This is a particularly difficult situation for the mentally retarded, who are unlikely ever to be fit to be tried according to the conventional rules.  Such persons may be locked up forever, with no prospect of release.

Under the proposed procedure when it is found that a person will not become fit during the next twelve months a special inquiry must be held so far as is practicable within thirty days of the finding of the unfitness to determine whether the person committed the offence or whether the person is not guilty of the offence.  This will allow the mentally retarded accused person his day in court and at least the opportunity to have the charges against him dismissed.

GLEESON CJ:   Just pausing there, there has been one major change in circumstances between 1982 and the present time.  You do not now assume that people who have mental problems will be likely to be locked up in a mental hospital.

MR EINFELD:   Exactly so, yes.

GLEESON CJ:   Between then and now there has been a huge egress from mental institutions.

MR EINFELD:   Yes, your Honour, and there is no presumption that the person will finish up locked up forever and the key thrown away, as it were.

Under [another] proposed section 428L, where he is found to have committed the offence alleged, the court must state the sentence or disposition it would have considered appropriate had the special inquiry been a normal criminal trial and the person been found guilty.  It is intended by this provision that a person should not be detained for an offence because of his unfitness for any period in excess of that which he would have been detained had he been of sound mind and found guilty of a similar offence.  In addition, the court may do one or more of the following:  order the person’s detention; make arrangements for the person’s admission to and treatment in a mental hospital; discharge the person; or make another appropriate order.

The legislation thus provides a series of options as to disposal. If the matter is of a minor nature, the court may be of the opinion that despite the finding against the person, discharge may be the appropriate order because the sentence it would have imposed would have been of a non‑custodial nature in any case. [Other] proposed sections 428N and 428O make provision for a further investigation to be held and the procedures that apply following the completion of such further investigation. I am aware that some members of the legal profession may be a little puzzled by the special inquiry notion, involving as it does a significant departure from the principle that a mentally incompetent person should not be put in jeopardy of criminal punishment. This is an excellent principle, but in practice it is capable of operating very unjustly, particularly, as I have said, against mentally retarded persons. Most mentally ill people fluctuate in their capacity to comprehend reality, and to understand court proceedings. The present law caters for such persons. They are detained in a mental hospital until they get better and are fit for trial. The trial then proceeds and they may be found guilty or not guilty. They have their day in court. By contrast, persons who are very mentally retarded are most likely never to improve in their mental competence. Such persons will never, under existing section 24 of the Mental Health Act, be certified to be in effect capable of standing trial.  They may be locked up forever on a mere accusation.  Although the special inquiry procedure may appear to be somewhat novel, it is designed to obviate such possible injustice, and I am confident that it will operate satisfactorily.

That is what the Minister said at the time.

KIRBY J:   That does seem to bear out the Crown submission that this is a beneficial, protective ‑ ‑ ‑

MR EINFELD:   But for certain types of people, your Honour.

KIRBY J:   That categorisation of it cuts both ways.  If its overall purpose is beneficial then one would think the way in which you carry on the special inquiry, subject to the words of the Act, will be such as to facilitate a beneficial application of the law to the person in the line of what the Minister was saying is the objective of Parliament.

MR EINFELD:   We will try and develop that, if I may, but let it be assumed that that is the case.  In many cases the next step is that once an offence is found to be proved all the penalties available to the law are available here and we will come to those sections in a moment.  All those penalties are available and because the limitation that is spoken about on the evidence is the limitation of the defence evidence, not of the Crown’s evidence, in fact when there is an offence found proved this operates very much to the detriment of people because it actually has them found guilty on an inadequate hearing, to say the nicest one can say about it, a hearing in which they do not present a defence at all, and ‑ ‑ ‑

KIRBY J:   One might say, so what?  If it is valid New South Wales legislation and if it so provides and if it is within power, then there is nothing that the court can do except give effect to it.  You do not raise a Kable point in respect of this legislation.

MR EINFELD:   No, your Honour, but the fact is that the court has never given up ‑ and there are many repetitions of this in recent times – the obligation to ensure that there is a fair trial and that there are no miscarriages of justice.

GLEESON CJ:   The problem is, Mr Einfeld, that the assumption that a person who is unfit to plead will be locked up in a mental hospital is very much an assumption of the 1970s, or perhaps early 1980s, but it may not have much validity in the early part of the 21^st century.

MR EINFELD:   If I may say so, your Honour, that is correct, with respect, and has an important impact on this particular case.  Of course, if the purpose of the legislation then was to give what we might colloquially call a fair go to people in mentally retarded situations who would otherwise be locked up, where some sort of hearing was better than no sort of hearing, that does not apply in the modern age, where something better than some sort of a hearing is surely an entitlement of a person who is found unfit to be tried, that is, the court will not abdicate the field of observing whether this Act, with all its limitations on the capacity of a person to have what might be called a normal trial, nonetheless must be protected against the likelihood of oppression by not having any trial at all.

Could I just take your Honours to the other second reading speech?  It is only a very short passage and does not really add anything to it of any significance that I can see.  At 892, four lines from the bottom, when a number of Acts were introduced by Mr Collins who was then the Minister:

The second cognate bill is the Mental Health (Criminal Procedure) Bill.  This cognate bill re‑enacts provisions relating to proceedings involving persons affected by mental illness and other mental conditions which are currently contained in parts 11A and 11B of the Crimes Act 1900 with appropriate amendments consequential upon the drafting of the Mental Health Bill.  It was considered that these provisions should more appropriately be placed in a new principal piece of legislation.

He then goes back to talking about the mentally ill people and nothing much to do with criminal procedures.  So that seems to be the parliamentary background to the legislation.  We would have submitted that the serious change to which your Honour the Chief Justice has referred, from those days to this, does impel the Court to look carefully to ensure that this is not a case where somebody is being given a trial because otherwise the alternative is being locked up in a mental hospital or a prison.  This is a question of whether somebody who is out and about in the community but is suffering from a mental illness for 12 months should be given a trial, a hearing – a special hearing – in which there was no reasonable chance that the person could get an acquittal. 

The reason in this particular case – as I said earlier, each of these cases has to be dealt with on its own facts, and all the cases that have been reported that we can see have been – in this particular case, where there was a contest of credibility of words between two witnesses and the accused person in this particular case had given sworn evidence in another trial, on the same matter in an earlier trial where the jury had disagreed, had given sworn evidence completely denying the allegation and explaining the so‑called admissions upon which the Crown were relied, this jury was given no opportunity to even know that she had given that sworn evidence on a previous occasion, that there had been a disagreement in the jury on a previous occasion ‑ in other words, she had not been disbelieved – and that ‑ ‑ ‑

KIRBY J:   Could you just tell me:  does the Act forbid the giving of evidence by the accused or simply not provide for it?

MR EINFELD:   No, it enables it.

HAYNE J:   I understand the provision is there.  How can that operate when the hypothesis is that the person concerned is unfit to plead?

MR EINFELD:   I do not think it can operate, your Honour, but I cannot think of a circumstance in which – I can think of a circumstance in which a person can play some role in the trial.  They might be able to be arraigned and plead not guilty, for example, which did not happen here, but it is hard to think of a case in which a person who is found unfit to be tried could actually give evidence.  If I could just finish the review of the legislation for a moment because some of this is answered there, I was dealing with section 21(3) which says – I dealt with the fact that the accused in subparagraph (c):

the accused person may raise any defence that could be properly raised –

which in this case was a denial of the allegation, and (d):

the accused person is entitled to give evidence. 

That is 21(3)(d).  Then (4):

At the commencement of a special hearing, the Court must explain to the jury –

and there are five things that have to be explained:

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 special hearing, the verdicts which are available and the legal and practical consequences –

Because of time stringencies and also necessity, I am not going to deal with all of those.  We will just deal with the main ones that we say were deficient in this case.  They were deficient not only perhaps because the learned trial judge perhaps did not do it adequately, but also to point up the difficulty of applying this Act and providing a fair trial under it.  If I may say so on the run, but we will come to the details later, Chief Justice Spigelman has recently said that this Act does not abnegate the court’s obligation to see that there was a fair hearing and a fair trial.

GLEESON CJ:   What was the date of the Richmond Report?  Maybe Mr Cogswell will know.

MR EINFELD:   That is a good question, your Honour.  In another capacity I hope to deal with that. 

GLEESON CJ:   Mr Cogswell can find out and let us know.

MR EINFELD:   Yes.  Just to mention for a moment, to say you have to explain to the jury “that the accused person is unfit to be tried in accordance with the normal procedures”, this trial judge did in fact say that or words to that effect.  But what does a jury know about normal procedures, for example, automatically?  Unless you explain it to them, what do they know what a normal procedure is in a court trial?  The same is “meaning of unfitness to be tried”.  We will take your Honours to it, but in this particular case the presiding judge just told them that she had a mental illness and then later on, under some pressure, he went on to explain the condition from which she was suffering, which he got from the psychiatrist who gave evidence on the voir dire before him.

KIRBY J:   There was a jury question, was there not?  There was a question from the jury, was there not?

MR EINFELD:   No, not in this case, your Honour.  The jury question of unfitness was decided by Judge Stewart as a judge alone under 11A.

KIRBY J:   So the jury question was in Judge Stewart’s trial?

MR EINFELD:   Yes, it was dealt with by Judge Stewart in his hearing.  To tell a jury that a person is unfit to be tried because they are suffering a mental illness and then later on tell them that she had an anxiety disorder and an adjustment disorder and so on does not really tell them anything.  The jury does not know anything of what that means.  Many people who are not jurors, many of us would not know either without a series of having listened to a psychiatrist give evidence on many occasions or read their evidence.

The other matters – I do not particularly stop to deal with the small matters that can be dealt with, if necessary, in another way.  I have dealt with 21A.  Section 22 is relevant, “Verdicts at special hearing”, and this is why we say these things are not loaded in favour of the accused, as the Crown argues and as Mr Brereton’s speech would tend to have indicated: 

(1)The verdicts available to the jury or the Court at a special hearing include the following: 

(a)not guilty of the offence charged,

(b)not guilty on the ground of mental illness –

which does not apply here –

(c)that on the limited evidence available, the accused person committed the offence charged –

that is definitely relevant here –

(d)that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged –

which is not applicable.  Then: 

(2)A verdict in accordance with subsection (1)(b) is to be taken as equivalent for all purposes to –

a finding under mental health legislation –

(3)  A verdict in accordance with subsection (1)(c) or (d) –

and this one was under (1)(c) –

(a)  constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates –

so you have a finding of guilt, you have a finding the offence is proved, but no conviction –

(b)  constitutes a bar to further prosecution in respect of the same circumstances, and

(c)  is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and

(d)  is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for –

victims’ compensation, only.  So that is the context, and the procedure then goes on to say, in section 23, what the court can do about this.  In summary, it can be said that if there is a finding under (1)(c) that, on the limited evidence available, the accused person has committed it, the court must indicate what they would have done in terms of a term of imprisonment if this had been an ordinary trial, and must nominate a term which is: 

the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial –

It then goes on, in subsection (2), which is on point here:

(2)  If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.

So all the weight of the law is there ‑ ‑ ‑

HAYNE J:   Well, is that right?  Is not the effect of section 23 that the court may not order imprisonment?  The most it can do is indicate that it would have, had things been otherwise.

MR EINFELD:   Well, yes, your Honour, until you go over to section 28.  It is true that the person does not get a sentence immediately of that kind, but if you look at 28, firstly:

(1)If, following a special hearing, an accused person is found on the limited evidence available to have committed the offence charged . . . the finding, except as provided by subsection (2), constitutes a bar to any other criminal proceedings brought against the person for the same offence or substantially the same offence.

(2)Nothing in subsection (1) prevents other criminal proceedings referred to in that subsection from being commenced at any time before the expiration of any limiting term nominated in respect of a person unless, before the expiration of the limiting term, the person has been released from custody as a prisoner or discharged from detention as a forensic patient.

There is then a very difficult subsection (3), which I do not think is particularly relevant here, but it is very difficult to fit in with the other two subsections.  No doubt it can be, but with great difficulty.

So that the situation that you have is that the court can make a series of orders, including, for example, very heavy fines, suspensions of one kind or another, and consequential suspensions that will flow from these findings in other areas of people’s lives, such as their professional lives and so on, all of which are the result of a finding which is not a conviction but which is an offence found proved on limited evidence, the limited evidence being the accused’s limited evidence.  So the accused has not presented a defence but has suffered very serious or could suffer very serious consequences with all the weight the law can put on it, except sending them to gaol.

Now, we would respectfully submit that such a regime is not a beneficial regime to the accused at all.  It is if the person is acquitted, but then all regimes are good for the accused if they are acquitted.  So would the ordinary criminal proceeding which nobody suggests is something done for the benefit of the accused.

KIRBY J:   Well, the benefits are (1) they do not languish in a mental hospital, (2) they cannot be sent to prison, and (3) if they are acquitted, they walk.

MR EINFELD:   Yes, but what we say is that this is not a regime which can be said to be beneficial to an accused person who has a defence but is unable to present it to a court.

McHUGH J:   Could I raise some matters with you which are in your interests, and they are not grounds of appeal, but it appears to me at the moment that the trial judge failed to comply with the requirements of section 21(4) of the Act, which states that:

At the commencement of a special hearing, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures –

he said that –

the meaning of unfitness to be tried –

he did not say that –

the purpose of the special hearing –

it is arguable whether he said that –

the verdicts which are available and the legal and practical consequences of those verdicts. 

If you look at what the judge said at 118, he did not explain the legal and practical consequences of the verdict.

MR EINFELD:   Your Honour, we say these things are in the appeal notice – I will come to that in a minute – but just dealing front on with the point, we certainly are going to argue that he did not tell the jury what the normal procedures were, the meaning of “unfitness to be tried” and the legal and practical consequences.  He did not tell them those.  I think he told them the verdicts which are available and to some extent he told them the purpose ‑ ‑ ‑

McHUGH J:   Well, he really only told them two verdicts:  not guilty and a special finding upon the limited evidence that she committed the offence.

MR EINFELD:   Yes.

McHUGH J:   But so far as the legal and practical consequences, he said:

I then will have to determine what is to happen to the accused as a result of your finding –

and the Act sets out ‑ ‑ ‑

MR EINFELD:   Yes.

CALLINAN J:   And it is not just tell the jury, it is “explain to the jury”.

MR EINFELD:   Yes, “explain to the jury”.  We certainly propose to argue those points and we have put them in our written submissions and we certainly will argue them, subject to the Court, of course.  We suggest that these are all elements of the fact that this hearing was a miscarriage of justice and that the accused was not protected in any way.  There was even a passage later on where the judge was persuaded to tell the jury something about the previous hearing, the previous trial on which she had given sworn evidence, but he did not mention that she had given sworn evidence; he did not mention that she had not been disbelieved in these proceedings; he did not mention what her sworn evidence was and, in our respectful submission, all of those are extremely relevant, in the facts of this case, to whether there was a miscarriage of justice.

The Crown, with respect to them, argue a type of framework, that as long as the Act is in form followed, that there is ipso facto a fair trial.  We submit not.  We submit that the Act can be complied with.  As we know, procedures can be complied with in normal criminal trials, but still there be an injustice.

KIRBY J:   Is not the logic of the case that we must first of all consider whether the Act was complied with?

MR EINFELD:   Yes.

KIRBY J:   You do not challenge the Act - the Act is an Act of the New South Wales Parliament - must be complied with.  If it was not, is that not enough to allow you to succeed?  The Court may say something about the matters of justice and how it is to be done, obiter, but that is a winning point.

MR EINFELD:   Yes.

KIRBY J:   The question of miscarriage of justice, it may be that you can this Act has elements of injustice about it, but if it is a valid Act it just has to be complied with as best it can be within the hypothesis that courts are not normally asked to do unjust things.

MR EINFELD:   We thought about the validity question, yes, and that the Court will not shy away from the responsibility of supervising the conduct of these hearings to ensure that they do maximum fairness that the statute will allow, merely because the statute appears to bear down on the rights of accused persons, as they are customarily understood.

KIRBY J:   But Justice McHugh has said that the judge did not explain the matters that 21(4) require.  The Crown contests that in its submissions.  I think in its submissions in reply or somewhere it says that that was fully complied with.

MR EINFELD:   Yes, they say that the forms were complied with.  We say the forms were not complied with.

KIRBY J:   That is a biting point.  We have to resolve that.

MR EINFELD:   Yes, the forms are not complied with, but if they were, it still did not give rise to a fair hearing of the issues.

KIRBY J:   That is then the second step.  If, in fact, they were complied with in the letter, it may be you have a fallback position.

MR EINFELD:   Yes.  There are only three passages in the summing up that are actually relevant on this question raised by Justice McHugh.  The passage that your Honour referred to at page 118 at line 23 has already been mentioned:

That you will be asked . . . to determine upon the limited evidence . . . and come to a verdict.  The verdicts that will be available to you will be either not guilty, and if that be the case, the accused . . . 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, charge, the one that you are dealing with, remember there are two charges.  And if you so make that finding, 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.  So that is the nature of this hearing –

That is what he said there.

HAYNE J:   In what respect do you say that was deficient?  What more should have been said?

MR EINFELD:   He certainly should have said, as the legislation requires, what is the meaning of “unfitness to be tried”.  That is one of the things he has to do and we say he did not do that.  He also has to tell them the legal and practical consequences.  The legal and practical consequences are not that he has to do something, but that the accused may have this limiting term imposed, this putative prison sentence, or, if that is not regarded as appropriate, “I can do other things with her, as may be appropriate in the circumstances, as provided by the legislation”.

It does say in 21, and this is an important point raised by your Honour Justice Callinan, the court must explain to the jury, the first of which are the normal procedures.  What is the use of telling a jury that the accused is unfit to be tried in accordance with normal procedures?  Unless the juror has been there before, they would not know and it would be rather bad for them to proceed on the basis that what you see on television in trials is what is normal procedure, which is approximately what the public at large thinks.

KIRBY J:   Should he have explained to the jury that under section 21(3)(d) your client was entitled to give evidence?

MR EINFELD:   He could have said that, but he then would have had to go on to say, we would submit, that she had given evidence in the previous trial, sworn evidence, had been cross‑examined rigorously and, indeed, that the medical evidence was that her condition had deteriorated following that.  It was suggested, for example, in the cross‑examination at that hearing that she was in a lesbian relationship with Leigh Johnson at the time – something which she strenuously denied but which was very stressful, and it was mentioned in quite a number of the medical reports – and many other things in which she was very rigorously cross‑examined to establish that she was a liar and that she was inventing things and creating a circumstance that was protective of herself and so on, and she had given very strenuous defence of her position.

None of this was drawn to the jury’s attention and, in our submission, it should have been, because the fact is that she was on this trial – the previous trial was not conducted under this legislation.  She was in this situation, this special inquiry was taking place because that trial had gone wrong, she had had the deterioration of her condition in the meantime, which Chief Justice Wood had said in the appeal from that stay application, that if there had been a deterioration, that this should be considered as whether a fair trial is possible to be achieved, none of which was done.  In fact, it is important to see what the judge said about that matter, that is, the stay ‑ ‑ ‑

KIRBY J:   Just before you go on, you said there were three passages.  Now, are they all on 118 or are they elsewhere?

MR EINFELD:   No, I will just give your Honours the other pages.

CALLINAN J:   There is something said at 354 which was not, of course, at the beginning of the trial.  I thought everything that the trial judge said relevant to this point was at 117 to 119.

MR EINFELD:   No, there are two passages.  One is 354, when he had to be reminded about the accused – there had been no summing up about the not giving evidence.  He said:

She was entitled to give evidence before you but you might think in all of the circumstances of this case it is perhaps understandable why she did not.

How would they understand that?

But the fact that she did not give evidence is not something that you can assume therefrom that she is making any admissions at all in respect of the matter, and certainly you cannot take her silence, in any way, to fill the gaps of the evidence that was tendered by the prosecution.  You certainly cannot do that in respect of the matter.

There is one other place which I just have to find.

KIRBY J:   Your complaint is not as to the accuracy of that but as to the adequacy, is it?

MR EINFELD:   I am sorry?

KIRBY J:   Is your complaint about accuracy in that passage or inadequacy?

MR EINFELD:   Inadequacy.  Page 154 is the other passage.  This was in the course of the hearing.  It starts at the bottom of 153 in the very last paragraph:

Just as a bit of background before I tell you what the doctor diagnosed in respect of Ms Subramaniam, there has been a previous trial in respect of this matter.  You don’t really need to concern yourselves with the fact that there was a trial.  You’re to determine this matter on what’s put before you here in this Court.  But there was no resolution of the trial on that occasion.  That was back in August of 1999.  Following that trial there was a proceeding again in this Court before a judge to determine whether she was fit to be tried –

Could I just interpose, the first interview with Dr Menzies, the treating psychiatrist, came in September 1999 immediately after the end of the last trial –

based on the evidence in particular by her treating psychiatrist, Dr Menzies.  Dr Menzies’ diagnosis of the accused was that she was suffering from an adjustment disorder, with anxiety and depressive features which were severe.  The illness began in February/March 1999 when she was notified she had to stand trial.  It’s said by the doctor, that as a result of the first trial, and the subsequent proceedings, that the depressive illness, anxiety order –

“disorder” I think was meant –

has intensified and is to the point where it has made her unfit to be tried.  In addition to the hearing before the judge she was then referred to the Mental Health Review Tribunal who heard somewhat similar evidence, and they in turn directed that she was unfit to be tried.  It was then forwarded off to the Attorney General who ordered these proceedings.  So does that answer your question.

That came about as a result of a question from the jury which was:  what is meant by “unfit to be tried”?

CALLINAN J:   Mr Einfeld, can I just ask you about one matter.  You said that an explanation of the verdicts was not given, among other things, for which section 22 provides.  There would be no point in the trial judge giving an explanation of the verdicts contemplated by 22(1)(d) or 22(1)(b) because (1)(b) would only be appropriate if a defence were raised of mental illness at the time of the offence, I would have thought.

MR EINFELD:   That is true.

CALLINAN J:   In respect of (d) there is no alternative charge, so we are only concerned with (a) and (c), are we not?

MR EINFELD:   Of 22?

CALLINAN J:   Yes.

MR EINFELD:   Yes, your Honour.  I think I said that.  I meant to if I did not say that before.  We are only dealing with 22(a) and (c).  I think that is what the trial judge did.  I agree that he would not have to read out provisions that had no relevance to this case at all.

KIRBY J:   It is clear from 154 that there were questions from the jury in this trial.

MR EINFELD:   Yes, and your Honour will see that two pages earlier.  At line 35 on page 152 in the presence of the jury:

The questions asked by the jury are that firstly clarify what exactly the charge is against the accused, that is to say are we to decide if she was driving the car.  The short answer to that is that no, you don’t have to decide if she was actually driving the car.  It’s the Crown case that Ms Johnson was actually driving the car.  The case against Ms Subramaniam is that she made the false statutory declaration and then followed that up by giving false evidence before this Court.

That is a little cute, if I may say so, with all respect.  It is true so far as it goes, but what she said in the false evidence and the false statutory declaration was that she was driving the car.  So to say that you have to decide the false statutory declaration without actually telling them that, in that statutory declaration, that is what she said – and, therefore, the question you have to decide, really, is whether that statutory declaration is false and that she was not driving the car when she said she was.  It is true ‑ ‑ ‑

KIRBY J:   I am more concerned with the passage at the top of 193, where apparently the jury asked, what was wrong with her?  That was an understandable question in this rather strange procedure.

McHUGH J:   And that only emphasises the importance of the explanation at the very beginning of the trial of the meaning of “unfit to be tried”, because that means that (1) she has to understand the nature of the charge; (2) she has to be able to plead to the charge; (3) she has to understand the nature of the proceedings; (4) she has to be able to follow the course of the proceedings; (5) she has to be able to understand the substantial effect of the evidence; and (6) unfitness to plead includes the capacity to make a defence.  Unless those things are explained to the jury at the start, they cannot evaluate the evidence as it goes through.  It seems to me it is fundamental.  The Crown says, well, the judge did inform the jury as to what unfitness means.  Well, if you look at what the judge said to the jury at page 152 – and the evidence had been going on for some time when he said something – it does not get anywhere near explaining what “unfitness to plead” is.

MR EINFELD:   Thank you, your Honour.  Nor did he ever say that they had only heard one side of the story.  There may be an innocent explanation available here.  These are all directions that are given to juries in other circumstances, where there are normal trials.

McHUGH J:   But the other thing that the judge did not do at the beginning was to explain the legal and practical consequences of the verdicts.  Now, that was put in to overcome this Court’s decision in Lucas, where we held that, except in exceptional circumstances, a jury was not to be told what the consequences of a verdict of not guilty on the ground of mental illness was.  That was why those words were put in.  The Minister explained that in his second reading speech.  As the Minister said, juries think, “This person may be dangerous and if we find not guilty on the ground of mental illness or limited evidence, whatever it is, he or she goes free and he or she is a danger to the community”.  That was why it was important, to ensure the fairness of the trial, that it be explained to the jury, and it just was not done at the commencement of the trial.  Speaking for myself, Mr Cogswell has a bit of ground to make up, I think.

MR EINFELD:   Well, he will no doubt do his very best, but it is not to be unexpected that we place a significant reliance upon subsection (4) and the failures to which your Honour refers.  Could I just say in passing that it has always been regarded as important that the jury should be told that they have only heard one side of a case.  Broadhurst [1964] AC 441 at 459 was a case of a man who was drunk, who killed his wife and there was a question of a loss of memory issue that he raised in defence, that he did not remember doing it. At 459 the Privy Council said in the middle of the page:

Just as a faked loss of memory may make it easier for a jury to draw the inference of guilt, so a genuine loss of memory may make it more difficult, for a jury must then reflect that by the force of circumstances they have heard only one side of the case.  Their Lordships consider that the Chief Justice should have pointed this out to the jury and that he did not hold the balance even in this respect –

We would respectfully say that that is entirely analogous here by reason of the condition of the appellant.  In our respectful submission, there are many things that a trial judge or a presiding judge has to do in one of these hearings.  Section 21(4) has to be done strictly, as your Honours Justice McHugh and Justice Callinan have said.  It has to be done strictly, but it is still not necessarily the end of the story. 

I say again – I try not to repeat myself, but I say again, a jury cannot be assumed to understand what psychiatric terms mean.  They cannot be assumed to understand what normal criminal trials are conducted like.  They could not certainly have known that when his Honour mentioned at the beginning or early in the proceeding that there had been a previous trial, what happened in the previous trial.  Was she unfit to plead in that trial, for example?  Was it a full trial?  Was it a hearing of this kind?

KIRBY J:   But your client was represented.  I am not suggesting the burden is on her representative, but were there any relevant attempts to seek redirections?

MR EINFELD:   No.  I am sorry to say, no.  But the fact is that if a jury is going to ask questions such as the ones your Honour Justice Kirby referred to about the condition and then the ones at 152 about what exactly the charge is, and this business about who was driving the car, the simple fact is this trial was conducted by the Crown on the basis that Johnson was driving the car and the defence was that the appellant was driving the car.

Now, it can be put in the form of saying so in a statutory declaration and in evidence, but that is the substance of it.  In the earlier hearing when she gave sworn evidence, she actually gave sworn evidence to that effect, that she was driving the car, and she explains ‑ ‑ ‑

GLEESON CJ:   And presumably explained what appeared to be admissions that she made in the interview with Coughlan?

MR EINFELD:   Yes, your Honour.

KIRBY J:   Was there not a problem that there were photographs that showed it was a blonde person?

MR EINFELD:   No, your Honour.

KIRBY J:   That was wrong, was it?

MR EINFELD:   No, it was not.

CALLINAN J:   The photographs were too blurred, were not they?  It was accepted, I thought, by everybody that they did not prove who the driver was.

MR EINFELD:   No, there was a reference to blondes, and in the Coughlan interview there was a reference to blondes, but it turned out that there was nothing in the photographs, blonde or otherwise, but Coughlan was attempting to draw her out about the fact that if it was a blonde – I understand Johnson is a blonde and Subramaniam is dark haired, but that was Coughlan speculating.  I do not want to take your Honours, and will not do so unless you would require me to, to the Couglan taped interview, but it will suffice to say that, first of all, the interview is a lengthy – can I say in a nice way ‑ gossipy‑type of exchange, of which the vast majority, all but about four or five pages out of 80 of the printed ones, are about things which have nothing to do with this case, and they have scandalous features. 

By the way, my learned friend asked me to remind your Honours that there is at the moment a non‑publication order in relation to the tape and the transcript, which I think we should ask your Honours to continue here.

KIRBY J:   I notice the solicitor was referred to by initials in another place, but you have mentioned her name ‑ ‑ ‑

MR EINFELD:   They were my initials.  I used those.

KIRBY J:   ‑ ‑ ‑ several times, including a personal relationship, which was alleged.  Should that be substituted in the transcript, I do not know.  Is there a non‑disclosure order in relation to the solicitor?

MR EINFELD:   No, those things are in cross‑examination and they are in the transcript, but I think the non‑disclosure order was about the tape and the transcription of the tape.

GLEESON CJ:   If there is some joint application for us to make or continue an order, could you just read the order that you want onto the transcript so that we can consider it?

MR EINFELD:   I will let my learned friend say that, but we will be agreed on that, mainly because there are other people’s names mentioned who have absolutely nothing to do with this case at all.  The point we want to make about this is that – perhaps I should go back a stage.  The tape came about in these circumstances – and this is in evidence of Detective Laidlaw.  I will not take your Honours to it, but, of course, it can be summarised and it is common ground.  Detective Laidlaw wired up Coughlan to conduct this material for the purpose of getting statements by the appellant that could be used to put pressure on her to turn Queen’s evidence against Johnson.  That was the purpose of this operation.

It was not an operation to entrap Subramaniam per se.  It was a desire to get material so that they could prosecute Johnson and they knew that the tape of the interview between the appellant and Coughlan could not provide that.  So they needed to be able to get material on which pressure could be put on the appellant to give evidence against Johnson so that she could be convicted.  That was the purpose of the whole operation.  In 80 pages of transcript ‑ and the tapes are available, we have no intention of playing them, inviting your Honours to listen to them in Court, but if your Honours wish to do so in Chambers they are available.

The crux of it is that there was this very long, rambling, gossipy, quite scandalous and slanderous conversation in which numerous people get very seriously slandered, including Johnson and others, about a whole range of people and facts and circumstances.  The one I mentioned about the relationship between Subramaniam and Johnson is mild by comparison to quite a number of them, and in the middle of it, there are a few references which are explained, as can be seen in the supplementary appeal book, have been explained in the previous trial by the accused as having been gossip and the kind of talk that girls go on with, she said, and things like that - it is not my observation but hers - and that she was not listening half the time ‑ ‑ ‑

KIRBY J:   Gossip is not confined to “girls”, as you describe them.

MR EINFELD:   The appellant was a girl, your Honour.

KIRBY J:   There are a lot of males, especially around Phillip Street, who are experts.

MR EINFELD:   A lot of males around Phillip Street were referred to in the tape, not necessarily by name but things like, “Going to a party which will be full of barristers and would be only boring”.

KIRBY J:   That is simply a statement of facts.

MR EINFELD:   When asked about what happened to her salacious ‑ ‑ ‑

KIRBY J:   I do not think we need to know, we may be tempted to read them?

MR EINFELD:    ‑ ‑ ‑ Christmas cards, I will not say her salacious Christmas cards were sent to “judges and things” as referred to in the transcript.  I am not quite sure if that is ejusdem generis or not, but anyhow, certainly not former judges, but some people might have received one, I do not know.  The point about it is that the conversation was endless gossip and in the middle of it there were some references to the driving which the Crown refers to, and I will not stop to talk about now, but, in our submission, are first of all not admissions at all, or if they are, they are so vague as to be a very inadequate basis for a conviction and would have taken very little by way of contrary evidence to raise a reasonable doubt.  That is what is crucial in this case.

What we say is that the concept here is not about a hearing that has only one side being put or some sort of hearing that can be dealt with merely by going through the forms prescribed by the legislation, but also that there is some substantive attempt to hold the balance evenly, as they said in Broadhurst, between the parties as best can be done in the framework of this legislation and to attempt to get some fair hearing and a just result.

GLEESON CJ:   Mr Einfeld, what was the principle evidence upon which the Crown relied to establish guilt?

MR EINFELD:   Coughlan’s statements of admission, almost entirely.  In fact, there was hardly anything else, your Honour.  It has been said several times that that was their major witness.  The trial judge said it and nobody objected to it and other people have said it.  That was their major witness or the major evidence, but no doubt the Crown will attempt to establish there were other factors.  We say that crucial to the prosecution case was the evidence of Coughlan.  Her evidence was discredited very substantially in a number of different ways, as the submissions make clear from the evidence.  She interfered with a hearing before a magistrate by tearing up an exhibit and hiding it in her fingernails.  She was eventually convicted of contempt of court by the Supreme Court and sentenced to gaol, all in relation to this matter.  Her evidence in the previous trial is in the supplementary appeal book and it shows – you do not have to read it line by line – the nature of her evidence.

All we can say is if that material had been met by either the presentation of her evidence in the previous hearing or by a clear‑cut statement by the trial judge that she had given sworn evidence, she had denied the matter strenuously under cross‑examination and that her defence was that she was driving the car and her statutory declaration and evidence were not false, it would have made a very substantial difference to this case.  Chief Justice Spigelman, in a case called Zvonaric ‑ ‑ ‑

KIRBY J:   Can I ask you, why would it have made such a difference, given that she could give evidence herself and the judge told the jury that she could have given evidence herself?

MR EINFELD:   She could not give evidence, your Honour, because that would have meant that the unfitness to be tried finding ‑ ‑ ‑

KIRBY J:   The Act preserves – the postulate of the Act is that the person, despite their mental unfitness, is entitled to give evidence.

MR EINFELD:   She is entitled to, your Honour, but in her particular case the evidence was, which the trial judge accepted by the way, was that she would be a serious suicide risk if she did it.  In fact, the evidence of Dr Menzies was that she should not even be in court.  The judge ordered her to be in court.  I ask your Honours to think of the dynamics of a jury hearing with which your Honours are all well familiar.  The jury is there, the prosecution is calling its evidence, all the advocacy is taking place and this woman is sitting there absolutely mute during the whole hearing, not instructing counsel, not saying anything, and the jury gets no explanation about what this is all about.  She is just there.

HAYNE J:   Is not the one‑sided nature of the process, being the proposition that lies at the heart of this branch of your argument, a necessary corollary of the conclusion that the person accused of crime cannot, for example, follow the course of proceedings or understand substantial effect of any evidence given or make a defence or answer?  Now, if that is the hypothesis, is it not inevitable that the resulting process is one‑sided?

MR EINFELD:   If they are the facts, there would be some one‑sidedness, but the presiding judge has an obligation to try and even that imbalance up and ‑ ‑ ‑

GLEESON CJ:   It actually sounds like a description of a criminal trial in 1850.

MR EINFELD:   Yes.

HAYNE J:   And the manner of evening it up, as you say, must at some point find a statutory root in section 21(4).  If you cannot find its root there, where else can you find it?

MR EINFELD:   No.  Well, section 21(4) is important and provides the statutory lead in, but to borrow the words of Chief Justice Spigelman in Zvonaric:

The very exigencies that give rise to the need for special hearing are such as indicate a greater than usual need to observe the formalities of court process.

And other statements that are referred to in the cases which talk about the need to ensure that justice is done and that there is a fair and proper hearing.  Our respectful submission is that that has not happened here.

Can I take up the point about being entitled to give evidence?  Being entitled to give evidence means entitled if capable.  It does not mean that everybody who does not give evidence necessarily has to have a different type of hearing, that there do not have to be balances put in to try to even up this balance.  Entitled only means that because he or she is unfit to plead does not mean that he or she cannot give evidence if they wish to – the accused cannot give evidence.  It means they are entitled to, but it does not mean that they must necessarily suffer a penalty if they do not, when the evidence is that they are a serious suicide risk by participating in that way. 

KIRBY J:   Did the judge accept Dr Menzies?

MR EINFELD:   He did.  If I could take your Honours to that because it is only a ‑ ‑ ‑

KIRBY J:   Was the jury bound to accept him?

MR EINFELD:   The jury would be ‑ ‑ ‑

KIRBY J:   Was there contrary evidence?

MR EINFELD:   No, because the jury did not hear Dr Menzies’ evidence.  That is one of our criticisms.  They did not hear Dr Menzies’ evidence.  All they had was the trial judge giving that summary about anxiety disorders.  It is only a very short passage at 111.  This was how the judge dealt with the stay application, we would have submitted – scant regard to what Justice Wood had said in the Court of Criminal Appeal.  He said, at line 15:

Mr Waterstreet submits that I should stay the proceedings in the interest of justice because of the protracted nature of the proceedings and that the proceedings to date have had a debilitating effect upon the accused to the point where she is said to be suicidal.  Medical evidence relied upon by Mr Waterstreet comprise of the reports and evidence of Dr Menzies her consulting psychiatrist for the past two and a half years.  His diagnosis has been for some time that she has an adjustment disorder with anxiety and depressive features.  His numerous reports show that her illness has developed to the point where after the first trial she was talking about suicide.  He has a genuine concern for the accused because of her illness.  He was cross‑examined by the Crown who questions the doctor’s objectivity, however I found the doctor to be a very good witness and I accept his evidence.  There was also tendered reports from Dr Lucire and Dr Clarke, both psychiatrists.  Dr Lucire was of the opinion that the accused was suffering post‑traumatic stress disorder as a result of the proceedings.  Mr Menzies’ evidence said that post‑traumatic stress disorder is not very different from his own diagnosis.  Dr Clarke was of the opinion she was suffering from a major depressive illness with paranoia.

The accused is presently being treated by Dr Menzies who prescribes [certain treatment].  The Crown argues that the hearing should proceed.  He accepts that it may be her condition has intensified but there is insufficient reason to stay the proceedings.

An application for a stay of future proceedings was made before Judge Gibson who heard the first trial –

which is not the case.  He did not hear the first trial, he merely heard an application for a stay –

The judge had the opportunity to see the accused during the proceedings. 

That is also wrong.

GLEESON CJ:   Was that an application for a permanent stay?

MR EINFELD:   Yes.  A permanent or a temporary stay – either. 

GLEESON CJ:   I see. 

MR EINFELD:  

The judge had the opportunity to see the accused during the proceedings –

that is not correct, his Honour did not –

He took the view that these proceedings should be had as quickly as possible.  I also believe that the proceedings should take place.  Whilst I accept she has an adjustment disorder, and that it has become more serious, I am not satisfied on the totality of the evidence that I should permanently stay the matter.

So that was how his Honour, rather peremptorily, we would suggest, disposed of an application for a stay based on evidence that the accused would be or might be suicidal if she is required to go to the trial.

We give references in the submissions – and I will not go to them now – of the circumstances in which the judge, with the Crown’s encouragement, in effect, ordered the appellant to be there.  He said that if she did not come, he would refuse bail and issue a warrant and all sorts of other draconian mechanisms, so, of course, she did come there.  In those dynamics, there she is, sitting in this court in this forlorn state, with no explanation to the jury of any significance at all about what she was doing there and why she was not speaking in her own defence.  All that there was, for all the trouble, was, “You cannot view her silence to be any admission of guilt”, which is exactly the same as you would say in an ordinary criminal trial and is often done if the accused does not say anything.

In a decision also of the Court of Criminal Appeal, so as to attempt to deal with the point raised by your Honour Justice Hayne, in effect, saying that this is a code which covers all the circumstances, the Court of Criminal Appeal in R v WRC [2003] NSWCCA 394, at page 7 of the printed report, this is what their Honours said:

Part 2 is concerned with a particular range of matters.  Such matters may arise in combination with matters not within its scope, in the context of alleged abuse of the processes of a court.  Nothing in Pt 2 of the Act suggests, let alone states with sufficient clarity, that the Parliament intended to impinge on the implied jurisdiction of the District Court or the inherent jurisdiction of this Court, in this regard.  The presumption to which I have referred is not overcome.  The Appellant’s contention that his Honour had no jurisdiction ‑ ‑ ‑

KIRBY J:   Well, Justice McHugh held that in the Court of Appeal in the Police Tribunal Case, I think.

MR EINFELD:   Yes.

KIRBY J:   It would lead to a whole bevy of cases, and I would have thought it settled ‑ ‑ ‑

MR EINFELD:   There are quite a number of cases which say that this type of legislation, and there are cases which say that this particular legislation does not exclude the common law and the court has a residual ‑ ‑ ‑

KIRBY J:   But, under the jurisprudence of this Court, it is very, very rarely applied.  I mean, that seems to be the message that the cases in this Court have said.  It is a very, very rare order made, for the reason that Justice Gaudron gave, that it involves a negation of the rule of law to the extent that the court is not giving effect to performing a statutory function, saying, “Well, we do not care, but it is in the statute.  We note that, but it is a higher call and we are not going to apply it”.  That is a very exceptional thing.

MR EINFELD:   Is it, with respect, your Honour?  In a criminal circumstance, with really serious consequences that can flow from an uninterfered with miscarriage of justice on the grounds that the statute has been formally complied with, I would have thought the court has intervened on occasions in the interests of a fair trial in criminal‑type circumstances.

KIRBY J:   Well it has occasionally.  Gardiner, I think, was one case where the Chief Justice and I sat in the Court of Appeal in New South Wales, but my distinct impression is that the jurisprudence in Australia is very strongly against relief ‑ ‑ ‑

MR EINFELD:   Well, I certainly would not challenge your ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑except in the truly exceptional case.

McHUGH J:   Since Jago’s Case in this Court, it has been downhill all the way for applicants for stay.

MR EINFELD:   Yes.

KIRBY J:   I sometimes thought that maybe it should be more available, but the jurisprudence in this Court seems to say it is very, very exceptional.

MR EINFELD:   Yes.

HAYNE J:   And responsibility is shifted to the prosecuting authorities and particular responsibility, I would have thought, attaching to the prosecuting authorities in launching inquiries of this kind, rather than entering nolles or no bills, if a likely disposition at the end of it, indicative disposition would have been adjournment without imprisonment or some other equivalent, non‑custodial disposition.  However, the conduct of the prosecution in launching the proceeding is not an issue before us.

KIRBY J:   What is your best case to support the grant of a stay in this circumstance? 

GLEESON CJ:   Hakim. 

MR EINFELD:   Well, I do not know that I can say there is a best case scenario in those.  I can take your Honours to the cases on stay, but I think that they are all very well known in the Court.  First of all, in this particular ‑ ‑ ‑

KIRBY J:   Well, I will read them all again, but you must assume that I start from the distinct impression – and I sat through about 20 or 30 of these in the Court of Appeal – there was a whole rush of them after Justice McHugh’s decision in the Police Tribunal Case ‑ ‑ ‑

McHUGH J:   Herron v McGregor. 

KIRBY J:    ‑ ‑ ‑ and my distinct impression is that this Court put a lid on it.  It is a very rare order that was made.

McHUGH J:   Since Jago, Hakim is probably the strongest. 

MR EINFELD:   Hakim was one. 

GLEESON CJ: (1989) 41 A Crim R 372.

McHUGH J:   He had heart disease. 

MR EINFELD:   Yes, that is Hakim.  Jago and Hakim were cases – the difficulty is that there are a number of statements of principle which seem to uphold the existence of the power, but in many cases it is not exercised in the facts of that case.  It leads one always to the view that it is available and it turns on the particular facts of the case.

KIRBY J:   Yes, but, as I understand, your point in this case is that it is not a usual stay application.  This is a case where the Act itself is the source of the potential injustice to your client.  The problem I have with that is that, as you make no Kable or other constitutional attack on the Act, we have to start on the premise that this is a valid Act of the Parliament of New South Wales and it has to be given effect.  If the judge got it wrong, well, it has to be tried again and dealt with correctly, but we cannot say that just because the Act has elements of unfairness, that in itself is enough to give a stay, because that seems to defy the power of the Parliament to enact such an Act.

MR EINFELD:   No, we do go down a relatively narrow path, I agree.  We cannot say that because the Act provides – shall I describe it as an unfair regime or an abnormal regime, that that is, ipso facto, necessarily unfair.  But the cases all show that the cases are dealt with on the individual fact situation as to whether they are unfair or not.  We would submit that this case cannot be conducted fairly, and that the indication is to be found from all these factors. 

KIRBY J:   I do not see why not.  Why can you not go back –assuming you establish error in this trial – and get a judge who explains, as he is required to do, from the outset, what the accused’s position is, what happened before, and all the things that this Act says, and then proceeds in accordance with the Act?

MR EINFELD:   Well, one reason why that would not be a just result is because the matters which are the subject of these proceedings started in 1995.  This woman has been through countless hearings, tremendous stress, to the point where she has been found by a psychiatrist – which a judge has accepted, having heard the evidence – as a suicidal risk.  The idea that the Court would make a finding that would ultimately have the result of sending this back for yet another hearing at this stage would, in our submission, compound the injustices that have taken place so far.

KIRBY J:   My impression from the cases was that 10 years was a relatively short interval.  We were dealing in the Court of Appeal with cases of 20 and 25 years.  I think Gardiner v Walton was a much longer case than 10 years.

MR EINFELD:   I think Gardiner was not as long as that, your Honour.  Gardiner was about nine years, I think.  In fact, in Walton v Gardiner 177 CLR 378 at 395, the last passage, it was said:

As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations.

These are well‑known expressions.

Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

KIRBY J:   Yes, we know all that, but I am reminded that Gardiner was about events that took place in 1973 and here it is before the High Court of Australia in 1992.  So we are talking of a 20‑year interval between the events and the attempts to enforce legal consequences to it, whereas in this case it is a 10‑year interval or less.

MR EINFELD:   Yes, it is coming up to its ninth birthday.

KIRBY J:   I just have to put this to you because my impression is that maybe we should have a more rigorous principle.  My impression is this Court’s jurisprudence is against that proposition.

MR EINFELD:   Your Honour, I naturally defer to your Honour’s knowledge of the cases, it is more comprehensive than mine, but our reading is to that effect.  I am not trying to put some other point of view.  What I am saying is that, nonetheless, each case has to be viewed in accordance with its own facts, and none of the cases, to my knowledge, include a person whose medical evidence, accepted by a judge, has been that she is suicidal by having to be brought to court on continuous occasions.  Dr Menzies’ evidence on this particular occasion was that she should not be required to be in court – I am summarising, of course ‑ ‑ ‑

KIRBY J:   My recollection is that there had been cases in the courts in the States of delayed sexual complaints that go back 30 or 40 years and applications are repeatedly made for stays and virtually always rejected.  Therefore, we are talking about a different ballpark to this case.

MR EINFELD:   I think there have been some here in fairly recent times of very long delayed child molestation cases or paedophilia cases which go back a very long time.  But, your Honour, it is not tested only by time; it is tested by justice.  In our submission, there is not much point in judgments saying, “There is no abrogation of the common law because of this particular statute, amongst others”, and then to say, “Well, nonetheless, we are not going to do anything other than apply the statute in a rigorous form”.  Can I just say, and I do not want to delay unnecessarily, and just finish the points that I can make ‑ ‑ ‑

HAYNE J:   Just before you summarise them, insofar as your appeal raises a question of stay, what do you say to the proposition that once an Attorney‑General’s direction is given under section 19 the statute applies of its own force and requires the appropriate court to conduct the hearing prescribed by the Act?

MR EINFELD:   I do not think it excludes the possibility of the Attorney‑General withdrawing his ‑ ‑ ‑

HAYNE J:   Plainly no.  Plainly I would have thought it would not prevent the Attorney withdrawing but, so long as that direction is on foot, is it open to a court – presumably in this case the court to whom the direction is given – to disobey it by ordering a stay?

MR EINFELD:   So the Court of Criminal Appeal held in this particular case.

HAYNE J:   Did they grapple with section 19 directly?

MR EINFELD:   I was not there, your Honour.  The judgment does not necessarily indicate it, but Justice Wood did say that it is appropriate for the trial judge to consider the possible unfairness or the impossibility of conducting a fair trial if the condition deteriorates.  So it is implied in that that the court can intervene.  There are many such statements, including the ones of Chief Justice Spigelman twice, that permit it.  This Court has not pronounced on it.

McHUGH J:   The solution may be, Mr Einfeld, although it does not help you a great deal, I do not think, the statute says that:

If the Attorney General directs that a special hearing . . . the appropriate Court must, as soon as practicable . . . conduct a special hearing –

The court is bound to follow a direction, but if there is a conviction as a result of an unfair trial, then that could be set aside.  So you look at it at the other end rather than at the beginning.

MR EINFELD:   And all the appeal rights are preserved, so for the appeal rights ‑ ‑ ‑

KIRBY J:   At the other end you then direct a retrial freed of error, but you are saying at the other end you direct a stay, notwithstanding the certificate of the Attorney‑General.

MR EINFELD:   I am saying that one of the things that can be done, yes, is to direct a stay.  Yes, a retrial ‑ ‑ ‑

KIRBY J:   That seems to be the judicial branch defying the role reserved by Parliament to the executive branch.

MR EINFELD:   Not if the court considers that a fair trial was not held and that in all the circumstances there should be no further persistence with these hearings.  The statute does not appear to suggest that the fact that the Attorney‑General has directed a hearing means that the court does not have all its range of powers to deal with that hearing when it is conducted.

McHUGH J:   That is true, but the section says the “Court must, as soon as practicable . . . conduct a special hearing”.

MR EINFELD:   It has done; it has done that.  It has conducted a hearing but, having conducted it, it does not mean that if this Court holds that the hearing was unfair and unjust, that that means they have to go on hearing it.  He might have to issue another one.

KIRBY J:   Normally when there has been error, that is what you order.  The provision of a stay is truly exceptional and in face of a determination by the relevant officer nominated by Parliament who is a law officer that it must be conducted, we then say that notwithstanding that, we are not going to allow it to be done correctly, which is what you would normally do as a correction of error.

McHUGH J:   It might raise a Kable point, but no Kable point has ‑ ‑ ‑

KIRBY J:   As I keep saying.

MR EINFELD:   Yes, that is true, but I do not know that Kable would save us greatly.

KIRBY J:   Do not go there.

MR EINFELD:   No, I do not think it is a good idea for me to go there, in the same way as constitutionality does not really help very much, even if we had raised it.

McHUGH J:   It raises it in this way, that it is requiring the court on a legislative direction to conduct a hearing, even though the court were of the view that it would be an unfair hearing.  You might be in a lot of trouble if the Federal Parliament passed this legislation.  Anyway, you can look at it at the other end.  Maybe there is only one question involved in this, whether this trial was unfair.  What you raise as a stay point really has to be considered at the other end.

MR EINFELD:   I think I have said what I need to say on that.  I just would add a few other points.  The case turned at the end on the state of mind of the accused.  Did she have an intent to pervert the course of justice?  The judge gave his directions in relation to intent at page 340 in relation to the statutory declaration charge.  I would just invite your Honours to consider what this does, when an accused person cannot give evidence because she has been found unfit to do so and in the circumstances whether it could ever be a position that this matter could be remedied in the form of a fair hearing.  This is what he said at the top of page 340:

in respect of Count 1 you know that the issue is whether the accused made this statutory declaration –

That was not the issue at all.  It was never contested that she made it.

Whether it is false, and whether when she made it it was her intention to pervert the course of justice.  As to the question of whether she made it or not that will be a matter of fact for you –

There was no cross‑examination to suggest that she did not and she swore evidence in the previous hearing that she did.

whether it is false will be also be a matter for you to determine upon that same evidence.  And you will have to be satisfied what her intention was, it is alleged it was to pervert the course of justice.  A person’s intention of course can be inferred, it can be directed if it stated directly what the intention is.  Or it can be inferred from the words or their acts that they perform.  You are entitled to look at those matters to make your determination as to a person’s intention.

Then he goes on about perverting the course of justice and says:

What the Crown alleges in respect of the first count is, that that is what the accused did because it was intended by her to assist Ms Johnson in not being found guilty of the traffic infringement that it is alleged that Ms Johnson committed.

How does a jury find a person not guilty or not possessing the intent if it hears nothing from her at all?

KIRBY J:   Is the answer to that you could have given some evidence, you are entitled to?

MR EINFELD:   No, the answer to that is not that she could have given some evidence because she has been found unfit ‑ ‑ ‑

KIRBY J:   You could have called Dr Menzies.  I know that that reverses the ordinary process, which is that the Crown calls all this relevant material, and maybe that is the answer to it.  It is unreasonable in a criminal proceeding to expect an accused to call essential evidence, and that is one of your arguments.

MR EINFELD:   Yes, that is one of our arguments and Justice Callinan raised it at the special leave hearing, as a matter of fact, the question of the Crown’s obligation to present this material.  We have said what we want to say about that in the submissions and I will not repeat it, but I merely say now that to answer your Honour by saying that she could have given evidence to deny the intention is to remove the whole basis for the special hearing.  The special hearing comes about by reason of the fact that she cannot do that.

KIRBY J:   Yes, but in a context of a statute that reserves to her the right and if this keeps coming back to my mind, sure as eggs, that would be coming back to a juror’s mind.

MR EINFELD:   I would never equate your Honour to a juror.

KIRBY J:   No, but at least I can correct it by knowing the accusatorial nature of the trial.  The jury would not necessarily understand that.

MR EINFELD:   No, they will not and when ‑ ‑ ‑

KIRBY J:   If they are not told it by the judge and if they are not prevented from getting to that point by the way the Crown presents the case and the judge explains their duty, then you have a problem.

MR EINFELD:   Your Honour ‑ ‑ ‑

KIRBY J:   And maybe the Crown has a problem.

MR EINFELD:   That is our complaint.  The Crown has a problem and we do not think that that problem can be overcome at all.  Can I say much the same about the character position which is on the next page, 341 - I will just be very brief about it - from 35 onwards – the question of the accused’s character:

You will recall when Mr Olivieri gave his evidence, he was asked about Kala and he described her as being a legal clerk at that time, that she was honest, hardworking, and took her job seriously.  So that it put to you to show the type of person she was and is, and also the evidence of her driving record can also be taken into account in this regard because she has a clear record in respect of the driving, there is nothing there to suggest that she is other than a person of good character, but it is a matter for you.  But the law on it is that if you find that the accused is a person of good character you must take that into account when you are deciding the facts of the case.  That is is is it more likely than not a person of good character would not do a thing such as is charged against her.  If you accept that she is a person of good character, that fact might persuade you that the Crown evidence must be mistaken, because a person of good character is unlikely to have conducted in the way that is alleged that she has conducted herself.  It is a matter for you whether you are persuaded by that argument or not.  It is not a defence to the crime, but it has to be taken into account by you in your determination of the facts.

It is true that it is not a defence to the crime, but it is evidence that goes to the issue of guilt or innocence, but so does the other leg, of course, of the character direction that is required and that is that her evidence is more likely to be acceptable and accepted and that is just denied to a person in these circumstances.

Your Honours, just pardon me one moment, I might be able to finish.  Can I say one thing that is very relevant to this case.  The motivation that is said to have given rise to the appellant’s so‑called offence of swearing falsely that she was driving, in other words, taking the rap for the driving, was that Johnson would have lost her licence as a consequence of this event if she had been convicted.  The evidence in the case is that she would not have lost her licence at all, that she had five points to go and you only got three points for this particular offence.

McHUGH J:   This has nothing to do with your grounds of appeal, Mr Einfeld.

MR EINFELD:   It only has in relation to the significance of failure to explain the tape, but I will not say any more than that.

KIRBY J:   There was also a suggestion, was there not, that Ms Johnson said something to the effect that whatever happened happened at night, when, in fact, it happened in the daytime and it was unlikely that she would have made that mistake if ‑ ‑ ‑

MR EINFELD:   Well, it was a mistake – no, it was not her mistake, your Honour, it was the trial judge’s mistake.

KIRBY J:   I see.

MR EINFELD:   And it was corrected once and it was mentioned again.  It had been mentioned earlier.  In fact, the explanation of the Court of Criminal Appeal for these apparently inconsistent verdicts was that the jury might have thought that when she gave her false evidence, so‑called, it was about a different matter, a different offence altogether, a different circumstance.  We submit that could not possibly have been right.  The

Crown only presented one case and the dismissal by Justice Beazley of the point, in our submission, on that basis simply could not be correct.

GLEESON CJ:   Thank you, Mr Einfeld.  Yes, Mr Cogswell. 

MR COGSWELL:   If the Court pleases, the answer to your Honour the Chief Justice’s question about the Richmond Report is 1983.  My learned junior, Dr Quilter, has been onto the Internet and produced what looks like a very helpful document that I will show to my learned friend, and, if he is happy, I will make it available to the Court.  It gives some history as well.  Your Honours, I propose ‑ ‑ ‑

GLEESON CJ:   In Kesavarajah (1994) 181 CLR 230, some members of this Court said that the usual consequence of a finding of unfitness to plead is indefinite incarceration, but I have some difficulty relating that, as a matter of fact, with the Richmond Report and what went on in New South Wales by way of – to a large extent – emptying the mental hospitals, following that report.

MR COGSWELL:   Yes, these days it is not as harsh, your Honour.  These days there are, for example – the legislation in 1983 and in 1990 also set up procedures under the Mental Health Act for the regular review of what are called “forensic patients”, so that they are reviewed every six months.  It may be, for example, that if it is found that they are not a danger, either to themselves or to other persons, they can be released.

GLEESON CJ:   Yes, well, the development of medication ‑ ‑ ‑

MR COGSWELL:   Yes.

GLEESON CJ:    ‑ ‑ ‑ by way of treatment has produced a consequence that a lot of people who used to be confined are no longer confined.

HAYNE J:   When did the Governor’s pleasure disposition go from New South Wales?

MR COGSWELL:   In 1983.  What I was going to do, your Honours, is this, to give your Honours a little background by taking your Honours to the case of Mailes, and then after I have done that, which will be brief, I will deal with each of my learned friend’s three grounds. 

KIRBY J:   You have handed Mailes in, I think, to be distributed, is that correct? 

MR COGSWELL:   We made it available this morning, your Honour, Mailes (2001) 53 NSWLR 251. It is a judgment of the Court of Criminal Appeal in New South Wales, and the principal judgment was delivered by the Chief Judge at Common Law, Justice Wood. The Chief Justice agreed with him at paragraph 1 and Justice Greg James agreed with him at paragraph 230. In fact my learned friend, Mr Smith, was counsel for the Crown in the matter, and the Chief Judge indicates at the beginning of his judgment that they sought additional submissions. The point was whether the Act extended to a particular mental condition, which is not a point before this Court, but the Chief Judge took the opportunity to give, with respect, a very thorough disposition on the background of the law.

Can I take your Honours to page 273, where his Honour, under the heading, “Development of the common law – The United Kingdom – origin of the rule”, commences with just that.  Interestingly, right at the foot, at paragraph 115:

In the early cases, three types of individuals became closely linked:  the insane, the deaf mute and the individual who decided it was not in his best interests to plead. 

Now, that clearly raises what happens in every case of an inquiry into fitness.  There obviously has to be a question of whether it is genuine or not, and this Act in New South Wales makes provision for that.  To take a step backwards to paragraph 114, the Chief Judge cites a passage from Sir Matthew Hale’s History of the Pleas of the Crown.  Skipping the first paragraph, in the second indented paragraph:

“But because there may be great fraud in this matter, yet if the crim be notorious, as treason or murder, the judge before such respite of trial or judgment may do well to impanel a jury to inquire ex officio touching such insanity, and whether it be real or counterfeit. 

If a person of non sane memory commit homicide during such his insanity, and continue so till the time of his arraignment, such person shall neither be arraigned nor tried, but remitted to gaol, there to remain in expectation of the king’s grace to pardon him.” 

From there, your Honours, can I take your Honours to page 276 at paragraph 130?  The Chief Judge had, over the previous pages, reviewed some early English decisions and some legislation.  At 130 his Honour said:

These cases firmly established that individuals found unfit to plead were to be considered insane on arraignment.  This meant that the unfit to plead defendant was to be dealt with under the provisions of s 2 of the Criminal Lunatics Custody Act (UK), which provided that:

“… [I]f any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully empanelled for that purpose . . . it shall be lawful for the court … to direct such finding to be recorded, and thereupon to order such person to be kept in strict custody until His Majesty’s pleasure shall be known …”

From there, can I take your Honours to page 288, and your Honours will find on the way through that the Chief Judge reviews the Australian case law.  Commencing at 279, his Honour looks at non‑New South Wales decisions, including a number of decisions, of course, of this Court.  His Honour at 285 examines decisions in New South Wales and then, importantly, for the purposes of this case, comes at page 288, under the heading “The legislative history in New South Wales” to that topic and says at paragraph 182:

It is next convenient to turn to the legislation which dealt with the circumstance, at common law, that those held unfit to be tried were liable to be kept in indeterminate detention, at the Governor’s pleasure; and to examine whether the language used – 

and that was the particular issue in that case.  Then his Honour in the next paragraph, 183, made reference to the history of the legislation in New South Wales, originally governed by the Criminal Lunatics Custody Act (UK) until 1878, then there was a Lunacy Act 1878 which lasted for 80 years, by the looks of it, until the Mental Health Act 1958.

KIRBY J:   We had a course in lunacy when I was at law school.  It is very interesting.

MR COGSWELL:   Yes, and, of course, there was the Master in Lunacy as well.  Then his Honour at the top of 298 refers to the Lunacy Act 1878, section 59, and it is just necessary to go to the end:

“When any person committed to take his trial for any offence shall be certified by two medical practitioners in the form of Schedule 2 to be insane or shall upon arraignment be found by verdict to be insane the Colonial Secretary may direct . . . such person be removed to an hospital … until he shall be certified . . . to be of sound mind whereupon the Colonial Secretary shall order his removal to the gaol from whence he came in order to his being tried for such offence.

Then, in response to Justice Hayne’s questions, up to 1958, section 23(1) provided:

“If any person indicted for an offence is mentally ill and, upon arraignment, is found to be so by a jury . . . such person cannot be tried upon such indictment, or if upon the trial of any person so indicted such person is found by the jury, before whom he is tried, to be mentally ill, the judge before whom any such person is brought to be arraigned or tried as aforesaid may direct such findings to be recorded, and thereupon may order such person to be kept in strict custody in such place and in such manner as to such judge may seem fit until he is dealt with as provided by section twenty‑four –

and his Honour the Chief Judge makes reference to section 24 in the very next paragraph “certified by two medical practitioners”. Can I take your Honours then just to the foot of that page at 191, the Chief Judge’s remarks about the second reading speech. These, it will be recalled, are in 1982, so this is introducing the Mental Health Act when it became 1983, and some amendments to the Crimes Act which are, for all practical purposes, the same as the legislation that we are dealing with:

It is clear from the Second Reading Speech when the Bills were first introduced in 1982, with the intention that they lie in the House until the next Session, that this legislation was intended to deal with the problem that a person who had been found unfit to plead might be detained indefinitely at the Governor’s pleasure in a mental hospital or prison, without ever having an opportunity to present a defence case.  It is also clear from that speech that the legislation was intended to apply to the intellectually disabled, as well as to those suffering from some form of mental illness.

My learned friend has taken your Honours to the second reading speech where the Chief Judge sets out the Minister’s second reading speech in paragraph 191 commencing at the top of page ‑ ‑ ‑

KIRBY J:   We can read all – this is going to be very valuable, but where is it getting to in your argument?

MR COGSWELL:   That was all I was going to take your Honours to, to those particular paragraphs.  It is getting to – the fact that this legislation is trying to deal with the clash of two systems; the public health system and the criminal justice system and the fact of the matter is that if a person is unfit to be tried, the normal course was that that person would be detained by the mental health system, albeit perhaps these days with an opportunity to be released.  The purpose of this particular piece of legislation, in our submission, that we are dealing with was, as your Honour the Chief Justice said, it provides an opportunity for the person to be acquitted, just as the Minister said in introducing the legislation.

It may be that a person simply goes into the mental health system, the public health system, and stays there without ever having an opportunity to see whether he or she might be acquitted of the offence with which he was charged.  That history that I took your Honours to in Mailes illustrates, we say, that point.

KIRBY J:   Yes, but unless the accusatorial trial is stood on its head, unless the Crown accepts some obligations at the beginning to lay the ground and to set where the accused is, virtually the accused, though having the mental disability, is forced into giving evidence, as is possible, and calling evidence, which is really to reverse the whole system in a quasi‑criminal proceeding of the criminal trial.  It seems an unlikely thing for Parliament to do.

MR COGSWELL:   It might do, your Honour, and that comes to one of the matters that Justice Hayne was talking about.  This is not a criminal trial, this is a special hearing.

KIRBY J:   Yes, but it can have very serious consequences for the person the subject of the hearing.

MR COGSWELL:   It can, your Honour.

KIRBY J:   Not prison but other consequences for the reputation and pocket; fines and other penalties can be imposed.

MR COGSWELL:   Yes, quite so.  In fact the legislation provides, if it is a non‑custodial disposition so to speak, the person can be penalised and sentenced in the normal way that a normal person would be in a criminal trial.

KIRBY J:   That rather suggests that it is criminal in character and, therefore, partakes of the accusatorial system and, therefore, that it is not upon the head of the accused or the person under the inquiry to call the evidence as to their mental state, or to go into evidence and give exculpatory testimony, or to call the medical evidence that deposes as their state and to their inability to give evidence.  That rather suggests it is still on the Crown, which is a normal procedure in a matter affecting a person’s criminal outcomes, if you like, whether they committed the crime.

MR COGSWELL:   Yes, if I understand your Honour’s question correctly, that touches on my learned friend’s third ground of appeal, that there was in this case error on the part of the Crown in not tendering or relying upon the medical evidence to ‑ ‑ ‑

KIRBY J:   If you look at this chronologically, the first thing is what the Crown has do, as the prosecutor or the moving party; the second is what the judge has to do at the beginning of the case; and the third – and minor matter, it seems to me – is what the accused or the person subject to inquiry has to do.

MR COGSWELL:   Well, that might be right, your Honour, but your Honour is looking ‑ ‑ ‑

KIRBY J:   Because they are under a disability, by definition.

MR COGSWELL:   They are, by definition, your Honour, but this is not a criminal trial.  Can I take your Honours to section 21.  As your Honour Justice Kirby says, we have to start with the statute, and I am also looking at paragraph 6.16 of our submissions.  The point that I am going to the develop is this, that, although similar to a criminal trial, what the legislation establishes is a special hearing – just as it calls it – which may be compared with a criminal trial, but is in fact not a criminal trial.  So one has to be careful in applying the notions which one would apply to a criminal trial to this hearing. 

KIRBY J:   The person is called “the accused person”.

MR COGSWELL:   Yes, your Honour.  Can I commence with section 21(1):

Nature and conduct of special hearing

(1)Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. 

So it is given a different name from a criminal trial.  There is, in that provision, “criminal proceedings” on the one hand, a “special hearing” on the other.  It talks about how the hearing is to be conducted, and the hearing is to be conducted as if it were a criminal proceeding.  It is not based upon the proposition that it is a criminal hearing, or even ‑ ‑ ‑

CALLINAN J:   You do not suggest that the onus is upon anybody except yourself, do you?

MR COGSWELL:   To?

CALLINAN J:   To prove, to make out the offence.

MR COGSWELL:   No, your Honour.  In fact that is one of the purposes of the – if we can take a step back to ‑ ‑ ‑

CALLINAN J:   Beyond reasonable doubt?

MR COGSWELL:   Yes, your Honour.

CALLINAN J:   It looks very like a special criminal trial to me.

MR COGSWELL:   Can we go back to section 19(1), your Honour?  Section 19(1) bears out the history which I was referring to Mailes for:

If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must –

and I will come back to Justice Hayne’s question –

as soon as practicable after the Attorney General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative –

So that, in answer to your Honour Justice Callinan, it is very clear where the onus is, where the standard is, and what the purpose is.  The purpose is ‑ ‑ ‑

CALLINAN J:   It is really a kind of an adapted criminal trial, is it not?

MR COGSWELL:   If I answer to that in the affirmative, your Honour, it somewhat qualifies the proposition that I am advancing, that it is a special hearing, which, in many respects, is like a criminal trial, but the main feature of it, according to the statute, is that it is to be conducted “as nearly as possible” as if it were a criminal trial.

CALLINAN J:   The only real respects on which it differs are that counsel necessarily has a wider discretion than counsel might otherwise have and there may be some limitations as to the evidence that can be called or there may be some difficulty about calling evidence in some respects, for example, from the accused.  In all other respects it is a criminal trial, is it not, an ordinary criminal trial?

MR COGSWELL:   The plea, your Honour.

GLEESON CJ:   One respect in which it is different is that the jury never hears the accused say, “I am not guilty”.

MR COGSWELL:   Yes, precisely.

CALLINAN J:   That too, but are there any others? 

MR COGSWELL:   They are set out in the statute, your Honour.  Section 21(2), if we can commence there:

the accused person must, unless the Court otherwise allows, be represented by counsel or a solicitor and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person’s representation.

So that counsel plays a special role as the statute – it follows from that provision and also the case law has made reference to that.  Even though the person is unfit or unable to give instructions, counsel may still act.  The second is the one referred to by the Chief Justice which is contained in section 21(3)(a):

the accused person is to be taken to have pleaded not guilty in respect of the offence charged –

so that there is no entry of a plea.  It is a statutory plea.  So in those two respects it is – my learned junior draws my attention to section 22(3)(a).  The result:

constitutes a qualified finding of guilt –

if the result is in the affirmative, so to speak –

and does not constitute a basis in law for any conviction . . . 

(b)      subject to section 28, constitutes a bar to further prosecution –

and, in fact, the verdict itself, your Honours, if one of the verdicts is provided – the verdicts are provided for in section 22(1) and are:

(a)      not guilty of the offence charged;

(b)      not guilty on the ground of mental illness –

two conventional, so to speak, verdicts –

(c)      that on the limited evidence available, the accused person committed the offence charged –

So it is not a conviction.

CALLINAN J:   It is also very different in that the trial judge is required to explain to the jury the consequences if the verdict is not ‑ ‑ ‑

MR COGSWELL:   Yes, the trial judge is required by subsection (4) ‑ ‑ ‑

CALLINAN J:   Yes, “and the legal and practical consequences”.  That is very different from an ordinary criminal trial.  It is no concern of the jury at all in an ordinary criminal trial.

MR COGSWELL:   Yes, so there are ‑ ‑ ‑

HAYNE J:   For my own part I would have thought the central difference is there can be no conviction.

MR COGSWELL:   There can be no conviction, no.  It is this finding ‑ ‑ ‑

HAYNE J:   Nor can there be a sentence of imprisonment.  There can be other dispositions.

MR COGSWELL:   Other dispositions but not a sentence of imprisonment.

KIRBY J:   So there can be a fine extracted without a conviction? 

MR COGSWELL:   Yes, your Honour.  Section 23(2) ‑ ‑ ‑

HAYNE J:   Which rather suggests that this is a procedure designed for serious cases, not for cases leading to disposition by way of bond.

MR COGSWELL:   Your Honours, section 23(2), if the court would not have imposed a custodial sentence, then it may impose any other penalty.  They would have, so in answer to your Honour’s question, a person could be fined.

McHUGH J:   But Mr Cogswell, part of the problem that you have to face is that under section 22(2):

A verdict in accordance with subsection (1)(b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under section 38.

MR COGSWELL:   Yes.

McHUGH J:   And section 38 says what the judge has to do.

MR COGSWELL:   Yes.  It is a special verdict.

McHUGH J:   Yes.

HAYNE J:   It is the equivalent of the old verdict of not guilty on account of insanity.

MR COGSWELL:   Yes, it is.  It is now provided for by statute, and then there is the section 39, going back to your Honour Justice McHugh’s ‑ ‑ ‑

McHUGH J:   And 37, you:

must include in its explanation:

(a)      a reference to the existence and composition of the Mental Health Review Tribunal ‑ ‑ ‑

MR COGSWELL:   Well, I was going to take your Honours to that in response to the direction which I am going to have to face up to in this case, the 21(4) direction, and compare it to section 37, which is much more explicit in the requirements.  The requirements of a section 21(4) direction which the judge we say gave in this case, the statutory requirements are fairly minimal, compared to the more elaborate requirements of this case.

GLEESON CJ:   Mr Cogswell, we need to make some arrangements about the future of this case.  We were supposed to adjourn at 4 o’clock.  How long - and this is not asked in an attempt to hurry you or your opponent up, but simply for the purpose of some future listing arrangements - how long do you think you will require to complete your argument?

MR COGSWELL:   I might just, although it may not be relevant to answer your Honour’s question, I assume the future listing arrangements are not tomorrow.

GLEESON CJ:   Indeed, the reason we have to adjourn at 4 o’clock is that some members of the Court are heading up to Sydney for special leave applications.

MR COGSWELL:   We saw that and assumed the same.  I should allow myself an hour.

McHUGH J:   There are some important points.

MR COGSWELL:   There are.

GLEESON CJ:   We will adjourn now until a date to be fixed, and the Registrar will communicate with counsel for the purpose of fixing a date for the future hearing of the matter and we will probably list it on the basis that it will last for an hour and a half or two hours.

MR COGSWELL:   There is the question of the non‑publication order, your Honour, and I gather from my learned junior that it might be not straightforward.  I am wondering whether, perhaps, we could formulate something and forward it to your Honours.

HAYNE J:   If there is an order extant, why are we getting into it?  Is there something that has terminated an existing order?

MR COGSWELL:   I think not.

HAYNE J:   If there is not, why are we getting into it?

MR COGSWELL:   I think your Honour, with respect, is right.

GLEESON CJ:   All right.  Well, you can look at that. 

MR COGSWELL:   There has been no order by this Court yet, apart from the grant of special leave, so that there is an order extant.

KIRBY J:   It is picked up in federal jurisdiction, is it?

GLEESON CJ:   We will adjourn the further hearing of this matter to a date to be fixed.  The Court will adjourn until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.

AT 3.58 PM THE MATTER WAS ADJOURNED