Subramaniam v The Queen - [2003] HCATrans 463

[2003] HCATrans 463

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S501 of 2002

B e t w e e n -
KALA SUBRAMANIAM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2003, AT 10.36 AM

MR M.R. EINFELD, QC: May it please, your Honour, I appear for the applicant. (instructed by McClellands)

MR G.E. SMITH: May it please the Court, I appear for the respondent. (instructed by the Solicitor for Public Prosecutions (NSW))

McHUGH J: Yes, Mr Einfeld.

MR EINFELD: Your Honours, the applicant is a young law graduate whose application for admission as a solicitor has been rejected on the ground of this unusual finding in the very special circumstances of this case. It is a case in which credibility is crucial because the only evidence against her was the evidence of some admissions and a tape recording, the transcript of which went to 80 pages, the vast majority of which was scandalous and horrendous material, only a small part of which even went to the case; it was digested and extracted by Justice Beazley in her judgment of the Court of Criminal Appeal and takes up just a page and a half or so of very well-spaced material.

The other circumstance that is immediately relevant is that between the first trial, where she was not convicted and the jury disagreed, and this trial that is under consideration here, there was a major psychological breakdown, which was evidenced by some powerful material from psychiatrists, which his Honour the trial judge accepted as true.

Now, your Honours, the consequence of the psychological breakdown was that it was said to be due to her stress and trauma in the first trial and it caused the, through the various procedures of the Mental Health Tribunal and the ‑ ‑ ‑

McHUGH J: Well, I think we are familiar with the facts and, speaking for myself, the evidence of Dr Menzies and Dr Della Bruna was very powerful evidence and I would have thought that many judges would not have refused the application as Judge Luland did, but Mr Einfeld, you are in the High Court now and you have to show not only that there is an error in the exercise of discretion or argument, we say, but there is something special about the case which would warrant the grant.

MR EINFELD: Well, your Honour, the first thing “special” about the case is that a criminal trial, or something akin to a criminal trial, has to be fair and it would be difficult to say that the exercise of a discretion, which resulted in a trial that was manifestly unfair, even a travesty, would warrant a finding that the discretion miscarried. Just to take this one simple example, the fact of the matter is that the trial took place in circumstances where…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Subramaniam v The Queen

Details

AGLC: Subramaniam v The Queen [2003] HCATrans 463
Case: [2003] HCATrans 463
Decision Date

CaseChat Overview and Summary

Subramaniam v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Subramaniam, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the Court of Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the question arose as to whether the jury should have been instructed that the appellant's belief, even if mistaken, that he was about to be killed or seriously injured, could be a basis for a defence of provocation, provided that belief was reasonably held.

McHugh and Callinan JJ, in their joint judgment, considered the principles of provocation as established in Australian criminal law. They affirmed that provocation involves an act or series of acts done by the deceased, which would cause an ordinary person to lose self-control. Crucially, their Honours held that the defence of provocation is not limited to situations where the deceased's actions were objectively sufficient to cause an ordinary person to lose self-control. Instead, the jury must consider the subjective state of mind of the accused, including any belief they held, and assess whether that belief was reasonably held in the circumstances. If the jury found that the accused genuinely believed they were in imminent danger of death or serious injury, and that belief was reasonably held, then the actions of the deceased, even if not objectively sufficient to provoke an ordinary person, could still constitute provocation. The Court found that the trial judge's directions had not adequately conveyed this principle to the jury.

The High Court allowed the appeal, quashed the conviction for murder, and remitted the matter to the Supreme Court of Victoria for a retrial.

Orders