[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
Copyright in the High Court of Australia
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…
Continue reading Subramaniam v The Queen
Sign in free to access the full text
- AGLC
- Subramaniam v The Queen [2003] HCATrans 463
- Case
- [2003] HCATrans 463
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.