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
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 the accused could not give evidence. Now that may be standard in this type of mental health type tribunals and hearings, but it was particularly dramatised by the fact that she could not give evidence despite the fact that she had given sworn evidence twice before and either believed or not rejected.
The second thing was that the scandalous nature of the tape was such that it should not have gone before the jury and, in our submission, the judge’s discretion to allow it to do so, when he knew that she would not be able to give evidence to replace it or answer it, as she had done previously, was, in our submission, one of the factors which added considerably to the injustice that was done.
It cannot be the function of a criminal trial, even one in these unusual and limited circumstances, in which one side does not get a hearing at all. The legal system is supposed to balance the rights of people and, in our submission, this trial did not add into the balance any rights of the accused at all. She could not give sworn evidence; the tape was admitted into evidence; the judge did not tell the jury, for example, that she could not give evidence because a number of psychiatrists had said it would be very damaging to her health to do so. The importance to a trial by jury involving a conflict of evidence on intent and mens rea, in the absence of the applicant’s evidence, especially the prior significance of the evidence she had given before, ought to have been put and ought to have been added into the considerations of whether the discretion miscarried.
For example, Justice Beazley in the Court of Criminal Appeal with respect to her, answered the question of the inconsistency of these verdicts by saying the jury may have been confused between the two verdicts by considering one of them as being a different event altogether to the one on which she was convicted. Now that would just not be possible, with respect to her Honour, because the Crown’s charge was that the offence was the same. The circumstances of the offence were the same. The statement was the same; it cannot be another statement and it cannot be some other event that came into it. The jury could not give a decision on the more serious charge in favour of the accused and against her on the lesser charge, the statutory declaration charge, without being completely confused and, in our submission, without being completely inconsistent. Those things just do not stand together.
McHUGH J: Mr Einfeld, did the evidence establish that as at the trial she still was not unfit to give evidence?
MR EINFELD: She was not fit?
McHUGH J: Yes.
MR EINFELD: Yes, she was not fit and, in our submission, you cannot just put to a jury ‑ ‑ ‑
McHUGH J: All right. I know Acting Justice Stewart, he found that she was unfit to be tried, but ‑ ‑ ‑
MR EINFELD: And then a review tribunal upheld that.
McHUGH J: Upheld that, and it was then taken for granted that at the section 19 hearing she still was not fit to be tried.
MR EINFELD: Yes. She was not fit to give evidence and she was not fit, in our submission, to even participate in the hearing; she was present at the hearing, but did not participate at all. In our submission, concepts like House v The King really do not add much to this type of case, because although of course one has to point to matters where the discretion miscarried, in our submission, the whole trial miscarried, the whole event. You cannot try somebody in circumstances where there is at least a reasonable chance of getting a verdict of not guilty, if, on a matter where credibility is absolutely crucial, the accused cannot give evidence and the judge does not tell the jury that she has not given evidence, because she has been held to be unfit to do so.
McHUGH J: Yes, we had a case from the Northern Territory where, in effect, the accused was incapable of understanding the evidence and we interfered in that particular case on the basis that there just was not a hearing, or there could not be a hearing, before the magistrate.
MR EINFELD: Your Honour, with great respect, a trial has to be something in which one side and each side has a chance of winning, to put it in racing terms. I mean, there simply has to be an opportunity, otherwise it is not a trial at all, and you cannot have a trial with the accused having a chance of winning, or at least ‑ ‑ ‑
McHUGH J: What about the legislation; where is the legislation in this case? What does it authorise?
MR EINFELD: It authorises a trial – I think your Honours have the Act, the Mental Health (Criminal Procedure) Act - in section 21.
McHUGH J: Where is it? It is not in the ‑ ‑ ‑
MR EINFELD: I think it is in the papers; I think I have been given the same folder as your Honours have. It is under the last tab.
McHUGH J: Yes.
MR EINFELD: If you go just through those pieces of legislation you come to the Mental Health (Criminal Procedure) Act; it is about the second or third. In section 21:
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.
(3) At a special hearing:
(a) the accused person is to be taken to have pleaded not guilty . . .
(b) the counsel . . . may exercise the rights of the person to challenge jurors . . .
(c) . . . the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and
(d) . . . the accused person is entitled to give evidence.
(4) At the commencement of a special hearing, the Court must explain to the jury –
certain things about the unfitness and then the verdicts are:
(a) not guilty of the offence charged,
(b) not guilty on the ground of mental illness,
(c) that on the limited evidence available, the accused person committed the offence charged ‑
and (d) does not matter.
CALLINAN J: Do we have the explanation of the trial judge at the commencement of this trial?
MR EINFELD: I do not think so. I could not find it myself overnight.
CALLINAN J: I think the respondent may have it.
MR EINFELD: Thank you. My learned friend has been good enough to give me - what his Honour said was, “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 do not really need to concern yourselves with the fact that there was a trial. You are to determine this matter on what is put before you here in this court, that there was no resolution of the trial on that occasion – that was back in August 1999”.
CALLINAN J: Why did the judge tell the jury about a previous trial?
MR EINFELD: That is all he told them.
CALLINAN J: But why would he do that at all?
MR EINFELD: He says, “Following that trial, there was a proceeding again in this court before a judge to determine whether she was fit to be tried based on the evidence, in particular by her treating psychiatrist, Dr Menzies. Dr Menzies diagnosed that she was suffering 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 is said by the doctor that as a result of the first trial and subsequent proceedings that the depressive illness anxiety order 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 Medical Health Review Tribunal who heard somewhat similar evidence and they in turn directed she was unfit. It was then forwarded to the Attorney-General who ordered these proceedings.” That was apparently in answer to a question.
CALLINAN J: That does not seem to me to be in accordance with subsection (4).
MR EINFELD: No.
CALLINAN J: And I still do not understand what the outcome of the first trial, and the fact that there had been a first trial, has to do with compliance with subsection (4) or, indeed, with anything.
MR EINFELD: I do not know either, your Honour. What is strange is that when they talk about “unfitness to be tried” there, the judge said that passage I have just read, but in the summing up he did not say anything about that at all.
CALLINAN J: There is something of a problem, is there not, in the sense that say the judge complied strictly with subsection (4), the jury still do not know about the accused’s capacity or otherwise to give evidence or how that capacity might be affected by the illness, unless the accused called some evidence about it, which would really then place an onus upon the accused that the criminal law generally does not require to be discharged.
MR EINFELD: Yes.
CALLINAN J: So that, even compliance with subsection (4) does not tell the jury anything in particular about the accused’s capacity or otherwise.
MR EINFELD: That is our complaint.
McHUGH J: I think we will call on the Crown.
MR EINFELD: May it please, your Honour.
McHUGH J: Yes, Mr Smith.
MR SMITH: Your Honours, we submit that ‑ ‑ ‑
McHUGH J: Mr Smith, this seems like something out of Kafka.
CALLINAN J: And, Mr Smith, do you submit that subsection (4) has been complied with?
MR SMITH: Yes, but not perhaps in the order it should have been.
CALLINAN J: Well, was there anything else done apart from what Mr Einfeld has just read to us?
MR SMITH: I just want to correct some matters that Mr Einfeld has raised here that, in our submission, may mislead you. I think in the first place – no, I think initially he said that there had been no explanation given as to why she could not give evidence or what her condition was. What he just read out in the ‑ ‑ ‑
CALLINAN J: Mr Einfeld made it clear there was nothing said in the summing up. Was anything else done in purported compliance with subsection (4), that is anything other than what has been read to us?
MR SMITH: Well, yes, at the beginning of the proceedings on 29 April 2002 at page 4 commencing at the bottom of the page, after the jury was empanelled, his Honour told the jury:
Ladies and gentlemen, I have a few things to explain to you before we get under ‑ ‑ ‑
McHUGH J: Sorry, what page is that, Mr Smith?
MR SMITH: It is not in the application book, your Honour, I do not think.
McHUGH J: I see.
MR SMITH: We are lucky we have the transcript here, but he told them at page 4, and I do not know whether it would be useful if I hand this up and you can get a copy, but perhaps it would save time if I can just read it for the time being:
I have a few things to explain to you before we get under way. What you are about to engage in is what is called a special hearing. I will explain to you how that comes about and the purposes of it and what your role will be in the trial.
The reason it has been necessary to have a special hearing is because the accused has been found unfit to be tried. The reason she has been found unfit to be tried is because of her mental condition. No need for me to go into that, but that is the reason why she has been found unfit to be tried.
The Attorney General of our State has directed as a result of that finding, that she is unfit to be tried, that there be this special hearing. Now a special hearing is held as near as possible to that of a normal trial with its limitations because of the situation of the accused. The counsel will have the opportunity to cross‑examine any of the witnesses that the Crown calls, and it will certainly be - the trial will be normal in that sense.
The ultimate situation will be this. That you will be asked at the conclusion of the special hearing to determine upon the limited evidence that will be available to you and come to a verdict on the verdicts that will be available to you. The verdicts that will be available to you will be either not guilty, and if that be the case, the accused, like any other accused in any other trial, will be discharged. If however you find that the accused committed the charge on the limited evidence that will be placed before you, then it is open to you to make that special finding, that upon the limited evidence available, that she committed the offence, 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 you are about to engage in, and that is what you will be called upon to do.
And then, he went on to talk about the procedural matters to do ‑ ‑ ‑
CALLINAN J: Well, that certainly appears to comply with subsection (4), but Mr Smith, was any evidence called as to her capacity to give evidence and to understand the proceedings and generally to participate?
MR SMITH: No, I understand there was not, but that really is a matter for the accused’s legal representative ‑ ‑ ‑
CALLINAN J: But that is what worries me. It seems to put an onus upon an accused that an accused person does not bear in any other criminal trial at all and, as a practical matter the accused is forced into the position of giving evidence, or calling evidence and that is a complete departure from any other situation in a criminal trial.
MR SMITH: Well, with respect ‑ ‑ ‑
CALLINAN J: Why should not the Crown call the evidence? The Crown is supposed to put all material evidence before a jury.
MR SMITH: Yes. Your Honour, in our respectful submission, this is not a normal trial, in the sense that ‑ ‑ ‑
CALLINAN J: You can certainly say that.
MR SMITH: ‑ ‑ ‑there is no determination of guilt or otherwise in the normal sense; she does not get a conviction.
McHUGH J: Well, I do not know about that. Section 22 says a finding that:
on the limited evidence available, the accused person committed the offence charged ‑ ‑ ‑
MR SMITH: Yes, but there is no conviction entered against her name in the normal sense. People that go through this procedure are people who are often mentally ill and, in a sense, this is the executive’s way of dealing with a decision by a court that the person is unfit to plead.
CALLINAN J: We accept all of that. Why should not the Crown call evidence as to the accused’s capacity to participate on the basis that that is material on the relevant matter? Or, as in your position, if that is relevant, then the accused ought to adduce the evidence.
MR SMITH: Well, she has to be represented by counsel, by a lawyer, in those proceedings. The earlier stage, the fitness to plead, is a non‑adversarial ‑ ‑ ‑
CALLINAN J: I understand all of that, but do you not think it would be very relevant to the jury’s consideration to know, if such be the case, that an accused person has not given evidence because she is incapable of giving evidence or incapable of acquitting herself very well in giving evidence, because of mental incapacity at the particular time with particular manifestations and afflictions?
MR SMITH: Well, your Honour, the finding that she is unfit did not necessarily imply that she is unable to give evidence.
CALLINAN J: Exactly. We have no idea, and nor does the jury have any idea, of what her capacity in that regard was.
McHUGH J: She was not even at the trial, was she?
MR SMITH: Yes, she was at the trial.
McHUGH J: I thought I saw in the transcript when it opened up it said she was not there.
MR SMITH: She came; she was not there at the start when the matter was mentioned at first and there were some legal arguments concerning the stay and the Swaffield and Pavic argument.
MR EINFELD: The Crown insisted upon her coming though.
MR SMITH: Yes.
McHUGH J: There seem to be two points: one is a question of the direction, which is not really raised in the notice of appeal of special leave application, but that can be cured; the other thing is the exercise of the judge’s discretion. Section 21(3)(d) says “the accused person is entitled to give evidence”. That gives a legal right to the person, even though unfit, to give evidence, but if a person is incapable of giving evidence, that seems to be a major factor that a judge ought to have averted to in determining how the discretion should be exercised and I cannot see anything in the very compressed reasons of the judge. In fact, it almost raises a Soulemezis point as to what his reasons were, whether he gave proper reasons. What did he say other than:
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.”
That does not tell you anything.
MR SMITH: Your Honour, there was a challenge to the psychiatric evidence in the sense that the Crown put the submission that the main treating psychiatrist ‑ ‑ ‑
CALLINAN J: Had lost his objectivity.
MR SMITH: Had lost his objectivity and, indeed, when one looks at his evidence there does appear to be some support for that view.
McHUGH J: Except the judge did not accept that, did he?
MR SMITH: The judge ultimately said, “I know the Crown said it, but I think the evidence he has given is evidence I accept”, and that was evidence as to ‑ ‑ ‑
CALLINAN J: I would have liked to have known, for example, what the effect of the very heavy medication that was being prescribed was upon the applicant.
MR SMITH: With respect, your Honour, these were adversarial proceedings. Can I just say, the fitness hearing itself is not, in a sense, that there is a fair degree of informality, but once it gets to the section 19 stage, and this is governed by the statute, many of the people that get to that stage would be incapable of giving evidence, because they have a psychotic condition or matters of that sort, so this is special legislation. If we were still dealing, as my friend, I think, mentioned at the first trial, and there was a stay application after that, all those decisions were made on the basis that there may be another normal trial, but we have moved further on past that stage ‑ ‑ ‑
CALLINAN J: Why should not the Crown call evidence of the medical evidence of the accused’s incapacity, the nature and extent of it and the way in which it manifests itself and the effect that it might have upon her capacity to give evidence?
MR SMITH: Well, in our respectful submission, the Crown does not have that duty. She is represented by experienced counsel. She had medical advice and experts there. If they wish to put that material before the court, they should have done it themselves. The issue, in this case, is whether the proceedings warranted a stay, because of oppression.
Now if, for tactical or other reasons the defence counsel, a very experienced counsel, does not lead evidence of those matters, does it ask for a redirection if he is not satisfied with what the judge has said, and these are points that have not really been taken, but, nevertheless, I submit that the Crown comes here to meet this application for special leave. I know the Court can allow new grounds to be added, although that is an unusual circumstance.
Getting away from that question, your Honours, what you are saying is something that the legislation does not require and, we submit, taking into account the special nature of the legislation, it is not our role to do it, because in many of these trials they would not be able to give evidence. There was a criticism in the ‑ ‑ ‑
McHUGH J: Well that may be a question why there should not be a trial at all, that the Court should not stay the proceedings. It has crossed my mind more than once during this application that this case may raise a Kable point. It seems to me a real departure from any notion of a criminal trial that you have somebody who is unfit to plead and who is convicted and the trial is to be as if it was a criminal trial.
MR SMITH: All I can say is, your Honour ‑ ‑ ‑
McHUGH J: It is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
MR SMITH: As if it were ‑ ‑ ‑
McHUGH J: As if it were, yes, and then you get a verdict that on the evidence available the accused person committed the offence charged.
MR SMITH: Perhaps some assistance that might be given to the Court, from a decision of the Court of Criminal Appeal, in a matter of Mitchell.
CALLINAN J: Do we have that?
MR SMITH: No, I have not referred to it in my submissions, because it was not a ground that was raised, but there is a decision of Mitchell [1999] NSWCCA 120 – I only have one copy; can I just take you to the point. That was a special hearing matter too, and this accused was allegedly a man who commissioned a thug who was tried and convicted and sentenced to a very long period of time, to damage with an iron bar his former girlfriend who jilted him. This man, Mitchell, was found unfit to plead and ultimately it was found that on the evidence available the jury said, yes, they would have convicted if there had been a trial. And that is the point I am trying to make, that this is not a normal conviction; this is a special type of proceeding ‑ ‑ ‑
McHUGH J: But it is a matter of form. What does the ordinary member of the community think, and this woman is a law graduate; what is the effect of this finding going to be on her future legal career? Absolutely horrendous.
CALLINAN J: She is bound to disclose it.
MR SMITH: Well, the point I raise in this case, Mitchell, is that the defence argued that the sentencing judge, once fixing this particular sentence in which he would stay in a mental institution, had not taken into account the normal mitigating circumstances that are taken into account if the person had stood trial or pleaded guilty before a normal criminal court and the court in that case, comprising Justices Beazley, Sperling and Hidden ruled that the Act, the Mental Health (Criminal Procedure) Act, changed the nature of how persons are to be dealt with and took it out of the normal sentencing procedure and so that at paragraphs 47 and following, perhaps 52 is the best paragraph I should refer to, after explaining the changes:
It follows from this approach that a person who has been the subject of a special hearing should not be presumed to have entered a guilty plea or demonstrated remorse. There is nothing in the scheme of the MH(CP) Act to suggest that any other approach is warranted and the statutory presumption of a not guilty plea in s23(1)(b) is a clear indication that such an approach is not intended. Indeed, to proceed upon such a basis would be speculative and carry with it the danger that too much or too little weight might thereby be attached to the presumption.
[53] What then are the subjective and objective factors to which the sentencing judge should have had regard in this case?
Then the court went on and talked about nominating the limiting term. This man “had pleaded guilty at an early stage”. They said he did not get the advantage of, I think it was section 439 at the time, which suggested you get a reduced sentence if you pleaded guilty at an early stage, like the guideline judgment here did in Thompson, and they explain in their succeeding paragraphs why ‑ because it is under the Mental Health (Criminal Procedure) Act different rules apply.
CALLINAN J: The rule that the court does not have to be fair applies, does it?
MR SMITH: When your Honour says that, if the person, for example, is able to give evidence but has other mental problems ‑ ‑ ‑
CALLINAN J: We do not know that. The jury do not know that unless they are told about it and told about it in an informed professional way.
MR SMITH: Your Honour, all I can say is I rely on the statute and submit that Parliament has established this procedure to deal with people who are unfit to stand trial.
McHUGH J: That is so, Mr Smith, but nevertheless, the court retains the power to say its procedures cannot be abused and cannot be used to bring about a miscarriage of justice. It seems to me at the moment that this Court ought to grant leave in this particular case so that it can examine the matter more closely to see whether in fact there has been a miscarriage of justice in this particular case. The applicant raises in ground 2, the first paragraph, about whether there should be a stay of the proceedings, but why should the Court not give the applicant leave to add to her grounds of appeal the question as to whether or not, by reason of the directions of the trial judge, there has been a miscarriage of justice in this particular case? You would not object to that I take it, would you?
MR SMITH: I do not object to it, no.
CALLINAN J: For myself, I would be interested in perhaps an additional point and that is as to the obligation or otherwise of the Crown to place evidence before the court, if there is any basis for it, as to the accused’s capacity or the applicant’s capacity to give evidence ‑ whether that is a relevant matter and how it is to be brought to the attention of the jury and whether there is any onus or obligation on the Crown, or for that matter, on the applicant.
MR SMITH: Yes. Had there been a request for her to give evidence ‑ and the jury could not determine whether or not she was fit to give evidence in a sense without hearing some evidence ‑ ‑ ‑
CALLINAN J: I am thinking of the rule in Jones v Dunkel, you cannot get the benefit of it unless there is some evidence to show that a witness might have been available. It often happens that a side will call evidence to prove why a witness was not available in order to rebut a Jones v Dunkel inference. That has been discussed recently by this Court in the criminal context in Azzopardi. I am just interested in the relationship of that line of cases with this sort of situation.
MR SMITH: With respect, there was a decision of this Court in I think TKWJ a year or so ago concerning what they call the Birks‑type argument and incompetence of counsel and the bottom line seemed to be that incompetence of counsel might not matter, it is the miscarriage of justice which is the important point.
McHUGH J: I certainly said that anyway.
MR SMITH: Yes, I think that you had support in that, with respect, and I do not quibble with that. But I submit that if this were a normal trial and the applicant was represented by experienced counsel, as she was, one would have expected evidence to have been led.
CALLINAN J: No, because then the accused would have been placed in the very unusual situation in a criminal case of being obliged to call evidence.
McHUGH J: You say it is a special hearing and that is clearly right but that, in itself, indicates that the Crown may have special obligations. Among the first duties of the Crown is the guardianship of children, infants and the mentally ill, and rules that may apply in a standard criminal trial may not necessarily be applicable or may need modification in this sort of special hearing, this “as if” criminal trial. So it seems to me there are some important points. Conviction may be affirmed, but ‑ ‑ ‑
MR SMITH: With respect, the normal duties of the Crown as set out in Apostilides and cases that have followed it, never seem to put on the Crown the duty to call this sort of evidence in any proceeding I can think of. That is all about not calling witnesses but you are asked to call ‑ ‑ ‑
McHUGH J: I appreciate that but we are dealing here with somebody who is unfit to plead and the legislature has said, “Notwithstanding you are unfit to plead, nevertheless, you are to be tried as if it was a criminal trial”, and you can bring in a verdict that, on the limited evidence, “You are guilty of the offence”.
MR SMITH: But one would expect that if the defence had asked the Crown to call such evidence or to make such a statement and the Crown had refused, then there may be a ground to challenge it, but where that has not happened and the procedure certainly does not suggest it ‑ ‑ ‑
CALLINAN J: This is new legislation in a sense, is it not? One could understand why counsel might have overlooked doing something of that kind.
MR SMITH: It has been around for about 15 years.
CALLINAN J: It has not been up here before, has it?
MR SMITH: No, and I suggest that it has not been up here because other counsel and other parties have interpreted that legislation as covering, in a beneficial way generally, the position of people who have mental illness.
McHUGH J: I see your time has been up for some time.
MR SMITH: Yes, it is well and truly up. Thank you.
McHUGH J: Thank you. Mr Einfeld, the Court intends to grant special leave in this case. It would not grant you special leave on the admissibility of the listening device point, but we would grant leave on the first paragraph of ground 2, that:
The Court erred in failing to set aside the finding of the trial Judge, Luland J that there should not be a stay in proceedings –
and we would give you leave to add two further grounds. One is that the trial miscarried by reason of the trial judge’s failure to direct the jury in respect of various matters and you will have to identify what those matters are in your ground of appeal. Also, that the trial miscarried by reason of the Crown’s failure to put before the jury evidence concerning the nature and extent of the applicant’s mental illness and unfitness to plead.
Subject to you amending your notice of appeal to raise those grounds, there will be a grant of special leave. Could that amended notice of appeal be filed within 7 days?
MR EINFELD: Yes, your Honour.
McHUGH J: Yes, very well, there will be a grant of special leave to appeal in this matter.
MR EINFELD: If the Court pleases.
McHUGH J: The Court will now adjourn again to reconstitute.
MR EINFELD: Are there any orders for costs?
McHUGH J: No, Mr Einfeld.
AT 11.14 AM THE MATTER WAS CONCLUDED
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