Subramaniam v The Queen [2004] HCA 51

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND CALLINAN JJ

KALA SUBRAMANIAM APPELLANT

AND

THE QUEEN RESPONDENT

Subramaniam v The Queen [2004] HCA 51

10 November 2004

S588/2003

ORDER

1. Appeal allowed.

2. Set aside the order of the New South Wales Court of Criminal Appeal made on 25 November 2002 dismissing the appellant's appeal and, in its place, order that:

(a) the appellant's appeal to that Court be allowed;

(b) the conviction of the appellant be quashed; and

(c) there be a new trial of the appellant on the first count of the indictment.

On appeal from the Supreme Court of New South Wales

Representation:

M R Einfeld QC with D R J Toomey for the appellant (instructed by McClellands)

R D Cogswell SC with G E Smith and J A Quilter for the respondent (instructed by the Solicitor for Public Prosecutions for New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Subramaniam v The Queen

Criminal law – Unfitness to be tried – Attorney-General directed that a "special hearing" under the Mental Health (Criminal Procedure) Act 1990 (NSW) ("the Act") be conducted in respect of charges against the appellant – Whether and in what circumstances a "special hearing" should be stayed – Whether "special hearing" conducted in compliance with conditions and procedures required by the Act – Adequacy of trial judge's directions to the jury.

Practice and procedure – Trials conducted as "special hearings" under the Act – Jury directions.

Words and phrases – "unfit to be tried", "special hearing", "substantial miscarriage of justice".

Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21(4).

1. GLEESON CJ, McHUGH, KIRBY, HAYNE AND CALLINAN JJ. The principal questions in this appeal are whether a stay of the appellant's trial under the Mental Health (Criminal Procedure) Act 1990 (NSW) ("the Act") should have been granted, and whether, when the trial did proceed, it was conducted in compliance with the Act.