Kesavarajah v The Queen [1994] HCA 41

High Court of Australia Mason C.J. Deane, Dawson, Toohey and Gaudron JJ. Kesavarajah v The Queen [1994] HCA 41

ORDER Appeal allowed. Set aside the order of the Court of Criminal Appeal of Victoria and in lieu thereof order that the appeal to that Court be allowed, the appellant's conviction be quashed and a new trial be held.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 27 Mason C.J.,Toohey and Gaudron JJ.

The appellant was tried in the County Court at Melbourne on an indictment containing two counts. The first count alleged that the appellant and three others conspired to import heroin. The second alleged that the appellant and two others conspired to traffic in heroin. The jury returned a verdict of guilty against the appellant and one Allen on the first count. The appellant was acquitted on the second count.

On 30 January 1992, before the trial commenced, prosecuting counsel raised with the judge a question which counsel identified as the appellant's "fitness to plead". After reading a report by Dr. Arul, hearing evidence from Dr. Walton concerning the appellant's mental condition and hearing submissions from the prosecutor, the judge ruled that there was not a serious question as to the appellant's fitness to be tried and that there was no occasion to empanel a jury to determine that question. The appellant then pleaded not guilty and the trial was adjourned to 10 February 1992 when the appellant was represented by counsel, who continued to represent him until the closing stages of the trial.

The question of fitness was subsequently raised on two occasions during the course of the long trial. On the first such occasion, the trial judge indicated that there was no reason for him to reconsider his earlier ruling as to the appellant's fitness to be tried. On the second occasion, near the end of the trial, the trial judge concluded that, as the trial was virtually over, there was no need to deal with the question.