KELLY v SAADAT - TALAB [2008] NSWCA 213

Reported Decision: 72 NSWLR 305

New South Wales Court of Appeal

CITATION: KELLY v SAADAT - TALAB [2008] NSWCA 213

HEARING DATE(S): 30 September 2008

JUDGMENT DATE: 6 November 2008

JUDGMENT OF: Allsop P at 1; Ipp JA at 31; Handley AJA at 32

(1) Leave to appeal granted; (2) Notice of appeal to be filed within 10 days; DECISION: (3) Appeal allowed; (4) Judgment of the Common Law Division is set aside and in lieu thereof there is substituted an order that the respondent's appeal to the Common Law Division be dismissed; (5) The respondent is to pay the appellant's costs of the proceedings in this Court, and in the Common Law Division, but is to have a certificate under the Suitors Fund Act in respect of the costs in this Court.

CATCHWORDS: CRIMINAL LAW (C'wlth) – Sentencing – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act. - FEDERAL JURISDICTION – Criminal law – mental illness – power to deal with offender otherwise than in accordance with law – Federal power and State power – whether State power applied as surrogate Federal law under s 68 of the Judiciary Act.

Crimes Act 1914 (Cth Crimes Act 1990 (NSW) Crimes Legislation Amendment Act (No. 2) 1989 Criminal Code Act 1995 (Cth) LEGISLATION CITED: Judiciary Act 1903 (Cth) Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health (Criminal Procedure) Amendment Act 2005 NSW (No. 109) Mental Health Act 1958 (NSW) Mental Health Services Act 1974 (Qld) Migration Act 1958 (Cth)