Subramaniam v The Queen [2004] HCATrans 257 (5 August 2004)

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Subramaniam v The Queen [2004] HCATrans 257 (5 August 2004)

Last Updated: 6 August 2004

[2004] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S588 of 2003

B e t w e e n -

KALA SUBRAMANIAM

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 AUGUST 2004, AT 10.06 AM

(Continued from 29/4/04)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Cogswell.

MR COGSWELL: May it please the Court, there are two preliminary matters which I just was not clear from a reading of the transcript whether we had cleared up: first, that there was a chronology of the history of mental health in the State of New South Wales to which I made reference, I think in answer to your Honour the Chief Justice’s question about the Richmond Report. It is a document that look likes that. Some of us think we may have handed it up, but others think maybe not.

GLEESON CJ: I think you had better hand up another copy.

MR COGSWELL: We have copies, your Honours.

GLEESON CJ: Thank you.

MR COGSWELL: The second preliminary matter was in response to Justice Kirby’s questions about having the correct version of the Act, so to speak, that we are talking about. We have extracted from the relevant website, the New South Wales Government legislation website, a version of the Act covering a period 1 January 2000 to 23 February 2003, which we say is the relevant period. We have copies of that as well.

KIRBY J: Why was the arrival of the First Fleet part of the history of mental health law in New South Wales? Are you suggesting that His Britannic Majesty’s Government had taken leave of their senses?

MR COGSWELL: I am not going to make any submission based upon that entry in the chronology, your Honour. My learned friend says it puts it in perspective. Your Honours, there remain the three grounds for me to address, and what I propose to do, subject to your Honours’ convenience, is to address first the question of the directions to the jury, which, I apprehended from reading the transcript and my recollection, was an issue which concerned at least some of your Honours; that is, a specific question as to whether or not his Honour the late Judge Luland had in fact complied in his directions with section 21(4) of the Mental Health (Criminal Procedure) Act 1990. That subsection is relatively short but important, and I will read it.

KIRBY J: Which is the subsection, I am sorry?

MR COGSWELL: Section 21(4). It reads:

At the commencement of a special hearing, the Court must explain to the jury –

and I add here, five things –

the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts.

We have set out that subsection in our witness submissions at page 13, paragraph 6.25. What I propose to do is to take your Honours to the passages in the transcript which we say together amount to compliance with that section, or, if not compliance, at least sufficient information was given to the jury during the course of the trial so as not to result in a miscarriage of justice in this particular case. May I commence at paragraph 6.27 of our written submissions and deal with, perhaps together, the first and second requirements, that is, the judge needs to tell the jury that the person is unfit to be tried, and, secondly, the meaning of unfitness to be tried.

Can I take your Honours to page 117 of the appeal book. Right at the foot of 117, we have a few things to explain before we get under way. The first requirement that the person is unfit to be tried is, we say, no more than that. His Honour needed to explain the fact that the person was unfit to be tried because the second requirement is the meaning of unfitness to be tried. So the first requirement needs to be seen in that context. We say it is complied with at page 118, line 8:

The reason it has been necessary to have a special hearing is because the accused has been found unfit to be tried.

Then the second requirement, namely, the meaning of unfitness, we say is complied with in the next few lines:

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.

I should say immediately, that is as high as it gets in his Honour’s opening remarks to the jury on the second requirement.

McHUGH J: On the first requirement the judge did not tell the jury that she was unfit to be tried in accordance with the normal procedures, did he?

MR COGSWELL: Not at that point, your Honour, no. In fact, we need to go to, perhaps in respect of that and in respect of the second volume and I now fall back onto a submission about it not resulting in a miscarriage of justice. There was a question from the jury at 152. At the foot of 152, line 45, his Honour reads:

The question is can you clarify what made the accused unfit for trial.

That question is discussed and then at the foot of 153 in presence of the jury, his Honour convinces to answer that question in a way which we say deals with the second requirement; and I have not forgotten your Honour, Justice McHugh’s question about the normal requirements. It is there somewhere. I think we will come across it. At the top of 154:

previous trial...don’t really need to concern yourselves –

about this matter –

no resolution...proceeding again in this Court . . . to determine whether she was fit -

Dr Menzies’ diagnosis he reads out and then when the illness commenced and then importantly at about line 19:

It’s said by the doctor, that as a result of the first trial, and the subsequent proceedings, that the depressive illness, anxiety order –

which, perhaps, should read “disorder” –

has intensified and is to the point where it has made her unfit to be tried.

Then he mentions the Mental Health Review Tribunal.

Then the third requirement, your Honours – there is a passage in the opening – both the Crown Prosecutor and counsel for the defence opened to the jury. Your Honours do not have a copy of that transcript. We, however, between the last hearing and this hearing extracted a copy of the transcript and I have just made a copy of that available to my learned friend this morning. I propose to refer only to one or two passages, but I am going to refer to some remarks which counsel for the defence made to the jury in his opening which we say, although, of course, does not assist the question of compliance with section 21(4) because that is the judge’s obligation, insofar as this Court’s assessing whether or not non-compliance may have resulted in miscarriage, it assists that question. Mr Simpson said – and I am reading from page 5:

Now with the issue of unfitness to be properly tried, some of the issues that involves is that Ms Subramaniam is not able to give proper instructions to her counsel. She’s not able to properly follow the matters that are before the Court. It doesn’t mean that she’s an incapacitated person in any real sense, other than her ability in a trial is - she doesn’t have the abilities to follow what’s occurring, and that’s important for you to understand and it’s a matter that you must understand when assessing the evidence, the limited evidence, that will be before you.

Just before he sat down, Mr Simpson said:

But just remember that it is a special hearing, that as counsel there is limitations because of her unfitness - - -

McHUGH J: Mr Cogswell, what the section requires is that the authority of the judge must be behind these statements.

MR COGSWELL: I agree, your Honour.

McHUGH J: It is not for counsel, and it has to be done at the commencement of the proceedings so that the jury can evaluate the whole of the proceedings including counsel’s opening address.

MR COGSWELL: I appreciate that, your Honour. As I say, in at least in the parts which I have addressed, the highest that I can put it so far as 1 and 2 are concerned are the passages that I have referred to in his Honour’s opening remarks and there is a certain paucity about those opening remarks. However, my fall-back position is that it may not have in this case, or I am inviting your Honours to conclude, that if there was an inadequacy in his Honour’s directions then it has not resulted in a miscarriage of justice because of the information which the jury were given from other sources, at least from defence counsel and at a later stage, namely, in response - - -

McHUGH J: But can you take into account the later stage? Take the cases where a magistrate can deal with indictable offences summarily if the accused consents. If the consent is not given at the time the statute requires, you cannot make it good by the magistrate after the accused has gone into evidence drawing attention to that fact and then the accused consenting. Procedures, particularly in criminal trials, have to be rigidly complied with. That is what the rule of law is about.

MR COGSWELL: I agree, your Honour. With respect, I agree. The example your Honour gives is an example where there might be a strict precondition and a particular specific event, namely, a consent, and it may be that in a case such as that, if it is not complied with, that the following steps cannot occur. What your Honours are doing in this case is ultimately assessing whether there has been a miscarriage in this case in that your Honours - - -

McHUGH J: No, it was more than that. There may be a question whether there has been a trial at all.

MR COGSWELL: Yes.

McHUGH J: Has there been a trial at all because this is a condition precedent?

MR COGSWELL: Well, your Honours, we say that it is important to look at the purposes for – all right, can I come back to that your Honour because what I am going to do is stand back in a moment and look at the provision itself to see how it should be read and we are going to submit that it, in fact, should be read down rather than necessarily requiring strict compliance. So perhaps what I should do is at least put before the Court what we say is the highest that it gets, so let me move to - - -

KIRBY J: It is pretty clear from the jury’s question that the jury was troubled by the whole procedure.

MR COGSWELL: Yes. Your Honour I would not for my part adopt that proposition. It is certainly troubled by the meaning of unfitness because that was their specific question. I do not accept that they were troubled by the whole procedure. The question appears to be clarify what made the accused unfit for trial, so that they are - - -

KIRBY J: That is going to the procedure they were engaged in for the trial because it is an unusual thing if a person - - -

MR COGSWELL: It is an unusual thing, but, your Honour, if I am right, at the time that the jury asked the question, the only thing which his Honour had told them at 118 about line 13 was that she was unfit to be tried because of her mental condition. Subject to what was said by Mr Simpson in his opening, it may be that they had very little information about just what made her unfit for trial - - -

KIRBY J: It is relatively unusual for juries to ask questions. They normally sit passively and leave it to the parties. The fact that they did this indicates that they were troubled by what was going on before them because it was so unusual.

MR COGSWELL: Yes. It is just that I do not adopt - - -

KIRBY J: It gives us a little clue. Normally the jury is as enigmatic as the sphinx, as they say.

MR COGSWELL: Precisely. It gives us a little clue.

KIRBY J: But here we have a little clue that they were troubled about that aspect.

MR COGSWELL: I agree. I accept that they were clearly troubled by that aspect, by at least the aspect of what amounted to a – why the accused was unfit for trial.

McHUGH J: But it is the importance of the explanation. When you are fit to be tried, it means that you are able to understand the nature of the charge, that you are able to plead to the charge, that you can understand the nature of the proceedings, that you can follow the course of the evidence in the proceedings and its effect, and that you have the capacity to make a defence. If the jury is not told what unfitness to be tried means, how can they evaluate the case under this special provision?

MR COGSWELL: I am going to come to that, your Honour, but, in brief, the answer is that we accept that normally it would be appropriate for a trial judge in giving a direction like this to elaborate somewhat on what - - -

McHUGH J: Only appropriate, Mr Cogswell? I mean, this is a departure from the ordinary course of a criminal trial; a special hearing in which a person is being tried for a serious criminal offence.

MR COGSWELL: Yes.

McHUGH J: And one would have thought there was a presumption that the statute, which takes away a person’s rights – which most people would regard as fundamental – should be interpreted strictly.

MR COGSWELL: Your Honour, can I just say two things, which I will come back to as well. One is, it is a special hearing. It is a creature of statute. Its comparison with a criminal trial is appropriate, but there are certain significant limitations, so we say one has to be careful in comparing it in all respects with a criminal trial.

The second thing, your Honour, is that it would be in compliance with the section for a judge to give the kind of direction which your Honour said in a normal case, but when I come to it I am going to develop the submission that, in this particular instance, a direction of the kind which your Honour just suggested, elaborating on the Presser grounds, would have been confusing and perhaps prejudicial for various reasons. In this instance, a minimal direction which his Honour gave was appropriate in the circumstances of this case. Having said that, can I just complete the reference to the transcript where we say that that subsection was complied with.

KIRBY J: Can I ask do you know does the Bench book now include a model instruction to juries?

MR COGSWELL: It does.

KIRBY J: Do we have access to that, or not?

MR COGSWELL: I think the answer is yes. I got a copy last night and my understanding is that there is now access on the JIRS site to the Bench book, which I assume is available to the High Court, and by that I meant it was restricted but I think it is now publicly available by the looks of it.

KIRBY J: And is this something that was prepared after this case was tried?

MR COGSWELL: I do not know the answer to that, but – yes, my learned junior, Mr Smith, tells me that the model direction was incorporated in the Bench book in May this year. Indeed, the document which I have in front of me which I just got last night has at the foot “May 04” and at the foot of the second page “May 05”; so that if it is of assistance to your Honours we may arrange for photocopies of that too.

KIRBY J: Well, if it is on the Web we can always get it ourselves.

MR COGSWELL: It does not assist me in the sense that there is some development of the meaning of “unfitness to be tried”.

KIRBY J: Well, one hopes that we all get wiser by experiences like this case and that, therefore, the fact that things have improved does not necessarily mean that it was not accurate at the time or, if it was not accurate, that that led to a miscarriage of justice.

MR COGSWELL: May I make this available at a later stage, your Honours.

GLEESON CJ: Yes.

MR COGSWELL: Thank you.

GLEESON CJ: Now, you were taking us through the parts of the transcript to which you wanted to refer to say that there had been compliance with the statute.

MR COGSWELL: Exactly. Thank you, your Honour. The third requirement, the purpose of a special hearing and we say that at 118, point 25, his Honour in that passage commencing “The ultimate situation will be this”, explains the purpose:

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 . . . 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 once again, I need to fall back onto the summing up which is at 333 and his Honour at 333 of the appeal book, commencing at about line 28:

Because of the nature of the case being a special hearing and it being found that she was not fit to be tried, she was indicted and she did not plead because she could not and it was therefore inferred that she pleaded not guilty. So, therefore you will now have to determine whether she is not guilty or whether, on the limited material that has been placed before you that she committed the offence charged...So, therefore accordingly it is your role and your responsibility to determine which of those verdicts is the proper verdict in respect of the count.

So that we say his Honour complied with the requirement to specify the purpose of the special hearing in those particular passages.

The next requirement is that his Honour must explain the verdicts available and we say in the two passages which I have just referred to, namely, 118 point 25 and in 333 around point 28 and following, there are clear references to the verdicts which were available. In this particular case, there were four available verdicts according to statute. Two are not relevant in this case, namely, a defence of mental illness. There was no suggestion in this case that Ms Subramaniam was suffering from any mental illness at the time of the alleged offence. Secondly, there was no alternative offence which the jury might have convicted her of to the principal offence. So that the only two available verdicts were not guilty or, on the limited evidence, that she committed the offence.

Now, the legal and practical consequences of the finding – the compliance we say there is at page 118, commencing at about line 33, 34:

And if you so make that finding –

that is, on the limited evidence –

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.

McHUGH J: That hardly complies with what the statute itself requires, does it, in section 24, for example, or section 23? The court has to nominate a limiting term. Surely, the judge has to tell the jury that if he nominates a limiting term he must refer the person to a Mental Health Review Tribunal. I mean, there is good reason for this, Mr Cogswell. It may be before your time, but in the late 1960s and 1970s - - -

MR COGSWELL: It is, kind of, your Honour. Before my time at the Bar.

McHUGH J: - - - there were cases where juries refused to accept the evidence of the Crown psychiatrist and evidence of the accused’s psychiatrist that the accused was insane. I remember particularly a case where a man had been convicted of the murder of his wife and was convicted. Out of prison, murdered his second wife. Everybody said he was insane. The jury refused to accept the evidence of the psychiatrist and found him guilty of murder. So it is very important that juries know what happens in this sort of case. I cannot believe that Parliament did not have that sort of problem in mind.

MR COGSWELL: I appreciate the force of what your Honour says. Our secondary submission, so far as compliance is concerned and so far as the legal and practical consequences are concerned, is to suggest that in fact strict compliance might require, for example, the legal – if his Honour was to explain the legal consequences, that may well require a direction in respect of section 22(3): a qualified finding of guilt is a bar to further prosecution, subject to section 28, subject to appeal in the same manner, and taken to be a conviction for the purpose of enabling the victim of the offence to claim compensation. Our fall-back position, your Honour, is that the section has to be read down, because such a detailed direction would potentially be confusing and unnecessary at this stage of the trial, and may result in the jury being quite confused about what is likely to unfold so far as the purpose of the trial is concerned.

HAYNE J: What then, is this reading down that you say would have to occur?

MR COGSWELL: Reading down to the extent that, when his Honour said:

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, in fact, if we take a step back, his Honour, at 118 about 26, he explains the legal and practical consequences of an acquittal, namely, “like any other accused” the accused is discharged. There is no problem with that; that is relatively straightforward. The problem I anticipate is with the legal and practical consequences of conviction, if I can call it that, a finding of guilt. His Honour there says:

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 –

Now, that explains to the jury the options which his Honour has at 23(2) because what happens after a qualifying finding of guilt, as it is called, is that his Honour has to determine whether he is going to nominate a limiting term or, 23(2), the judge may impose a penalty, and that is the whole range of the normal penalties which may be imposed.

Your Honour, he complies with that. He tells them that that is what – we say it does not need to be any more complicated than that. He will impose a penalty if there is a finding of guilt. He does not need to say – it might be a fine or it might be a bond. Then he goes on to say:

and where in fact she would be referred to in respect of that penalty.

That, we say, is some indication of what his Honour may consider under section 23(1) concerning a limiting term. If his Honour was, in fact, to comply strictly with the section, his Honour should explain 23, explain 24, the consequences of nominating a limited term and of going off to the Mental Health Review Tribunal. He would not need to explain 25 in this case; 26 he has complied with; 27, and that is when it comes back from the Mental Health Review Tribunal. There are alternatives depending upon whether the person is suffering from mental illness or not, whether the person consents to being detained in hospital. Then there is 28, the effect on other proceedings which, in fact, qualifies to some extent section 22(3).

So we say the section needs to be read down because, if his Honour was to strictly comply with the requirement to explain the legal and practical consequences, then he would need to really explain all those provisions which at the beginning of a hearing such as this, we say, would be quite confusing and onerous for the jury and, indeed, perhaps counterproductive.

HAYNE J: What is the legal principle that you engage in aid of this proposition for reading down?

MR COGSWELL: Well, your Honour, the legal principle is that, if it were to be read literally, then strict compliance would require going through the sections which I have referred to. It would lead to a rather absurd result, namely, that in the running of a criminal trial a jury at the start of a trial would - - -

HAYNE J: We are not running a criminal trial, Mr Cogswell.

MR COGSWELL: I am sorry. Exactly, your Honour, exactly.

HAYNE J: That is just the point.

MR COGSWELL: I withdraw that, your Honour. I have fallen into my own trap. In the running of a special hearing, in the conduct of a special hearing, it would result in confusion for the jury and quite an onerous responsibility.

HAYNE J: Onerous responsibility for? Your sentence trailed off, Mr Cogswell, sorry.

MR COGSWELL: No, no.

HAYNE J: The fact that it is hard for the judge is irrelevant.

MR COGSWELL: You are right, your Honour, the sentence trailed off. So I will withdraw the sentence and replace it with, it would impose an unnecessary burden on the jury. For example, the jury have no role, I am reminded, in the sentencing of an accused – I am sorry, of a person who is the subject of a qualified finding of guilt, and to explain the various alternatives, which his Honour has, under 23, is unnecessary and confusing.

HAYNE J: Let me translate the proposition to a case of a kind where one might expect provisions of this kind would find their ordinary operation: murder. Let it be assumed further that the accused person is evidently unable to give any instruction or to follow any of the proceedings. The person is in such a disturbed mental state that that is self-evident. What do you say to the proposition that a jury empanelled in these circumstances should be told, for example, that if, on the limited evidence that they will have to consider, they conclude that the offence is proved, a step that the judge will have to take is to fix the term of confinement that ordinarily would be imposed for a murder of the kind in question, and that that has the consequences that then flow through under the Act?

MR COGSWELL: Your Honour, that would be, I agree, an appropriate direction in a case such as that, in a murder trial.

HAYNE J: Now, what is the legal principle that would permit you to read the section down according to the nature of the charge laid, or the specifics of the condition of the accused person, or some consideration of that kind?

MR COGSWELL: I agree, your Honour, that is a difficult proposition to explain. I might need to come back to your Honour on that.

HAYNE J: Yes.

MR COGSWELL: I appreciate your Honour Justice McHugh asked that question right at the start about being unfit to be tried. The fact that the person is unfit to be tried, in accordance with the normal procedures – I might just ask my learned juniors to see if – my recollection is that that does appear somewhere.

Whilst that hopefully will be found, can I just turn to this question of what the appropriate direction might have been so far as the meaning of unfitness, that is Justice McHugh’s question about the Presser requirements and whether his Honour ought to – so the first observation is this, that there is no statutory definition of unfitness for trial. One needs to go back to Presser and Presser was confirmed, of course, by this Court – the Presser requirements in Kesavarajah.

The question is whether the – we say that normally it is appropriate for the trial judge to explain the Presser requirements, but in this case explaining the Presser requirements, we submit, would have been confusing, unnecessary and possibly prejudicial to the accused and we say that based upon evidence which will appear at pages 84 to 85 of the appeal book, your Honours.

At 84 and 85 there is a report from a medical practitioner called Dr Clark who is a consultant forensic psychiatrist and he summarises his findings on the fitness – the Presser criteria over 84 to 85. In summary, your Honours, he does not find that the accused in this case complied, or so to speak, with all of them. Not all of them applied to Ms Subramaniam and can I take your Honours briefly through them at the foot of 84, “She is able to plead”, he finds. However, she is unlikely to be able to “exercise the right of challenge”. The top of 85, No 3, she is able to “understand generally”. No 4, she is “able to follow the course of the proceedings and know what is going on”. However, No 5, that is the need to “understand the substantial effect of any evidence” -

She is unable to do this; she is paranoid in her thinking.

6. Needs to be able to make a defence known to the charge.

She is able to do this.

However, counsel needs to be able to:

through her counsel, by giving instructions, letting her counsel know what her version of the fact is.

She is unable to do this . . .

8. She need not have the mental capacity to make a defence but have sufficient capacity to be able to decide what defence she will rely upon.

She is able to do this.

9. To make her defence and her version of facts known to the court . . .

She is unable to do this -

and the doctor summarises it, she is not fit to plead. Now, a preliminary observation about those is that one might think that looking at - - -

KIRBY J: Remind me of what the Presser criteria are.

MR COGSWELL: I think they are reproduced in the CCA. In our written submission in 6.15 and it is taken from Kesavarajah, this Court’s statement of them in Kesavarajah, your Honour, which conveniently enumerates them, so at the foot of page 9 and the top of page 10 in our written submissions - - -

HAYNE J: And at 181 CLR particularly at 245.

MR COGSWELL: Exactly, 181 CLR 245 and we extracted that.

KIRBY J: You are referring to 6.15 of your submissions?

MR COGSWELL: That is right, paragraph 6.15.

KIRBY J: Now, how many submissions have you put in?

MR COGSWELL: Two.

KIRBY J: You get a bit confused in these things.

MR COGSWELL: I can understand that. There is a document called “Supplementary Submissions on Behalf of the Respondent”. That is not the document I am referring to. It is a document called “Written Submissions on Behalf of the Respondent” filed 23 April.

KIRBY J: Yes, very well, I have that.

MR COGSWELL: If your Honour goes to page 9 - - -

KIRBY J: Wait a moment. No, this one is also the original one, apparently. Do you have an extra copy of your supplementary submissions?

MR COGSWELL: I do not in my hand, but I am sure we can lay our hands on one, your Honour. I have the original file copy, your Honour. At the foot of page 9, there is an extract from the passage from Kesavarajah v The Queen (1994) 181 CLR 230 at 245, which Justice Hayne referred to.

HAYNE J: Now, in evaluating the evidence that is led before them, should the jury have available to them a statement of why it is that the particular accused was found unfit to plead?

MR COGSWELL: Not why, your Honour. What the jury needs to have before it is the information which the judge is required to give the jury in compliance with 21(4), so that insofar as that requires the judge to explain the fact that the person is unfit and the meaning of unfitness to be tried, that is the requirement, rather than why.

HAYNE J: So an abstract identification of circumstances that lead to a conclusion of unfitness to plead is sufficient, you say, unrelated to the particular facts of the particular accused?

MR COGSWELL: Yes, your Honour. That is what we say is all that the section requires - - -

HAYNE J: That is at the outset. It may perhaps, it may not perhaps, at the end of the trial be appropriate to give a more refined direction, but at the start tell them about the concept.

MR COGSWELL: Yes, your Honour. As I look at subsection (4), the fact that the person is unfit and the meaning of unfitness to be tried, I would imagine most judges would, as his Honour did, go a little bit beyond the meaning of unfitness to be tried and say why. In this case, his Honour referred to her mental condition. It would not surprise me if in many instances that is all the judge said, but, as happened in this case, the jury questioned what followed, saying, “Well, can you tell us a bit more?”, and that is what happened. So in fact, in this case, the jury got a more detailed version of what the content of that unfitness is, if I can call it that.

CALLINAN J: It might be necessary to explain, perhaps, some limited participation or something that happened during the trial.

MR COGSWELL: I am not sure that I follow, your Honour.

CALLINAN J: Well, there may need to be a more detailed explanation at the end, in order to explain why the accused person did or did not do something, or somebody on her behalf did or did not do something, during the trial.

MR COGSWELL: Yes.

HAYNE J: And presumably, in some, at least, of these special hearings, you will have the accused sitting there, apparently conferring with counsel, apparently giving instructions. So to even the moderately informed jury member, that might present an oddity.

MR COGSWELL: Yes, an inconsistency with what they are told about his or her fitness and what they observe about his or her behaviour. Now, that could have been a problem in this case, which brings me to the submission that I am developing about the difficulty his Honour faced in complying – well, at least in complying with the requirement to explain the meaning of unfitness for trial in accordance with the full Presser directions, which his Honour Justice McHugh raised. Can I take your Honours to page 85 of the appeal book, because what I am going to do is compare propositions 6 and 8, which I say amount to the same thing, almost, with propositions 7 and 9. We would suggest that 6 and 8 together are arguably inconsistent with 7 and 9.

HAYNE J: With a view to demonstrating what?

MR COGSWELL: The difficulty which his Honour faced in – the question of Justice McHugh was, “Well, ought the judge not go through the Presser requirements, essentially, and read them out?” Normally, we say yes, but in this case we say if his Honour had done that in fact, not all the Presser requirements were relevant. So if his Honour went through the Presser requirements, then, in order to maintain accuracy with what the situation and the evidence was in this case, it might be that you would have to explain, “Well, in fact she is able to make her defence known in this case and to decide what defence, but, on the other hand, she is unable to give instructions, nor is she able to make her version of the facts known”. Now, the jury - - -

HAYNE J: Well, does he go beyond saying, “Due to her mental condition her thinking processes are impaired”?

MR COGSWELL: Essentially he says that. He says, right at the start, “She’s unfit for trial due to her mental condition”. Now, the two components of that proposition, “unfit for trial” and “mental condition”, we say, with respect, comply with the suggestion which your Honour just made. The inference is that she is unfit for trial because her mental condition means that she is unable to face a trial in the normal way, but what his Honour did, we say, complies.

If his Honour went beyond that in this case and entered upon the Presser criteria, his Honour would have run into the difficulty, we say, of the evidentiary basis in this case, of apparent contradictions – apparent, arguable – on the face of the evidence, which, if his Honour had gone into that, would have been unnecessary, because the question of unfitness was not a matter for this jury to determine. The question of unfitness has already been determined by, in this case, a judge, or, in other cases, a jury. So it was unnecessary.

It would have been confusing, because the judge is saying, “Well, some apply and some do not”, and possibly prejudicial, which is perhaps the most serious matter, because the judge is explaining some things she can do and some things she cannot do. So if we consider Justice Hayne’s scenario of the jury perhaps observing her behaviour and comparing it with what they have heard, the jury may well be drawing prejudicial conclusions about the kinds of things which she is or is not able to do.

In other words, it is, in this case, a question of too much information. That is what we say – in this case. Now, generally, we would say it would be appropriate for the judge to give a direction which included either a summary of the Presser requirements or a list of the Presser requirements so that the jury knew what the meaning of it was, but not in this instance.

KIRBY J: Mr Cogswell, I will return Mr Smith’s submissions, I did have that document. I was looking for 6.1.5 instead of 6.15. I had it and had read the earlier submissions.

MR COGSWELL: I am relieved to hear that, your Honour. Also there was one slightly complicating factor here because, as your Honours will recall, there was a proper trial, if I can call it that, and a hung jury. In that case the accused, Ms Subramaniam, gave evidence so that she, in a sense, advanced a defence. So that this is not an instance where the defence may be a complete unknown so that a judge is trying to explain to a jury that it may be because the person accused cannot explain her defence to her counsel or make out a defence to her counsel, that that is obviously a problem, but in this instance that is not the case. There was a source, so to speak, which defence counsel could look to for a possible defence. Subject to any questions which your Honours have, that is all I propose to say about the ground of non-compliance with section 21(4).

The best we can do in answer to Justice McHugh’s question about whether his Honour explained unfitness to be tried in accordance with the normal procedures, we cannot find those words but at 118 point 12, the Attorney-General has directed:

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.

And at the foot of 117, the point we make here is that really the whole of the explanation over 117 to 118 is based upon the proposition that there is something different going on from the normal procedures so that when one’s specific reference at 118, around about point 20 in the context of that overall explanation we say that clearly tells the jury, in response to Justice McHugh’s question, that she is unfit for trial in accordance with the normal procedures.

May I turn to the third ground which is the question of whether the trial miscarried by reason of the Crown’s failure to place evidence before the jury, the nature and extent of the appellant’s mental illness and unfitness and we have developed our submissions on that over pages 17 to 20 of our written submissions and I do not need to elaborate very much. We make three essential submissions here. The first is based upon the Act. In this case we say the Act is not a source of a duty on the Crown in this instance. The second is based upon the common law that when one looks at the duty of the Crown at common law that does not provide a source for the duty which is suggested in this case, and the third is that, in this particular instance, it was inappropriate for the Crown to lead evidence. The first submission about the no source in the Act was developed at paragraph 6.36 and there is no need to say anything more about that.

The second submission which is about the common law is this, that if one looks at the duties of fairness which the common law imposes appropriately on the Crown, then the first question which we develop in 6.37 is to what fact in issue would the tender of medical material be relevant? We say that if the Crown tendered material which was not relevant to a fact in issue in the special hearing and one of the purposes of the special hearing is to determine whether the person should be acquitted or not, then the Crown presented material which was not in compliance with – rather that it did not go to a fact in issue - it would, we say, fail to fall short of the Crown’s duty for the proper presentation of the Crown case in accordance with the dictates of fairness.

The second submission we make at 6.38 is that the medical reports have been obtained by the defence and whether or not it was material that it should have put before the jury the Crown was not in a position to make that assessment as to whether that material which the defence obtained should go before a jury.

The third submission is to bear in mind that unlike a fitness hearing when there is a special provision that – fitness inquiry, I should say – fitness inquiry is non-adversarial. These are adversarial in the sense that a person is being prosecuted and the person can put up a defence and is represented by counsel. So that when one looks at, in this instance, the proposition that the Crown should have tendered some of the medical material, with the Crown being the prosecutor and the defence resisting the prosecution - the Crown Prosecutor, we note, had submitted that Dr Menzies was biased in favour of the appellant; that is at page 50 of the appeal book.

The reports also contained personal information about the appellant’s background and some of the reports contain material which was inaccurate and misleading so far as the Crown was concerned; for example, Dr Lucire’s report referred to this matter being a political persecution involving entrapment and improper motives by the DPP.

CALLINAN J: I see even Justice Simpson in the intermediate court at paragraph 75, AB 397, said Dr Menzies’:

report is redolent with suppositions about the facts of the case, and what could fairly be characterised as invective.

MR COGSWELL: Yes, now I am not sure she is talking about – sorry, your Honour was at 73?

CALLINAN J: Paragraph 75.

MR COGSWELL: Of the judgment - - -

CALLINAN J: Page 397.

MR COGSWELL: Yes, the balance of the report and I think she is talking about Dr Clark there.

CALLINAN J: Dr Clark, is it?

MR COGSWELL: Yes, Dr Menzies is the treating psychiatrist.

CALLINAN J: Yes, but Dr Clark had agreed with Dr Menzies.

MR COGSWELL: He had, but I suspect when she says at line 10 of the appeal book he wrote that that may well be Dr Clark rather than - - -

CALLINAN J: Dr Clark, I think that is right.

MR COGSWELL: Yes, I suspect that is right. Not only should those assertions not have been tendered to the jury in the first place but, of course, it was not for the Crown to tender that material. We also note that Dr Della Bruna’s report referred to these proceedings as being a “vendetta” at 109.

The last submission so far as the common law is concerned concerns the important role which was pointed out in a case called Zvonavic [2001] NSWCCA 505; 54 NSWLR 1. At page 6, paragraph 15, and it was Chief Justice Spigelman I think:

In the circumstances the court must be, as the legislative scheme contemplates, particularly reliant on the legal practitioner representing the accused person.

And in the unreported judgment of Smith, which the extract is there:

at a special hearing the accussed’s legal representative has a greater power to make decisions, without receiving instructions from his client –

We say that when one looks at the particular role of defence counsel, as the Court of Criminal Appeal, in our submission, correctly points out, that it would be quite incongruous for the Crown Prosecutor in a special hearing to be tendering material about the extent of the appellant’s illness.

The final submission on the question of the ground concerning the Crown tendering material concerns what occurred in this particular case. It commences at 6.42 and we say it was overtaken by what occurred in this case. It would be convenient to take your Honours to 1 appeal book at page 152. We say the proposition which we are advancing is that any requirement, if it did exist, for the Crown to tender material relevant to the appellant’s medical condition was overtaken in this case by what happened. What happened commenced at the foot of 152 where we have the jury question:

can you clarify what made the accused unfit for trial.

SIMPSON: I think that will be done this morning your Honour through the witness –

His Honour was wanting reassurance that the witness would say just what was wrong with her. His Honour’s apprehension was that the jury wanted to know “just what is wrong with her”. Mr Simpson indicated that his Honour could give a direction and his Honour persists, with respect, “But they want to know why?” Mr Simpson agrees with the judicial direction and then he discusses with the Crown Prosecutor the question of Dr Menzies’ reports and the Crown Prosecutor suggests that he was going to ask them questions of the detective, but he now thinks that the judge should answer it:

the accused was suffering from anxiety and depression –

Then they go to Dr Menzies’ reports which are handed up at about line 40 and his Honour is looking at what Dr Menzies just said and then they discuss that. Then the jury comes back at the foot of 153 and his Honour then gives the direction at the foot of 153 and the top of 154.

So to the extent that defence counsel might have required the Crown to put before the jury in this case any evidence about the mental condition of the appellant, then defence counsel in the trial agreed with, indeed, suggested or was party to what happened in this case. So in the circumstances of this particular case it was not even necessary for the Crown to tender material which we say they are not required to do in any event.

That is all I propose to say about the third ground, except for this, to draw your Honours’ attention – and we were wondering whether we should do this at the start. In respect of these two grounds, we say that these two grounds, namely, the directions 21(4) and the ground that the Crown should have tendered material, were not subject to any determination by the CCA in this case. We made a supplementary submission on the day or the day before the last hearing, so perhaps I should ask your Honours whether your Honours have a two-page submission from us called “Supplementary Submission on Behalf of the Respondent”.

GLEESON CJ: Yes.

MR COGSWELL: Those supplementary submissions develop the argument that it would be appropriate in this case for this Court to revoke leave or, alternatively, remit these grounds to the CCA for consideration. The point was not taken at the special leave application itself because, as it happens, these two grounds were, can I say with great respect, and no disrespect at all to your Honours Justices McHugh and Callinan who granted special leave, that the two grounds were added in the judgment.

There was discussion at the special leave hearing about these two issues and then in the judgment, which was read by your Honour Justice McHugh, your Honours granted leave in this case but not on the admissibility of the listening device:

but we would grant leave on the first paragraph on 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.

So those grounds were added, so to speak, at the and of the special leave hearing and in - - -

KIRBY J: But if they are relevant to whether there was a trial at all, as the statute - - -

MR COGSWELL: Yes, if they are relevant.

KIRBY J: - - - commands, then this Court has to deal with them as relevant to that point, does it not?

MR COGSWELL: Yes. We say though that they are not of that relevance, that they are both procedural irregularities which might go to the fairness of the special hearing and they are matters which can be determined by the CCA.

KIRBY J: There has been some discourse in this Court in relation to the proviso. I do not know whether it is Wilde’s Case, but I know Justice McHugh has said it from time to time, that the proviso has application where there has been a trial.

MR COGSWELL: Yes.

KIRBY J: It hypothesises that the fundamentals of the trial have been observed and therefore you can apply the proviso, but where they have not, then the proviso is not engaged because the hypothesis is not fulfilled.

MR COGSWELL: That is right. It is Wilde’s Case.

KIRBY J: I remember once looking to whether or not there were many cases where that had actually been given effect and I could not, I think, find anywhere the default was so fundamental as to deprive what had happened of the character of a trial. I suppose that is bound up in the fact that our trials are conducted by professional judges.

MR COGSWELL: Yes.

KIRBY J: But do you know cases where - - -

MR COGSWELL: Wilde’s Case might have been an instance, your Honour – would your Honours pardon me for one moment?

KIRBY J: There has been some discussion of this. I do not know whether it was Festa or Conway - - -

MR COGSWELL: Festa 208 CLR 593 – and I do not think it is on our list of authorities, but I might be wrong – and there was some discussion by your Honours Justices McHugh, Kirby and Hayne about it, but just on specifically your Honour’s question – I am really looking for the citation for Wilde, which is one of the – here it is, Wilde v The Queen [1988] HCA 6; (1998) 164 CLR 365. Your Honour Justice McHugh refers to it – and I am just looking for the footnote.

KIRBY J: One would think it has to be a pretty fundamental error for you to say, “Well, it had the trappings, the judge was there in his wig, the barristers were there, the police officers were at the back of the court, the subject of the trial was there, but it was not a trial”. But this is a very peculiar proceeding here, and if certain preliminary requirements are not conformed to, well, I could understand how one might reach a view that the fundamentals of this peculiar procedure, perhaps because of its peculiarity, meant that what happened did not really amount to the sort of trial that Parliament had in mind.

MR COGSWELL: Yes. Your Honour, we say in response to that - - -

KIRBY J: Is this relevant? It does seem to be relevant to the last submission you just made.

MR COGSWELL: Yes.

KIRBY J: Because you seem to be engaging with that suggestion and saying, well - - -

McHUGH J: In Wilde, the majority of the Court said that:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.

KIRBY J: So the test is “going to the root of the proceedings”, which I suppose is a way of saying it is so fundamental that although it looked like a trial, it really was not a trial as Parliament has envisaged.

MR COGSWELL: Yes. Your Honour, can I respond to that by saying that had there been – I am going to argue that section 21(4), the requirement for the judge to give the direction, is not such a fundamental requirement, but if we were to look, for example, at some of the other provisions about the nature and conduct of a special hearing, for example, your Honour, section 21(2):

the accused person must, unless the Court otherwise allows, be represented –

So that if the accused was unrepresented, and if, for example, the accused person had been taken to have pleaded not guilty, if there was some confusion about that or misunderstanding, or there was some way a verdict or, rather, a plea of guilty to one of several counts, say, was entered, or if there was a denial – the accused person is entitled to give evidence – if, for example, there had been some error and the accused person was not entitled to give evidence, we say that section 21 is the section which one would look to in looking at the fundamental aspects of a special hearing, not a trial, if there was a failure to comply with those.

Whereas section 21(4), although expressed in mandatory terms, “At the commencement . . . must explain”, is something which a court may look to and decide that there was sufficient compliance or insufficient compliance. If there was insufficient compliance, which I am arguing, for example, then it might be that there has been no miscarriage of justice. So that is, we say, not a prerequisite.

McHUGH J: A good illustration of a case that goes to the root of the proceedings is probably Hildebrandt’s Case where he was charged with an offence on an aeroplane, tried in New South Wales, if I remember rightly and the evidence tended to establish the offence probably occurred when the plane was over Queensland. So there is no point taking – you are in the wrong court.

KIRBY J: But it has still been a trial. The legal point may be a good point but you see it is, in a sense, a judicial gloss on the statute of Parliament having said, “Well, we’re going to control”. Do you remember that when the Court of Criminal Appeal was established in England and then in New South Wales, there were great debates in the colony of New South Wales as to whether this should be happening because it was said by members of Parliament this will just be used by smart lawyers to take technical points and unmeritorious people are going to get off and not be hanged as they should be.

That is written up in a couple of articles in the Criminal Law Journal, in the early volumes of it. I think Mr O’Connor wrote some articles looking at the history of this and, therefore, one would think that when Parliament talks in sections of the Criminal Appeal Act, such as section 12, that you have to show this miscarriage of justice. When it is talking of the trial, it means essentially what has happened in the court, but we do have this authority in Wilde and when I actually looked for cases in this Court where the root of the proceedings had been the basis on which the Court has said we do not have to deal with the proviso because it is only engaged on the hypothesis, I do not think I could find anywhere that had actually been said to be the basis. The Court had sometimes mentioned it, but it dealt with it as if the proviso applied and said in any case there is no miscarriage.

McHUGH J: Another illustration is Crane v DPP [1921] 2 AC 299 where the appellant was indicted for receiving goods, another man was charged in a separate indictment with stealing the goods, the two prisoners were tried together and convicted, and the House of Lords held the proceedings were a nullity. As it turned out in that case, they held that the Court of Criminal Appeal could quash the conviction, but it could order a new trial because there had never been a trial.

MR COGSWELL: There had never been a trial in the first place.

McHUGH J: There had never been a trial.

MR COGSWELL: I am inclined, with great respect, to agree with Justice Kirby, that maybe that your Honour’s example of jurisdictionally the wrong court, it is a point that is taken and it is argued. Here, section 21(4) is in the nature of directions or – no, not directions, they are explanations, which is something that needs to be borne in mind. It is not so much a direction as an explanation which is required to be given so that it is an aspect of the trial, non-compliance is not something which deprives the status of the special hearing – I should say of a special hearing. That is our - - -

McHUGH J: Another illustration, if it occurred, is that illustration that I gave earlier about the failure to get the consent of the accused at the close of the prosecution case. That actually happened and the New South Wales Full Court I think it was prohibited any action on the conviction on the ground it was made without jurisdiction. It is a case called Beattie, I cannot remember who the other party was, but it was in the early 1960s.

MR COGSWELL: Early 1960s, yes. That is all we have to say your Honours about the supplementary submissions which means - - -

KIRBY J: It is the authority of the Court that if it goes to the root of the proceedings, then you do not get to the proviso. It is just not really a trial. What do you say about that principle in this case? You say that there were mistakes and if there were mistakes they are not of that quality.

MR COGSWELL: That if there were mistakes, they are not of that quality, yes.

HAYNE J: The other method of analysing it, which may or may not be consistent with Wilde, is to say that the question of substantial miscarriage presented by the proviso does not in every case require, for example, evaluation of the strength of evidence; rather, substantial miscarriage is such a wide expression that it may encompass consideration of whether there has been such a departure from proper procedures that the conclusion, substantial miscarriage, should follow regardless of whether, looking at the evidence that was led at that proceeding, conviction is likely, unlikely or no. It may, therefore, be that there are alternative paths to precisely the same destination, perhaps one not engaging the metaphors of going to the root of the trial.

GLEESON CJ: And Wilde does not say that you do not get to the proviso. What Wilde says is that where there has been a fundamental defect the proviso is not satisfied. There is an ambiguity in the proposition the proviso does not apply. What the majority said, at page 373, was:

Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso.

Not that they require no consideration of the proviso.

MR COGSWELL: Yes, the proviso is not satisfied.

GLEESON CJ: Yes. It says:

If that has occurred . . . the accused has not had a proper trial and that there has been a substantial miscarriage of justice.

That is what the majority said in Wilde at page 373. Then they went on, in the next sentence, to say the application of the proviso is excluded because there has been a substantial miscarriage of justice. If the proviso applies, it produces the consequence that because there has been no substantial miscarriage of justice the error does not result in quashing of the conviction. But the majority in Wilde said that when you consider the proviso in the case of a fundamental defect you conclude that “there has been a substantial miscarriage of justice”.

KIRBY J: But it is the words that were then added, “the application of the proviso is excluded”, that is the source of intellectual difficulty for me. I have no difficulty in it being said that if there has not been a proper trial, there is then by that reason a miscarriage of justice, and therefore in the words of the proviso you apply it. It is going on to say that the proviso is excluded that I have difficulty with, myself.

McHUGH J: Given the statutory direction, I suppose, you really cannot say the statute does not apply. The statute says it has to be considered, but what Wilde seems to say is that in these cases of fundamental defects you do not evaluate the evidence. You do not evaluate the merits of the case.

HAYNE J: There may lie within this debate the seeds of the resolution of the conundrum to which Justice Brooking referred in rather colourful terms in a Victorian case - - -

McHUGH J: Gallagher.

HAYNE J: Gallagher, is it? Resolving reference to “miscarriage” in the body of the section and “substantial miscarriage” in the proviso.

MR COGSWELL: Yes.

GLEESON CJ: You cannot avoid consideration of the proviso, because it is in the statute. You are obliged to consider it.

MR COGSWELL: Yes.

KIRBY J: That has always been my difficulty with the expression that follows the reference to miscarriage in the passage in Wilde. Justice Gaudron very often said that error of law may be of such a quality as to amount to a miscarriage of justice on its own, without anything more, and that might be getting to the same thought.

McHUGH J: If the trial judge did not direct the jury on the standard of proof in a criminal trial, it would not matter how strong the Crown case was, you would just say there has not been a trial according to law.

MR COGSWELL: That is right.

McHUGH J: So you do not evaluate and say, “Oh, well, it didn’t really matter because any reasonable jury would have convicted on this evidence”. There just has not been a trial according to law.

MR COGSWELL: Your Honours, I am reminded in Festa, particularly your Honour Justice Hayne elaborated the – looked at the proviso in some detail and explored it- - -

HAYNE J: I doubt I elaborated it, or at least not successfully.

MR COGSWELL: Your Honours, can I return to ground 1, which is the stay point. There is a preliminary question which was raised last time, and that is this question. Section 19 of the Act which we are dealing with, the Mental Health (Criminal Procedure) Act 1990, says in terms that:

(1) If the Attorney General directs that a special hearing be conducted . . . the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing –

and your Honours will see in paragraph 6 the question which was raised I think by your Honour Justice Hayne, and I think by Justice McHugh as well, “Well, it is mandatory. It says you must”. Now, if your Honours are of that view, then the question of the stay disappears, so far as the - - -

CALLINAN J: Well, is that right? Does it exclude the exercise of the discretion to grant a stay when the contention is, as I think the second contention was, that the trial itself would cause an exacerbation of her mental health?

MR COGSWELL: Yes. We say – in fact we accept in our submissions that the court retains such a power in relation to these sorts of proceedings.

CALLINAN J: I think it was on that matter that the appellant really placed weight, was it not? The likely exacerbation by the trial itself.

MR COGSWELL: Of the condition. And the trial itself, it was part of her submission, had brought about the condition that she was in, and it was likely to be exacerbated.

KIRBY J: One could imagine a case, say 40 years later, and perhaps for illicit reasons which were shown where one would think a court would retain the power just out of the exercise of the judicial power. There has to be an exception, so by reason of your concession you are essentially saying this is a long way short of that sort of case.

MR COGSWELL: Yes, we say the court still retains the power to grant a stay despite the mandatory terms of the statute and we say that because of – well, there is a Court of Criminal Appeal decision of New South Wales called R v WRC [2003] NSWCCA 394, unreported and I need not take your Honours to it. Paragraphs 49 to 50, the Chief Justice’s reasoning says that – and based upon the decision of this Court in Bropho that for a statute to abrogate fundamental principles of the administration of justice requires a very clear statutory intent, and we accept what the CCA said about that and we accept that such a power does exist in the Court in this instance.

Just looking at our submissions, we look at the general legal principles which I need not dwell on for very long at all, then we will look at the relevant provisions of the Act and then the stay in this case. What is important to recall, and I am at the foot of page 3 of our primary written submissions, is that what is required is a fair trial according to law, That is going to become important because in this instance there is a statutory regime for this particular hearing and your Honour Justice Kirby was emphasising last time the fact that so far as this Court’s jurisprudence is concerned, a permanent stay is an extreme remedy and we say that it is only used in the most exceptional or extreme circumstances and, of course Jago and Walton confirmed that.

CALLINAN J: Was there any evidence that a trial would not significantly exacerbate her mental condition because there is certainly evidence that it would?

MR COGSWELL: I think the answer to that is no.

CALLINAN J: So the evidence is one way that the conduct of a trial would exacerbate her mental condition.

MR COGSWELL: I am going to ask my juniors to check that, your Honour. I cannot recollect any evidence that – but I may be wrong - which- - -

CALLINAN J: And that evidence that it was one way was that it could seriously exacerbate her mental condition.

MR COGSWELL: Yes, Dr Menzies was accepted by the judge.

CALLINAN J: Why would that not afford a basis for perhaps not a permanent stay, but certainly a stay?

MR COGSWELL: Well, your Honour, two respects. Perhaps a stay is not inappropriate. It is a permanent stay that the appellant requires - - -

CALLINAN J: A permanent stay.

MR COGSWELL: A permanent stay.

HAYNE J: It may afford a basis, but does it compel that conclusion and is that not the relevant question?

MR COGSWELL: We say it does not, it has to be - - -

CALLINAN J: Let us accept that it may not compel that conclusion. Does the trial judge anywhere deal with the fact that the evidence was one way in relation to that particular matter? I do not recollect that the majority in the intermediate court did, I may be wrong.

MR COGSWELL: Sorry, the majority in the?

CALLINAN J: The intermediate court, I do not recollect that they dealt with that particular point either.

MR COGSWELL: His Honour’s judgment on the stay application commences at 110 in the appeal book. His Honour gives background at 110, records the submissions of defence counsel at 111, at line 15, and he refers to medical evidence at 111, line 20:

Medical evidence relied upon by Mr Waterstreet comprise of the reports and evidence of Dr Menzies her consulting psychiatrist –

He refers to the diagnosis. About line 33:

He was cross-examined by the Crown, who questions the doctor’s objectivity, however I found the doctor to be a very good witness and I accept his evidence. There was also tendered reports from Dr Lucire and Dr Clarke - - -

CALLINAN J: Dr Menzies’ evidence, as I read it, was that there was a risk of suicide, quite a serious risk. It may well be that that certainly may not compel the exercise of a discretion to grant a stay, or even a permanent stay, but surely it is something the trial judge should have dealt with?

MR COGSWELL: Yes, your Honour.

CALLINAN J: And he should have dealt with clearly, I would have thought.

MR COGSWELL: Yes. I am not sure that I can say he has dealt with it clearly - - -

CALLINAN J: I do not think he has dealt with it at all, really, Mr Cogswell.

MR COGSWELL: He refers at page 111 to the reports. No, he does mention suicide at 111, your Honour, line 30.

CALLINAN J: Yes, but I mean in the context – you know what I am asking – which was, does the trial judge deal with the exacerbation, the likely exacerbation, about which the evidence was one way, of her condition as a result of her being tried?

MR COGSWELL: The answer to that is no.

CALLINAN J: No, and I do not think the Court of Appeal does either, does it? It may be that it would not justify it, but it is a matter that, it strikes me at the moment, required attention.

MR COGSWELL: His Honour says at 112, at the end of that page:

Whilst 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. I therefore dismiss the application.

Perhaps just looking at your Honour’s question about the exacerbation, his Honour at 111, in recording defence counsel’s submissions:

Mr Waterstreet submits that I should stay the proceedings in the interest of justice because of the protracted nature of the proceedings and that the proceedings to date have had a debilitating effect upon the accused to the point where she is said to be suicidal.

So that is 111. Perhaps my concession was a bit too - - -

KIRBY J: One has to have a little bit of sympathy for trial judges in these cases. They cannot have the luxury of long reserves, and often these things have to be dealt with on the run.

MR COGSWELL: That is right, particularly in this Court in - - -

KIRBY J: Was this dealt with on the run? Was there an adjournment?

MR COGSWELL: I expect it was. The judgment was delivered on 24 April and the stay - - -

KIRBY J: We would not want to be laying down a rule in the criminal process. After all, this does involve, to some extent, the judicial branch interfering in the decision of the Executive branch in a matter that belongs to the Executive branch, namely to proceed with the prosecution or trial.

MR COGSWELL: That is right. That is why the remedy is only available in the most extreme circumstances. To answer your Honour Justice Kirby’s question, at page 50 at the end of submissions about the stay, on 23 April the matter was adjourned to 24 April for judgment, and then the judgment is at 110 on the 24^th.

CALLINAN J: Mr Cogswell, what I particularly had in mind was some evidence which was repeated by Justice Simpson in the intermediate court at page 395, and this is the evidence; it seems to be one way, and I am sure it influenced her Honour. Against “11 February 2002”, the third sentence:

I believe there is no doubt that participation in a future ‘special hearing’ would result in a resurgence of her previous extreme symptomatology and the risk of suicide.

Now, I would have thought, with all due respect, that that was a matter – the evidence being one way, that the primary judge should have dealt with.

MR COGSWELL: Well, perhaps I can firm up on that a little, your Honour. If we go back two pages to 393 in Justice Simpson’s judgment, her Honour extracted from the reports in chronological order those propositions, so that the report of 11 February, to which your Honour refers - - -

HAYNE J: I would have thought also you would need to take account of the way in which counsel put it on the voir dire at page 48, where I think, in a very short submission - - -

MR COGSWELL: I am sorry, your Honour, at page 48?

HAYNE J: Page 48, over to 49. I think the height to which it goes is at line 50 on 48:

In other words it would be contrary to the interests of justice to ensure that the processes of this Court were used in a way that would oppress and could lead to a debilitation of her current mental state and where she would not participate meaningfully –

Counsel seem to have, on one view, underplayed the point.

MR COGSWELL: Yes, I rely on that, your Honour, and can I take your Honours - - -

HAYNE J: It is one of the profound difficulties in this special hearing process. You have counsel acting for someone who, by hypothesis, cannot give them adequate instructions. Counsel is then left in a position that is at the very least very difficult. What is counsel to do? They have a client sitting behind them for whom they are meant to act, whose mental state is fragile, according to her treating psychiatrist.

MR COGSWELL: Yes.

HAYNE J: Is counsel to go in and say, “Well, look if you go ahead with this process there’s going to be these terrible consequences for my client.” Such submissions have an awful tendency to be self-fulfilling.

CALLINAN J: That is the reason why the trial judge might and perhaps should take account of the delicacies involved. It does not absolve the trial judge from the responsibility of dealing with the evidence and dealing with the issues.

MR COGSWELL: Your Honour, the report is at 108 and that is a short report by Dr Menzies of 11 February. That is the one which was extracted by Justice Simpson and to which your Honour referred, so that was evidence, that was an exhibit in the stay proceedings before his Honour. Just going back to your Honour Justice Callinan’s question, if we look at the judgment on the stay at 111, where his Honour deals with the submission or at least repeats the submission – this is at 111, about 15:

I should stay the proceedings in the interests of justice because of the protracted nature of the proceedings and that the proceedings to date have had a debilitating effect upon the accused to the point where she is said to be suicidal.

In my respectful submission, your Honour, that essentially reproduces the effect of the report which was extracted by Justice Simpson and which appears, and essentially means that his Honour was seized of that issue or appreciated there was an issue that (a) the proceedings themselves - - -

CALLINAN J: An issue of deterioration.

MR COGSWELL: Deterioration brought about by the proceedings, and (b) suicide. So his Honour was seized of that. His Honour then referred to the various doctors’ reports and then at 112 looks at the Crown argument at the top of the page:

the hearing should proceed. He accepts that it may be her condition has intensified but there is insufficient reason to stay the proceedings –

Now, at that stage, it is a matter for his Honour’s discretion. His Honour is, of course, aware of what this Court said in Jago and Walton, the extreme nature of such a proceeding. His Honour, as Justice Kirby said, is no doubt aware of the fact that he has been invited to intervene in a decision which is made by the Executive, both - - -

CALLINAN J: And intervene in a situation for which the legislation seeks to make special provision, special and express provision.

MR COGSWELL: Yes, but one needs to bear in mind here there is a prosecution by the DPP of this accused and there has been a determination by the Attorney General that the matter should proceed as a special hearing, so they must weigh heavily on his Honour in determining whether he should grant a stay in this case, given what his Honour Justice Kirby says about – which I respectfully agree with, of course, that this is the judiciary intervening. So his Honour in a short paragraph believes:

the proceedings should take place. Whilst 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. I therefore dismiss the application.

Perhaps it could have been a little more elaborate, your Honour, but his Honour had heard evidence, viva voce evidence, on the stay had exhibits on the stay, had heard submissions on the stay, had recounted those submissions and, in that paragraph, determined the issues. So bearing in mind what Justice Kirby said about this is a busy trial court, his Honour reserved overnight, had the benefit of full evidence, full submissions and in the context of that evidence and those submissions made the determination and was seized of the issue, we say, which, your Honour - - -

CALLINAN J: Justice McHugh described the reasons of the special leave hearing as very compressed.

MR COGSWELL: Yes, that is right.

KIRBY J: You have referred to my observations, and maybe my observations are themselves the product of the culturalisation of the appellate judiciary in these sorts of problems. We look at stays and our jurisprudence in Australia and compare it with other countries; we have a much more rigid approach than many countries to the judicial protection of the fairness of the trial. Maybe one day, in another case, that needs to be reconsidered, but, for example, in other countries issues of human rights have been seen to motivate the judiciary to being rather more sensitive than the principles in Jago and Walton indicate courts in Australia should be.

MR COGSWELL: That may be so, your Honour. I just have a note in front of me in response to your Honour Justice Callinan. There is no contradictory evidence, because I am reminded that in fact the appellant refused to be examined by the prosecution’s psychiatrist. That is the explanation, but, in response to your Honour, she - - -

CALLINAN J: I see that the majority did mention exacerbation and attendance at court in paragraph 28 on page 373, and it is true that the trial judge did refer to the totality of the evidence.

MR COGSWELL: That is right, your Honour. Can I return to my submissions, and I am briefly elaborating on the nature of the principles relevant to a stay. I was going to take your Honours to paragraph 6.7 of our written submissions, where we have extracted a passage from the majority’s judgment in Walton, which describes:

a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

Not all of those are applicable in this case, because this is a special hearing, it is not a criminal trial, but, looking at those considerations, can I submit that there are three purposes to a special hearing, and all of those purposes are important for the administration of justice.

The proposition I am advancing is this, that in the weighing process which his Honour was undertaking and discharged, his Honour had to take into account the purpose of a special hearing, just as this Court said that one has to look at the importance of a criminal trial. His Honour had to consider the purpose of a special hearing and the purposes are threefold, we say. The first is express and contained in section 19 of the Act. Section 19(1) says that:

If the Attorney General directs that a special hearing be conducted in respect of an offence with which a person is charged, the appropriate Court must, as soon as practicable after the Attorney General so directs, conduct a special hearing –

and these are the important words –

for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.

That, we submit, is the primary purpose of a special hearing and it arose, I think, when my learned friend was making his submissions last time and reference was made to the second reading speech. There are two second reading speeches. The second reading speech for the 1990 Act is, with respect, not all that helpful because the 1990 Act essentially reproduces the relevant provisions in the 1983 Act so that one needs to go to the 1983 second reading speech and much of that is conveniently extracted by Justice Wood in Mailes, which was the case that I referred to last time.

The point that I am making is that what the Parliament was concerned about is that under the old system a person may disappear, so to speak, who is unfit for trial, may go into the mental health system and just languish there. In the case of persons affected by conditions of developmental retardation, issues like that, perhaps indefinitely. That was the purpose of bringing these proceedings, or rather, on opening these proceedings so that the person had an opportunity to be acquitted.

There are, we say, two other purposes which are apparent when one reads the Act. One is obvious, and that is section 23(2). In section 23(2), the court is empowered, if there is a qualified finding of guilt, to impose penalties. Now, this is an alternative to the limiting term, but that is a secondary - despite the qualified finding of guilt, the statute has empowered the court to impose penalties so that a secondary purpose of these proceedings is punitive, we say, and that is to inflict punishment on persons who are the subject of a qualifying finding of guilt.

The third purpose for these procedures is to be found in 23(1) where, if there is a qualified finding of guilt and the judge would have imposed a sentence of imprisonment, the judge must nominate the term called the “limiting term”. We say the purpose of that is it defines the period of incarceration that the person might endure whilst they are unfit instead of it being indefinite. So they, we say, are the three purposes of a special hearing. They are all important purposes for the administration of justice.

GLEESON CJ: Is it completely in the discretion of the Attorney-General whether a hearing will take place?

MR COGSWELL: Yes, section 18.

GLEESON CJ: What would happen in a case where there is a killing, a suspect is committed for trial, found unfit to plead and then a key Crown witness dies so that the Crown cannot prove its case against the suspect?

MR COGSWELL: Well, your Honour, the Attorney-General in making his decision in New South Wales has to receive and consider the advice of the DPP, so that the DPP would presumably indicate or advise the Attorney that there is no case because the alternative to directing a special hearing is for the Attorney to advise the relevant Minister so the person will not be further proceeded against either by the Attorney or the DPP. In the circumstance which your Honour envisaged would be advice from the DPP to the Attorney saying there is no case against this person and the Attorney would then- - -

KIRBY J: In an extreme case where neither the Director of Public Prosecutions nor the Attorney-General took any step, would that be subject to judicial review, on behalf of the prisoner?

MR COGSWELL: No.

KIRBY J: Or not the prisoner, the person in mental health custody?

MR COGSWELL: Yes, it gets to - - -

KIRBY J: There must be some judicial remedy, one would think, against executive detention.

MR COGSWELL: I would think mandamus perhaps, if there was a refusal, because it goes to the Attorney – it only goes to the Attorney where the Tribunal has determined that the person is likely to remain unfit for more than 12 months. It then goes to the Attorney-General who determines whether there will be a special hearing or not, and the Attorney may direct a special hearing or may advise that the person should be released.

CALLINAN J: Mr Cogswell, are there any circumstances in which a person ceasing to be unfit could be obliged to serve the limiting term or part of the limiting term, assuming that the person was not mentally ill at the time of the offence?

MR COGSWELL: Yes. If the person becomes well - - -

CALLINAN J: Became unfit to be tried, was tried, had a special hearing.

MR COGSWELL: Yes.

CALLINAN J: A limiting order was made and subsequently that person became fit. Are there any circumstances in which that person might have to serve, for example, part of a term of imprisonment contemplated by the limiting term?

MR COGSWELL: Yes. Once a person is in – serving the person’s limiting term – they are a forensic patient and the Mental Health Act requires regular review by the Medical Health Review Tribunal every six months, and one of the things they need to do is to assess the person’s fitness. So, of course, it can happen. Say if the person’s illness is such that it can be assisted by medication that they become fit. Can I take your Honour to section 29 of the Act. So the Mental Health Review Tribunal is doing its regular reviews, and one of the provisions of the Mental Health Act is that if, in a regular review, they find the person has become fit then they have to notify the Attorney-General.

Then 29 takes over. If the person has become fit the Attorney has to then consult with the DPP and request a further inquiry, or advise the Minister that there will be no further proceedings. Then the appropriate court conducts a further fitness inquiry. So it is not just the Tribunal determining fitness. The court has to determine fitness. Then we go to section 30:

(1) If, following a further inquiry under section 29, an accused person is found fit –

then the criminal proceedings are brought against the person again. So for example - - -

CALLINAN J: So that the special hearing may not be the end of the matter.

MR COGSWELL: That is right.

CALLINAN J: It is only the end of the matter if the person is acquitted.

MR COGSWELL: Correct. Let us take the person charged with murder who goes to a special hearing and let us say, for argument’s sake, a 20 year limiting period - - -

CALLINAN J: That emphasises the point that one of the principal purposes is to give the person an opportunity of an acquittal.

MR COGSWELL: Precisely. The concern was that people like this languished in institutions without the proposition ever being tested that they may be not guilty, that there may be a defence to a charge. So if the person is then tried according to law, prosecuted normally and convicted in a normal trial, then there is provision for the time in the institution to count as part of the sentence. The relevant provisions of the Act we set out, and it is important to bear in mind in this instance that there are two levels before - - -

CALLINAN J: I suppose the Attorney-General or the DPP would, however, retain his or her discretion whether to pursue the prosecution, despite the wording of section 30(1), which is to recommence or continue - - -

MR COGSWELL: That is right, section 29(1)(b), your Honour. The Attorney can, at the preliminary stage, once notification is received from the tribunal, might decide at that stage not to further proceed. Initially, the person does not get – and this is relevant to whether a stay ought to have been granted or not – a person does not get to a special hearing unless there has been (a) a determination of unfitness and (b) a decision by the Attorney-General. In a determination of unfitness, the judge may discharge the accused – section 10(4). So the court in embarking on a fitness inquiry may decide not to inflict punishment, and then, of course, the Attorney-General, in consultation with the DPP under section 18 of the Act, may decide not to proceed with a special hearing.

KIRBY J: There is the point of view of society as a whole, that it is a procedure designed to bring closure of some kind.

MR COGSWELL: Yes, and in many instances there are - - -

KIRBY J: I mean, there is that big fat file somewhere in the bureaucracy that has to be sent out to Botany.

MR COGSWELL: That is right.

GLEESON CJ: In some cases, there might even be a victim or the relatives of victims.

MR COGSWELL: Finally, just going to the stay application in this particular instance, I think we have dealt with most of what I need to say in respect of that. I was just going to develop the submission which we had commenced to look at, the distinction between a special hearing and a normal trial. The submission that I am putting is that it follows from section 21(1) that one needs to be careful in comparing a special hearing with a normal criminal trial. It follows from the wording of section 21(1). It is a short subsection:

Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

Quickly, one observes, first, “as if it were”. It is not a trial of criminal proceedings, it is “as if it were”. Secondly, “as nearly as possible”, so that the statute acknowledges that in some circumstances it may not be possible for the special hearing to be conducted close to a criminal trial. Thirdly, the word “Except”, “Except as provided by this Act”, so that the whole subsection is qualified and may be the subject of exceptions.

For example, one might think that an essential component of any trial is a plea and the accused is deprived of that opportunity and is taken to have pleaded not guilty and there are provisions about defence counts as well. We have extracted a passage from the judgment of Mr Justice James in Smith, an unreported judgment decision of the Court of Criminal Appeal in New South Wales. We have extracted it at 6.19 of our submissions and perhaps this is a useful, with respect, and accurate way to look at this procedure. “There is a”, his Honour says:

“...fundamental contradiction, or at least incongruity, in the concept of a hearing of a criminal charge against a person who is unfit to be tried. On the one hand, the accused person at a special hearing is a person who has been found unfit to be tried, as not meeting the
minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. ...On the other hand, under the Act a special hearing is to be conducted, ‘as nearly as possible’ and subject only to contrary provision in the Act, as if it were an ordinary criminal trial.”

It is, we say, a special creature of statute, this special hearing, and despite the prerequisite that the person be unfit it still provides for punishment, for example. Then finally, we develop the oppression point in paragraphs 6.21 and 6.22 and we say that his Honour’s refusal for a stay was open to his Honour and there was no error in the Court of Criminal Appeal’s decision. Subject to any further questions from your Honours, they are our submissions.

McHUGH J: Mr Cogswell, it seems to me that the appellant’s argument does not reflect one of the grounds of appeal, that you seem to have conducted the case on the basis that it is open to them. I think the appellant really needs in ground 4, which says that the trial miscarried by reason of the trial judge’s failure to direct the jury in accordance with section 21(4) of them.

MR COGSWELL: Yes, we will not object to that.

McHUGH J: Yes. I think Mr Einfeld - - -

MR COGSWELL: We, in fact, essentially have addressed that ground and so an application to amend will not be opposed. May it please the Court.

GLEESON CJ: Yes, Mr Einfeld.

MR EINFELD: Thank you, we would make that application. I thought it had actually sort of arisen in the course of argument - - -

McHUGH J: It has, but there is no ground of appeal, Mr Einfeld.

MR EINFELD: There is no ground of appeal, no. Well, I would seek to add that.

McHUGH J: It is an application, is it, to add a ground to the effect that the trial miscarried by reason of the trial judge’s failure to direct the jury in accordance with section 21(4), Mental Health (Criminal Procedure) Act 1990.

MR EINFELD: Yes.

GLEESON CJ: That is not opposed and you have that leave, but the actual formal amendment will need to be made.

MR EINFELD: We will do it, your Honours. Thank you.

McHUGH J: You have to file the document.

MR EINFELD: In view of the discussion, I will not deal in any detail with all those submissions except to say that this is not a proviso case as we have understood it, but whether the law has been complied with. There is no legal principle, we would submit, that would permit a court to read down criminal legislation affecting the liberty of the subject in this way. This appellant is on a bond that affects her liberty. She cannot be brought back because she did not get a limiting term and she cannot be put in prison under section 30(1) or under 27(b) which actually provides – my learned friend did not mention this, I think probably because he was dealing with other things, but when a person is eventually determined to be fit for trial after a limiting term has been imposed, he or she can be placed, “detained” as it says, in a place other than a hospital which presumably means a prison. It, therefore, means that these procedures, these proceedings have a significant element of liberty of the subject at stake. They are not just formal and it is not just a mechanism for avoiding the whole idea of a term of imprisonment.

There is a manifest provision not only for penalties, as was discussed, like financial penalties or a bond or something of the kind, but also a custodial detention term. That custodial detention term can take quite a long time because it can only be changed or ended by a full-fledged trial that the Attorney-General launches afterwards. So this could be a particularly lengthy term, as we know, just in ordinary court delays, let alone anything else.

Where, as in this particular case, a young person’s whole professional life turns on the matter, it cannot be said that you can read down provisions of legislation and they say a submission that was not in the written submissions. I do not complain about that, except to say that it is understandable why it would not have been in the written submissions. You cannot read down legislation which is designed to protect a very person who may eventually face a lengthy term of imprisonment.

GLEESON CJ: If your new ground of appeal that you just added succeeds, what would be the appropriate order for us to make?

MR EINFELD: We submit in this particular case that your Honours would direct an acquittal, and we say it for these reasons. I can put them quite briefly. The statutory format is, as your Honours know from other cases, section 6A of the Criminal Appeal Act which provides that:

the court may make any finding, verdict, order or determination which could have been made in relation to proceedings before the court of trial.

Section 6(2) makes provision that:

Subject to the special provisions of this Act –

that is, the Criminal Appeal Act –

the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal –

and the relevant special provision is section 8(1) which, contrary to the way some of the cases express it, actually promotes a concept that if there is a finding that there has been a conviction that needed to be overturned, it only orders a new trial:

if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.

In other words, the inference is the other way. A new trial is not ordered unless justice can only be served or can best be served by a new trial. We would submit in this case those facts do not exist. This is a victimless crime. It is a long time since the offence has been committed. There needs to be proportionality between the further trial and the circumstances that have already occurred, including the offence itself. There is a verdict of the jury in her favour on the very same issue as will arise in this case.

The only issue on this charge was whether she had told a lie about being the driver of the car with intent to pervert the course of justice. They are exactly the same provisions, exactly the same issues, as were raised in the charge on which she was acquitted. So we would submit, with great respect, that at any new trial, something like autrefois acquit or an abuse of process ground will be available as set out in the principles – and your Honours will be aware of them – in Carroll and Pearce and those cases. It is, I think, conveniently set out in the Director of Public Prosecutions for Nauru v Fowler [1984] HCA 48; 154 CLR 627 which talks about the power to grant a new trial is discretionary and decided:

in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.

That is at page 630.

KIRBY J: We did have a case recently where this was debated.

MR EINFIELD: Yes.

KIRBY J: The majority of the Court, because of the differentiation in our system between the Executive which decides these things and the Court, said that it would not interfere and make such an order of acquittal and would just leave it to the Executive in the usual way. I took a different view myself. But it is a very strong line of authority in this Court to leave things to the Executive and one might say in this case, where the Attorney-General has his own responsibilities – he is a special type of Minister, he has made a direction here that there be the rehearing, and it may be the Attorney-General would take the same view that you are urging, that a third hearing would not be warranted. But where the Act provides for that, why would we, as it were, take that away from the Attorney-General?

MR EINFIELD: I forbear from commenting on your Honour’s observation that the Attorney-General is a special type of Minister. In our system the Attorney-General is a member of the political structure of a country. He does not exercise power as Attorneys-General historically did as - - -

KIRBY J: Well, some of them still assert that they do that.

MR EINFIELD: Well, they may assert it, your Honour, but it is really not the realistic view, I think, of the state of our society today.

GLEESON CJ: That is a very large issue because one who publicly and recently disclaimed it then had himself in all sorts of criticism for that.

MR EINFIELD: Yes, that is true. Well, I do not want to get into the political argument, but can I just say this, that the history of this particular case does not suggest that the Executive - - -

KIRBY J: I think Dyers was the name of the case, or a name like that.

MR EINFIELD: I do not know that one, your Honour.

KIRBY J: It is in the Commonwealth Law Reports I think.

MR EINFIELD: Yes, all right, thank you. But Carroll 212 CLR dealt with this in great detail, where in the judgment of the Chief Justice and Justice Hayne there is an exhaustive examination, if I may say so, exhaustive expert examination - - -

KIRBY J: But that was the case of double jeopardy, was it not, whereas this is not?

MR EINFIELD: No, not really, your Honour. It was a question of what was the remedy that is appropriate in a case where there is an acquittal on a charge where the element is the same as on another charge and the question is, what happens to the second one? In that particular case the issue in a murder trial was whether the accused had murdered the particular person. He was acquitted of that. Then he was brought many, many years later on a perjury charge for having lied that he did so.

Their Honours thought it was appropriate to order a stay because there was an abuse of process in trying him on the same thing. There is a lot of parallel between that and this particular case. In fact, in many respects this case is stronger than that, because in this particular case although there were two separate events, that is, the statutory declaration and the evidence, the fact is that the substance of what was said in each case was exactly the same and the only issue in the trials of the two were those issues. All the authorities like Carroll, Pearce and possibly the one to which your Honour has just referred - - -

KIRBY J: Dyers, I think it is.

MR EINFELD: I do not know that one, but it talks about the incontrovertibility of an acquittal. Now, you have to give it full strength. If there is an acquittal on the basis that there has not been a case made out that the person lied in a statutory declaration or in a perjury, it is very difficult to see how the charge can be won again in another form on exactly the same issue. In this particular case, different to a case of murder and perjury, what both of them had was the element of the intent to pervert the course of justice. Both were fought on exactly the same issues. In fact, there was only one issue, and that was whether she did in fact drive the car. The only evidence against her was this discredited evidence of the tape-recorded material of Maria Coughlan.

What we would respectfully submit here is that whereas, of course, the public interest has to be considered, as Spies [2000] HCA 43; 74 ALJR 1263 said, and whilst undoubtedly the public interest is an important issue, the public interest also comes to bear in relation to the cost and extent of trying a person again and again on exactly the same thing. She was tried in a full-fledged trial where a jury did not disbelieve her argument, or could not agree on disbelieving her sworn evidence, or she would have been convicted. Again, in that trial, the only incriminating evidence was this tape.

So what we would say is that this is a stark case, calling for arguments along the lines of Carroll and Pearce that say that in appropriate cases where a retrial would really put up for issue exactly the same one as one on which there has already been acquittal, the court will direct an acquittal and not order a retrial.

KIRBY J: I have found the case. It is Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285. The discussion in my reasons is at 317 at paragraph 90.

MR EINFELD: Yes, we do have that one here, your Honour, thank you. I think the decision of Carroll was in the same volume. It is at 635 as opposed to - - -

KIRBY J: The difference in Carroll was that there indubitably Mr Carroll had been acquitted, whereas your client was acquitted of one count but convicted of the other.

MR EINFELD: No, she was not. Yes, or was found on the limited evidence.

KIRBY J: That is true. You correct me, and rightly, but she did not have the complete clearing of the slate that Mr Carroll did.

MR EINFELD: No, but she did on the relevant issue, your Honour, because the only issue - - -

KIRBY J: I appreciate your argument, but it is not quite the same.

MR EINFELD: I understand the anomaly. It adds another complication in this particular legislation, no doubt.

KIRBY J: Every case is different.

MR EINFELD: Yes, of course. I do well accept, of course, respectfully, the contrary view but I just say that in this particular case it is very difficult to see how, if it did go back for a new trial, the Court would not be persuaded that there should be a stay on an abuse of process ground on the matters that we have talked about. Of course, there will then be the argument that has been addressed right through the majority of this appeal, and that is this whole mental health aspect.

GLEESON CJ: That comes to the proposition, does it not, that an order for a new trial would be a futility?

MR EINFELD: Yes.

KIRBY J: But why would it be a futility? It upholds the law to have the trial conducted properly in a matter where the Attorney-General, who had the power, considered that there should be a second trial. It would be being set aside on the hypothesis – unless you win on the stay – that the trial was not properly conducted. Usually, the solution to that that courts like this engage in is to order that it be done properly.

MR EINFELD: It is, but - - -

KIRBY J: We are a court of error. We are correcting errors.

MR EINFELD: Yes, I understand. It was not argued here – the Crown did not argue, and, we say, correctly – that because of the mandatory terms of section 19(1) of this Act the court does not have a residual discretion in relation to matters such as abuse of process. We say that the late Judge Luland’s judgment at 111 and 112 is completely inadequate to deal with the stay application. He just said, “I think there should be a trial”, effectively. Certainly, he did make brief mention of the medical condition, but when you look at what Justice Simpson did at 393 to 395, where she set out quite a lot of the chronology of medical history, it was a great deal more detailed than the judge gave at 111 and 112.

KIRBY J: In the case of Mackenzie, where the Court had to consider whether the third trial, I think it was, should be ordered, the factor that led the Court simply to leave it to the Director of Public Prosecutions was that Mr Mackenzie was a solicitor, and the belief that the Court expressed was that there may be public considerations that should be taken into account in exercising the discretion as to whether to order another trial. My understanding was that there was a third trial – I am not sure what the outcome was. I do not know whether that is relevant in this case.

MR EINFELD: I do not know that I could legitimately put a submission that because this appellant is waiting for admission as a lawyer that some different consideration should be applied - - -

KIRBY J: The argument was against you. It was that if there is a possibility that she might, in this special procedure, be found to have committed the offence, whether that ought to be on the public record and dealt with and dealt with by her before she is admitted as a practitioner.

MR EINFELD: Your Honour, the only answer to that is that a plea in bar, or some other preclusion, is very likely to succeed, we would submit – it is very powerful, anyway – at a new trial. Why would a futile new trial be ordered when there is every chance that one of the pleas in bar will succeed?

KIRBY J: There is also the possibility, which I would have thought would be strong, that after all that it has gone through and after all the years and the circumstances and so on, that the Court of Appeal in New South Wales or the professional authorities would not have been.....admitted simply because of what has occurred here, I do not know.

MR EINFELD: I do not know, but that remains to be seen, but a plea in bar, for example, if it was successful, results in her having a clean slate. We would submit that in view of that history – it is nine years since this matter took place – and the trials and all the hearings and all the stress and pressure, she should not be required to go back for the purposes of having another stress on the mental condition by another charge and then an argument of one of the pleas in bar to take place which has every chance of success. So we would submit that this Court is well seized of the matter and well able to give its own direction in all the circumstances and no one has argued that the mandatory terms of section 19(1) excludes the Court’s overriding discretion on abuse of process grounds. Unless the Court has any other matters, I think that will - - -

GLEESON CJ: Thank you, Mr Einfeld. We will reserve our decision in this matter - - -

MR COGSWELL: Your Honours, could I just say that the Bench Book we have managed to – I am sorry to interrupt your Honour – get copies of the relevant provisions in the Bench Book and I will make copies available to the Court. It comprises two components and one is the unfitness question and then some pages down is the commencement of the summing up. It is the commencement of the summing up which is relevant to the special hearings trial.

GLEESON CJ: Thank you. We will adjourn until 9.30 am tomorrow morning in Canberra and 9.30 am tomorrow morning in Sydney.

AT 12.25 PM THE MATTER WAS ADJOURNED