Subramaniam v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh,Kirby,Hayne,Allinan JJ
• Judgment Date: 10 November 2004
• Neutral Citation: 2004-1110 HCA A,[2004] HCA 51
• Docket Number: S588/2003
• Date: 10 November 2004

[2004] HCA 51

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Kirby, Hayne AND Callinan JJ

S588/2003

Kala Subramaniam

Appellat

and

The Queen

Respondent

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

Subramaniam v The Queen

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

Practice and procedure — Trials conducted as ‘special hearings’ under the Act — Jury directions.

Words and phrases — ‘unfit to be tried’, ‘special hearing’, ‘substantial miscarriage of justice’.

1 Gleeson CJ, McHugh, Kirby, Hayne AND CAllinan JJ. The principal questions in this appeal are whether a stay of the appellant's trial under the Mental Health (Criminal Procedure) Act 1990 (NSW) (‘the Act’) should have been granted, and whether, when the trial did proceed, it was conducted in compliance with the Act.

Gleeson CJ

Facts

2 The initiating events: On a morning in August 1995 the driver of a vehicle registered in the name of Ms Leigh Johnson, who was then a practising solicitor, failed to stop at a red light in a Sydney suburb. The failure was captured on camera. The features, and therefore the identity of the driver could not be distinguished in the photograph. Ms Johnson was issued with an infringement notice. She elected, as she was entitled to do, to contest the charge contained in the notice before the Local Court of New South Wales. In November 1995 Ms Johnson requested that Court to grant her an adjournment on the grounds of her physical inability to attend. On 10 January 1996 the case was set down for hearing on 29 May 1996. On 30 January 1996, Ms Johnson requested copies of the images captured on camera. They were supplied. On 29 February 1996 the appellant, who at the time was an employee of Ms Johnson, made a statutory declaration that she was the infringing driver of the vehicle. The declaration was witnessed by another solicitor employed by Ms Johnson.

3 On 5 March 1996 Ms Johnson sent the appellant's statutory declaration to the prosecutor with a request that the case be discontinued. She also asked that the infringement notice be forwarded to the appellant. The prosecutor rejected the requests. On 2 July 1996 Ms Johnson was convicted in absentia. On 5 August 1996 she appealed to the District Court of New South Wales. There the appellant gave evidence that was, with one non-material exception, generally consistent with her declaration. The appeal was upheld and Ms Johnson's conviction was quashed.

4 On 5 December 1996 the appellant and Ms Johnson were charged with two counts of perverting the course of justice under s 312 of theCrimes Act 1900 (NSW). The first charge against the appellant was as follows:

‘on 29 February 1996 at Sydney in the State of New South Wales did make a statutory declaration knowing it to be false with intent to pervert the course of justice.’

This was the second charge:

‘on 5 August 1996 at Sydney in the State of New South Wales did give false evidence to the District Court with intent to pervert the course of justice.’

5 A recorded conversation: On 6 December 1996 members of the Homicide Unit of the New South Wales Police Force — why that Unit was involved was not explored — arranged for a former employee of Ms Johnson and therefore an acquaintance of the appellant, Ms Coughlan, to meet the appellant. Ms Coughlan was fitted with a recording device to record surreptitiously any conversation that she might have with the appellant. Ms Coughlan then contrived a meeting with the appellant and discussed the infringement and Ms Johnson's and the appellant's involvement in it. These exchanges formed part of that discussion:

‘[Coughlan]: Yeah. Well do you remember I was in the, I was in the, do you remember, you know when we were in the room and she asked which one of us, you know, was going to take it. And I couldn't because of all my …

[Appellant]: Oh, I'd take it.

[Coughlan]: And you said you could, because of your perfect driving record.

[Appellant]: Not that I could, but that …

[Coughlan]: You didn't want to …

[Appellant]: Yeah, I could …

[Coughlan]: … because of your …

[Appellant]: … not that I wanted to.

[Coughlan]: Yeah, yeah.

[Appellant]: But the thing is that they were out of time: they can't strip, they couldn't take any points of my licence anyway. So I've still got a clean record.

[Coughlan]: Really?

…

[Appellant]: Yeah, so she didn't lose any points, neither did I.

[Coughlan]: Yeah.

[Appellant]: And no one got fined either.

[Coughlan]: Yeah.

[Appellant]: Yeah.

…

[Appellant]: … well we didn't stall it. What happened was, they didn't inform us the first day. Right? By the time they had to re-list it, we had not documentation saying it was listed on that day. So no one turned up.

…

[Coughlan]: So what did they ask you in court?

[Appellant]: Well, I just, I just sat in the witness box and had a nice conversation with the judge.

[Coughlan]: So you weren't cross examined?

[Appellant]: No, because, Leigh, Leigh thought she'd have to. Because she was, like, all ready to go.

[Coughlan]: Yeah.

[Appellant]: And he was just sitting there asking me questions, and I was just, like, sitting back enjoying myself.

…

[Appellant]: (Laughs) But the photos, the photos, the photos …

[Coughlan]: … and showed her driving instead of you.

[Appellant]: The photos showed nothing. We ordered the photos.

[Coughlan]: Right.

[Appellant]: Mm. And they showed nothing. You couldn't tell who was driving.

[Coughlan]: So, you weren't worried about …

…

[Coughlan]: … apart from her being blonde and with you being like dark haired.

[Appellant]: I know, I know, I know.

[Coughlan]: Yeah, because when it came out in the paper I thought, “Oh my God, she could have at least …”

[Appellant]: Yeah.

[Coughlan]: … got someone blonde to say they were driving. You know what I mean?’

6 After a lengthy preliminary hearing the appellant was committed to stand trial. Ms Johnson was discharged on both counts. The reason for the dismissal of the charges against Ms Johnson was that without the taped evidence which was not admissible against her, there was insufficient evidence to put her on trial.

The appellant's first trial

7 A trial (‘the first trial’) at which the appellant gave evidence, commenced in the New South Wales District Court on 23 August 1999 before Shillington DCJ, sitting with a jury. On 3 September the jury was discharged because it was unable to reach a verdict. The appellant's mental health deteriorated thereafter.

The first application for a permanent stay

8 It was against this background that the appellant applied for a permanent stay of the criminal proceedings (‘the first application’). On 11 April 2000 the first application was heard and rejected by Gibson DCJ. The Court of Criminal Appeal of New South Wales also rejected an interlocutory appeal against the refusal of the stay of those proceedings.

The determination of the appellant's fitness for trial

9 Determination of unfitness: On 27 March 2001 the District Court (Stewart ADCJ) directed that there be a hearing with respect to the appellant's fitness to stand trial. On 25 September 2001 the Mental Health Review Tribunal, acting pursuant to s 161 of the Act formed this view:

‘that, because of [the appellant's] moderate intellectual disability, [the appellant] would not meet the criteria as described by Smith J inR v Presser2, for fitness to be tried for an offence, and that on the balance of

probabilities, this situation will continue, and [the appellant] will not become fit during the period of twelve months after the finding of unfitness.’

10 Direction for special hearing: On 28 November 2001 the Attorney-General for New South Wales, in accordance with s 19 of the Act, directed that a special hearing be conducted of the charges against the appellant. Section 19 provides:

‘19 Court to hold special hearing on direction of Attorney General

• (1) 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 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.

• (2) The question whether a person has committed an offence charged or any other offence available as an alternative to an offence charged is, except as provided by section 21A, to be determined at a special hearing by a jury constituted for that purpose.

• (3) TheJury Act 1977 applies to and in respect of the constitution of a jury and a jury constituted as referred to in subsection (2) in the same way as it applies to and in respect of the constitution of a jury and a jury for the trial of any criminal proceedings.

• (4) A member of a jury otherwise constituted for the purpose of any proceedings relating to the same accused person and the same offence is disqualified from being a member of a jury constituted as referred to in this section.’

11 Conduct of the special hearing: On 24 April 2002 the special hearing commenced before Luland DCJ and a jury of twelve when a further application for a permanent stay (‘the second application’) was made and refused. An application to...