Subramaniam v R [2004] HCA 51;

Subramaniam v R [2004] HCA 51; - HCA 2004 case summary — Zoe

[80]

It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed[7]. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner[8], the inherent power of a superior court to stay proceedings on the ground of "abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment"[9]. Deane J in Jago[10] posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or admissions[11]; failure to hold committal proceedings[12]; the absence of legal representation of an indigent person facing serious criminal proceedings[13]; and, unreasonable delay.
Stays in the context of the Act: One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end[14]. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a "limiting term" of imprisonment that would have to be served if the person had been tried in the normal way[15]. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General[16], provides reason to construe and apply the Act otherwise than according to its tenor.
No error has been shown: The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves.
The appellant relied not only upon her current mental condition, but also upon the potential for its exacerbation by reason of the special hearing. This, it was said, would be so oppressive to her as to justify a permanent stay.
A relevant test that has been applied and which we would adopt, is whether, in light of the appellant's deteriorating condition, it "would be out of accord with common humanity" to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed[17].
It is true that the medical evidence given by Dr Menzies and accepted by the primary judge established that the appellant had "an adjustment disorder with anxiety and depressive features" which developed to the point that after the first trial she was talking about suicide. It would no doubt have been better had the trial judge discussed the principles relating to stays and might therefore now be able to be seen to have applied them to particular parts of the medical evidence which he was disposed to accept. But nonetheless it does appear that the primary judge did have regard to the whole of the medical evidence in reaching the decision that he did.
The possibility of the continuing deterioration of the appellant's mental health and any potential that the trial might have for its aggravation did not therefore, in the circumstances of this case, provide sufficient reason for the grant of a permanent stay. The primary judge has not been shown to have failed to weigh and give effect to relevant factors of the kind to which Mason CJ, Deane and Dawson JJ referred to in Walton[18]:

[83]

Defects in compliance with the Act: In order to deal with the ground upon which the appellant focussed, that is, as to inadequacy of the primary judge's explanation of the nature of the special hearing, it is necessary to scrutinize what the primary judge actually told the jury (which relevantly we have earlier set out) by reference to s 21(4) of the Act.
Although his Honour did tell the jury that the appellant was unfit to be tried because of her mental condition and that the hearing was a special one for that reason, the trial judge's remarks fell short of what the sub-section requires, that the judge explain at the commencement of the hearing what unfitness to be tried means, the purpose of the special hearing, and the verdicts which are relevantly available (as set out in s 22 of the Act, in this case not guilty of the offence(s) charged, or, that on the limited evidence available, the accused committed the offences charged). Nor did the trial judge attempt to explain what the legal and practical consequences of their verdict would be. All that he said as to these was that the legal and practical consequences were matters for him. A further defect in his Honour's remarks was his failure to explain to the jury enough about the normal procedures to enable them to understand the respects in which the special hearing would be a departure from them.
These were all matters that s 21(4) requires to be, not just touched upon, but explained. In his submissions counsel for the respondent urged that matters of the relevant kind were sufficiently explained by counsel for the appellant in his speech to the jury. We doubt whether this is so. Even if it were, counsel's speeches may not be substituted for the performance of the trial judge's statutory duty.
An appropriate direction: What is required is that the explanation be, and have the authority of an explanation by the trial judge[20].
The precise terms of an appropriate explanation will need adaptation to the facts of the particular case. Here however something to this effect should have been said by the trial judge to the jury:

[93]

It is not immediately clear why the jury should be burdened with the sort of detail that the Act requires with respect to the legal and practical consequences of their verdict. Perhaps the requirement is intended to give the jury an assurance that a guilty person will not escape the consequences of his or her crime by reason of a temporary mental infirmity, or that a mentally unfit person will be humanely treated, even if convicted. Whatever the reasons, the language of s 21(4) is mandatory and must be given effect.
Conclusion: ground established: It is no answer for the respondent to say that counsel for the appellant failed to request the trial judge to give the explanation that s 21(4) of the Act requires. No doubt it would have been better if either the prosecutor or the appellant's counsel had done so. But the trial judge's obligation is expressly stated by s 21(4). It is an obligation imposed on the court for the benefit of the community as well as mentally unfit defendants. The requirements of the sub-section cannot be waived on an accused's behalf or on behalf of the prosecution.
The respondent argued that even if this ground were to be made out it does not automatically follow that the verdict should be quashed. It was a corollary of that argument that there had been no miscarriage of justice because the remarks made by the trial judge from time to time during the trial, the summing-up, the judge's answer to the jury's question about the mental unfitness of the appellant, and the submissions of counsel in total informed the jury of all that the Act required them to know.
The respondent's argument must be rejected. The mandatory requirements of s 21(4) cannot be and were not met by the explanations offered piecemeal over the course of the hearing or in statements by counsel. The explanations required are both limited and specific. They must be given at the commencement of the trial. That requirement and the content of the explanations indicate that the explanations that the judge must give are essential to the special hearing. A departure from any one of the elements identified in sub-ss (2) to (4) deprives the hearing of its fundamental character. Such a departure itself constitutes a miscarriage of justice for the purpose of the Criminal Appeal Act 1912 (NSW) and therefore requires the quashing of any conviction entered after such a departure.
A verdict after a special hearing is subject to appeal in the same manner as a verdict in an ordinary criminal trial (s 22(3)(c) of the Act). That appeal is brought under s 5(1) of the Criminal Appeal Act. Section 6(1) of that Act provides:

[102]

The further, related submission advanced in the Court of Criminal Appeal, that the answers obtained from the appellant were the result of a series of leading questions designed to elicit certain answers, was sought to be repeated in this Court. It was rejected in the Court of Criminal Appeal by Beazley JA on the basis that the appellant was a "willing participant in the conversation". Indeed it can be said that in some respects the appellant was an enthusiastic participant in it. There is no evidence whatever in the conversation of any mental infirmity on the part of the appellant nor was any proved at that early stage. She was only too willing to volunteer details of her own involvement in the events the subject of the charges. The evidence was therefore properly characterized as confessional evidence.
In this Court the appellant's ground was not directed to the admissibility of the taped evidence because special leave to argue such a ground was refused. Instead, the appellant sought to rely on a ground that the trial judge misdirected the jury as to the way in which they should deal with that evidence and the in-court oral evidence of Ms Coughlan. The argument in essence turned out to be little more than a complaint that the taped material contained irrelevant and scandalous matter. Although the appellant also contended that the trial judge "[failed] to explain the tape" she did not develop the submission beyond that. Nonetheless we have examined what the trial judge said of the taped evidence and the in-court evidence of Ms Coughlan, which was not, we would point out, the subject of any request for redirections at the trial. The trial judge's comments regarding these bodies of evidence were entirely appropriate. His Honour drew attention to the greater worldliness of Ms Coughlan and to the possibility that, because of the leading nature of some of the questions she asked the appellant, the answers might not be reliable. He also referred to some inconsistencies between Ms Coughlan's evidence and some of the objective facts. Finally, he summarized uncritically the submissions made on each side with respect to Ms Coughlan. There is nothing in this ground and it must accordingly be rejected.

[108]

No error is established: There are however several reasons why the respondent should not be regarded as failing in any obligation to present medical evidence of mental unfitness in this case.
First, the Act, which is very explicit as to what should take place at a special hearing, does not require it.
Secondly, a special hearing is to be conducted as nearly as may be, as a normal criminal trial. In the latter, although the prosecution is bound to present all arguably credible and relevant evidence, it is not obliged to prove, as may sometimes be the case, that an accused has a very limited intelligence or capacity to comprehend readily what might be obvious to a person of a higher intellect.
Thirdly, evidence tendered by the prosecution as to the nature and extent of an accused's mental unfitness might be prejudicial to the accused. It might establish a limited or highly specific form of mental infirmity thereby raising questions in jurors' minds about courses taken or not taken by, or on behalf of, an accused during the trial.
And, last, in any event, it has not been shown that there was any actual unfairness to the appellant here, that is apart from any possible unfairness that may exist in undertaking the exercise of conducting the special hearing which the Act mandates. It must be accepted that the New South Wales Parliament, acting within its powers, has so provided. A complaint of unfairness against the statutory procedure cannot avail the appellant.
Any of these four matters is an answer to the submission based upon this ground of appeal. It must accordingly fail. That is not to say that events may not happen during the course of a special hearing which could make it appropriate for a trial judge to give a direction about an accused's unfitness, and how it may have affected the accused adversely during the hearing. Whether a trial judge should do so may depend upon whether the accused's counsel seeks a direction of that kind because, it could, in some circumstances, as we have pointed out, disadvantage an accused.

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