Tait v R [1962] HCA 57; (1962) 108 CLR 620 (15 November 1962)

HIGH COURT OF AUSTRALIA

TAIT v. THE QUEEN [1962] HCA 57; (1962) 108 CLR 620

Criminal Law - Lunacy

High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Owen(5) JJ.
Dixon C.J.(6), McTiernan(7), Kitto(8), Taylor(9) and Windeyer(10) JJ.

CATCHWORDS

Criminal Law - Murder - Prisoner under sentence of death alleged to be insane - Reprieve - Refused by trial judge - Application for special leave to appeal to High Court - Stay of execution pending hearing of application - Crimes Act 1958 (Vict.), ss. 496, 497* - Mental Health Act 1959 (Vict.), s. 52**.

Lunacy - Prisoner under sentence of death - Petition to State Supreme Court for judicial inquiry into sanity - Petition dismissed - Application for special leave to appeal to High Court - Mental Hygiene Act 1958 (Vict.), s. 111.

HEARING

Melbourne, 1962, October 31;
Sydney, 1962, November 6, 15. 15:11:1962
APPLICATIONS for special leave to appeal from the Supreme Court of Victoria.

DECISION

DIXON C.J.: We are prepared to grant an adjournment of these applications without giving any consideration to or expressing any opinion as to the grounds upon which they are to be based, but entirely so that the authority of this Court may be maintained and we may have another opportunity of considering it. (at p624)

2. We shall accordingly order that the execution of the prisoner fixed for tomorrow morning be not carried out but be stayed pending the disposal of the applications to this Court for special leave and of any appeal to this Court in consequence of such applications. (at p624)

3. Mr. Solicitor, may we then have your undertaking that that will be enough? (at p624)

4. (Sir Henry Winneke Q.C. I cannot imagine that there would be any trouble about that, your Honour. This Court has made an order and that is all. There is also his Excellency's warrant directed to the Sheriff.) (at p624)

5. Something has to be done about that. (at p624)

6. (Sir Henry Winneke Q.C. I feel I cannot give an undertaking, not being instructed. Perhaps it might be better if your Honours would make a complete order and then there would be no question about it.) (at p625)

7. At the foot of the order we have already pronounced, we will add that we will order that the Chief Secretary and the Sheriff and his deputy or deputies be restrained accordingly. (at p625)

8. We will adjourn these applications now to Tuesday next, at half past ten at Darlinghurst, and we will adjourn the Court. (at p625)

9. Order accordingly. (at p625)

10. The applications came on for hearing before Dixon C.J., Kitto, Taylor, Menzies and Owen JJ. at Sydney on 6th November 1962. The Mental Health Act 1959 came into operation on 1st November 1962. (at p625)

11. E. D. Lloyd, for the applicant Scott. (at p625)

12. J. A. Nimmo Q.C. (with him D. P. Derham, P. Brett and J. H. Phillips) for the prisoner. (at p625)

13. B. J. Shaw, for the respondents. (at p625)

14. J. A. Nimmo Q.C. The executive of the State of Victoria has acknowledged that the prisoner is now either mentally ill or intellectually defective within the meaning of s. 52 of the Mental Health Act 1959 and has commuted the sentence of death. As we are informed that the prisoner has refused to sign papers in relation to the commutation it is requested that this application be adjourned sine die. There is authority for the proposition that where a sentence which the Court has passed upon a man is to be varied by the Governor-in-Council he should be consulted and his consent should be obtained to the variation. (at p625)

15. B. J. Shaw. The Chief Secretary has made an order under s. 52 of the Mental Health Act 1959. The Crown wishes the matter to proceed. (at p625)

16. (DIXON C.J.: Why should the Court hear an application for special leave from an order that has no present materiality?) (at p625)

17. The applications should not remain in limbo. (at p625)

18. (TAYLOR J.: It is not the function of this Court to answer hypothetical questions.) (at p625)

19. It is the practice in England, when an appeal is made to the House of Lords in a capital case, always to commute the sentence of the person who has been condemned to death before the House of Lords deals with it. (at p626)

20. (KITTO J.: This is not an appeal which relates to a conviction. It is only as to whether the man is to be executed. Doubt has been expressed as to the legal efficacy of a purported commuting of the sentence. Do you give us the Government's assurance that in no event will he be executed?) (at p626)

21. I stated that my instructions are that the sentence has been commuted and that an order has been made under s. 52 of the Mental Health Act 1959. (at p626)

22. (DIXON C.J.: Has an order in council been made under s. 496 of the Crimes Act 1958?) (at p626)

23. It was made yesterday afternoon. (at p626)

24. (DIXON C.J.: Has the step under s. 497 taken place?) (at p626)

25. Not yet. (at p626)

26. (DIXON C.J.: There is an academical doubt about the need for obtaining the prisoner's consent.) (at p626)

27. That is contained in an opinion given in 1854 by Sir Alexander Cockburn and Sir Richard Bethell in relation to the exercise of the prerogative, in Forsyth's Cases and Opinions on Constitutional Law (1869) at pp. 71, 461. (at p626)

28. (DIXON C.J.: I am minded to suggest that these proceedings be adjourned until the steps under s. 497 are taken and the process is complete.) (at p626)

29. I am instructed to move that the order made by the Court in these proceedings be either discharged or withdrawn. It should be withdrawn as having been made in excess of jurisdiction. (at p626)

30. (DIXON C.J. mentioned Franov v. Deposit & Investment Co. Ltd. [1962] HCA 45; (1962) 108 CLR 460 .) (at p626)

31. There is authority in Balmukand v. The King-Emperor (1915) AC 629 that the Privy Council has not power to stay execution of a capital sentence. (at p626)

32. (DIXON C.J.: The order made in Melbourne on its own terms is spent. The question for you to answer is this: we want to be satisfied that s. 497 has been pursued, and the question is when would you like a day fixed?) (at p626)

DIXON C.J.: We will stand the matter over generally until it is mentioned. (at p626)

2. The adjourned applications came on before Dixon C.J., McTiernan, Kitto, Taylor and Windeyer JJ. on 15th November 1962. (at p626)

3. T. R. Cole, for the applicants, applied for an order by consent that the applications for special leave be withdrawn. (at p627)

4. B. J. Shaw, for the respondents. On 7th November 1962 Dean J. wrote on the triplicate: "Having been notified pursuant to s. 497 of the Crimes Act 1958 that the above sentence was commuted to imprisonment in one of Her Majesty's gaols for life without benefit of the regulations relating to the remission of sentences, in accordance with regulation 101 of Division 3 of the regulations made under s. 54 of the Social Welfare Act 1960, and that no consideration is to be given to any application for release by special authority or to be paroled and that the prisoner is never to be released, I do order that the prisoner be dealt with accordingly". (at p627)

ORDER

DIXON C.J.: The motions are struck out.