Kelly v Saadat - Talab

(2008) 72 NSWLR 305; [2008] NSWCA 213

NSW Court of Appeal

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Interrogate

Catchwords

1. Federal Jurisdiction
2. › Criminal law
3. › State laws applied as surrogate federal law
4. › Judiciary Act 1903 (Cth), s 68(1)
5. › Whether State law 'applicable'
6. › Whether Commonwealth legislative scheme complete on its face
7. › Mental Health (Criminal Procedure) Act 1990 (NSW), s 32
8. › Crimes Act 1914 (Cth), s 20BQ
1. Criminal Law (Cth)
2. › Sentencing
3. › Mental illness
4. › Power to deal with offender otherwise than in accordance with law
5. › Whether State diversion provision picked up by s 68 of Judiciary Act
6. › Whether federal provision constituted exhaustive regime
7. › Crimes Act 1914 (Cth), s 20BQ
1. Statutory Interpretation
2. › Implied repeal
3. › Inconsistency between Commonwealth provisions
4. › Maxim expressum facit cessare tacitum
5. › Whether specific Commonwealth provision excludes operation of general State provision picked up as federal law

Quick Take

Section 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW), insofar as it permits diversion of a defendant who was mentally ill at the time of the offence but not at the time of hearing, is not picked up as surrogate federal law by s 68(1) of the Judiciary Act 1903 (Cth) because s 20BQ of the Crimes Act 1914 (Cth) constitutes a complete legislative scheme on the subject. Defendants charged with Commonwealth offences who have recovered from mental illness by the time of hearing cannot rely on the broader State provision.