REGINA v Kaliamma Shanti KRISHNA [1999] NSWSC 525

New South Wales Supreme Court CITATION : REGINA v Kaliamma Shanti KRISHNA [1999] NSWSC 525 CURRENT JURISDICTION : CRIMINAL FILE NUMBER(S) : 70007/96 HEARING DATE(S) : 3 May 1999 JUDGMENT DATE : 2 June 1999

PARTIES : Kaliamma Shanti KRISHNA (Applicant) REGINA (Respondent) JUDGMENT OF : Simpson J at 1

COUNSEL : P O'Donnell - Applicant D Howard - Crown/Respondent SOLICITORS : S.E.O'Connor - Crown/Respondent CATCHWORDS : ACTS CITED : Costs in Criminal Cases Act 1967 DECISION : Certificate granted

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SIMPSON J

2 June 1999

70007/96 REGINA v KALIAMMA SHANTI KRISHNA Judgment

SIMPSON J: 1 The applicant was tried before a jury on an indictment containing three counts, of which the second was relied upon only as alternative to the first, and the third was independent. 2 The first count alleged that, on or about 26 January 1995, the applicant caused grievous bodily harm to Ram Lingam with intent to murder him; the second, alternative, charge alleged that he maliciously inflicted grievous bodily harm upon Mr Lingam with intent to cause such harm; and the third, a charge of arson/fraud, alleged that she caused damage by fire to a house with a view to making a gain dishonestly from the proceeds of an insurance policy. The applicant was acquitted on all charges. She now applies for a certificate under s 2 of the Costs in Criminal Cases Act 1967. 3 All charges arose out of a fire on 26 January 1995 that destroyed a house at 21 Manuka Street, Wentworthville owned by the applicant. Conviction on each charge depended upon proof that the applicant was responsible for the fire. 4 Some facts alleged in the Crown case were uncontroversial. The applicant and her young son were present in the house at the time of the fire which occurred in the middle of the night of 25 January or the early hours of the following morning. The only other person present in the house was Mr Lingam. He suffered serious burns in the fire. 5 There was never any dispute that the fire was deliberately lit. There was unmistakable and undisputed evidence that petrol, from a tin ordinarily stored in the garage of the house, had been scattered through two rooms of the house. There was evidence also that some of the burns suffered by Mr Lingam had been caused by petrol applied to his body. 6 Also undisputed was the conclusion that the fire could only have been caused by either the applicant or Mr Lingam. 7 Mr Lingam was hospitalised for some weeks. He was interviewed on 17 February 1995 in the hospital by an investigator for the insurance company with which the applicant held a policy covering her against fire damage to the property. Mr Lingam said that he had been asleep on the floor of the living room when he was awakened by flames, and he gave a description of his observations. He denied responsibility for lighting the fire. He was subsequently interviewed by police on 28 March, and this interview was electronically recorded. He again denied responsibility. On 9 October 1995 he gave evidence at a coronial inquest into the fire. He adhered to his earlier accounts. 8 The applicant was interviewed twice by police, on 27 January 1995 and 11 April 1995. She, too, denied responsibility for the fire. 9 On 26 February 1996 the Director of Public Prosecutions advised the applicant that he intended to prefer the charges. 10 On 11 April 1997 Mr Lingam was again interviewed by police. This interview also was electronically recorded. Mr Lingam was accompanied by his solicitor, and it is clear that the interview took place at his instigation. On this occasion he told police that he was responsible for the fire, and that he had lit it in an attempt to commit suicide. On 20 October 1997, in yet another electronically recorded interview, he maintained these assertions. 11 Notwithstanding Mr Lingam's claims, the DPP proceeded with the prosecution. The case he advanced was circumstantial, and depended upon damaging the credibility of Mr Lingam, his principal witness. The DPP sought to achieve this by cross-examining Mr Lingam, by adducing expert evidence challenging the description he gave of the fire, and establishing that, by reason of the relationships between the applicant and Mr Lingam, and events that had recently occurred, the applicant had a motive to attempt to kill him. 12 The jury rejected the Crown case. It is relevant, however, to note that, while the evidence, addresses and summing-up in the trial were completed within a fraction over six days, the jury did not reach its verdicts until after three and a half days of deliberation. The prosecution, although it faced a formidable hurdle in relation to the evidence of its principal witness, had a good deal of material on which to argue that Mr Lingam's later account of events ought not be accepted. If his evidence were rejected, the circumstantial case was relatively strong. 13 Ss 2 and 3 of the Act authorise this court, where a defendant is acquitted after a hearing on the merits, to certify that: "(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." 14 Such a certificate entitles its recipient to apply for the Director General of the Attorney General's Department for payment of costs incurred in the proceedings (s 4(1)). 15 It was common ground that the proceedings should be taken to have been instituted on 26 February 1996, when the DPP notified the applicant of his intention to bring the charges. On that date, the relevant information actually in the possession of the DPP, so far as Mr Lingam's anticipated evidence was concerned, was that he denied responsibility for the fire. That denial, having regard to his injuries, must then properly have been assessed as very credible. Given that only two people could have lit the fire, that meant that the Crown case looked strong at that time. However, that is not the test. The test is whether, had the DPP had in his possession knowledge of what subsequently transpired in relation to Mr Lingam, it would not have been reasonable for him to have brought the proceedings. The DPP is, in effect, deemed to have had knowledge of Mr Lingam's subsequent recantation and admissions, as at the date of the notification. 16 It must be acknowledged that there was a basis on which the DPP could properly argue that Mr Lingam's recantation should not be accepted and that other evidence pointed to his innocence and the applicant's guilt. However, in an unusual situation like this, the DPP must realistically assess the prospects, not only that a jury would find the applicant guilty, but that a conviction based on the evidence as it then stood would survive the inevitable appeal on the ground that any conviction was unsafe and unsatisfactory (or, to use the current correct terminology, was unreasonable, and could not be supported having regard to the evidence, or otherwise represented a miscarriage of justice: Criminal Appeal Act, s 6(12); Fleming v The Queen [1998} HCA 68 (1999) 73 ALJR 1; (1998) 158 ALR 379, at [12]); R v Giam (unreported, NSWCCA 53 10 March 1999, per Spigelman CJ [44]). 17 The simple fact is that, had he known of Mr Lingam's subsequent position, it would not have been reasonable for the DPP to bring the prosecution. 18 There is a second limb that must be satisfied before a certificate can be granted. It must be shown that, to the extent that any act or omission of the accused contributed or might have contributed to the institution or continuation of proceedings, that act or omission was reasonable in the circumstances. The sub-paragraph is intended to operate against the issue of the certificate in circumstances, for example, where an accused person unreasonably withholds from the prosecution information that would or might influence the prosecution in relation to the institution or continuation of the proceedings. No relevant act or omission is, in the present case, attributed to the applicant. The prosecution in fact had, since 1997, been in possession of Mr Lingam's statements and admissions. 19 I therefore certify, in relation to the proceedings relating to the three offences charged against the applicant: (a) if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings, was reasonable in the circumstances. **********