R v Subramaniam [2000] NSWCCA 441

New South Wales Court of Criminal Appeal

CITATION : R v Subramaniam [2000] NSWCCA 441 FILE NUMBER(S) : CCA 60221/00 HEARING DATE(S) : 23 October 2000 JUDGMENT DATE : 23 October 2000

PARTIES : Regina v Kala Devi Subramaniam JUDGMENT OF : Wood CJ at CL at 23; Studdert J at 1; Whealy J at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0987 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) C.C. Waterstreet (Applicant) SOLICITORS : S.E. O'Connor (Crown) McClellands (Applicant)

LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: Jago v The District Court (1989) 168 CLR 23 Walton v Gardiner (1992-93) 177 CLR 378 DECISION : Leave to appeal refused

IN THE COURT OF CRIMINAL APPEAL

60221/00

WOOD CJ at CL STUDDERT J WHEALY J

Monday 23 October 2000

REGINA v KALA SUBRAMANIAM

JUDGMENT

1 STUDDERT J: This is an application pursuant to s 5F of the Criminal Appeal Act 1912. The applicant, Kala Devi Subramaniam, was awaiting trial in the District Court when, on 11 April 2000, she made an application for a stay of proceedings in that court. The application was refused by his Honour Judge Gibson of Queen's Counsel, and hence the present application. 2 Following committal proceedings in the Local Court, the applicant was committed for trial and, indeed, the applicant stood trial in August 1999 charged with two offences under s 319 of the Crimes Act. The jury was unable to agree following a ten day trial that commenced on 23 August 1999, so that when the application was made to Judge Gibson the applicant was facing the prospect of a second trial which had been fixed to commence on 5 June 2000. That retrial date, of course, had to be vacated by reason of the pending application to this Court. This Court has been informed that there has been a no bill application which proved to be unsuccessful. 3 The basis for the charges against the applicant may be drawn from the affidavit of the solicitor for the applicant filed in this court. 4 It is alleged that on 21 August 1995 a BMW sedan owned by Ms Leigh Johnson, a solicitor of this court, was photographed by police proceeding through a red light and a traffic infringement notice was served in consequence upon Ms Johnson. Then on 29 February 1996 the applicant allegedly signed a statutory declaration declaring that she was the driver of the vehicle detected when it was driven through that red light. Notwithstanding that declaration, on 2 July 1996 Ms Johnson was convicted in her absence and fined for the offence. Ms Johnson subsequently appealed to the District Court and on the hearing of that appeal the applicant was called and gave sworn evidence to the effect that she was the driver of the vehicle at the relevant time. The appeal was upheld and the conviction and penalty imposed in the court below were quashed. 5 Subsequently the applicant and Ms Johnson were summoned to appear at the Downing Centre Local Court on 28 January 1997. Ms Johnson was summoned in relation to the charge of intention to pervert the course of justice and the applicant was summoned in relation to two offences under s 319 of the Crimes Act. The essential central allegation in the charges against the applicant was that she falsely claimed to have been the driver of Ms Johnson's car when the latter was driving, and that this was done intending to pervert the course of justice. 6 The committal proceedings of the two persons charged were lengthy, extending over some fifteen days between 23 June 1997 and 31 October 1997. On the latter date, Ms Johnson was discharged but the applicant was committed for trial on both charges and presently faces the prospect of a retrial on those charges because of the decision here challenged. At this point I observe that the decision of the magistrate to discharge Ms Johnson but to commit the applicant for trial was explicable upon the basis that certain evidence incriminating the applicant was not admissible against Ms Johnson. That evidence was in the form of a taped conversation in which allegedly incriminating admissions were made by the applicant. 7 The circumstances in which a stay of proceedings will be granted have been the subject of authoritative statements in the High Court in Jago v The District Court (1989) 168 CLR 23 and in Walton v Gardiner (1992-93) 177 CLR 378. For present purposes I refer to what was said in the joint judgment of Mason CJ, Deane and Dawson JJ in Walton at 395-396: "As was pointed out in Jago (see, in particular, (1989) 168 CLR, at pp 30-34, per Mason CJ; pp 59-61, per Deane J; p 72, per Toohey J; pp 76-78, per Gaudron J.), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice…" 8 It is submitted on behalf of the applicant that the decision refusing the stay of proceedings was plainly unjust and so unreasonable as to manifest error. It was submitted that the medical evidence showed that the applicant's health has been seriously affected by anxiety associated with the pending charges and that to require her to face trial again will expose her to a risk of further serious harm and even the risk of suicide. Evidence to this effect, it was submitted, was not properly weighed by the learned District Court judge. 9 The available medical evidence in the District Court came from two sources: