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: (a) Dr Menzies; (b) Dr Albina Della Bruna; (c) Dr Burn. 10 Dr Menzies is a psychiatrist and the applicant was referred to him on 13 September 1999. The doctor considered the applicant to be showing signs of anxiety at that time and he diagnosed an adjustment disorder with anxiety features, but over the six months prior to the doctor giving evidence in April 2000 it was his opinion that the applicant had developed major depression. At the time of giving evidence he did not consider the plaintiff was in a fit state to work and he gave evidence that her memory of current events was impaired by an inability to concentrate, although distant memory was normal. In Dr Menzies' opinion the applicant's mental health was at risk whilst she awaited retrial. He said that the applicant had expressed a suicidal tendency for the first time in the four weeks preceding 11 April 2000. Dr Menzies considered that if the retrial was put off but was then eventually given a fresh hearing date, there was every reason to believe that the applicant would decompensate again and probably more rapidly. 11 Dr Della Bruna is the plaintiff's general practitioner, although the relationship was apparently not only professional but one of friendship. Indeed, the doctor said that she sat through the first five days of the applicant's first trial. This was done not as a medical practitioner but as a concerned friend. Dr Della Bruna said that in the period that she had been treating the applicant since 1997 the applicant had declined physically and emotionally and once the first trial date was set the applicant rapidly declined. Dr Della Bruna received a history that the applicant was entertaining thoughts of suicide. In Dr Della Bruna's opinion, the applicant was not mentally fit to face another trial. 12 Dr Della Bruna wrote that "The applicant has become a recluse, has no positive thoughts towards the future." 13 Dr Burn did not treat the applicant professionally but he has seen her as a friend and he reported in a report of 29 February 2000, which was placed before the District Court judge, that the applicant, in his opinion, was suffering from severe depression and that there were periods when the applicant was quite labile. The doctor could see this changing as pressures developed and he had a concern for her. 14 Whilst the applicant's medical condition and any deterioration in the period since the applicant was first charged were relevant considerations on the application for a stay of proceedings, it was for the judge at first instance to make a careful assessment of the significance of the medical evidence that was placed before him. In expressing his reasons for refusing the stay of proceedings, the learned judge did not review extensively the medical evidence that he had just heard, but he did accept that the evidence showed that the applicant was more seriously affected by the stress of facing trial than might normally be expected and he did recognise the medical evidence to the effect that the applicant had, at the time the judge was giving his decision, a serious depressive type illness. 15 This evidence and the conclusion the judge made concerning it was only one factor to be weighed in considering the application. 16 Other factors requiring consideration were those adverted to in Walton, as expressed in the passage from the judgment of the Chief Justice and Deane and Dawson JJ to which I referred earlier. For my part, I am not persuaded that the decision reached by Judge Gibson demonstrates that he erred in his approach to the evaluation of the medical evidence that had been placed before him. I reject the submission that the decision under challenge was plainly unjust. 17 Whilst it was submitted that it was "grotesque" that the Crown should proceed against the applicant on a second trial when Ms Johnson was not committed for trial in the first place, it has to be recognised that there was the evidence admissible against the applicant which was not admissible against Ms Johnson. 18 It was further submitted, apart from the effect of the medical evidence, to which it was argued the judge had given insufficient weight, that the proceedings were oppressive. Complaint was made that at the first trial the Crown did not call Ms Johnson and that the defence ought not be required to call Ms Johnson; and that failure to have Ms Johnson available for cross examination would render a fair trial impossible. It was further submitted that at the first trial evidence of an alleged sexual relationship between the applicant and Ms Johnson was wrongly introduced. I do not consider that those matters, or either of them, would warrant the intervention of this Court on an application under s 5F. The question as to how the applicant's trial should properly be conducted should be addressed by the trial judge in the ordinary way. For my part, I am somewhat puzzled, on the material before this Court, as to how any alleged sexual relationship between the applicant and Ms Johnson could properly become a relevant matter at trial. 19 The maximum penalty provided by the legislature for an offence under s 319 of the Crimes Act is imprisonment for fourteen years, so that the charges have to be considered as serious. His Honour was correct to consider the legitimate interest which the public has in the disposition of charges of this nature. 20 The reasons stated by the judge for refusing the stay do not manifest error and the applicant has failed to convince me that the refusal itself demonstrates that the judge must have fallen into error in weighing the various factors necessary to be considered on this application. 21 The Court's attention has been drawn to the existence of additional medical evidence. Since this application is not in the nature of a re-hearing, this Court has not received and considered that additional evidence. If, when the applicant is about to face trial again, it is perceived that her medical condition will, at that time, render her unfit to do so, or that her medical condition was such as to prevent a fair trial occurring, the applicant could then make an appropriate application to the trial judge. On such an application, the medical evidence then available would warrant consideration. 22 On the present application, however, I would refuse leave to appeal. 23 WOOD CJ at CL: I agree. I only wish to add that in the event of a further application being made to the trial judge, it would be appropriate for the court to take into consideration not only any up-to-date medical evidence but also any effect which the further passage of time might have in relation to the fairness of the trial. Additionally, it would be appropriate to take into account the manner in which the listening devices transcript might be used at trial either by the defence or by the prosecution, ie whether they might or might not be used in a way that would open up cross examination on the matters most likely to occasion distress or embarrassment. Otherwise, I agree entirely with the reasons proposed by Studdert J. 24 WHEALY J: I agree also. 25 WOOD CJ at CL: The order of the Court will, accordingly, be as proposed by Studdert J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.