R v Subramaniam

[2002] NSWCCA 372

CITATION:	R v Subramanian [2002] NSWCCA 372
FILE NUMBER(S):	CCA 60312/02
HEARING DATE(S):	4 September 2002
JUDGMENT DATE:	25 November 2002
PARTIES :	Regina Kala Devi Subramanian
JUDGMENT OF:	Beazley JA at 1; Sully J at 62; Simpson J at 63

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/00/1307
LOWER COURT JUDICIAL OFFICER :	Luland J

COUNSEL :	P G Ingram (Crown) C Waterstreet (Appellant)
SOLICITORS:	S E O'Connor (Crown) McClellands (Appellant)
CATCHWORDS:	Criminal law - intent to pervert the course of justice - false statutory declaration - false evidence - unfit to be tried - whether verdicts inconsistent - stay in proceedings - admission of evidence - special proceedings - whether trial unfair and oppressive - mental health - exercise of discretion
LEGISLATION CITED:	Crimes Act 1900 (NSW), ss 312, 319 Mental Health (Criminal Procedure) Act 1990 (NSW) ss 11A, 16, 18, 19, 21, 22 and 23 Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 Justices Act 1902 (NSW), s 100A Listening Devices Act 1984 (NSW) Criminal Appeal Act 1904 (NSW) s 5F
CASES CITED:	Jago v The District Court of NSW (1989) 168 CLR 23 House v The King (1936) 55 CLR 499 R v Alexandroaia (1994) 81 A Crim R 286 R v H [2002] NSWCCA 355 R v Markuleski (2001) 52 NSWLR 82 R v Rogerson (1992) 174 CLR 268 Subramanian v R [2000] NSWCCA 441 Walton v Gardiner, Herron and Gill (1993) 177 CLR 378 Thornberry v The Queen (1993) 69 ALJR 777
DECISION:	Appeal dismissed

CCA 60312/02
DC 01/00/1307

BEAZLEY JA
SULLY J
SIMPSON J

Monday, 25 November 2002

R v KALA DEVI SUBRAMANIAM

FACTS

The appellant was charged with two offences under s 319 of the Crimes Act 1990 (NSW), of making a false statutory declaration with the intent to pervert the course of justice and giving false evidence to the District Court with the intent to pervert the course of justice.

The hearing under appeal was a special hearing pursuant to s 19 of the Mental Health (Criminal Procedure) Act 1990 (NSW), the appellant having been found unfit to be tried. The jury returned a guilty verdict in respect of the first charge, under s22(1)(c) of the Mental Health (Criminal Procedure) Act 1990 (NSW), and a not guilty verdict in respect of the second charge.

HELD per Beazley JA (Sully J and Simpson J agreeing)

(i) The trial judge did not err in allowing the admission of a tape recording and a transcript of a conversation between the appellant and a Crown witness.

(ii) The jury’s guilty verdict in the first count and not guilty verdict in the second count were not inconsistent. There was a basis upon which the jury might not have been satisfied that the evidence alleged to be false related to the same event. There was thus “acceptable explanation for the differentiation between the divergent verdicts” : R v Markuleski (2001) NSWLR 82.

(iii) As the facts alleged in the Crown case were capable of proving the elements of the first offence under s 319 of the Crimes Act , this verdict was not unsafe and unsatisfactory: R v Rogerson (1992) 174 CLR 268.

HELD per Beazley JA (Sully J agreeing)

(i) The trial judge exercised his discretion appropriately when deciding not to permanently stay the matter on the grounds of the appellant’s mental health: Jago v District Court of NSW (1989) 168 CLR 23; House v The King (1936) 55 CLR 499.

HELD per Simpson J

(i) The trial judge erred in exercising his discretion to refuse a stay of the proceedings, the “medical evidence was so overwhelming as to dictate that the proceedings be stayed” temporarily if not permanently: House v The King (1936) 55 CLR 499; Jago v The District Court of NSW (1989) 168 CLR 123; Thornberry v The Queen (1995) 69 ALJR 777.

ORDERS

Appeal dismissed.

CCA 60312/02
DC 01/11/1307

BEAZLEY JA
SULLY J
SIMPSON J

Monday, 25 November 2002

R v KALA DEVI SUBRAMANIAM

Judgment

1 BEAZLEY JA: The appellant was charged with two offences under s 319 of the Crimes Act 1900 (NSW). The first charge was that the appellant “on 29 February 1996, made a statutory declaration knowing it to be false with intent to pervert the course of justice”. The second charge was that “on 5 August 1996, the appellant gave false evidence to the District Court with intent to pervert the course of justice”.

2 On 29 April 2002, the appellant appeared before Luland DCJ and a jury in the District Court for a special hearing pursuant to s 19 of the Mental Health (Criminal Procedure) Act 1990 (NSW). On 1 May 2002 the jury returned a verdict pursuant to s 22(1)(c) of the Act that “on the limited evidence available, [the appellant] had committed the offence [relating to the making of the false statutory declaration]”. The jury returned a verdict of “not guilty” in respect of the second charge relating to the giving of false evidence to the District Court.

3 The trial judge, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), deferred passing sentence upon the appellant, conditional upon her entering into a bond to be of good behaviour for a period of three years.

4 The appellant appeals against the verdict on the following four grounds. First, that the jury verdicts in respect of the first and second counts were inconsistent. Secondly, the verdict on the first count was unsafe and unsatisfactory. Thirdly, his Honour erred in refusing to stay the proceedings. Fourthly, his Honour erred in failing to exclude a tape recording of a conversation between the appellant and a Crown witness, Ms Coughlan.

5 The charges against the appellant had their genesis in a traffic breach on 21 August 1995, when a vehicle registered to a Ms Leigh Johnson was photographed by a red-light camera proceeding through a red traffic light.

6 Ms Johnson is a solicitor practising as Leigh Johnson Lawyers at East Sydney. The appellant was her employee.

7 A traffic infringement notice was issued to Ms Johnson on 31 August 1995. The traffic infringement notice advised Ms Johnson that under the Traffic Act (NSW), responsibility for the offence was placed on the registered owner. The notice also advised that there were three options available under the notice. First, if she was not the driver or the owner of the vehicle at the time of the offence she could fill in and return the statutory declaration which appeared on the reverse side of the notice, prior to the due date, which was nominated to be 28 September 1995. Secondly, she could pay the fine prior to the due date. Her third option was that if she wished to contest the matter before a magistrate, she was to complete the court election form on the reverse side of the form and a hearing would be arranged. Ms Johnson completed the court election form, signed it, dated it 8 September 1995 and returned it to the NSW Police Service.

8 A hearing date was appointed for 10 January 1996.

9 On 21 November 1995, Ms Johnson wrote a letter on her firm’s letterhead directed to the Local Court advising that she would not be in Sydney on 10 January 1996 and requested an adjournment of the matter to a date after May 1996. It appears, however, that the matter remained listed for 10 January 1996, Ms Johnson did not appear and the court set the matter down for a defended hearing on 29 May 1996. The court by letter of the same date, that is 10 January 1996, wrote to Ms Johnson advising her the matter had been in the list on that day. Ms Johnson wrote to the Local Court advising that she did not receive any notification that the matter was listed and therefore had not attended the court. She advised that she had been informed by the Infringement Processing Bureau that she needed to lodge a s 100A [Justices Act 1902 (NSW)] application and requested that the court fax a copy of that application to her. Also on 10 January 1996, the clerk of the Local Court wrote to Ms Johnson advising that the matter had been adjourned until 29 May 1996 for plea. It is not apparent from the material available to the Court whether Ms Johnson received the court’s letter prior to sending her letter of the same date, although nothing turns upon that for the purposes of the matters relevant to the appeal.

10 On 29 February 1996, the appellant made a statutory declaration in the following terms:

“Re: Infringement Y 429792O

I refer to the above infringement and confirm that after having viewed the photographs of the incident, I was driving the vehicle AAV 31Q at this time.

Accordingly, I will take responsibility and finalise the amount outstanding.”

11 The infringement notice referred to is the one issued to Ms Johnson in respect of the traffic light offence. The declaration was signed before a Mr Oliveri, a solicitor in Ms Johnson’s office. Prior to that, on 30 January 1996, Ms Johnson’s office had requested from the Camera Detection Unit of the Infringement Processing Bureau a copy of the photographs taken by the red-light camera. The photographs, although showing Ms Johnson’s car clearly, were quite dark and no driver is visible.

12 On 5 March 1996, Ms Johnson under cover of a letter on her firm’s letterhead, forwarded the statutory declaration to the Infringement Processing Bureau. She requested that having regard to the contents of the statutory declaration “this matter [be] withdrawn from the court list of 29 May 1996 and forward the notice to Ms Subramaniam”. It appears that the matter was listed in the Local Court on 1 May 1996. On that day, a Mr Sukkar, who was a legal clerk employed by Ms Johnson, was requested by Ms Johnson to attend court for the purposes of having the matter listed as a defended matter. On that day he also handed to the court the statutory declaration.

13 It was the Crown case, accepted by the jury, that Ms Subramaniam was not the driver of the vehicle on the occasion in question but had agreed with Ms Johnson to make the false declaration that she was. The Crown case was based essentially upon the evidence of a Ms Coughlan, who at the time, had been a legal clerk in Ms Johnson’s employ. Ms Coughlan alleged that she was present at a conversation between Ms Johnson and the appellant when this was agreed. She was subsequently ‘wired’ with a tape recorder and recorded a conversation with the appellant which, the Crown alleges, contains an admission by the appellant that this was the case.

14 There was other evidence in the case which was corroborative of Ms Coughlan’s evidence. In particular, there was the evidence of Ms Halls, who had been a office assistant employed by Ms Johnson at the time and the evidence of a Mr Dib, who was employed by Ms Johnson as a legal clerk.

15 Notwithstanding the statutory declaration, Ms Johnson was convicted and fined in her absence by a magistrate on 2 July 1996. Ms Johnston appealed to the District Court against that conviction on 5 August 1996. Subject to one matter, the appellant gave sworn evidence on that day consistent with her statement in the statutory declaration. The “matter” to which I have referred was that at the District Court hearing, the trial judge conducted the examination of the appellant without objection from the Crown or from Ms Johnson. In doing so he asked questions on the basis that the offence had occurred on the night of 29 February 1996. In fact, the incident recorded by the red light camera occurred at 8.20am. I will refer to this later when dealing with the question of inconsistent verdicts.

Refusal to Stay the Proceedings

16 It is convenient in the first instance to deal with the appeal from his Honour’s refusal to stay the proceedings.

17 The appellant’s trial was a special hearing conducted under the provisions of s 19 of the Mental Health (Criminal Procedure) Act (the Act) (MH(CP) Act). The special hearing proceeded upon the appellant having been found unfit to be tried on 16 March 2001. An inquiry before the Mental Health Review Tribunal held on 26 March 2001 came to the same decision. On 25 September 2001 the Mental Health Review Tribunal determined that the appellant would not be fit to be tried within a further twelve months. The Act provides that if the Attorney-General is so notified, the Attorney-General may direct that a special hearing be conducted in respect of the offence with which the person is charged: s 18(a). Section 19(1) then provides:

“If the Attorney-General directs that a special hearing be conducted … the appropriate court must, as soon as practicable after the Attorney-General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged … “

18 On 28 November 2001, the Attorney-General directed that there be a special hearing in respect of the two offences with which the appellant was charged.

19 Section 21(1) provides that, except as provided by the Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. The accused person must be represented by counsel unless the court otherwise allows: s 21(2). Subsection (3) provides:

“At a special hearing (a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged; and … (c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings; and (d) without limiting the generality of subsection (1), the accused person is entitled to give evidence.” (emphasis added)

20 Section 22(1) specifies the verdicts which may be given at a special hearing including:

“(a) not guilty of the offence charged
…
(c) that on the limited evidence available, the accused person committed the offence charged.
(d) …”

21 An appeal lies from a verdict under s 22(1)(c) in the same manner as a verdict in an ordinary trial: s 22(3)(c).

22 If the jury delivers a verdict in accordance with s 22(1)(c), the court must, indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment or penal servitude and where it would have done so, it must nominate a term (a “limiting term”) being the best estimate of the sentence the court would have considered appropriate if the special hearing had been a normal trial: s 23(1). If the court indicates that it would not have imposed a sentence of imprisonment or penal servitude, it may impose any other penalty or make any other order it might have made on conviction in a normal trial of criminal proceedings: s 23(2).

23 In the present case, the jury having brought in a verdict under s 22(1)(c), his Honour proceeded under s 23(2) and made an order under s 9 of the Sentencing Act.

24 The special hearing was the second hearing of the charges against the appellant. She had first been tried on 23 August 1999. However, after a ten day trial, the jury was unable to reach a verdict. At that trial, the appellant had given evidence. Shortly after the conclusion of the trial, the appellant came under the care of Dr Menzies, psychiatrist. He diagnosed her as suffering from an adjustment disorder with anxiety and depressive features. He described her symptoms as being severe. He recorded the illness as having commenced in February/March of that year, when she was notified that she was to stand trial. Dr Menzies also reported some gradual relief of symptoms at the conclusion of the trial, followed by an escalation of her symptoms once she was notified there was to be a re-trial. Dr Menzies considered, as at November 1999, that her mental health was at risk whilst she awaited the re-trial. The appellant remained under the care of Dr Menzies up until the time of the special hearing.

25 Dr Menzies was of the opinion that the appellant’s condition was “consequent upon [her] trial and its sequelae”. By May 2000 Dr Menzies was reporting on the appellant’s “suicidal intent”. This remained, in his opinion, a real possibility during the course of that year. In February 2001, Dr Menzies recorded, “a marked deterioration in [the appellant’s] mental health” and expressed the opinion that she was not fit to attend court on 19 March 2001. This appears to be a reference to the hearing of the appellant’s fitness to be tried on 16 March 2001. On 11 February 2002, Dr Menzies reported that the appellant remained psychologically fragile and remained under medication. He considered that “there is no doubt that participation in a future ‘special hearing’ would result in a resurgence of her previous extreme symptomatology and the risk of suicide”.

26 On 23 April 2002, the appellant applied to the court for a permanent stay of proceedings.

27 Dr Menzies, who was called to give evidence on this application, said that between the period February 2001 and April 2002 he considered that there had been a slow but gradual deterioration in the appellant’s mental state. Her high levels of anxiety remained, she had episodic depression and her sleeping patterns were “appalling”. When asked about the appellant’s capacity to attend and participate in the special hearing, Dr Menzies expressed the opinion that the appellant could not give evidence and stated that it was his understanding that the appellant could not come to court voluntarily. He considered that if she was brought to the court involuntarily, “she might feel nauseated, she might think she is going to vomit, she might vomit …”. In response to the question: “could she participate in the proceedings in any way by giving information, meaningful information to her solicitors …”, Dr Menzies said:

“No. I think one of the things that is obvious is that with her high level of anxiety over many – what is now many years, this had interfered with her memory and so her recall of events and times and time periods and sequences and things, I think is markedly impaired and will not return, will never return.”

28 He considered that it was possible that there was a risk of psychiatric damage or self harm if she was forced to attend court. Dr Menzies reiterated his concern, which he said he had held for a long time that the appellant could commit suicide.

29 On the application for the stay before the trial judge, the appellant’s counsel submitted that it would be contrary to the interests of justice for the special hearing to proceed because it could have the effect of oppressing the appellant and leading to a deterioration of her current mental state. He pointed out that she would not be able to participate meaningfully in any way, in contrast to her first trial were she had given evidence but the jury was unable to agree. Counsel submitted that it would be “overbearing and oppressive to subject [the appellant] to a special hearing given the circumstances overall that led her here”. Counsel referred to the comment which had been made by Judge Stewart, who had been the trial judge in the first trial, that “what began as a trivial matter, going through a red light, has avalanched to this”. Counsel added that the matter had “avalanched even further where the Attorney-General demands a special hearing”.

30 The trial judge, notwithstanding that he accepted Dr Menzies evidence, refused the application for the stay. He said “whilst I accept [the appellant] has an adjustment disorder, and that it has become more serious, I am not satisfied on the totality of the evidence that I should permanently stay the matter”.

31 Counsel for the appellant submitted that a stay ought to be granted where the trial is (a) so unfair as to warrant a stay or (b) is so oppressive as to require it: Jago v District Court of NSW (1989) 168 CLR 23 at 60. He submitted that a stay ought to have been granted here, advancing the same submissions as had been advanced to the trial judge, adding that the appellant’s mental condition had deteriorated, that her memory was affected and was unlikely to return, that her participation in the trial was meaningless, that she could not give evidence and that suicide was a possible outcome. It was submitted that in the circumstances, the appellant’s mental health was sufficiently serious to dictate that the appellant could not participate in the trial so that the court should have ordered a stay and the trial judge’s discretion had miscarried in refusing the application. It was also submitted that the trial judge’s discretion had not been exercised in accordance with proper principle because the appellant’s inability to meaningfully participate and to give evidence were substantial matters that the court should have taken into account, but his Honour did not do so.

32 A determination to grant or refuse a stay is discretionary and, therefore, may only be disturbed by an appellate court within the bounds of the well known principles in House v The King (1936) 55 CLR 499 at 504-505. It is necessary, therefore, for the appellant to show that his Honour, in refusing to grant the stay:

“…that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not taken into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

See also R v Alexandroaia (1994) 81 A Crim R 286 at 290; R v H [2002] NSWCCA 355.

33 There is no dispute between the parties as to the principles to be applied in the determination of the question whether there should be a permanent stay of proceedings. They were correctly identified in the appellant’s submissions: see Jago per Mason CJ at 31, Brennan J at 49, Deane J at 60, Toohey J at 71, Gaudron J at 76-77.

34 In Jago, Mason CJ at 30-31 explained the basis of the power to grant a stay and the circumstances in which it is appropriate to exercise the power:

“The continuation of processes which will culminate in an unfair trail can be seen as a ‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a matter which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broader view of the concept of abuse of process in Reg. v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.”

35 See also Gaudron J at 76, who explained that the power to grant a stay is confined by the very nature of the power being exercised:

“The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399, that the ‘prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts and other public tribunals’. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson [1987] 20 Leg Rep SL 1, ‘sparingly and with the utmost caution’. See generally, Cocker v Tempest (1841) 7 M & W 502; 151 ER 864; Lawrance v Norreys (1890) 15 App Case 210 at 219; Reg v Humphreys [1977] AC 1 at 26; and Reg v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164 at 168.”

36 Jago was a case which involved delay in the prosecution of certain criminal proceedings. The essential question for the Court’s determination was whether the delay was undue and if so whether there should be a permanent stay of proceedings.

37 In this case, it was not only alleged that the proceedings had become protracted, it was also contended that because of the deterioration in the appellant’s mental condition she has lost the ability to effectively participate in the trial. It was submitted that his Honour failed to take this latter consideration into account in refusing the stay. On the evidence, these complaints appear to be interrelated in that the continuation of the proceedings over a long period had seriously affected the appellant’s mental condition.

38 Whilst these charges were laid over 6 years ago, the delay has been caused in part at least because of the inability of the jury to reach a verdict. No other factors were relied upon in support of this part of the argument. I do not consider, therefore, that a stay ought to have been granted because of delay per se.

39 The real basis which is now advanced as justifying a stay, is the appellant’s mental state.

40 Although his Honour’s reasons are short, he took into account the deterioration in the appellant’s condition. He did not say in express terms that that meant the appellant would not be able to effectively participate in the proceedings. However, that was gainsaid. She had been found unfit to be tried under the MH(CP) Act. The appellant’s own psychiatric evidence, which his Honour accepted, made it clear that her participation in the trial was going to be limited. His Honour considered that the best course in all the circumstances was for the trial to proceed as quickly as possible. It is, accordingly, apparent that his Honour’s took into account the appellant’s limited capacity to participate in a trial.

41 The appellant submitted, however, that the position was exacerbated here as a jury had been unable to reach a verdict at her first trial when she had given evidence. It was thus unfair that she should now be subjected to a trial in circumstances where she would not be able to give evidence in her own defence. In other words, because of the deterioration in her mental condition, she was deprived of an important evidentiary base upon which to advance her case at the special hearing, namely her own evidence. The point of the appellant’s submission, as I understand it, is that his Honour also overlooked this matter, and, in any event, erred in failing to give effect to it. I do not think he overlooked this particular aspect of the appellant’s submission. The submission was put to him and as I have already indicated, it was integral to the nature of the application made. His acceptance of the appellant’s medical experts, his reference to the earlier District Court proceedings and the earlier application for a stay are sufficient to indicate that his Honour was fully appraised of the submission put and its relevance and that his determination followed an appropriate consideration of these matters.

42 Nor do I consider his Honour erred otherwise in refusing the stay. It is often the case that, because of a person’s mental condition, the person is not able to give evidence or otherwise meaningfully participate in the trial. As I have said, his Honour considered that the interests of justice were best served by the trial proceeding as soon as possible. His Honour took that view fully cognisant of the appellant’s then mental state. It is often the case with a person being tried under the MH(CP) Act that he/she cannot, in any practical or meaningful way, participate in the trial. Accordingly, I do not see any appellable error in his Honour having refused the application.

Refusal to Exclude the Tape Recordings and Conversations

43 On 6 December 1996, Ms Coughlan was fitted with a listening device for the purposes of recording a conversation with the appellant. There was no challenge to the validity of the recording, which followed the obtaining of a warrant under the Listening Devices Act 1984 (NSW). The appellant submitted that the record of the conversation should not have been admitted into evidence because the admissions obtained in the conversation were the result of a number of deceptions practised upon the appellant by Ms Coughlan and were also made following a series of leading questions. The deceptions said to have been practised upon the appellant included the pretence that Ms Coughlan was a friend of the appellant; that she had taken the day off; that she had run into the appellant unexpectedly and insisted that she go for coffee, taking the appellant away from her intended task of going to the bank; and complaint is also made about the continual degrading of Ms Johnson during the course of the conversation, including discussions of embarrassing sexual matters and alleged unethical behaviour with criminal clients, so as, in effect, to form a special clique or bond with the appellant against Ms Johnson.

44 In my opinion, these “pretences” were not of such a nature as to require the rejection of the material. The use of a listening device is almost invariably accompanied by some form of pretence. The appellant and Ms Coughlan had worked together for a period of time and there is nothing in the conversation to indicate that the appellant felt overborne, threatened or prevailed upon during the course of the conversation. Her only resistance to entering into the conversation is that she stated she wanted to complete her task of going to the bank before having a coffee but Ms Coughlan was able to persuade her otherwise.

45 The second basis of the challenge to the admission of the tapes was that the admissions were obtained by a series of leading questions which “virtually put the answers into the appellant’s mouth”. Before going to the portion of the transcript relied upon to support this submission, it is convenient to set out that part of the recorded conversation upon which the Crown relied as constituting admissions:

“[Coughlan]: Your name was in the paper …
…
[Appellant]: That was over her parking ticket, her what do you call it.
[Coughlan]: I know, I know.
[Appellant]: Red light camera.
[Coughlan]: Yeah. Yeah. So were you scared?
…
[Appellant]: No. How did you know?
[Coughlan]: Well I was there. Do you, do you remember when the, the thing came in.
[Appellant]: Yeah.
[Coughlan]: Remember I was working there then, when it all happened.
[Appellant]: You were working here?
[Coughlan]: Yeah.
[Appellant]: Oh, yeah.
[Coughlan]: It happened last year. Remember it took it so long to get to court?
…
*[Appellant]: I didn’t remember anything.
*[Coughlan]: Yeah. Well do you remember I was in the, I was in the, do you remember, you know when we were in the room and she asked which one of us, you know, was going to take it. And I couldn’t because of all my …
[Appellant]: Oh, I’d take it.
*[Coughlan]: And you said you could, because of your perfect driving record.
*[Appellant]: Not that I could , but that …
*[Coughlan]: You didn’t want to..
*[Appellant]: Yeah, I could …
*[Coughlan]: .. because of your..
*[Appellant]: .. not that I wanted to .
[Coughlan]: Yeah, yeah.
[Appellant]: But the thing is that they were out of time: they can’t strip, they couldn’t take any points of my licence anyway. So I’ve still got a clean record.
[Coughlan]: Really?
…
[Appellant]: Yeah, so she didn’t lose any points, neither did I.
[Coughlan]: Yeah.
[Appellant]: And no one got fined either.
[Coughlan]: Yeah.
[Appellant]: Yeah.
…
[Appellant]: … well we didn’t stall it. What happened was, they didn’t inform us the first day. Right? By the time they had to re-list it, we had not documentation saying it was listed on that day. So no one turned up.
…
[Coughlan]: So what did they ask you in court?
[Appellant]: Well, I just, I just sat in the witness box and had a nice conversation with the judge.
[Coughlan]: So you weren’t cross examined?
[Appellant]: No, because, Leigh, Leigh thought she’d have to. Because she was, like, all ready to go.
[Coughlan]: Yeah.
[Appellant]: And he was just sitting there asking me questions, and I was just, like, sitting back enjoying myself.
…
[Coughlan]: You should have called me, I would have come down and watched.
[Appellant]: (Laughs) It was so funny.
…
*[Coughlan]: Mm. Now were you worried that they might – that like the prosecution might have done something and say, ‘Yes, well, you know, you say you were driving, but..’
*[Appellant]: No because at the time ..
*[Coughlan]: ‘.. and these photographs are exhibit A..’ (Laughs)
*[Appellant]: (Laughs) But the photos, the photos, the photos,..
*[Coughlan]: ‘..and showed her driving instead of you.’
*[Appellant]: The photos showed nothing. We ordered the photos.
*[Coughlan]: Right.
*[Appellant]: Mm. And they showed nothing. You couldn’t tell who was driving.
*[Coughlan]: So, you weren’t worried about ..
…
[Coughlan]: … apart from her being blonde and with you being like dark haired.
[Appellant]: I know, I know, I know.
[Coughlan]: Yeah, because when it came out in the paper I thought, ‘Oh my God, she could have at least..’
[Appellant]: Yeah.
*[Coughlan]: ‘.. got someone blonde to say they were driving.’ You know what I mean?
…
[Appellant]: So they could have said anything they wanted to, you couldn’t see anything. I mean it would have been scary yeah, had they have said, you know. Then I would have said, ‘Well I thought it was me.’ Or, you know, you can…
*[Coughlan]: So you had a contingency plan?
[Appellant]: No we didn’t. but I mean I, I would – if you know, if he was asking me questions and he, and then he showed me the photos and said ‘This isn’t you.’ Then I’d have said, ‘Oh right. I do drive Leigh’s car quite a bit, you know. I do drive on the odd occasion. And you know I’ve got (inaudible) ..’
…
[Coughlan]: Oh wow, so. Right so you, so you, it’s definitely in the, in the clear. They can’t get back at you or anything or, because it ..
[Appellant]: No.
[Coughlan]: So once you’ve been to court, it’s all over.
[Appellant]: … he dismissed it totally on that day.
…
.. you can’t tell who’s driving. It was totally, it was really dark.
…
*[Coughlan]: And lucky for Leigh. Can you imagine?
[Appellant]: … we ordered the photos earlier …
…
Yeah. But, but if say they, they’d said ‘Well we had another camera on the other side..’
[Coughlan]: Yeah.
[Appellant]: ‘.. and here are the photos from that.’ You know. Then I would have said, ‘Oh well you know I thought I was..’
[Coughlan]: Yeah.
[Appellant]: ‘.. from what I saw of the other photos I thought it was..’
*[Coughlan]: Yeah. So how come, um, like you were so adamant that you weren’t going to pretend you were driving?
[Appellant]: And then I did .
…
Because she had no other choice. And the thing is that she would have lost her licence.
…
[Coughlan]: … So did she, did she like try and get anybody else to take it for her?…
[Appellant]: Well she didn’t really have a choice did she.
…
I mean you’ve got to like trust that person too. Because, you know, if they like pull the rug, then, you know.
…
… when she said ‘Oh, they’re out of time anyway, so you won’t lose any points.’ I said ‘Oh, well, who cares then?’ You know.
[Coughlan]: Yeah.
[Appellant]: I didn’t want to lose any points, you know.
[Coughlan]: Yeah. And you still got to keep your perfect driving record.
[Appellant]: (Laughs) That’s true.” (emphasis added)

46 The bolded portions of the conversation above could have been accepted by the jury, and by their verdict were accepted, as constituting admissions by the appellant that she had agreed with Ms Johnson to claim responsibility for driving the vehicle when in fact she had not been driving.

47 The appellant submitted, however, that rather than being admissions as such, the conversation was pursued in such a way that it assumed the appellant’s guilt but did not prove it. It was also submitted that it was unfair because the appellant was “led into the conversation by the leading questions”. The questions marked above with an asterisk are examples upon which the appellant relies as demonstrating that Ms Coughlan suggested matters to the appellant. I do not consider that the questions leading into the conversation in this way did suggest the answer. Further, and more significantly, the appellant volunteered information which was additional to any of the matters raised by Ms Coughlan. Nor do I consider that in any of the questions or discussions of which complaint is made, the answer was embraced, or completely embraced by the question.

48 It was also submitted that Ms Coughlan ‘cross-examined’ the appellant or suggested matters such as that the appellant and Ms Johnson had a “contingency plan”. Again, the conversation as recorded does not bear out the submission. If anything, at this point of the conversation Ms Coughlan was encapsulating what the appellant appeared to be saying.

49 In my opinion, none of the complaints which the appellant makes about the manner in which the conversation was pursued or the admissions obtained has been made out. Rather, it is more than apparent from the material portions of the tape relied upon by the Crown that the appellant was a willing participant in the conversation. It has not been demonstrated that the trial judge erred in the exercise of his discretion in admitting the transcript.

Inconsistent Verdicts

50 The appellant submitted that the jury’s guilty verdict on the first count and the not guilty verdict on the second count were inconsistent, given that the falsehood relied upon in both counts was the same – namely, that the appellant had falsely claimed that she was the driver of the car at the time it proceeded through the intersection.

51 The appellant and the Crown agreed as to the principles to be applied in determining whether or not verdicts are inconsistent. In particular, in R v Markuleski (2001) 52 NSWLR 82, Spigelman CJ said at 87-88:

“The general principles with respect to inconsistent verdicts [has] been set out in [the] authorities … particularly MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 per Gaudron, Gummow and Kirby JJ. The threshold proposition, relevant for present purpose, enunciated by their Honours in MacKenzie at 366 was:
‘Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.’
The reasoning of the joint judgment in Jones [(1997) 191 CLR 439], where there was nothing illogical about the divergent verdicts, represents a particular application of this test of ‘reasonableness’.
The reasoning in MacKenzie at 367 is pertinent to the present case:
‘… the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led the courts to express repeatedly, in the context of both civil and criminal trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all the ingredients must be proved beyond reasonable doubt…’

The respect which the court pays to the constitutional role of the jury was emphasised in M v The Queen [(1994) 181 CLR 487] at 493, in a passage referred to with approval in Jones at 451:
‘… the question which the court must ask itself is whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering the question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or of the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to these considerations.’
It is against this background, that the test for an unreasonable verdict – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – must be applied to the whole of the facts and circumstances of the particular case.”

52 In this case, there was evidence to support the verdict in respect of the first count. That evidence included the admissions contained in the recorded conversation, the evidence of Ms Coughlan and the evidence of the solicitor Mr Dib, all one time employees of Ms Johnson. The evidence adduced in respect of the second count was the transcript of the evidence given by the appellant in the appeal brought by Ms Johnson in the District Court following her conviction in the Local Court on 2 July 1996. As I have already indicated, the trial judge in that case took over the examination of the appellant. That examination proceeded as follows:

“HIS HONOUR: Q. Your name is Kala Subramanian?
A. Yes, it is.
Q. And it was you who sent to the Court a statutory declaration dated 29 February 1996 stating that you were the driver of the motor vehicle on the night in question ?
A. Yes, your Honour.
Q. Is that the truth of the matter?
A. Yes it is.
Q. How can you be so certain that it’s you who was driving on that particular night ?
A. I actually went up to the storage unit up at 38 Maloney Street, Eastlakes and on my way back I came down Crown Street. I went through what I thought was an orange light and didn’t think about the matter at all until Miss Johnson actually ordered the photos of the incident. Upon viewing those photos I realised that I was in fact driving the car and accordingly I’m willing to take responsibility.” (emphasis added)

53 At the conclusion of the evidence and addresses in the special hearing, there was a discussion between the trial judge and counsel as to matters upon which the trial judge should give a direction. His Honour drew attention to the fact that a question had been received from the jury. He said:

“What they ask is this: they’re referring to the second count and they say the judge asked [the appellant] whether she was driving the car on the ‘night’ in question. So that’s what’s shown in exhibit P, however the infringement notice and the photos clearly indicate the incident occurred at 8.20am. What legal implications does this have for our deliberations on the charge of giving false evidence before the Court. I think all I can tell them in respect of that that the whole of the material is for them to consider and they have to be satisfied beyond reasonable doubt that the evidence that she gave before the judge was referable to the infringement notice.”

54 During the course of the summing up, the trial judge had fallen into the same error and referred to the red light infringement as having occurred “on the night”. Counsel drew attention to that and his Honour corrected himself, informing the jury that the infringement notice referred to an incident at 8.30am. Although his Honour again fell into the same error by again referring to the night, no point is taken about that, so that the correction made to the jury must be accepted as being sufficient. His Honour, later in the summing up, referred to the question which the jury had asked. He said [164]:

“Now arising out of that evidence you quite properly raise the question, how is it that the infringement notice indicates that the incident was 8.20am and yet in the court of appeal there was reference to the night – the question of the night. Well all I can say to you ladies and gentlemen, that is the evidence that is before you and it is a matter for you to determine whether or not the reference was to the same matter or not. One cannot do any more than that. That is the evidence that is before you.”

55 The Crown submitted that the matter having been left to the jury in that way, and counsel for the appellant at trial not having sought any different direction, it appeared that the jury was not satisfied beyond reasonable doubt that the incident to which the appellant had referred in the District Court proceedings was the red light infringement in question, which had occurred in the morning. The appellant in those proceedings only referred, by adopting the question of the trial judge, to an incident at night. In my opinion, this difference in the evidence “is an acceptable explanation for the differentiation between the divergent verdicts …”. Accordingly, I would dismiss this ground of appeal.

Verdict on Count One Unsafe and Unsatisfactory

56 Finally, the appellant submitted that the verdict on the first count was unsafe and unsatisfactory. The appellant submitted that the facts alleged in the Crown case in respect of the first count were not capable of proving the elements of the offence under s 319 of the Crimes Act. It was submitted, that the appellant’s action in swearing the statutory declaration was directed to the Bureau and not the court. This, it was submitted, was evidenced by the fact that the statutory declaration was sent to the Bureau under cover of Ms Johnston’s letter of 5 March 1996.

57 In R v Rogerson (1992) 174 CLR 268 it was held that the course of justice does not begin until the jurisdiction of a court or competent judicial authority is invoked: per Mason CJ at 278; Brennan and Toohey JJ at 283. It was held that an act which has a tendency to deflect police from prosecuting a criminal offence or from calling evidence of true facts which, if it tends to pervert the course of justice and is done with the requisite intent, constitutes an attempt: Mason CJ at 278; Brennan and Toohey JJ at 282-283. Here, however, the appellant was not charged with an attempt but was charged with the offence under s 319, which provides:

S319 - A person who does any act, or makes any omission, intending in any way to prevent the course of justice, is liable to imprisonment for 14 years.

58 In my opinion, the appellant’s submission founders at a factual level. Whilst Ms Johnson did send a copy of the statutory declaration to the infringement processing bureau, curial proceedings by that stage had already been instituted pursuant to Ms Johnson’s election made on 8 September. The statutory declaration was provided to the court on 24 April 1996, when Mr Sukkar attended before the Registrar and made an application to have the matter re-listed on a date other than that which had been nominated by the court. It would seem that the forwarding of the statutory declaration to the bureau might best be viewed as a ‘back up’ measure.

59 In any event, s 312 of the Crimes Act provides that a reference to “perverting the course of justice” includes a reference to “obstructing, preventing, perverting or defeating … the administration of the law”. In my opinion, it is not necessary for the indictment to include the definitional provision in s 312. It is sufficient for a person to be charged in terms of s 319. Accordingly, even if the statutory declaration was made for the purpose of sending to the Infringement Processing Bureau, the evidence supported the commission of the offence.

60 Counsel for the appellant in this part of his submissions then drew attention to the fact that the trial judge did not give a direction so as to cover the extended definition. It would of course only have been necessary to have done so if the case was conducted on the basis that the notice was one directed to the Bureau and not to the court. As I have indicated, the evidence is against that. There is a further problem with the appellant’s submission in this regard, namely, that no direction was sought by counsel at the trial that there be a direction of the type now suggested. Given the factual circumstances, where the statutory declaration was made after the court proceedings were commenced and where the declaration was given to the court, I would not grant leave to the appellant to now raise this matter.

61 Accordingly, I propose that the appeal be dismissed.

62 SULLY J: I agree with Beazley JA.

63 SIMPSON J: I have had the advantage of reading in draft the judgment of Beazley JA. In relation to grounds 1, 2 and 4 I agree with her Honour’s conclusions and reasons. In relation to ground 3, which concerns the appellant’s application for a stay of proceedings, I have, respectfully, reached a different view. In my opinion the proper exercise of discretion called for the grant of a stay.

64 It is unnecessary for me to restate in detail the history of the proceedings or the relevant circumstances which are fully outlined in the draft judgment of Beazley JA. I shall confine myself to mentioning those circumstances which bear upon the view I have reached. In particular, I believe that a brief chronology may be of assistance.

65 The events of the subject of the first count on the indictment took place on 29 February 1996. The events the subject of the second count took place on 5 August 1996. A summons charging the two offences was served on the appellant on or about 15 December 1996. On 31 October 1997, after a committal hearing which extended over fifteen days, the appellant was committed for trial on the two charges. A trial commenced on 23 August 1999 and proceeded over ten days. The jury was unable to reach a unanimous verdict. The Director of Public Prosecutions opted to proceed with a fresh trial and a hearing date was fixed for a trial to commence on 5 June 2000. On 11 April 2000 the appellant sought a stay of the proceedings. The application was refused in the District Court.

66 Pursuant to s5F of the Criminal Appeal Act 1904 (NSW) the appellant sought leave to appeal to the Court of Criminal Appeal against the refusal. That application was refused: Subramaniam v R [2000] NSWCCA 441. Essentially, the basis of the application in the District Court and on the application for leave to appeal was the appellant’s medical (psychiatric) condition. In the course of the judgments refusing the application the following was said:

“[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. …
[21] The Court’s attention has been drawn to the existence of additional medical evidence. Since this application is not in the nature of 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.” (per Studdert J)
“[23] …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.” (per Wood CJ at CL)

67 The application to the Court of Criminal Appeal caused the delay of the retrial fixed for 5 June 2000. On 16 March 2001 a hearing under s11A of the Mental Health (Criminal Proceedings) Act 1990 (“MH(CP) Act”) was conducted by Acting Judge Stewart. The issue for his Honour’s determination was whether the appellant was unfit to be tried. His Honour found that she was unfit to be tried. Accordingly, the other provisions of the MH(CP) Act came into operation. The appellant was referred to the Mental Health Tribunal, which, acting in accordance with s16, determined that, on the balance of probabilities, the appellant would not, within twelve months after Judge Stewart’s finding of unfitness, become fit to be tried. The Mental Health Tribunal notified the Attorney-General accordingly. Pursuant to s18 of the MH(CP) Act, on 28 November 2001, the Attorney-General directed that a special hearing be conducted in respect of the offences with which the appellant was charged. A special hearing was fixed to commence before Judge Luland on 22 April 2002.

68 On that day the appellant sought a stay of the special hearing. In a judgment in which his Honour ultimately refused the application, Judge Luland stated the grounds of the application as

“the protracted nature of the proceedings and that the proceedings to date have had a debilitating effect upon the accused to the point where she is said to be suicidal”.

His Honour referred to medical evidence tendered in those proceedings.

69 That evidence included a series of reports from the appellant’s treating psychiatrist, Dr John Menzies. I extract from those reports, in chronological order, the following:

29 November 1999	[The appellant] is suffering from an adjustment disorder with anxiety and depressive features. Her symptoms are severe. The illness began in February – March 1999 when she was notified she was to stand trial. She de-compensated and became extremely anxious, unable to sleep, her concentration and memory deteriorated and she developed dermatitis of her hands and face. … There was some gradual relief of symptoms after the end of her trial but now she has been notified of retrial her symptoms have escalated. Her mental health is undoubtedly at risk. She waits for and endures ‘the (re) trial’. This obviously has longer term ramifications.
28 February 2000	…[The appellant] has developed symptoms and signs of agoraphobia consequent upon notification of her trial date … The appellant’s condition continues to deteriorate and if ‘closure’ is not achieved she will deteriorate further.
31 January 2000	[The appellant] continues to be highly anxious and prone to recurrent depressive episodes. She has marked sleep disturbance with consequent diminished functioning during the day. She has poor concentration with difficulty attending to activities of daily living. A further court case will only worsen her condition.
22 March 2000	…
2 May 2000	[The appellant] remains in a highly fragile psychological state. We talked at length about her suicidal intent should she have to face trial.
22 August 2000	[The appellant’s] adjustment disorder with anxiety and depressive feature remains.
4 September 2000	The possibility of suicide remains a very real issue. It is something that I monitor closely during our therapy. … There is no doubt in my mind that a retrial would have a highly detrimental effect on [the appellant’s] mental (and physical) health. It is possible that psychiatric hospilatisation (sic) would occur. … If there were a stay of proceedings I believe it is most likely that [the appellant] would slowly recover and return to her previous levels of functioning. If the trial proceeds it is difficult to predict the outcome for [the appellant] – obviously her suicide would be a tragedy.
28 February 2001	Since September 1999 I have seen a marked deterioration in her mental health. Currently she is extremely anxious, unable to concentrate, unable to sleep without taking medication and functioning no where (sic) near the level at which she was before court proceedings were instituted. I believe she is not fit to attend court on 19.03.01.
27 June 2001	Since learning of the date for her interview with the Mental Health Tribunal [the appellant’s] anxiety has escalated markedly. She can’t sleep and has had to increase her night time sedation. She is having trouble concentrating, feels anxious and has had a recurrence of the neurodermatitis of her hands.
19 March 2001	Unfortunately [the appellant’s] condition deteriorates with the approach of her re-trail (sic). She is extremely anxious, can’t concentrate, cannot sleep without medication, is tearful and has suicidal thoughts. She is unfit to attend another psychiatrist’s assessment – and an enforced ‘assessment’ could have dire consequences.
11 February 2002	Psychologically [the appellant] remains ‘fragile’. She still sleeps poorly, is prone to episodes of anxiety and depression and requires regular anxiolytic and hypnotic medication. I believe there is no doubt that participation in a future ‘special hearing’ would result in a resurgence of her previous extreme symptomatology and the risk of suicide.
22 April 2002	[The appellant] is suffering from an acute on-chronic anxiety state. She did not sleep last evening despite medication. She is acutely anxious this morning and is incapable of being present at court today.

70 Dr Menzies gave oral evidence on the application. It was to the same effect as his sequential reports. He said that the appellant was, at that time, taking four times the initially prescribed dose of anti-anxiety medication and that, although she was taking sleeping medication every night, she often did not sleep. He said that her anxiety level was such that two nights earlier she had vomited four times in an extremely anxious state and had not slept the night before despite taking anti-anxiety and sleeping medication. He did not think she could give evidence and did not think that she could come to court voluntarily. He said that if she were brought to court involuntarily:

“… then it is hard to be certain what might happen. She might find it absolutely intolerable to sit in the Court room, she might feel nauseated, she might think she is going to vomit, she might vomit, in which case I’d presume she’d have to leave the Court room.”

He said that she would be unable to participate in the proceedings and that there was a risk of psychiatric damage or self harm if she were forced to attend court.

71 Dr Menzies was cross-examined on behalf of the Crown. Inter-alia, it was put to him that he had lost his objectivity, which he denied. This prompted Judge Luland, in his judgment, expressly to say that he had found the doctor to be a very good witness whose evidence he accepted.

72 There was other medical evidence, in documentary form, before his Honour. This included a report, dated 21 April 2002, from the appellant’s general practitioner, Dr Della Bruna. There was evidence to suggest that Dr Della Bruna has not only been the appellant’s treating general practitioner for several years, but also a friend. Dr Della Bruna wrote:

“As has happened on previous occasions, her already severe symptoms of depression and anxiety has worsened, despite her medication and consulting with her psychiatrist weekly to fortnightly and myself several times a week. The effects and repercussions of this seven-year criminal investigation of a red light camera matter are profound. I have watched a once bright, intelligent, vivacious, ambitious young woman, in a very successful job slowly decay over the years into a mere shell of her former self. She hasn’t been able to work since her trial whose conclusion was a hung jury – she relies on her medications which include xanax, rohypnol to gain any relief, even though temporary, from her anxieties, panic attacks and debilitating insomnia. …”

73 There were also reports prepared by two other psychiatrists. One of these was Dr Oldtree Clark, dated 13 March 2001. Dr Clark agreed with Dr Menzies’ diagnosis of “chronic severe depressive illness”. He wrote:

“This an (sic) agitated depression, presenting with extreme anxiety. This is masked by her use of xanax, but the symptoms as above are still quite obvious. She is deteriating (sic) over time.
There are further worrying features to her depression which indicate her emotional state is worse than when seen by Dr Menzies. At present, she is deluded, quite paranoid. She has grossly exaggerated ideas about trusting people, being followed and the like. This appears to be part of her depression rather than suffering some other paranoid illness.”

74 The final psychiatric report, dated 30 May 2000, opens with a passage as follows:

“In brief, [the appellant] suffers from chronic post traumatic stress disorder. Her illness is of an intensity that I do not believe I have ever seen before, … I have seen many accused persons, both before and after trials, and a certain level of anxiety is the norm. I have seen nothing like this before.”

75 However, the balance of the report is redolent with suppositions about the facts of the case, and what could fairly be characterised as invective. The opinions expressed are weakened thereby.

* * *

76 The circumstances in which a stay of criminal proceedings may be granted were considered by the High Court in Jago v The District Court of NSW (1989) 168 CLR 123. Subsequently the High Court turned its attention to the circumstances in which disciplinary proceedings against medical practitioners could be stayed: Walton v Gardiner, Herron and Gill (1993) 177 CLR 378. The first thing to observe is that the proceedings which the appellant seeks to have stayed are not, strictly, criminal proceedings. That emerges clearly from s21(1) of the MH(CP) Act which is in the following terms:

“(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.”

77 By s22(1) the verdicts available include a verdict of not guilty, a verdict of not guilty on the ground of mental illness, or a verdict “that on the limited evidence available, the accused person committed the offences charged”; and “that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged”.

78 By s22(3) a verdict that the accused person committed the offence charged or committed an alternative offence:

“constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.”

79 The reasoning in Jago was directed specifically to the question of a stay of criminal proceedings in the conventional sense. Further, the focus in that case was upon the circumstances in which a lengthy delay in pursuing criminal proceedings could give rise to a stay of those proceedings. Even bearing those qualifications in mind, however, there is a great deal in the reasoning in the various judgments in Jago that is applicable to the present case. Indeed, in many of the judgments, the phrase “abuse of process” appears: see for example, the judgments of Mason CJ (p 30); Brennan J (p 46); Deane J (pp 56-58); Toohey J (p 71); and the judgment of Gaudron J (p 74). These references indicate that, although the unfairness of a trial in circumstances where there has been a lengthy delay in bringing a prosecution was there under consideration, the court had in mind also the unfair or oppressive use of a court’s processes.

80 I hasten to note that, in the present case, there was no suggestion that, should a special hearing take place, that it would be characterised by unfairness of the kind under consideration in Jago. What was argued in the District Court, and repeated on appeal, was that, having regard to the medical evidence, and to all of the circumstances, including that the trial had not produced a verdict, persistence in the special hearing would be oppressive in such a way as to constitute an abuse of process.

81 In support of this proposition counsel for the appellant referred, not only to the medical evidence establishing the appellant’s extreme anxiety condition, but also to the evidence that she would be unable effectively to participate in the special hearing. In my opinion this latter circumstance must be discounted. It is in the very nature of a special hearing that the person the subject of the special hearing is hindered (at least) in his or her capacity effectively to participate. The fundamental finding that a person is unfit to be tried, that triggers the special hearing procedure, necessarily implies a limitation on the ability to participate or a complete inability to do so. The special hearing procedure is designed specifically for such a circumstance, although the extent of the limitation on the capacity to participate will vary from case to case. There will be some cases of extreme psychiatric disability as a result of which the accused person lacks any capacity whatever to participate but this, alone, is not, in my opinion, a circumstance which would require or even justify a stay. Indeed, in my opinion it is not a relevant factor at all and I leave it out of consideration.

82 In Walton, in a joint judgment of Mason CJ, Deane and Dawson JJ, the following appears:

“ … 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 … “ (pp 395 - 396)

83 Here, it cannot be gainsaid that the crimes with which the appellant was charged were very serious ones, concerned with the administration of justice. There is a significant public interest in the finalisation of allegations such as were levelled against the appellant. In the ordinary course, a failed trial would not be a reason precluding the further prosecution of such allegations.

84 I am extremely conscious that the decision subject of this ground of appeal was a discretionary one, and of the principles that apply to appellate intervention in such a judgment: House v the King (1936) 55 CLR 499, referred to in the draft judgment of Beazley JA. Even having in mind the stringency of those principles, I have come to the view that the medical evidence was so overwhelming as to dictate that the proceedings be stayed – if not permanently, at least temporarily.

85 In my opinion the appellant has brought herself within two of the circumstances mentioned in House as justifying appellate intervention in the exercise of discretion. The first of these is the weight given to the medical evidence. The judge adverted to and accepted the evidence of Dr Menzies, but made no reference to the evidence of Dr Oldtree Clark. I do not regard his failure to make reference to the content of the third psychiatric report as of any moment, having regard to the content of that report. However, in my opinion, his Honour gave insufficient weight to the extremely powerful medical evidence. The result of that error is that the outcome was so unreasonable and plainly unjust that this court should infer that there was a failure properly to exercise the discretion. The interests of the community in the finalisation of criminal charges does not override all other considerations. The extreme risk to the appellant’s well-being had to be balanced against that consideration. In my view, the balancing process went awry.

86 Bearing in mind the strictures of House, I draw comfort from the decision of the High Court in Thornberry v the Queen (1995) 69 ALJR 777. There the High Court unanimously allowed an appeal against a criminal conviction where the trial judge had refused an application for a brief adjournment of the trial. The court held that the trial judge’s discretion had miscarried, giving rise to a miscarriage of justice. It is true that a specific error (being a criticism of the accused’s solicitor) was held to be unwarranted but it seems to me that the fundamental reason for the decision in the High Court was the unreasonableness and injustice of the ruling. In my view the evidence in the present case establishes that the decision was of the same character.

87 Accordingly, I would allow the appeal and set aside the finding of guilt and the consequential orders.

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