Registrar of the District Court v Marina Balalis
[2008] SADC 4
•1 February 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
REGISTRAR OF THE DISTRICT COURT v MARINA BALALIS
[2008] SADC 4
Judgment of His Honour Judge Burley
1 February 2008
CRIMINAL LAW
CRIMINAL PROCEDURE - PRE-TRIAL PROCEDURE - APPLICATIONS FOR STAYS OF PROCEEDINGS - GRANTING OF STAYS - GROUNDS FOR THE GRANTING OF A STAY - ILLNESS OF AN ACCUSED DURING TRIAL
Application for permanent stay of proceedings due to mental health of defendant - discretionary power to grant stay - abuse of process to continue proceedings - opinion medical evidence - whether on humanitarian grounds stay should be granted - failure by applicant to give evidence - limitations onh medical evidence - evidence insufficient - application refused.
Criminal Law Consolidation Act Part 8: S269H; Mental Health (Criminal Procedure) Act 1990 (NSW) S19; Evidence Act S45A, referred to.
Witham v Holloway (1995) 183 CLR 525; Walton v Gardiner (1993) 177 CLR 378; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23, applied.
Southern Equities Corporation Limited (in liquidation) v Arthur Andersen & Co (No 10) (2002) 82 SASR 53; Southern Equities Corporation v Bond (No 2) (2001) 78 SASR 554, discussed.
Ridgeway v The Queen (1995) 184 CLR 19; Hunter v Chief Constable of The West Midlands Police & Ors [1982] AC 529; Ebatarinja & Anor v Deland and Ors (1998) 194 CLR 444; Kunnath v The State [1993] 4 All ER 30; R v Howson (1982) 74 Cr App R 172; R v Sexton (2000) 77 SASR 405; Hakim & Anor (1989) 41 A Crim R 372; Subramaniam v R (2004) 211 ALR 1; Gordon v R (1982) 41 ALR 64; Barton & Anor v The Queen & Anor (1980) 147 CLR 75, considered.
EVIDENCE
Medical report - history of plaintiff's complaints - admitted pursuant to statutory provision - whether hearsay in report probative of facts referred to
Evidence Act S45A, referred to.
Southern Equities v Bond (No 2) (2001) 78 SASR 554; Southern Equities v Arthur Andersen (2002) 82 SASR 53, applied.
REGISTRAR OF THE DISTRICT COURT v MARINA BALALIS
[2008] SADC 4
This is an application for a permanent stay of proceedings.
The summons in this matter was issued at the direction of a Judge of this Court, whose order required the Registrar to pursue proceedings for alleged contempt against the defendant. In the summons it is alleged that the defendant breached an order of this Court made on 15 August 2005 in Action No. 1030 of 2003. In that action, a company called JM Properties Pty Ltd (the company) sued Strata Corporation No. 13975 Inc and others. The third, fourth and sixth defendants in that action were Duke Constructions Pty Ltd, Duke Properties Pty Ltd and Anglican Superannuation Australia Limited. Those defendants obtained a Mareva injunction against JM Properties Pty Ltd, the defendant in this action, Marina Balalis, and her husband, Mr Jack Balalis.
The relevant parts of the injunction are:
Until further order:
(a)JM Properties Pty Ltd be restrained from disposing of, charging, incumbering or otherwise dealing with those assets held by it (including but not limited to units 4, 5 and 6 of the Strata Corporation No. 13975 Inc) without the written consent of Duke Constructions Pty Ltd, Duke Properties Pty Ltd and Anglican Superannuation Australia Limited, save that the property at 3/8 Railway Terrace, Port Elliot may be sold, if the proceeds are to be paid entirely to mortgagees in respect of the property and in respect of legal fees incurred up to 15 August 2005.
(b)Marina Balalis and Jack Balalis be restrained from disposing of, charging, incumbering or otherwise dealing with assets whether real property or the business of Cos Holdings Pty Ltd (formally Cos Catering Pty Ltd), without the written consent of Duke Constructions Pty Ltd, Duke Properties Pty Ltd and Anglican Superannuation Australia Limited.
In the summons, it is alleged against the second defendant, that she:
Disposed of, charged, incumbered or otherwise dealt with assets, the subject of the order, without the consent of the third, fourth and sixth defendants as follows:-
1.1On or about 10 September 2005 you, as one of the registered proprietors of the land comprised in Certificate of Title Register Book Volume 5906 Folio 450 (50A Clifford Street, Torrensville), agreed to borrow the sum of $52,000 from Financeco Pty Ltd, offering to the lender as security for the loan a mortgage and/or caveat over the said Title.
1.2Between 25-29 November 2005 you, as a director of JM Properties Pty Ltd, the registered proprietor of the land comprised in Certificates of Title Register Books Volume 5856 Folio 714, Volume 5856 Folio 512, Volume 5853 Folio 859 (Units 4, 5 and 6 in the Renaissance Arcade) agreed to borrow the sum of $200,000 from Ralph Mitrovic and Giuseppe Sidari, offering to the lenders as security for the loan a mortgage and a caveat over the said Titles, in addition to a personal guarantee as a director of the registered proprietor in respect of that company’s obligations pursuant to the loan agreement.
1.3Between 24 February – 1 March 2006 you, as the registered proprietor of the land comprised in Certificate of Title Register Book Volume 5380 Folio 777 (21 Caroline Drive, Allenby Gardens) agreed to borrow the sum of $23,000 from Frank Borg, offering to the lender as security for the loan a mortgage and/or a caveat over the said Title.
1.4On or about 22 December 2005 you, as a director of JM Properties Pty Ltd, the registered proprietor of the land comprised in Certificate of Title Register Book Volume 5941 Folio 593 (Unit 3/8 Railway Terrace, Port Elliot) agreed to vary the earlier loan agreement made in late November 2005 with Ralph Mitrovic and Giuseppe Sidari by borrowing an additional sum of $50,000, offering to the lenders as additional security for the now increased loan of $250,000, a mortgage and a caveat over the said Port Elliot Title, in addition to extending your earlier personal guarantee as a director of the registered proprietor in respect of that company’s obligations pursuant to the now varied loan agreement.
1.5On or about 24 February 2006 you, as the registered proprietor of the property located at 21 Caroline Drive, Allenby Gardens (Certificate of Title Volume 5380 Folio 777) entered into a contract for the sale and purchase of the said property as vendor and Aladino Di Rosa and/or nominees as purchaser for a purchase price of $580,000.
The hearing of the Registrar’s summons was listed to commence on 2 October 2007. Registrar’s summonses had also been issued against the defendant’s husband, Mr Jack Balalis, and the company JM Properties Pty Ltd. It was anticipated that there would be a joint trial of the three defendants respectively named in each of the three summonses. The three matters had earlier been listed for trial on two separate occasions but, for a variety of reasons, the trials did not proceed.
When these matters were called on for trial on 2 October, Mr Crocker appeared for the Registrar in each action, Mr Healy appeared for Mr Balalis and Mr Henchliffe for Mrs Balalis. There was no appearance on behalf of the company. I mention, for the sake of completeness, that JM Properties Pty Ltd had gone into liquidation prior to the commencement of these proceedings against the company, but the proceedings were authorised by an order of the Federal Court on condition that the Registrar did not seek a monetary penalty against the company if the company was found guilty of contempt.
Mr Henchliffe, on behalf of Mrs Balalis, applied for an adjournment of the trial in conjunction with a stay of the action against his client until further order. At that time he also intimated that he wished to have an enquiry conducted pursuant to Part 8 of the Criminal Law Consolidation Act, leading to a determination as to whether or not the defendant was fit to plead. That involved an examination of the matters referred to in section 269H of the Criminal Law Consolidation Act. That application was not subsequently pursued by the defendant.
I will not set out the detail of the way in which the three actions proceeded in the ensuing days. It is sufficient to say that I decided not to hear the three summonses jointly. The trial against the company has been adjourned sine die. The trial against Mr Balalis has been heard and completed to the point where I have reserved my decision. Mr Henchliffe eventually pursued only one application, namely for an order for a permanent stay of the proceedings against his client. Having taken the oral evidence of the psychiatrist, Dr Rose, on 2 October, the evidence and further submissions were resumed on the hearing of an application for a permanent stay by Mrs Balalis on 29 November 2007 and completed on 30 November 2007.
Much of the evidence on the application was advanced by the Registrar pursuant to his duty to the Court as a “model litigant”. The defendant contends that her mental health, including bouts of severe depression and a history of suicidal tendencies, provides the factual basis for a permanent stay of proceedings.
Because the relevant law is not in dispute, I shall first of all outline my understanding of the law.
The Applicable Legal Principles
The first point to be made is that the distinction once made between civil and criminal contempt is for the most part illusory. This is evident from the decision of the High Court in Witham v Holloway (1995) 183 CLR 525. In that case it was said (per Brennan, Deane, Toohey and Gaudron JJ at 534):
The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch [(1987) 16 CLR 15 at 49], that all proceedings for contempt ‘must realistically be seen as criminal in nature’.
The following is taken largely from the written submissions of counsel for the defendant. In Walton v Gardiner (1993) 177 CLR 378, the High Court dealt with a stay of proceedings before the Medical Tribunal. It was contended that the proceedings constituted an abuse of process because they were oppressive. Although the case involved a Court granting a stay in respect of proceedings before a Tribunal, the comments made by the High Court are equally applicable to an application for a permanent stay of proceedings made to the Court in which the proceedings have been pursued. The majority (Mason CJ, Deane J and Dawson J) said (at 392-3):
The inherent jurisdiction of a Superior Court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, maybe converted into instruments of injustice or unfairness.
In Ridgeway v The Queen (1995) 184 CLR 19, Gordon J said (at 75) that:
…notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.
Lord Diplock, in Hunter v Chief Constable of The West Midlands Police & Ors [1982] AC 529, referred to the power of the Court to stay proceedings. At the commencement of his speech, he said (at 536):
My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any Court of justice must possess to present misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to a litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories, the kinds of circumstances in which the Court has a duty (I disavow the word discretion) to exercise this salutary power.
Jago v The District Court of New South Wale & Orss (1989) 168 CLR 23 is another decision of the High Court relating to a stay of proceedings which were said to be an abuse of process. It is authority for the proposition that a permanent stay of the proceedings will be ordered if there is no other means by which the defect in the proceeding can be eliminated or remedied (at 49-50 per Brennan J). The power to grant a permanent stay of proceedings is discretionary and is to be used with caution (at 76, per Gaudron J).
It was submitted that if it were not possible for the defendant to obtain a fair trial, the continuation of the prosecution is an abuse of process. The entitlement to a fair trial is “the central prescript of our criminal law”: cf Jago v The District Court of New South Wales& Ors (supra) at 56, per Deane J. His Honour also said in that case (at 57):
The general notion of fairness, which has inspired much of the traditional criminal law of this country defies an analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial, which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of acts or law ostensible by us, the identification of what does and what does not remove the quality and fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of the sensually intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.
Mr Henchliffe placed reliance upon the principle that where there is a trial for a criminal offence, the defendant should be physically present and be able to understand the proceedings and the nature of the evidence adduced by the prosecution. This was recognised by the High Court in Ebatarinja & Anor v Deland and Ors (1998) 194 CLR 444 at 454 [26], where the High Court approved of the following comment of the Privy Council in Kunnath v The State [1993] 4 All ER 30 at 35:
It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. As our Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him. (citations omitted)
The defendant also relied upon the principle that it would be unfair to require a person to give evidence and be subject to cross-examination where, by reason of illness, they were not capable of dealing adequately with those requirements: R v Howson (1982) 74 Cr App R 172 at 179.
In deciding whether or not a permanent stay of proceedings might be granted, the ill-health of the defendant may, in exceptional circumstances, raise humanitarian considerations which support a stay even where the accused understands the nature of the trial process, so as to be able to make a proper defence to it: R v Sexton (2000) 77 SASR 405 at 418 per Gray J.
In Hakim & Anor (1989) 41 A Crim R 372, the accused had a long history of heart disease, his progress was poor and his memory was affected. The trial judge, Lee J, stated (at 377):
“I do feel compelled in light of the medical evidence, to take the view that to allow these charges to stand in the light of the continuing deterioration of Hakim, who is now 58 years of age, would be out of accord with common humanity, when the fact is also that he has already, to some extent, suffered prejudice in regard to his memory, from the passage of time between the commission of the alleged offence and now…I think this case just falls within the class of case which can be regarded as an abuse of process.”
Reference was also made to the decision of the High Court in Subramaniam v R (2004) 211 ALR 1. That was a case where the appellant applied for a stay of a special hearing under section 19 of the Mental Health (Criminal Procedure) Act 1990 (NSW). The appellant had previously been found unfit to stand trial. Section 19 of the Act permitted a hearing to be conducted to determine whether or not offences had been committed by the appellant. The High Court held that there was no relevant unfairness to the defendant in the conduct of a special hearing under section 19 of the Act. I do not think that that case assists with the questions raised on this application, except to the extent that the Court recognised the possibility that cases may arise where it “would be out of accord with common humanity” to allow matters to proceed. This comment was made in the context of a case involving a mental infirmity on the part of the defendant.
Mr Crocker submitted (and the defendant accepted) that the defendant bore a heavy onus on her application for a permanent stay. He submitted that the remedy was one of last resort. He referred to what was said by Mason CJ in Jago (supra) where he said (at 33):
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the case can relieve against its unfair consequences’: Barton (1980) 147 CLR 75 at 111 per Wilson J.
Having reviewed the cases, it seems to me that, if the defendant is to succeed on the application, she must establish that it would be an abuse of process to continue the proceedings to the point where she was required to attend the trial in order to address the matters alleged against her. This is to be contrasted with proceedings that might constitute an abuse of process from the moment that the proceedings are commenced. In my opinion, it could hardly be said that the commencement of these proceedings constituted an abuse of process in any of the many and varied ways in which such proceedings may arise. In addition, the continued prosecution of the proceedings to the point where a trial takes place would not constitute an abuse of process, at least to the extent that the defendant is in all respects fit to plead. This is clear from the evidence of Dr Rose who accepted, when cross-examined on the subject, that the defendant had the ability to understand the allegations that were made before her and to deal with them, albeit with some difficulty. In those circumstances, it seems to me that the only basis upon which her application might succeed is if she can demonstrate that she comes within those cases where it has been held that a stay should be granted on humanitarian grounds: R v Sexton (supra). It would only be in exceptional circumstances that humanitarian considerations require the granting of a stay.
The Facts
The evidence adduced by the defendant in support of her application commenced with the affidavit of Ms Giordano, the defendant’s solicitor, to which was exhibited of the report dated 16 September 2007 of a psychiatrist, Dr Lynette Rose.
The affidavit was initially filed in support of the application to vacate the trial date. In paragraph three of her affidavit, Ms Giordano related her instructions when she said:
“I’m instructed by Marina Balalis, that if the trial date is not vacated, she will kill herself rather than attend Court for the trial.”
Dr Rose gave evidence on 3 October 2007. During the course of that evidence, a second report dated 29 September 2007 was tendered. It is exhibit VD D1.
The defendant also tendered a number of documents:
Description of Document Exhibit Number Record of outcome in action number 103/2003 VD D15 Record of outcome in action number 719/2006 VD D16 Notice for specific directions in 1030/2003 (FDN 146) VD D17 Judgment of Judge Simpson dated 16 February 2006 VD D21 Judgment of Judge Simpson dated 28 April 2006 VD D22
The defendant did not attend court at the hearing of the application for a permanent stay.
The Registrar, in furtherance of his duty as a model litigant, adduced what further evidence was available, as appeared from affidavits filed by the defendant in the course of this action and action number 1030 of 2003 and from correspondence exchanged between the parties.
The Registrar issued and served a subpoena for the attendance by Dr Craig Raeside, a Psychiatrist, who saw the defendant on 30 April 2007 at the request of the defendant’s solicitor. Dr Raeside gave evidence. Mr Crocker accepted that communications between Mrs Balalis and Dr Raeside were protected by legal professional privilege. The defendant did not waive privilege and consequently, only limited evidence could be given by Dr Raeside in relation to the defendant’s mental health at the time that he saw her.
The documentary evidence tendered by the Registrar is as follows:
Description of Document Exhibit Number Letter from Dr Rose dated 18 March 2007 VD R2 Copy Facsimile dated 16 February 2007 VD R3 Letter from Dr Pam Dounas dated 18 December 2006 VD R4 Letter from Dr Pam Dounas dated 21 February 2007 VD R5 Written Authority of Defendant dated 31 August 2007 VD R6 File produced by Dr B Asokan (pursuant to subpoena) VD R7 File produced by Riverland Regional Health Service Inc (Berri Hospital) (pursuant to subpoena) VD R8 File produced by Dr Patrick Clarke (pursuant to subpoena) VD R10 File produced by the Adelaide Clinic (pursuant to subpoena) VD R11 Letter from Dr Dounas to Dr Rose dated 21 February 2007 VD R12 Letter from Griffin Hilditch to Mangan Ey dated 26 September 2007 and letter from Mangan Ey to Griffin Hilditch dated 27 September 2007 VD R13 Affidavit of Mrs Balalis dated 21 March 2006 (action number 1030/2003) VD R14 Affidavit of Mr Whitington sworn 30 October 2006 (719/2006) FDN 12 Affidavit of Mr Whitington sworn 9 January 2007 (718/2006, 719/2006 and 720/2006) FDN 13 Three letters from Griffin Hilditch to Mr Costi dated 2 March 2006, 14 March 2006 and 15 March 2006 VD R18 Transcript of Proceedings for Judge Muecke on 20 June 2007 VD R19 Video Tape VD R20
I have listed the exhibits admitted on the application in order to state precisely what exhibits I have taken into account in respect of the application. This has been necessary because, when the matters were first called on in early October 2007, there were three actions listed jointly for trial. As a result, the one transcript was maintained for a number of days recording sequentially all of the various attendances that took place in early October relating to the three actions. The applications pursued by Mrs Balalis for an adjournment/stay of the proceedings were commenced but not finalised. Then the trial on the contempt summons against Mr Jack Balalis was commenced and continued until its completion. Finally, on 29 November 2007, Mrs Balalis’ application recommenced and was concluded on 30 November 2007, when I reserved my decision. On 29 and 30 November 2007, the transcript related only to the application for a permanent stay in action 719/2006. In so far as the transcript for the earlier part of the application for a stay is concerned, pages 9-169 of the earlier transcript deal mainly, but not exclusively, with Mrs Balalis’ application for a stay.
From this point in my reasons I shall refer to Mrs Balalis as the defendant.
It is appropriate at this stage to deal with the use to which evidence of conversations between a medical practitioner and the defendant may be put. The necessity to do this arises from the fact that the defendant did not give evidence on the application, and, to the extent that affidavits of the defendant were admitted, those affidavits did not deal with any medical history given to the various medical practitioners whose reports have been admitted. Consequently, where Dr Rose in her reports and evidence, and the other medical practitioners in their reports or letters, have referred to what was stated by the defendant during the course of consultations, their evidence is hearsay. Normally the history would be proved by the defendant giving evidence and confirming what the medical practitioner has noted as the history taken: Gordon v R (1982) 41 ALR 64. Because the defendant has not given evidence on the application, she is reliant upon whatever admissible evidence may have been adduced during the course of the application which supports the existence of the history which the medical practitioners said was given to them.
In order to ascertain what evidence of medical history is available, I have had to consider in detail section 45A of the Evidence Act because exhibit R7, Dr Asokan’s file, exhibit R8, the Berri Hospital medical notes, exhibit R10 Dr Clarke’s file, exhibit R11, the file from the Adelaide Clinic and Dr Rose’s first report were all admitted pursuant to that provision. So were the letters from Dr Pam Dounas, exhibits R4, R5 and R12.
I have also had to consider some parts of Dr Rose’s oral evidence as to medical history which have a different probative effect from evidence admitted pursuant to section 45A. When a medical practitioner, for example, says “that the patient told me x and y and on the basis of that information I concluded that he or she was suffering from condition z, it is no more a statement that, “on the assumption that x and y occurred or were in existence (as the case may be) a diagnosis of z is justified”. That is the type of oral evidence as to history given by Dr Rose. Her oral evidence of history is not probative of the truth of the history.
However, where opinion evidence is given by way of a report admitted pursuant to section 45A of the Evidence Act and where the report states the medical history upon which the opinion is based, those stated facts, related as they were by the defendant to the medical practitioner, are evidence of the truth of the assertions made by the defendant to the medical practitioner. Reliance was placed on the decisions of Southern Equities Corporation Limited (in liquidation) v Arthur Andersen & Co (No. 10) (2002) 82 SASR 53, and Southern Equities Corporation v Bond (No. 2) (2001) 78 SASR 554. Those cases are authority for the proposition that where, for example, a medical report is tendered pursuant to section 45A of the Evidence Act, the hearsay history given by the patient to the medical practitioner recorded in the document is admissible and probative of the truth of that history.
It seems to me anomalous that a different evidential result applies depending on whether or not the expert who takes the history is called to give oral evidence or resort is had to section 45A of the Evidence Act. In dealing with this aspect of the matter, I have considered whether or not the defendant might rely upon section 45A in relation to the reports of Dr Rose, so at least a consistent approach might be adopted to evidence relating to the defendant’s history. However, that course is not open in relation to her second report (exhibit VD D1) because it was proved through her oral evidence. In other words, unlike her first report (annexed to Ms Giordano’s affidavit) it was not admitted pursuant to section 45A of the Evidence Act.
The result is, that when dealing with the opinions expressed by Dr Rose in her second report, if there is reference to additional history taken by Dr Rose not contained in her first report, that will have to be independently proved. With the medical reports or notes of Dr Asokan, Dr Dounas and Dr Clarke, I may take the statement by them as to history taken in their respective reports as probative of the truth of that history. The same approach applies to any relevant medical history contained in the Berri Hospital notes and the Adelaide Clinic notes.
Mr Henchliffe properly conceded that the provision in section 45A of the Evidence Act which deal with the weight to be attached to the evidence adduced pursuant to that section, needs to be considered. He accepted, again I think correctly, that evidence of medical history contained as hearsay in a medical report, although probative of the truth of the history, cannot be given the same weight as evidence of history given by the defendant herself.
To date I have not mentioned, in relation to section 45A, the evidence of Dr Raeside. His evidence was such that the evidential questions discussed above did not come into play. He did not give evidence as to conversations between himself and the defendant because Mr Crocker accepted that such evidence was properly the subject of a claim for privilege. To the extent that he gave opinions as to the mental state of the defendant at the time that he saw her, those opinions were based not on history taken but on his own observations of the way in which she conducted herself during the consultation.
I turn now to the evidence of Dr Rose. She is a qualified and experienced psychiatrist. She is an experienced expert witness and her medico-legal work includes making assessments on whether or not defendants in criminal proceedings are fit to plead. This involves an examination of section 269H of the Criminal Law Consolidation Act.
Dr Rose saw the defendant in March and August 2007. She referred to her report of 16 September 2007, a copy of which is exhibited to the affidavit of Ms Giordano. Dr Rose found it difficult to obtain the defendant’s “mental health history”. On each occasion that she saw the defendant, she found her to be very distressed and that “limited her ability to relate details of events without the conversation becoming derailed”. This was particularly so at the consultation in March 2007.
In paragraph (b) of page 2 of the first report, she said as to the history given by the defendant:
She explained to me that her life was her business and her children. She was the one in the marriage with ‘business sense’. In about 2001 things began to fall apart in her life. Her mother was diagnosed with ovarian cancer, and she took time out from work and her family to nurse her for two years, mostly at her mother’s home in Renmark. Whilst she was doing this her husband had an affair, which left her devastated, and led to divorce. There were also many conflicts with her husband’s family. At around this time there was a dispute with the Anglican Church and the Renaissance Arcade, over finance, and her business went bankrupt.
In 2001 the defendant was diagnosed with a brain cyst and later with irritable bowel syndrome. Records from the defendant’s general practitioner, Dr Dounas, indicate that the defendant was treated for depression “as far back as 1999 – before her mother became ill, her marriage ended and she went bankrupt”.
Dr Rose recorded that the losses of her mother, her marriage and her business left her feeling humiliated and extremely angry and depressed. She told Dr Rose that she no longer wanted to live, that she took an overdose of medication and was found by her youngest son.
The defendant also told Dr Rose that she was admitted to the Adelaide Clinic for psychiatric treatment and whilst there, took a high lethality overdose, and that she was only found by chance. She remained an inpatient at the clinic for three months. She told Dr Rose that she lived for some time with her father in Renmark, at which time she was very depressed, “amotivated and uninterested in things until 2006”. She did not give Dr Rose a clear understanding of the sequence of these various events.
At page 3 of the first report Dr Rose said in paragraph (c):
In March Mrs Balalis reported that she was living alone, struggling not to kill herself, the need to support her sons keeping her alive. She was working for a company owned by her sons. She reported that she was running a chicken shop for them, keeping a facade up at work, but frequently tearful when alone and unguarded. She lives interstate but said that with reminders of Court, and even just flying into Adelaide, walking past the Renaissance Arcade or near the Court area, she began to shake uncontrollably. She stated that she was sleeping very poorly and taking Stilnox and Lorazepan. She said that she had no appetite and had lost weight. She no longer cared about her appearance as she did previously, and had not followed up on issues around her physical health. She complained of problems with memory, and of migraines. She stated that in addition to feeling depressed she was at times panicky….she was preoccupied by the injustice of events with the Church and finances and also the legal system.
When seen in August she was considerably more settled, but still very angry about the losses, and about the way the legal system operates. She felt that morally she had not committed any criminal offence – that she was too overwhelmed by the loss of her mother, her marriage and the business to be aware that she was breaking a Court order. In August she reported that she suffers headaches when stressed or tired, and has insomnia and nightmares. She said she wakes in a sweat with chest pain and nausea. She said she stills cries at home most nights – thinking of her losses – of her family, her life in Adelaide, her lifestyle, friends, business, marriage and reputation. She feels totally impatent. This together with the stress becomes much worse with reminders – time, place and Court proceedings.
Dr Rose said in her first report that the prognosis was reasonable, although the defendant is likely to remain very angry about her losses and how they came about and what she identifies as injustices within the legal system. Dr Rose said at paragraph (e) of page 4 of her first report:
She stated that she no longer wants to be dead, and that the passage of time has been helpful. She stated that once the Court proceedings are over, she would be better able to get on with her life. She would like to re-establish herself as a business woman. Regaining her self-esteem and the respect of others.
Notwithstanding the reasonable prognosis, Dr Rose said at paragraph (f) on page 4 of her first report:
Mrs Balalis becomes acutely agitated, with very high levels of distress and anger, when discussing the Court proceedings. She reports feeling unable to cope and fears loosing control. She feels very humiliated by bankruptcy. I believe that having to listen to the evidence in Court would be overwhelming. The stress of being in Court could precipitate a suicide attempt, just as the humiliation and loss did several years ago. It will bring all those events back to the present for her with a high level of acuity.
At paragraph (g) on page 4 of her first report, Dr Rose said that she thought that the defendant was currently fit to stand trial. She confirmed this in her evidence at the hearing when cross-examined by Mr Crocker in some detail on that topic.
Dr Rose’s second report (exhibit VD D1) is dated 29 September 2007. It was tendered as part of her examination-in-chief.
I mentioned earlier in these reasons, the anomaly of the probative effect of hearsay evidence admitted under section 45A of the Evidence Act and evidence of history adduced during the oral evidence of a medical witness. That anomaly could only apply to the second report of Dr Rose because all of the other medical evidence (apart from Dr Raeside’s evidence) was admitted pursuant to section 45A. Having read Dr Rose’s second report, it is not apparent from the contents of that report that more details of medical history were obtained prior to the preparation of the second report, which had not already been obtained prior to the preparation of the first report. Consequently, the medical history referred to in the first report forms the factual basis for the opinions expressed in the second report. Because the medical history taken in the first report is evidence of the truth of the medical history and because there is no material additional history referred to in the second report, the evidential anomaly does not arise. That does not mean, however, that evidence relating to history contained in Dr Rose’s first report (or in any report of any other medical witness) must be uncritically accepted. It is to be treated like any other evidence and reviewed for its strengths and weaknesses.
In her second report, Dr Rose responded to further questions put to her by the defendant’s solicitors. These related to the ability of the defendant to attend Court for the duration of the trial relating to the alleged contempt, whether attendance at trial would increase the risk of her attempting to commit suicide, her ability to give evidence at the hearing and to withstand cross-examination, whether her attendance and participation at the trial as a witness would lead to a worsening of her psychiatric condition and the prospects of improvement in the future.
It is clear from Dr Rose’s second report that she is of the opinion that attendance at and participation in the trial arising on the Registrar’s summons for alleged contempt would adversely affect the defendant in a variety of ways, including an increased risk of a suicide attempt. The trial would revive the many adverse feelings experienced by the defendant arising from the proceedings in the District Court, the end result of which was the bankruptcy of the defendant and the liquidation of her company. Rightly or wrongly, she feels strongly aggrieved by that process.
It is also clear that if the defendant has to, at trial, deal with the various charges of contempt that have been laid by the Registrar, this is likely to revive in her the anguish, anger and sense of injustice that she feels arising from the earlier proceedings which lead to her economic ruin.
In evidence, Dr Rose said that the major depressive illness she observed when she saw the defendant in March of this year had by August, resolved. She described her present condition as “an adjustment disorder with disturbance of emotions and conduct…” (T. 31/35).
When asked about the risk of suicide, if the contempt trial were to proceed, Dr Rose said (at T. 32/23 et seq):
AYes. In terms of suicide attempts, it’s not always related to a depressive illness. It can be related to other conditions as well, commonly. Often it’s related to personality style and she has got quite a volatile personality style. It can be related to acute and severe stress, and that’s how she says that she perceives the Court case. It can also be related – and in assessing risk, the things that are important are history of past attempts and that’s certainly been the case, and also, in my experience, anger plays a large role when people attempt suicide, as well as distress is almost always an element of extreme anger and rage.
QSo you wouldn’t discount a risk arising independently of any depressive illness that she may have or maybe getting from now.
ANo.
Dr Rose was asked about the behaviour of the defendant when talking about the impending Court case. She said (T.34/1):
AShe became extremely agitated and enraged and distress[ed], fluctuating rapidly between tears and anger and then tears again, and couldn’t respond appropriately to questions about what was going on.
HIS HONOUR
QThis doesn’t appear to me, the way you describe it, to be the behaviour of a woman who is, in a calculating way, pretending in an effort to avoid facing up to these proceedings.
AI don’t believe she was. She was quite calm and other times during the interview, talking about her sons and other aspects of her life. She was much calmer than when I saw her earlier in the year. So that’s why I thought the depression probably settled, as she could talk calmly, rationally, reasonably about other things, but as soon as she got onto anything related to this Court case, to the bankruptcy, to the business, to events occurring at that time in her life, she became very, very distraught in her conversation, very volatile in her mood.
She went on to say that if the defendant was required to attend the trial in relation to the contempt charges, she would exhibit the same sort of behaviour but to a greater degree than the behaviour displayed at the last consultation.
Dr Rose’s opinions were based, in part, on an understanding that there was a suicide attempt which lead to her admission to the Adelaide Clinic and a further suicide attempt whilst she was a resident at the Adelaide Clinic. Mr Crocker did not accept that this was correct. I shall return to this aspect of the matter.
Dr Rose has allowed for the fact that that the defendant exaggerates her problems (T.35/22). Nevertheless, when asked whether there was an increased risk of a suicide attempt if the defendant had to sit in court during trial, Dr Rose thought there would be a significant risk of attempted suicide (T.36/8).
In the course of her evidence she referred to depression and drew the distinction between depression as a physical illness because of a chemical imbalance in the brain and another form of depression constituted by an “acute reaction to circumstances”. Dr Rose was of the view that if the defendant were to come to court for the contempt trial “she will get acutely distressed and depressed just as a reaction to the circumstances without there necessarily being a biochemical change” (T.36/23 et seq).
If she were to experience such depression, that would be a factor having a bearing upon whether or not there might be a further suicide attempt.
Dr Rose was of the view that the defendant would have difficulty in giving her evidence in a rational fashion (T.37/8 et seq). That is a matter common to many witnesses arising from various causes. Nevertheless, the difficulties the defendant is likely to encounter in giving her evidence is a factor which should be taken into account. By itself, the problem would not lead to the granting of a stay of proceedings, but it should be taken into account in conjunction with any other matter relevant to the granting or withholding of a stay.
It is clear from Dr Rose’s evidence that, if the pending trial for alleged contempt is put to one side, the defendant’s prognosis is relatively good. She is no longer suffering from depression although she may be taking antidepressant medication. Having said that “the global prognosis is good”, Dr Rose said that when she had to confront the past she becomes “volatile, depressed [and] agitated” (T.39/1).
Dr Rose also dealt with, in her second report and in her evidence, the question of how long this situation would persist into the future. She was of the opinion that it would take many years for her to reach a stage where a detailed reminder of events of the past including the unsuccessful proceedings before Judge Simpson, marital problems, the death of her mother, did not provoke in her an extreme reaction.
In cross examination (T.42/11 et seq), Dr Rose was asked about the risk of an attempted suicide if the defendant had to attend trial for the purposes and making out a defence to the allegations made against her. She was asked whether a risk arose “because of the fact of having to come to court and confronting [the] allegations in the trial”. Dr Rose’s answer was:
ANo; because it reminds her of the events that happened 2 or 3 years ago. It’s not specifically the court but it’s a reminder of the events that have led up to this and were occurring around that time.
I then asked her the question:
QWhat does that reminder in turn lead to.
AThe reminder makes her distressed, angry, agitated, depressed because it reminds her that her marriage failed, that her children swore an affidavit saying negative things about her; reminds her of the time she was nursing her mother whilst she was dying of cancer; her husband’s affair, the problem in the Renaissance Centre that she had with the owners or whoever, it reminds her of all of those things and they all get tangled in her emotional state; she can’t disentangle them.
Dr Rose was also cross-examined at some length about the stressors experienced by the defendant which led to her suffering from depression. It is clear that there were many such stressors which were not directly related to the unsuccessful proceedings before Judge Simpson and the subsequent bankruptcy. I do not think that anything turns on this. It was not suggested by Mr Crocker that the defendant was confined to matters arising from the unsuccessful previous proceedings and subsequent bankruptcy. It would, in my opinion, be wholly artificial to confine the basis of this application to the stressors arising from those proceedings and the subsequent bankruptcy. The whole of the defendant’s psychological condition at relevant times must be taken into account in order to form a proper view of what the effect is likely to be on the defendant if she is required to deal with the trial for alleged contempt as raised in the Registrar’s summons. This is particularly so in a case such as this where I have determined that the only basis upon which the defendant might succeed is to resort to the exceptional case of reliance upon humanitarian considerations. Such a reliance requires the defendant to establish that it would be clearly contrary to ordinarily accepted notions of humanity to permit the summons for alleged contempt to proceed to trial because of the serious adverse effects such a procedure would be likely to be visited upon the defendant. All of the defendant’s psychiatric history is capable of being material to that question.
During the course of his cross-examination, Mr Crocker addressed the question of the defendant’s ability to cope with a trial where reasonable steps could be taken to alleviate the burden that might otherwise be imposed upon the defendant. She was asked (T.81 et seq):
QWould you agree with this proposition, that if she had the opportunity to receive legal assistance during the trial and some professional assistance in terms of counselling support or medical support, although she would find it difficult and confronting to perhaps go back to this time, she would be able to manage with those sorts of safeguards and assistance.
AI think it would reduce her suicide risk a little but there would still be a significant suicide risk whenever this occurs and no matter what support she gets, she’s not going to have that support 24 hours a day, she’s going to go home to – I’m not sure what, and have to cope on her own overnight until she comes in. You know, the support isn’t going to be there 24 hours a day.
When asked later how the risk of suicide might be minimised she said (T.86/17):
I think it would be very difficult to minimise the risk. It’s a risk that’s going to be there no matter when the trial takes place. It’s going to diminish a little bit over time but not greatly so it’s always going to be a risk but it’s less now than it was six months ago so it may reduce further over time. Minimising the risk if it takes place over the next eight days will be difficult; sedation with a benzodiazepine, valium or something is an option but that will then perhaps her drowsy and less able to comprehend and take in what’s going on.
It was also put to her that if the length of the trial were shortened, if there were shorter sitting times during the day and that she had appropriate treatment from a health professional the risk of suicide would be reduced, she said (T.87/21):
I think she would still be at significant risk but that risk would be reduced.
Dr Rose accepted that in forming her opinions, she had to take a history from the defendant in circumstances where it was very difficult to do so. She also accepted that she was either unable to ascertain or she was not given a full account of all the circumstances relevant to her diagnosis. This is perhaps best summarised in the last question and answer of her cross-examination where she accepted that she had only seen the defendant twice, she was only able to take a “fairly garbled history” from her and that, on the second time she saw the defendant, she noticed improvement. In that context she thought there was a significant risk of suicide and she acknowledged that there was other information relevant to that question of which she was not aware.
Mr Crocker submitted that I should be careful about placing reliance upon Dr Rose’s opinions, not because Dr Rose was an unsatisfactory witness but because her opinions were based on a history which was both incomplete and inaccurate. In my opinion, this is the correct approach to be taken.
Having reviewed Dr Rose’s evidence, I have formed the view that I should accept her opinions as a guide to what may possibly occur if the defendant is required to defend herself at a trial of these proceedings.
The first witness called by the plaintiff was Dr Raeside. Because privilege was not waived, his evidence was limited to any opinions that he might be able to express based solely on material obtained by him that was not the subject of a claim for privilege. For example, if he was able to express an opinion as to the defendant’s mental health at the time of the consultation by reference only to the defendant’s demeanour, it was accepted by Mr Henchliffe that such an opinion could be given provided that it was relevant.
Dr Raeside stated (T.58/3) that when he saw her, the defendant was suffering from a depressive illness which he considered to be a major depressive disorder with associated anxiety symptoms. The date of his consultation with the defendant was 30 April 2007. His evidence is consistent with the documentary evidence as to the defendant’s psychiatric condition and the evidence given at the hearing by Dr Rose.
It was submitted by Mr Henchliffe, and I agree, that the documentary exhibits establish that the defendant has suffered psychiatric problems for a number of years. Dr Dounas’ report of 21 February 2007 (exhibit R5) establishes that the defendant has suffered from depression since 2004. She has seen a number of psychiatrists including Dr Laschek. When he retired she then consulted Dr Asokan in June 2005.
In early 2005 the trial before Judge Simpson took place. She reserved her decision on 25 February 2005, and delivered judgment on 16 February 2006. In mid-March 2006 the third, fourth and sixth defendants in the action heard by Judge Simpson applied for orders that the Registrar summons for contempt be issued against Mrs Balalis, her husband and the company. Her condition deteriorated after that application was made. She was admitted to the Adelaide Clinic on three occasions during 2006 for periods of 15 days, 19 days and 14 days respectively. On the third occasion she was discharged on 22 June 2006. In late July-early August she was admitted to the Riverland Hospital for a period of 13 days.
There is no doubt in my mind that the proceedings brought by the company against various defendants placed a great deal of strain upon the defendant. There was a relatively lengthy trial involving multiple parties in relation to a property dispute about strata units and the contractual obligations of the company in relation thereto. The trial was followed by an application for a Mareva injunction, the granting of such orders, applications to vary Mareva injunctions which were unsuccessful and finally, resulting in the successful application for orders that the three Registrar summonses be issued against respectively, the defendant, her husband and the company.
The evidence of Dr Rose and the documentary evidence from other psychiatrists paint a picture of the defendant being highly volatile and sometimes an unstable person whose life has been severely disrupted by a variety of matters including the extensive litigation just referred to. As a result of these proceedings and other factors, there has been at least one and possibly two attempts by the defendant to commit suicide in the past. I am not able to make a more specific finding as to the number of suicide attempts.
The other factors contributing to the defendant’s distress include problems with her marriage and subsequent divorce proceedings, problems with her children, the death of her mother and bankruptcy resulting from the earlier District Court litigation. Not only was she personally made bankrupt, but also the company through which she and her husband carried on business, went into liquidation. All of these factors combined to overwhelm the defendant to the point where, at least on one occasion, she attempted to commit suicide.
It is the clear evidence of Dr Rose that if she is required to defend herself at the trial of the Registrar’s summons, this will revive in her the memory of all of the stress and strain of the past. Dr Rose says that the stress arising from the District Court proceedings and the subsequent bankruptcy is inextricably linked with the other personal tragedies that she had to deal with such as the death of her mother and the break-up of her marriage. On that basis, it is Dr Rose’s opinion that the trial for alleged contempt will not only revive the anger and distress in relation to the District Court proceedings but also in relation to the other stressors which contributed to her psychiatric condition.
It seems to me that if Dr Rose’s evidence is accepted in an unqualified way, there is some force in the argument that it “would be out of accord with common humanity” to permit the trial to proceed. There are, however, three aspects of the application which may require a different conclusion.
First, it is a matter of some concern to me that the defendant has not given evidence personally on the application. This was referred to during the course of the hearing. Mr Henchliffe submitted that it necessarily follows that if a person is seeking a stay on the basis advanced by the defendant, she is equally unable to attend the hearing of the application for a stay and to give evidence in relation thereto. I do not think that that necessarily follows. If I am right in that view, I then have to deal with an application made by an applicant whom I regard as being capable of giving evidence in support of the application but who has declined to do so. I have real difficulty in accepting that in those circumstances the applicant has fulfilled the heavy requirements that the law places upon her in pursuance of such an application. I shall return to this aspect of the matter later in these reasons.
The defendant’s failure to give evidence is linked with the second aspect. This relates to the evidence of Dr Raeside. My concern relates not so much as to what he said because, in a general way, his evidence was supportive of the defendant’s position. However, I think it is significant that the defendant did not call Dr Raeside, even though he was consulted on a medico-legal basis at a time when these proceedings were nearing trial. In addition, when Dr Raeside was instead called by the plaintiff, the defendant, through her counsel, took objection to Dr Raeside giving evidence whenever legal professional privilege provided a means of excluding his evidence. In my opinion, the failure to call Dr Raeside and the objections to his evidence when he was called justify the inference that, had he been called by the defendant (on the basis that privilege was waived) his evidence as a whole would not have assisted the defendant’s case. I draw such an inference. This raises a doubt about the sufficiency of the defendant’s case, which, I hasten to add, is not in itself determinative of the application, but it nevertheless is a factor which needs to be taken into account along with everything else.
The third aspect is that the defendant’s psychiatric condition in the past has been contributed to by a number of factors which may be conveniently divided into two categories, namely, the previous litigation and resulting bankruptcy and personal factors not associated with that litigation. The latter includes such things as marriage breakdown and the death of her mother. However tragic those non-litigious matters may be, the effluxion of time lessens the pain caused by such events. Several years have now elapsed and a reasonable expectation would be, notwithstanding the volatility of the defendant’s nature, that she has made some adjustments in order to deal with those stressful matters. It follows that, even if the impending trial for alleged contempt were to revive in the defendant the memories of these various stressors in the past, and I accept that that is likely to occur, she will not in the future be subject to the same intensity of stress as applied when, in the past, she was subjected to the immediate stress arising from those various events. This conclusion applies in particular to the former stressful events not related to the District Court litigation. But the approach also applies to the stress placed upon the defendant by the revival of the memories of the past litigation as a result of having to deal with the trial for alleged contempt. In other words, the degree of stress to which she will undoubtedly be subject by having past events revived in her memory, is likely to be less than the actual stress experienced by her when she lived through those events. If that approach is correct, and I think it is, the contention that suicide has been attempted in the past and is therefore likely to be attempted in the future, loses some of its force because the stressors giving rise to suicide attempts, and suicidal thoughts, in the past, are greater than the stress induced by the trial for alleged contempt. In my opinion, Dr Rose’s evidence as to the existence of a significant risk of a suicide attempt in the future must be looked at in that light.
I now return to the question of the defendant’s failure to give evidence in support of her application. If I accept her counsel’s submission that her decision not to give evidence on the application is justified by the same grounds for the application itself, then her application must be viewed in that light. However, if, as I have said, I were to come to the view that the defendant has chosen not to give evidence in support of it in circumstances where she could do so without undue adverse effects being visited upon her, the cogency of her case is undermined.
I referred earlier to the possible consequences of a finding that the defendant was able to give evidence but chose not to do so. It might be more accurate to put the question in another form: has the defendant sufficiently explained why she has not gone into the witness box in support of her application? In my opinion, the answer to that question is that she has not. The evidence adduced by both parties does not adequately deal with that question..
In my opinion, clear and unequivocal evidence must be adduced by the defendant to explain why she has not given evidence because a stay granted on humanitarian grounds is an exceptional case. The ordinary expectation is that the applicant will give evidence in support of the application unless there is a sufficient explanation for her not doing so. In my opinion, the explanation that she is not capable of giving evidence on the application for the same reasons that it would be unfair to permit the trial for alleged contempt to go ahead is insufficient. An application for a stay is materially different from a trial for alleged contempt. Although, to give evidence on this application would probably revive memories of past stressors, there is no clear evidence before me that this would result in a recurrence of depression and/or suicidal thoughts or behaviour. There is thus missing from the defendant’s application the essential ingredient of either her own evidence from the witness box or a satisfactory explanation of the absence of such evidence.
In my opinion, the adverse inference arising from the circumstances in which Dr Raeside gave evidence, the defendant’s failure to give evidence or to provide a satisfactory explanation for not doing so and the limitations evidence from the evidence of Dr Rose resulting from a partly selective, partly incomplete and partly exaggerated history obtained by Dr Rose from the defendant and other medical practitioners, all combine to the point where it cannot be said that the defendant has satisfied the heavy onus upon her in pursuing an application for what Mr Crocker described as judicially conferred immunity from prosecution.
I am not able to make findings that the defendant is not genuine in her concerns, but equally, the evidence is not sufficient to enable me to be satisfied that a permanent stay should be granted. It is in this manner that the defendant has failed to meet the requirements of the application.
In these circumstances the application for a permanent stay of proceedings will be dismissed.
11
1