AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 25 November 2002

R v Subramanian

[2002] NSWCCA 372

Public order & justice offences
CRIMINAL LAW INTENT TO PERVERT THE COURSE OF JUSTICE FALSE STATUTORY DECLARATION FALSE EVIDENCE UNFIT TO BE TRIED WHETHER VERDICTS INCONSISTENT

Citation: R v Subramanian [2002] NSWCCA 372
Court: New South Wales Court of Criminal Appeal
Date: 25 November 2002
Judge(s): Beazley JA, Sully J, Simpson J

Background

The appellant was an employee of a solicitor whose vehicle was photographed by a red-light camera in August 1995. The traffic infringement notice was issued to the registered owner, the solicitor. The appellant subsequently made a statutory declaration in February 1996 accepting responsibility for driving the vehicle at the time, and later gave evidence to the District Court in August 1996.

The appellant was charged with two offences under s 319 of the Crimes Act 1900 (NSW): making a false statutory declaration with intent to pervert the course of justice, and giving false evidence to the District Court with the same intent. Because the appellant had been found unfit to be tried, the matter proceeded as a special hearing under the Mental Health (Criminal Procedure) Act 1990 (NSW).

The jury found the appellant guilty on the first count (the false statutory declaration) but not guilty on the second count (the false evidence to the District Court). The trial judge deferred sentencing and imposed a three-year good behaviour bond. The appellant appealed on four grounds.

  • Whether the jury's guilty verdict on the first count and not guilty verdict on the second count were inconsistent
  • Whether the verdict on the first count was unsafe and unsatisfactory
  • Whether the trial judge erred in refusing to permanently stay the proceedings on the basis of the appellant's mental health
  • Whether the trial judge erred in admitting a tape recording and transcript of a conversation between the appellant and a Crown witness

Decision

On the admission of the tape recording, the Court unanimously held that the trial judge made no error. The recording of the conversation between the appellant and the Crown witness was properly admitted into evidence.

On the question of inconsistent verdicts, the majority held the two verdicts were not inconsistent. There was a basis on which the jury might not have been satisfied that the evidence alleged to be false related to the same event, providing what the Court described, following R v Markuleski, as an "acceptable explanation for the differentiation between the divergent verdicts." The verdict on the first count was also held not to be unsafe or unsatisfactory, as the Crown's facts were capable of proving the elements of the offence under s 319.

On the stay application, Beazley JA and Sully J held that the trial judge had exercised his discretion appropriately when declining to permanently stay the proceedings, applying the principles in Jago v District Court of NSW and House v The King. Simpson J dissented on this point, finding the medical evidence was so overwhelming that it dictated at least a temporary stay. Her Honour concluded the trial judge gave insufficient weight to the psychiatric evidence and that the balancing of the community's interest in finalising criminal charges against the extreme risk to the appellant's wellbeing had miscarried.

Despite Simpson J's dissent on the stay question, all three judges agreed the appeal should be dismissed. The majority view on the stay issue therefore prevailed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Divergent verdicts on related counts are not automatically inconsistent: where a rational basis exists for the jury to differentiate between the counts, the verdicts will stand, provided there is an "acceptable explanation" for the divergence, as confirmed in R v Markuleski.
  • Under s 319 of the Crimes Act 1900 (NSW), a guilty verdict will not be unsafe or unsatisfactory where the facts alleged by the Crown are capable of proving each element of the offence.
  • A trial judge's discretion to refuse a permanent stay on mental health grounds will not ordinarily be disturbed on appeal, consistent with the stringent test for appellate intervention in discretionary decisions set out in House v The King.
  • Simpson J's dissent signals that overwhelming psychiatric evidence of risk to an accused's wellbeing may, in appropriate cases, warrant at least a temporary stay of criminal proceedings, even where a special hearing regime is available.
  • Special hearings under the Mental Health (Criminal Procedure) Act 1990 (NSW) carry their own procedural framework, and the fairness of those proceedings remains subject to scrutiny on appeal, including challenges to evidence admission and the refusal of a stay.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 312, 319
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 11A, 16, 18, 19, 21, 22, 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:
- Jago v The District Court of NSW (1989) 168 CLR 23
- House v The King (1936) 55 CLR 499
- R v Markuleski (2001) 52 NSWLR 82
- R v Rogerson (1992) 174 CLR 268
- Thornberry v The Queen (1993) 69 ALJR 777
- Walton v Gardiner, Herron and Gill (1993) 177 CLR 378
- R v Alexandroaia (1994) 81 A Crim R 286
- R v H [2002] NSWCCA 355
- Subramanian v R [2000] NSWCCA 441