In the matter of an application by Ramalingam [2009] ACTSC 58 (7 May 2009)

Last Updated: 20 July 2009

HUMAN RIGHTS ACT

IN THE MATTER OF AN APPLICATION BY SHANKAR RAMALINGAM

[2009] ACTSC 58 (7 May 2009)

Director of Public Prosecutions Act 1990 (ACT), s 7

Human Rights Act 2004 (ACT), s 21

Barton v R [1980] HCA 48; (1980) 147 CLR 75

R v Martin (1884) 10 VLR (L) 343

R v Gagliardi and Filippidis (1987) 26 A Crim R 391

EX TEMPORE JUDGMENT

No. SCC 354 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 7 May 2009

IN THE SUPREME COURT OF THE )

) No. SCC 354 of 2008

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION BY SHANKAR RAMALINGAM

ORDER

Judge: Refshauge J

Date: 7 May 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant before me, Shankar Ramalingam, was charged on 9 July 2008 with common assault and possession of an offensive weapon with intent, arising out of incidents that are alleged to have occurred late on the evening of 8 July 2008. Those proceedings were commenced in the Magistrates Court and on 10 September 2008 came before that court for hearing. On that day, Mr Ramalingam was committed for trial to the Supreme Court, because he refused to or did not make an election for summary trial.
2. That only applied to the charge of common assault, which was at that stage an indictable offence and could be dealt with in the Supreme Court. It did not apply to the charge of possessing an offensive weapon with intent, which was a purely summary matter and could not be dealt with in the ordinary way in the Supreme Court. That charge, accordingly, remained in the Magistrates Court.
3. The matter came before the court for directions on 18 September 2008 and orders were made requiring a draft indictment, case statement and prosecution answers to a questionnaire to be filed by 9 October 2008 and for the defence to respond by 16 October 2008. A draft indictment was filed, dated 29 October 2008, which followed an extension of time for the prosecution to do that, granted on 16 October 2008. That indictment contained four counts of charges alleged to have occurred on 8 July 2008 and the case statement makes it clear that those charges arise out of the same events that occurred late on the evening of 8 July 2008. The four counts were each charges of assault, two against his son and two against his wife. The case statement sets out the details of the case and identifies the circumstances surrounding when the four counts are said to have arisen. One of the alleged assaults was said to have occurred when he advanced on his son holding a knife above his head.
4. The proceedings in the Magistrates Court were by way of what is called a “hand-up brief”. That is to say, the statements prepared for the prosecution and by the prosecution were handed to Ms K Fryar, Magistrate, who was required to make a judgment as to whether there was a case to be committed to the Supreme Court in the absence of consent to the jurisdiction of the Magistrates Court by the defendant. Clearly Magistrate Fryar was of that view and the case was then committed to the Supreme Court.
5. Mr Ramalingam has applied to me for a stay of the indictment, so far as it relates to the 2nd, 3rd and 4th counts. In the grounds of his application, he says it is an abuse of power, an abuse of process and a violation of his human rights and he says that there has been harassment, bullying, intimidation and the creation and filing of frivolous charges in the Supreme Court. He added in oral submissions before me that he regarded the filing of the additional charges to amount to state terrorism.
6. In the submissions, it was clear that he was mainly concerned with the fact that instead of the charge of possessing an offensive weapon with intent he was now facing an additional assault charge, as he had been informed by the prosecutor who was then handling the matter that that purely summary charge of possessing an offensive weapon with intent had now become a count in the indictment in order that all matters could be dealt with in the Supreme Court and not in the Magistrates Court.
7. I pause to note that Mr Ramalingam had the choice to have all the matters dealt with in the Magistrates Court and that the proceedings could have been dealt with to finality in the Magistrates Court. In his affidavit, he says that he told Magistrate Fryar that he had read a newspaper article in the Canberra Times that was highly critical of the decisions made in the Magistrates Court of the ACT and as such, wished the charges to be transferred to the Supreme Court.
8. It is difficult for me now to understand why, if the charge that was left in the Magistrates Court was brought into the Supreme Court (although it was converted to a different charge) this is a subject of complaint. But nevertheless, I have to deal with the matter as it is before me. Because the charges that Mr Ramalingam faced in the Magistrates Court were different to some extent from the charges that he now faces, the situation is that the prosecution has now filed what is in effect an ex officio indictment. That is a power that s 7 of the Director of Public Prosecutions Act 1990 (ACT) gives to the prosecutor. It is a power that has to be used with care and if it is misused, there is authority in the High Court to make it clear that the court has power to stay the proceedings or indeed, to dismiss them as an abuse of process: Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 97, 103. In this case, it is clear to me that the facts of the charges do not go beyond the matters that were before Magistrate Fryar and so Mr Ramalingam has had notice of the facts upon which the prosecution proposes to rely and will allege and attempt to prove at the trial, in order to justify the four charges.
9. Mr Ramalingam is concerned that he has not received written notice of the reasons why the changes have been made. I can understand that citizens who are confronted with a change in the way in which a prosecution is conducted would benefit from an explanation as to why that change had been made. Was it because, for example, the police officer thought that one charge was sufficient to meet the culpability or not? Was it because the police officer had not completed the investigations when the charges were laid and no one considered whether there were additional charges that ought to be laid arising from the facts as disclosed?
10. I note that it is not uncommon for further charges to be laid in the Magistrates Court after the initial charges have been laid, because the opportunity has been taken to give careful thought, in accordance with the prosecutor’s role, to ensure that the proper charges are before the court and can be dealt with by it. Ms N Werner, who appeared for the respondent to the application and provided me with detailed and very helpful submissions on the range of issues that were potentially before me in this matter, was unable to assist in identifying the basis for the thinking behind the change in the number of charges. As a result I am sure that Mr Ramalingam will not be satisfied and will still consider that he has been dealt with in a way that he considers inappropriate.
11. That is not the test, however. The test for me is to look at the material, to hear the submissions of Mr Ramalingam and of Ms Werner and to make a decision as to whether the criterion set out in law for proceeding on the application has been met. A stay will only be granted if the proceedings are such that it would not be possible for Mr Ramalingam to receive a fair trial: see Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 96-97, 103, 107 & 109.
12. In these circumstances I have to consider what unfairness there is to Mr Ramalingam, which the court must be vigilant to ensure does not arise. I can understand that Mr Ramalingam, having thought that he was to face one charge, is now facing four charges and that he would see that as an unfairness to him. He has, however, had the full prosecution brief of evidence and statements and that sets out the evidence on which the prosecution proposes to rely. So he has had notice of all the circumstances.
13. By virtue of the provision of the case statement he has also had an explanation of the way in which the prosecution says that the facts which they allege show that there have been the four charges. The change in the charge from possessing a knife to an assault charge is a change from a charge that carries a lesser penalty, but a common assault is not the most serious charge and while it is more serious it has not increased the seriousness of the charge to such a degree that I believe there would be an unfairness in the trial of Mr Ramalingam: R v Martin (1884) 10 VLR (L) 343 at 346; Barton v R [1980] HCA 48; (1980) 147 CLR 75 at 97.
14. In addition Mr Ramalingam has had an opportunity to consider these facts and has responded to a questionnaire and has had reasonable of notice of the trial. It is not as if there were late statements that were produced, or complex statements that were produced, in a way that would prevent him from preparing properly for the trial. He did not raise before me any difficulties that he would have in preparing for the trial or any difficulties that he would have in meeting the case that was now being put before him. He did not indicate to me that he did not understand the case that was to be put before me or that he was in any doubt as to what the charges were that he was facing.
15. While Mr Ramalingam would possibly have benefited from an explanation as to why the additional charges were being laid against him, it may be that even if he had received an explanation it would not have satisfied him. That is, however, not really a matter that I can take heavily into account. If he had a legitimate sense of grievance because of the way in which the additional charges were laid, or there was some basis showing him to have been misled about the proceedings, then the situation may have been different. There was nothing, however, in the material that was presented to me to suggest that he had been misled about the circumstances or that he was disadvantaged in any other way.
16. Without going to the details of the authorities helpfully cited by Ms Werner, I am satisfied that the law is such that unless Mr Ramalingam satisfies me that he cannot get a fair trial or that he has been misled in some way to his disadvantage and to his prejudice in facing the charges that he has to face, there is no basis in law for me to grant a stay of the indictment. See R v Gagliardi and Filippidis (1987) 26 A Crim R 391 at 406-7.
17. I do urge that if there is some explanation that can be given to Mr Ramalingam about the way in which these charges eventuated then that might be given to him, but I have no power to direct the prosecution to do that nor do I do so. It is a matter entirely for the prosecution.
18. In all the circumstances, Mr Ramalingam has not satisfied me that his trial of these charges on the indictment will be unfair to any extent, and certainly not so unfair that there is no way in which a fair trial can be guaranteed to him, as he is obliged to have under s 21 of the Human Rights Act 2004 (ACT), other than by staying the indictment.
19. Accordingly the application is dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: ...2009

Counsel for the Crown: Ms N Werner

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Counsel for the defendant: Self-represented

Solicitor for the defendant: Self-represented

Date of hearing: 7 May 2009

Date of judgment: 7 May 2009