R v Sridharan[2017] QCA 160

SUPREME COURT OF QUEENSLAND

1. SOFRONOFF P:  I agree with the reasons of McMurdo JA.
2. McMURDO JA:  Following a two day jury trial in the District Court, the appellant was convicted of an offence of extortion.  At the conclusion of the hearing of this appeal, this Court ordered that the conviction be set aside.  These are my reasons for agreeing with that order being made.
3. The appellant was found to have demanded a sum of money, without reasonable cause, intending to gain a benefit by the payment of that sum and threatening to cause detriment to a company which was his former employer.  The threat was made by a letter to the complainant, in which the appellant alleged a series of breaches of laws by the complainant in the conduct of its business as well as discriminatory conduct by the complainant in the course of, and ultimately in the termination of, his employment.  The offence was committed with the circumstance of aggravation that the carrying out of the threat was likely to have caused substantial economic loss to the complainant.
4. The trial judge ordered a pre-sentence report before ultimately sentencing the appellant on 18 November 2016.  The sentence imposed was a term of 18 months’ imprisonment with immediate parole.  A period of pre-sentence custody was declared.  However the appellant subsequently breached his parole and was in custody at the hearing of the appeal.
5. At the trial the appellant did not dispute that he was the author of the letter, which, as I will discuss, was well established by the evidence.  An officer of the complainant company established the circumstance of aggravation.  The elements of the offence itself were proved by the terms of the letter.  In particular it was open to the jury to infer from the terms of the letter that the appellant acted with the requisite intent.  That was notwithstanding the fact that the appellant had later written a letter of apology, in which he said that his original letter was not intended to be a threat.
6. Both at his trial and in this appeal, the appellant was without legal representation.  The focus of the appellant’s cross-examination of the investigating police officer and his address to the jury was not upon any element of the offence or the circumstance of aggravation, but upon whether, as was stated on the face of the indictment, the prosecution had been commenced with the consent of the Attorney-General, as required by s 415(5).  A judge had ruled before the trial that the argument was unmeritorious.
7. In his notice of appeal, the sole ground was said to be that there was “no specified threat to constitute … a circumstance of aggravation”.  The content of that ground was not explained by the appellant’s outline of argument.
8. Rather the outline disputed the conviction by an assertion that documents tendered in the Crown case were not duly proved, including the letter in which the appellant made his demand and threats.  As I have said, that letter was well proved by other evidence to have been the appellant’s letter.  The letter was dated 16 March 2015.  A fortnight later, police executed a search warrant at the appellant’s residence and found a document bearing a signature over the name of the appellant, headed “Terms and Conditions”, which became Exhibit 9.  The document set out the same conditions as the subject letter dated 16 March 2015.  It appears to have been another draft of what became the final page of the subject letter.  Also found during this search was a document, which became Exhibit 10, which was described as “handwriting samples”, and contained a number of signatures.
9. A document examiner with Queensland Police was called to give evidence of a comparison between the signatures on Exhibits 9 and 10 with that on the subject letter.  The evidence of that witness was that the signatures on all of the documents were written by the same person.
10. On the day following the search, according to the evidence of an investigating police officer, the appellant presented to police another letter, which became Exhibit 11.  This was the letter of apology to which I have referred.  This  letter was handwritten and signed, on its face, by the appellant and was as follows:

“… I would like to make it clear that the letter was not intended to cause threat to [the person to whom the subject letter of 16 March 2015 had been addressed].  The letter was also not intended to cause threat to [the complainant company].  The settlement is a reflection of what I had to endure, as mentioned in my first line.  As advised by Senior Constable Belinda Gregg I will address the issues with the government authorities.  I have never done this before so I did not know how to approach the issues.”

11. In his oral submissions in this Court, the appellant submitted that the subject letter was proved as his letter only by the use of the letter of apology, Exhibit 11, and that this had not been proved as his document.  When asked to explain that submission having regard to the unchallenged evidence that Exhibit 11 had been handed by the appellant to police, the appellant went to the evidence of the document examiner, submitting that the fact that this evidence was led from the document examiner demonstrated a realisation by the prosecution that it had not otherwise proved the subject letter.  Clearly that submission could not be accepted.  The document examiner’s evidence was further proof of the identification of Exhibit 2.  But plainly, the other evidence to which I have referred well proved that the subject letter was sent by the appellant.  Consequently it was open to the jury to convict the appellant of this charge.
12. However, as was fairly submitted for the respondent, the appeal had to be allowed on a different basis, namely that there was a miscarriage of justice because the appellant may not have been fit to plead and stand trial.
13. The relevant evidence came from the pre-sentence report which was ordered by the trial judge.  Doctor Butler, a psychiatrist, examined the appellant and reported that it was more than likely that the appellant was suffering from a psychiatric disorder in the paranoid spectrum.  His provisional diagnosis, given what he said was the limited amount of data available to him, was that the appellant had an “Unspecified Schizophrenia Spectrum and Other Psychotic Disorder”, which limited his capacity to competently reflect upon the evidence and other relevant material or indeed upon the basis of the charge.  In Dr Butler’s opinion, the appellant “lacked the capacity to appropriately respond to evidence and to make an informed reality based plan of action in response to the charges”.
14. In her sentencing remarks, the trial judge said that during the trial she had been concerned about his capacity to think about the evidence, other than that relating to the Attorney-General’s consent, but that her Honour had not been aware that the appellant’s incapacity “had gone as far as this”.
15. Section 613(1) of the Criminal Code provides that when an accused person is called upon to plead to the indictment, and it appears to be uncertain whether the person is capable of understanding the proceedings of the trial, so as to be able to make a proper defence, a jury is to be impanelled to decide whether the person is capable.  That did not occur in the present case, because of what appeared, or more relevantly did not appear, to be the case at that point in time.  The possible unfitness and unfairness of the trial might have been revealed had the appellant been legally represented.
16. But the fact that the process under s 613 was not followed does not matter in the present context.  In Eastman v The Queen,^[1] Hayne J said that once a court of criminal appeal is armed with material suggesting that the accused may not have been fit to plead, the court is obliged to consider whether there was a miscarriage of justice regardless of whether the parties to the proceedings at trial raised the question or whether there was any cause for the trial judge to raise it.  Hayne J said that in this context:

“[T]here is a miscarriage of justice if an accused is put to trial when that accused may not have been fit to plead and stand trial.  That is … there is a miscarriage of justice if there is a real and substantial question to be considered about the accused’s fitness.  The conclusion that there is a miscarriage if the accused may not have been fit follows from the decisions in this Court and in intermediate appellate courts in which questions of fitness have been raised on appeal.  There the question for the appellate court has been treated as being whether there was a question as to the accused’s fitness, not whether the appellate court was persuaded that the accused was not fit.  Only if the appellate court is affirmatively persuaded that no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred and only then could the question of fitness be put aside.”^[2]

17. In a judgment which is frequently cited, Smith J said in R v Presser^[3] that an accused person must have at least the following capacities before he can be tried without unfairness or injustice:

“He needs to understand generally the nature of the proceeding … [h]e needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense [and] to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge.”^[4]

18. According to Dr Butler’s opinion, the appellant did not meet at least some of those minimum standards.  He lacked a sufficient capacity to understand the bases of the charge and the effect of the evidence in the proof of the charge, thereby depriving him of a sufficient capacity to assess how, if possible, he should defend the charge.  His obsession with the argument about the Attorney-General’s consent is an illustration of that incapacity.  It is sufficient to say he may not have been fit to plead and stand trial.  Consequently, the respondent is correct in saying that the appeal must be allowed upon the ground that there was a miscarriage of justice.
19. The Court was informed that the appellant had been in custody for approximately nine months by the time of the hearing of the appeal.  In those circumstances, the respondent did not seek an order for a re-trial.
20. DOUGLAS J:  I agree with the reasons of McMurdo JA and the orders that have been made.