Prothonotary of the Supreme Court of New South Wales v Mallegowda

Supreme Court of NSW|2015-11-18|Before: Adams J

Solicitors: Crown Solicitor's Office (plaintiff) Vaikom Law (contemnor) File Number(s): 2014/168906

Introduction

On 5 June 2014 the Prothonotary commenced proceedings by summons against the contemnor seeking a declaration that he was guilty of contempt of court and consequential orders. Following various interlocutory applications and directions the hearing of the summons commenced on 30 June 2015. The plaintiff called three witnesses - Mr Ashwin Gowda, Mr Dhanraj Malpe Shridhar and Mr Naveen Lingaiah - who were cross-examined, in substance it being put to them that their evidence of the contumelious conduct was untrue - as well as Mr Samuel Roberts, a solicitor. The trial was then adjourned to 25 August 2015. The plaintiff called another witness, who was cross-examined, again it being put to him that in certain respects he was not telling the truth. The contemnor gave evidence and called one witness. On 27 August 2015 the contemnor's counsel obtained an adjournment to make enquiries regarding the accuracy of certain records which had been produced under subpoena during the hearing. When the hearing resumed on 18 November 2015 the contemnor pleaded guilty to the charge, which was in the following terms - "For that [the contemnor] is guilty of contempt of Court in that on 26 August 2013, he, being a party to defamation proceedings, did threaten a witness by making the following two telephone calls, (a) to Mr Ashwin Vishweshwaria, a witness in those proceedings, during which he said words to the effect, 'how dare you testify against me, you think you're very smart, I have the details, all the details, of you helping university students in exchange for money, and I'll get you caught for plagiarism. I have all the records of your bank account and tax, and I'm going to report you to the university tax department and the immigration department', and (b) to Mr Dhanraj Shridhar, who was a friend of Mr Vishweshwaria, during which he said words to the effect 'tell Ashwin that if he doesn't withdraw his affidavit by midday tomorrow, I will make complaints to the ATO and immigration departments about him'; which conduct had a tendency to interfere with the administration of justice."

The circumstances of the contempt

The circumstances are summarised in the submissions of the Crown Advocate, who conducted the proceeding on behalf of the Prothonotary. No significant issue was taken with them and they provide the basis for much of the following account.
In November 2012 the contemnor commenced defamation proceedings against Mr Amit Sood and Mr Lingaiah in the District Court of New South Wales concerning emails sent by them to members of the Indian Association of Newcastle several weeks before. Mr Sood cross-claimed against the contemnor in relation to an earlier email allegedly sent by him to the Association. The contemnor denied sending this earlier email and this became an important issue in the proceedings. Mr Sood obtained an expert's opinion to the effect that the earlier email was sent from a Gmail account created on a computer which was assigned to the contemnor at his workplace with NSW Roads and Maritime Services (RMS). An affidavit of Mr Gowda had been provided to the expert and was attached to his report, which had been served on the contemnor's solicitors. In that affidavit Mr Gowda said that the contemnor had contacted him on his mobile phone on 23 August 2012 and asked him how to delete a Gmail account. He said that he was driving at the time, so he called him back about an hour later but the contemnor told him that he had already worked out how to delete it.
On 26 August 2013 a mediation of the defamation proceedings took place. Present at the mediation were the contemnor, his legal advisors, Mr Lingaiah, Mr Sood and Mr Roberts, their solicitor. It is evident from an affidavit of Mr Roberts filed in the present proceedings (following the contemnor's plea of guilty) that he became aware of the contents of Mr Gowda's affidavit during the mediation. The mediation concluded at 12.30pm and, shortly after, the contemnor made two telephone calls. The first was made to Mr Gowda at about 1.07pm in which he said words to the effect - "How dare you testify against me? You think you are very smart. I have all the details of you helping university students in exchange for money and I will get you caught for plagiarism. I have all the records of your bank account and tax and I am going to report you to university, tax department and the immigration department." At the time of this call Mr Gowda was travelling from Sydney to Newcastle. In the car with him was Mr Lingaiah, Mr Sood and Mr Roberts who were immediately told about the contemnor's threat. About half an hour later, the contemnor telephoned Mr Shridhar who was a friend of Mr Gowda's and said to him - "Tell Ashwin that if he doesn't withdraw his affidavit by midday tomorrow I will make complaints to ATO and immigration department about him."
There can be no doubt that this conduct of the contemnor in making these threats had a real tendency to interfere with the administration of justice and constituted a contempt of court. That this was so was necessarily admitted by the contemnor by his plea of guilty.

Maximum penalty

(The legal principles, which are not controversial, have also been usefully and fairly summarised in the Crown Advocate's written submissions, from which the following is largely drawn). The penalty for the common law offence of contempt of court is at large: R v Smith (1991) 25 NSWLR 1 at 13. Part 55 Rule 13 of the Supreme Court Rules 1970 provides - 13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. (2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both. (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
The circumstances of the contempt here are similar to those which would otherwise fall within ss 322 and 323 of the Crimes Act 1900 (NSW). Section 322 relevantly provides that a person who threatens to do or cause any injury or detriment to any person intending to influence a person to withhold true evidence or to not attend as a witness is liable to imprisonment for 10 years whilst s 323 relevantly provides that a person who does any act intending to cause any person called as a witness in any judicial proceeding to withhold true evidence or not to attend as a witness is liable to imprisonment for 7 years. The threat made by the contemnor to Mr Gowda to my mind is of the kind to which both of these sections apply: there was a clear threat to cause detriment to Mr Gowda, with potentially catastrophic consequences for him and, in effect, it was designed to punish him for having provided the affidavit and induce him not to give evidence of that kind in the defamation proceedings which were then pending. It has been said, in connection with an offence under s 323, that "the conduct strikes at the integrity of the system of justice and some form of custodial sentence is normally appropriate": Warby v The Queen (2007) 171 A Crim R 575; [2007] NSWCCA 173 at [25]; R v Burton [2008] NSWCCA 128.
The principles pertaining to sentencing for common law offences where there is an analogous statutory offence were set out by Campbell J (with whom Macfarlan JA and Barr AJ agreed) in Blackstock v R [2013] NSWCCA 172 as follows - "[8] Misconduct in public office is a common law offence in respect of which the penalty is at large, that is to say, no maximum penalty is fixed by law. In respect of such matters it is the practice of the Court to adopt an analogous or corresponding statutory offence, where one is available, as a reference point for the imposition of penalty: R. v. Hokin, Burton and Peisley (1922) 22 SR (NSW) 280 at 291 - 2 per the Court. [9] In Jaturawong v. Regina [2011] NSWCCA 168 Beazley JA (as her Honour then was) (Hall and Harrison JJ agreeing) adopted the offences created by Part 4A Crimes Act relating to corruptly receiving commissions and other corrupt practices as the appropriate reference point for this common law offence. The offences created by the provisions of that part each impose a maximum penalty of imprisonment for seven years. [10] I do not understand R. v. Hokin to establish a rule that the sentence imposed for the common law offence cannot, as a matter of law, exceed the maximum imposed for the statutory analogue ..."
In R v Abdallah; In the matter of John Leger [2014] NSWSC 320 at [29] Campbell J observed that these principles apply also in the context of sentencing for a common law contempt - "[29] I should say at this point that the offence of contempt in the face of the court is a common law offence and as such it is said that the penalty is at large. In dealing with such offences courts will often have regard to any available, or near, statutory analogue which might provide a reference point for determining the maximum penalty appropriate to what might be called a worst possible case of the common law offence. I am not suggesting that this is the worst possible case of contempt in the face of the court."
I agree with the Crown Advocate that the maximum penalties provided by ss 322 and 323 are relevant reference points for the purpose of sentencing the contemnor in the present case. In my view, of the two sections, s 322 is the more relevant provision.

Plea of guilty

The Crimes (Sentencing Procedure) Act 1999 (NSW) applies to sentencing the contemnor. Section 22 of that Act requires the Court to take into account a plea of guilty and permits a lesser sentence to be imposed where such a plea is made. As the chronology shows, the contemnor changed his plea to guilty on 17 November 2015.
The effect of s 22 has frequently been discussed in judgments of this Court but, for present purposes, it is sufficient to return to the decision which preceded the enactment of s 22 but in which the appropriate principles were stated by Spigelman CJ (the other members of the Court agreeing): R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104. In stating that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10 to 25 per cent discount on sentence, the Chief Justice pointed out that the "primary consideration determining where in the range a particular case should fall, is the timing of the plea" noting that "[i]n some cases a plea will not lead to any discount". In this case, the Crown Advocate submits that the plea was entered at the conclusion of the evidence both for the prosecution and the defence, so that it had negligible utilitarian value and no discount should be applied. However, it is not quite accurate to say that the plea was entered at the conclusion of the evidence. On 27 August 2015, the last of the trial hearing dates, the Crown Advocate indicated that it intended to call Mr Roberts in the plaintiff's case in reply and might well also need to call Mr Rasmussan, who was his counsel at the mediation proceedings. The plea on the adjourned date obviated the necessity to call Mr Roberts and Mr Rasmussan. Furthermore, it also obviated the need for submissions on the question of guilt, which must certainly have taken a day or so. Accordingly, there was some, though not much, utilitarian value in the contemnor's change of plea to guilty. I propose to apply a discount of 10 per cent to his sentence.

Criminal record

The contemnor has never been convicted of a criminal offence either in Australia or elsewhere.

Remorse

Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires remorse shown by an offender to be taken into account as a mitigating factor but only if there is evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury caused by those actions or made reparation for any such injury. A pre-sentence report was tendered in which the officer stated that the contemnor had "acknowledged his wrongdoing and admitted that he acted inappropriately at the time of committing the offence". The Crown Advocate however, submits that his conduct throughout the history of the proceedings, particularly in the conduct of the trial itself, was inconsistent with genuine remorse. The most significant is the conduct of the proceedings themselves. As the Crown Advocate pointed out, the contemnor had not merely put the prosecution to proof - from which no adverse conclusion could be drawn - but his evidence, going much further than mere denials, comprised a sustained attack on the credit and character of Mr Gowda, Mr Shridhar and Mr Lingaiah, all of whom had been cross-examined to suggest that they had, for various personal reasons, given false evidence. Furthermore the contemnor's evidence involved fabrication of supporting details.
The contemnor also gave evidence in the proceedings on sentence. When he was first asked what his attitude was about the commission of the offence, he said - "A. I did plead guilty. I did wrong. I did regret and I should not have done this and I'll never do it again. And I apologise to the honourable Court and the Honourable Judge and I ended up as guilty for contempt of Court and I take in that's the responsibility of me and I will never do it again."
He was asked whether he accepted that he threatened Ashwin Gowda that if he did not withdraw his affidavit he would report him to immigration and the ATO. He said that he mostly accepted this. He explained - "I said words to the effect of, I've made complaints to the organisation. Those were the words that were said. And I never used the word… [not transcribable] withdraw an affidavit. Q. Sorry, I never used the word? A. What is said in the affidavit that I told him to withdraw an affidavit. Those words were not said but the remaining of whatever was in his affidavit, I'll agree with that." The contemnor said that he commenced his telephone conversation by talking about the family and how he was and added - "Then I came to ask him questions about confronting him giving an affidavit and why he's giving it. And then I said "I can report you doing some fraudulent things to the authorities of the government". Those were the words were said, but I never said about withdrawing an affidavit. Q. Sorry you said what to him? A. I said words to the effect that I have known your contact as well, and I can also complain to Australian Immigration Department, Australian Taxation Office and Newcastle University. These words were literally a threatening message but said in this way. Q. Mr Mallegowda, in any event, you agree do you not that the purpose of the conversation was to threaten Mr Gowda not to give evidence in the defamation proceedings? A. As I understand now, those words are definitely a threat. Q. No, not what you understood now, that's what you intended at the time to convey to him? A. Yes."
He later explained that he denied the charge "because the affidavits which were tendered were not entirely true. As I said, I never spoke the words to the effect 'withdraw an affidavit'". However, he conceded that, whatever words were used, he intended them to have the effect of frightening Mr Gowda into withdrawing his affidavit, and that he "knew all the time that his affidavit was the truth", that he could have pleaded guilty, that he was aware that subpoenas were issued by his solicitor with the intention of attacking the credit of Mr Gowda and Mr Shridhar because his case, essentially, was that they had lied. He was then asked - "Q. In substance you knew that their accounts of the conversations with you were truthful. In other words, you had indeed threatened them. A. That's a yes your Honour. Overall I admit that it was threatening, but the -- Q. Sorry A. Overall, I admit the conversation was a kind of a threat. Q. What do you mean 'a kind of a threat' sorry? A. It was a threat your Honour."
The distinction that the contemnor seemed to have been attempting to make was between, on the one hand, making a threat with the intention that Mr Gowda should withdraw his affidavit and, on the other, of actually telling him to withdraw his affidavit. Having regard to the terms in which he was charged and his plea of guilty, I consider this qualification to be an attempt to withdraw, albeit slightly, from a frank admission of what he intended to do. The manner in which the contemnor gave this evidence did not impress as candid.
The Crown Advocate submitted that I should conclude that the contemnor was remorseful only in the sense that he regretted what he had done because of the consequences for him rather than any heartfelt acceptance that what he had done was not only unlawful but wrong. The Crown Advocate pointed to the repeated lies which he had given in evidence which, as she rightly submitted, constituted a sustained attack on the credit and character of the witnesses called by the Prothonotary. In short, he became remorseful only when it became clear that he could prevaricate no longer and the offence was bound to be proved. In this respect, I should refer to the statements made by the applicant's wife and tendered on his behalf that the contemnor "regrets and feels guilty for contacting a witness who was giving evidence in the Court for the opponents" and from other friends who have, in various ways, stated that he feels very sorry and regrets his conduct. But these expressions again suggest to my mind that his regret is rather for the consequences of his conduct than its character. Thus, Mr Nagender Singh said, "Shashi feels very sorry and regrets for his conduct which has landed him in this difficult situation", whilst Mr Pavan Reddy says, "Shashi now severely regrets for his actions and feels huge shame to him and his family. Shashi told me that at the time of the incident, he did not realise that he will be end-up in this situation and did not think about the consequences. He told me that he is extremely remorseful for what he has done. He also told me he is suffering from feelings of shame and humiliation day in and day out. He is disappointed and ashamed of himself". On the other hand, he told Mr Mark Foran that "he now knows that the contact with [the potential witness] was the wrong thing to do … [and] he displays true regret and is remorseful for his actions." Others of his friends make the same point in somewhat different ways.
I accept that the contemnor, at the time of the critical telephone conversations, may not have been aware that he was breaking the law but it must have been apparent to him from the moment he was charged with the offence of contempt that, indeed, he had broken the law. His attempt by deceit to avoid the consequences of so doing, which involved not only his giving perjured evidence but also alleging that the plaintiff's witnesses were lying, demonstrates that, at least up to that stage, he was not remorseful for what he had done, although he might have been worried about the punishment to which he may have exposed himself. It does not appear that any of the persons who gave testimonials on his behalf as to his remorse were aware of the way in which he conducted his defence. I think it is obvious that the contemnor only pleaded guilty when it became obvious to him that the prosecution was able to prove that he had indeed, contrary to his denials, become aware of Mr Gowda's affidavit. In the result, the most I think that can be said for the contemnor is that he now realises that what he did was seriously unlawful and warrants punishment and that he regrets that he put himself in this position. Since this is, in part, the purpose of proceedings of this kind, to that extent it may be accepted that the prosecution has served the necessary function. However, I would not be prepared to conclude that the contemnor has accepted that he committed a morally culpable offence.

Mental health

On 3 February 2011 the contemnor was evaluated by Dr Christopher Bench, a psychiatrist, for the purpose of considering whether he met the criteria specified in s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in respect of certain conduct. It is not necessary for present purposes to detail the history taken by the doctor. He concluded that the contemnor suffered from the severe form of Bipolar Disorder, namely Bipolar I Disorder with characteristic depressive and manic episodes including, on occasions, psychotic symptoms. During a manic state he exhibits agitation and aggression, requiring treatment in an institutional environment, intra-muscular medication and seclusion. He qualified to be dealt with under s 32 of the Act. Dr Bench recommended a treatment plan.
The contemnor's treating psychiatrist, Dr Cyriac Matthew confirmed the diagnosis of Bipolar Disorder and noted that he had been stable on the medications prescribed for him but becomes unwell when facing significant stress or even minor alterations in the medications. He stressed that he had a tendency to get very unwell and psychotic within a few hours and it was often difficult to predict these relapses. It is likely that he will need treatment for many years, probably lifelong. Dr Matthew thought that he had a relapse of mania with psychosis in the context of dealing in 2015 with the present proceedings and was at a significant risk of another relapse. However, it appears that since, at least, the commencement of the hearing, such a relapse has not occurred.
For the purpose of the present proceedings Dr Olav Nielssen prepared a psychiatric report in which he diagnosed Bipolar Mood Disorder (Manic Depressive Illness) which was in remission when he saw him on 2 November 2015, Dr Nielssen, who had been given the details of the contempt charges contained in the summons concluded - "There would appear to be direct link between his mental state and the offences, as the documents confirm that at the time he was recovering from a manic episode triggered by [a] recent trip to India, and his behaviour is consistent with being in a manic state, when compared to his normal behaviour and demeanour".
The Crown Advocate does not take issue with the conclusion that the contemnor's mental health may have been compromised at the time of the offences but points out that Dr Nielssen noted that there is "complete remission between episodes of mania" and no evidence of any such episodes since 2013. The Crown Advocate submitted that the manner in which the contemnor gave his evidence and conducted the proceedings, when he was in complete remission, demonstrated a complete disrespect for the administration of justice. She submitted that his conduct in the courtroom is so similar to that which underpinned the contempt with which he had been charged it would be open to the Court to find that any causal connection between his mental health and his conduct in committing the contempt was minimal at best.
I accept, more probably than not, that the acts of contempt were impulsive and to some degree caused by his mental state. On the other hand, the evidence that he gave in Court must have been carefully considered over a lengthy period of time and was, I thought, careful and calculating. However, although that demonstrated that he had not accepted either that he had committed any wrongdoing or, at all events, would try (even by lying to the Court and making false allegations of dishonesty against prosecution witnesses) to avoid the legal consequences of what he had done, this did not mean that his acts at the time were any less impulsive or contributed to by his mental disorder. He is being punished for his contempt and not for his conduct of the trial, however reprehensible that was. On balance, I am prepared to act upon the basis that the contemnor's mental condition, to some extent, contributed to the impulsivity of his behaviour, although I would not go so far as to find that, if he had been in remission at the time, he would have been unlikely to have committed the offence.
As the Crown Advocate rightly points out, an offender's mental condition can have the effect of reducing a person's moral culpability so that general deterrence, retribution and denunciation should have less significance in sentencing the offender but, even where there is a causal relationship between an offender's mental condition and the offence, a reduced sentence does not necessarily result: Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ. However, as it seems to me, the qualification mentioned by the Chief Justice is not significant in the present case. In my view, the contemnor's mental illness should also be taken into account for the purpose of considering whether, were he to be sentenced to a term actually to be served in prison, his incarceration would be more onerous for him than the ordinary run of prisoner. Given the stressful conditions which necessarily result from incarceration, I think this is a significant factor in his case.
I note that s 32 of the Mental Health (Forensic Provisions) Act does not apply to a contempt prosecution in this Court: Prothonotary of the Supreme Court of New South Wales v Chan (No 15) [2015] NSWSC 1177.

Character evidence

As I have mentioned a number of testimonials to the contemnor's good character which have been tendered without objection. I do not intend to deal with these in detail. Their general purport is that he is a loving and caring husband and father of two young children, aged 11 years and 8 years. He has been regularly employed and maintains his family. He has for many years organised charity work, such as blood donation camps, including organising in 2014 a group of people to make blood donations to the Australian Red Cross and raising other funds for various charities. For the last four years he has been organising an annual festival in Newcastle to promote Indian culture in the community, with all proceeds donated to a religious charity. I am prepared to accept that, aside from this particular offence, the contemnor has been of good character. He has contributed in significant ways not only to his family but also to the community of which he is a part. I accept that the present proceedings and his admission of guilt, which must be well known in the community of which he has been a prominent member, has caused considerable shame and humiliation.

Determination

The objective seriousness of the offence committed by the contemnor is significant. The administration of justice depends upon witnesses being prepared to come forward and tell the truth about the facts in their knowledge that are relevant to the matter before the courts. Any conduct which interferes or is intended to interfere with this process, whether preventing a witness from either providing or giving evidence or persuading him or her to stray from the truth must be regarded as a grave interference with the course of justice and calls for significant punishment, not only to denounce the conduct and punish the wrongdoing but to deter others who might think that it is either acceptable or trivial to act in this way. Giving the benefit to the contemnor of the mitigating circumstances to which I have referred above, it seems to me that no penalty other than imprisonment is appropriate to vindicate the necessity to protect the administration of justice from conduct such as that he committed.
Taking all of the objective and subjective circumstances into account it is my view that a sentence of 9 months imprisonment with a non-parole period of 6 months should be imposed. The question then arises as to how this sentence should be served, that is by way of a suspended sentence, home detention, intensive correction order or full time custody. I have had the benefit of assessment reports as to the suitability of the contemnor for a disposition otherwise than requiring actual imprisonment. I am satisfied that the appropriate order is that the sentence be suspended. Therefore, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) I order that the execution of that sentence be suspended for 9 months and direct that the contemnor be released on condition that he enters into a bond to be of good behaviour for a term of 9 months.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2016

Crimes (Sentencing Procedures) Act 1999(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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