20 October 2022

Gajalakshmi Paramasivam

 

Brittany Higgins rape allegation case

As per last evening’s ABC news, jurors have retired to consider the verdict after 29 witnesses and two weeks of evidence in the Brittany Higgins case. This ends the period of ‘silence’ we, the Public were expected to maintain.

As per the report headed ‘Through gritted teeth’: Why Brittany Higgins rape case delayed’:

[ACT Chief Justice Lucy McCallum said her judgement was made “through gritted teeth”, warning the line between allegation and a finding of guilt had been “obliterated”.

“The recent publicity does in my view, change the landscape because of its immediacy, its intensity and its capacity to obliterate the important distinction between an allegation that remains untested at law and one that has been accepted by a jury giving a true verdict according to the evidence,” she told the court.]

If this is a genuine concern, that mind would not ‘block’ evidence that a complainant seeks to present in Court.

As per news reports about the judge on this matter:

[She warned the jury against invoking stereotypes or preconceptions about people’s behaviour, but to use their common sense and personal history to assess witnesses.

The judge said journalists had been “practically hanging from the rafters” through the trial but instructed the jury to reach their conclusion despite concerns about how others will think or react to their verdict.

“You’re not answerable in this trial to popular opinion, no matter which way you think it sways, you’re answerable only to the oath or affirmation you took at the beginning of the trial,” she told them.”

As I listened to the ABC News, I thought of Judge McCallum’s ruling to set aside the subpoenas initiated by me for my relatives in law to give evidence in:  - PARAMASIVAM  v   SABANATHAN & OTHERS - SUPREME COURT OF NEW SOUTH WALES PROCEEDING No. 2012/80864.

Relevant details are:

(A)  On 13 June 2012, the Plaintiff served subpoenas requiring Defendants resident in Australia and the fourth defendant’s wife to attend to give evidence at the hearing of the Motion. The reasons provided in support of the issue of Subpoenas to give evidence was ‘The evidence submitted by the Defendants includes communications between the Plaintiff and the above persons and regarding the Plaintiff’s representation of the above persons at various points. It would be necessary to establish the basis of construction of this claim through examination of the minds of these persons – so that the evidence submitted by the Plaintiff in rejection of these claims could be matched towards a wholesome picture of the Actual State of Affairs – based on which the matter is being heard.’

Note: The names of  persons listed to be subpoenaed are :

Mrs. Saraswathy Sabanathan – 1st Defendant, 

 Mr. Tharmaratnam Sabanathan -  2nd Defendant,

Mr. Sabanathan Yohananda        3rd  Defendant,

Mr. Mahadevan Sritharan          -    4th  Defendant,

Mrs. Shangeetha  Sritharan          -   wife of  4th  Defendant,

Mr. Paramanathan Senthilnathan -5th   Defendant.

 

On 22 June 2012, the Defendants filed a second Notice of Motion to have the subpoenas set aside. Her Honour set aside the subpoenas.

(B)  The Defendants’ Application for Setting aside the subpoenas was heard first on 28 June 2012, and this was followed by the hearing of the Notice of Motion for summary dismissal of the proceedings as well as the Plaintiff.

(C)  Judgment was delivered on 05 August as follows:

(1)   That the proceedings be dismissed with Costs

(2)   That the defendants’ application for relief under the Vexatious Proceedings Act 2008 be dismissed – and no Costs are to be claimed by the Defendant in regards to this part of the proceedings.

The immediate result of setting aside the subpoenas was effective suppression of evidence. The delayed influence was withdrawal of monies in UK bank, without consent from my husband . As per my knowledge of law, this is unlawful. As per my ethics, it is ‘cheating’. I concluded that the judge contributed to this cheating by effectively suppressing evidence.

The judge in the case of Higgins is reported to have advised the jury:’You’re not answerable in this trial to popular opinion’

In my appeal I submitted as follows:

[1. Fact is Truth / Belief  bound by the physical environment in which it is born.

2. The environment in which a fact is born is made up of the time and place of birth.

3. In terms of intellectual property – place is the minds of all observers present at that place at that time.’ Hence the oath or affirmation in giving evidence, including through Affidavits.]

In the Higgins case, the advice given by the judge was disrespectful of the media, as the judge was of a lay litigant who represented the ‘Public’, in my case. I included my feelings on this, in my book ‘Naan Australian’ which was taken to National Library of Australia via Congress Library.  My intelligence is included as follows in my current book:

‘Affidavits and Declarations of belief are examples of facts, made by us on the basis of belief.  But in any institution, the  ‘judge’ needs to be connected to the declarant, as a junior, through common belief, for such a system to deliver just outcomes. The judge needs to be within the circle of belief. Otherwise, the declaration of the ‘judged’, converts itself to belief-based ‘Intuitive Intelligence’ in the group where this requirement /facility is  Approved Due Process.  In turn, that intelligence would empower those who believe in the said declarant, to work their own parallel systems.’

 

During the hearing of my case, when the Opposition lawyer ‘discussed’ that I was declared mentally ill, the judge did not take that as breach of Due Process towards dismissing their application.

My appeal included the following:

[It is submitted that my statement  in Court through words to the effect ‘If I were to be banned as a vexatious litigant – based on the applications by these Applicants – then I would seriously consider returning to Sri Lanka’ confirms that to my mind, I enjoy high level of respect within the Australian community of Sri Lankan origin, including but not limited to my family and how  serious I am about reverse migration and  how painful this experience has been – all because instead of curing, the Courts are adding fuel to fire. ]

In terms of Jury, they represent the ‘other side of the lay litigant’. In order to be true to the question ‘Members of the jury, do you swear by Almighty God, or do you solemnly and sincerely declare and affirm, that you will give a true verdict according to the evidence?   

-the evidence needs to be received by the ‘juror’s belief unaffected by the  ‘opinions’.

If the evidence is mixed with media ‘judgements’, the verdict would be in breach of the oath. What happens when the judge places its parallel fear in the minds of jurors – that they may not rule as per the judge’s interpretation of the law?

The way we interpret the law as jurors needs to be independent of the legal minds. That is when we would be fearless of making a ‘mistake’. The only one we are answerable to under oath is God or our ‘conscience’. Not the judge.

The judge expressed concern that ‘the line between allegation and a finding of guilt had been obliterated’ We need to ask the question as to whether the lay juror’s sovereign borders have been disturbed by the judge.