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.
