Armstrong v Shankar
[2018] ACTMC 12
•20 July 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Armstrong v Shankar |
Citation: | [2018] ACTMC 12 |
Hearing Dates: | 29 September 2017 12 February 2018 3 April 2018 |
DecisionDate: | 20 July 2018 |
Before: | Special Magistrate Hunter OAM |
Decision: | See [97]-[98] |
Catchwords: | CRIMINAL LAW – Common assault – offences against the person – credibility of witnesses – independent evidence |
Cases Cited: | Wyper v The Queen [2017] ACTCA 59 |
Parties: | Constable Liam Armstrong (Informant) Sharneel Shankar (Defendant) |
Representation: | Mr J De Bruin (Informant) Mr A Webb (Defendant) Ms S Ramsay (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid (Defendant) | |
File Numbers: | CC 10500 of 2016 |
SPECIAL MAGISTRATE HUNTER
REASONS FOR JUDGMENT
Evidence
This matter arose out of a family dispute between the complainant Nikhil Nand and his cousin Sharneel Shankar.
The incident was said to have taken place at 22 Bargang Crescent Ngunnawal on 8 October 2016. This followed an allegation that Nikhil Nand had been rude to the defendant’s mother and father whilst they were visiting his home.
Nikhil Nand gave an evidence in chief interview with police on the 8 October 2016 and gave evidence before me.
I also heard evidence from:
(a)Liam Armstrong a police officer and the informant in this matter;
(b)Preeti Pritika Nand, Nikhil’s sister;
(c)Nitya Nand who is Nikhil’s father. Nitya Nand also participated in an interview with police on 8 October 2016;
(d)Kamal Sharma the defendant’s wife;
(e)Surend Shankar the defendant’s father.
The defendant also gave evidence before me.
I also had the benefit of several documents which were exhibited. I have had regard to the following documents
(a)Statement of Constable Erin Newland (Exhibit P1);
(b)Statement of Robert Ryan (Exhibit P2);
(c)Photographs of defendant taken by Nikhil Nand at time of incident (Exhibit P3);
(d)000 call Nikhil Nand (Exhibit P4);
(e)Evidence in chief interview Nikhil Nand (Exhibit P5);
(f)Recorded conversation with Nitya Nand (Exhibit P6);
(g)Map of incident by Nikhil Nand (Exhibit P7);
(h)000 call from Robert Ryan.
Nikhil Nand
Nikhil Nand gave evidence via an evidence in chief interview, 000 call and before me on 29 September 2017. A summary of his evidence and the evidence of other witnesses has been usefully provided by the prosecutor with reference to the transcript.
A. The First Incident – Evidence in chief interview
Nikhil Nand said that on 8 October he was at home with his parents. In his evidence in chief interview he said he was on the phone to his sister when he heard someone knock on the door. He answered the door, he described that his cousin started going off at him about his relationship with his ex-girlfriend. Mr Nand described that as soon as he took a step outside the screen door he (the defendant) started choking him, yelling at him and said, “You’ve been going off at my parents while my parents were having a meeting about the past”. He gave some evidence about the conversation in relation to the defendant’s parents and the way he had spoken to them earlier, denying he was abusive to them.
He said the defendant came about 15 minutes after the defendant’s parents had left and accused him of swearing at his mother which he denied. He said the defendant was the one who came to his place and started to choke him and that the defendant pushed his wife around as well. He said that his sister came and the defendant was in his face yelling at him. He said the defendant came and pushed him on his shoulders and also with his shoulders chest to chest, and that he told the defendant to leave his property. He said that he found it offensive that he (the defendant) would come to his home and disrespectfully try and choke him and pushed him around.
10.He gave evidence that he was on the phone to his sister at the time he heard a knock at the door. He said his cousin the defendant was at the door raging at him and shoving him and at that time his sister was still on the phone. Mr Nand said that she lives five minutes away and arrived shortly after the beginning of the incident because she heard the yelling.
11.Mr Nand said he opened the door. The defendant started yelling at him, accusing him of swearing at his parents, which didn’t happen. As soon as he said that he didn’t say anything toward the defendant’s parents, the defendant grabbed and pushed him up against the screen door. He said that the defendant choked him, and described it as grabbing his neck and squeezing for a good second, and then he let it go and started pushing him against the wall. He said the defendant squeezed his neck and it felt uncomfortable and that he couldn’t catch his breath.
B. The 000 call
12.I also had before me a 000 call. In that call Mr Nand says that his cousin came to the door, he opened the door and the defendant choked him as he opened it. He also indicated that at the time of the call his sister and father were at the premises but he was not sure they would take any action. He said how unfair it was that the defendant choked him and started provoking him. Mr Nand said he had photos of the incident. Mr Nand also reported that the defendant was still at the premises but was leaving.
13.I have also reviewed the photographs (Exhibit P3). It appears on those photographs that the person identified as the defendant is at least verbally abusive towards the person holding the phone who has been identified as Mr Nand.
C. Mr Nand’s Evidence
14.Mr Nand also gave evidence before me.
15.I had the benefit of a transcript of that evidence. That evidence has been referred to by both counsel in this matter with reference to the transcript. As I’ve indicated, the prosecutor very helpfully summarised the evidence of all the witnesses. The prosecutor set out the circumstances prior to the alleged offending behaviour of the common assault. He also set out the basis upon which the assault is particularised and that although the word choke was used that is not a particular of the offence before the court.
16.Essentially the incident occurred as a result of an argument that was purported to have been caused by Mr Nand. As a result of that argument the defendant came to the residence of Mr Nand, and it was at this point that the assault allegedly took place.
17.Mr Nand said he was holding his mobile phone to his ear with his left hand and with his right hand he opened the door. The defendant started going off at him and as soon as Mr Nand stepped out of the door the defendant choked him by grabbing his neck and he squeezed it whilst pushing him up against the door. In cross-examination he described it as the defendant grabbing his collar, choking him by grabbing his collar, and pushing him up against the screen door while he was yelling at him.
18.Mr Nand said that the defendant’s wife, Kamal, told the defendant to leave him alone. Mr Nand said the defendant pushed her around as well. Mr Nand asking the defendant to leave his property. He said that the defendant screamed at him in a mixture of Hindi and English.
19.There was a second incident when Mr Nand’s sister arrived and the defendant was still in his face. At some point the defendant used his chest and shoulders to push Mr Nand. He said the defendant tried to head-butt him in front of his father and pushed him as well in the driveway near the letterbox. That incident was not subject to a charge but was led in order to demonstrate that the defendant was the aggressor.
Preeti Nand
20.Ms Preeti Nand gave evidence. She is the sister of Mr Nand. She said that on 8 October she was speaking on the phone with Mr Nand. She said she heard the doorbell at the house. She heard her brother ask her to hold on while he opened the door. She said that she could hear a male voice yelling and she recognised the voice as her cousin (the defendant).
21.She said she heard the words from the defendant, “What did you say to my mother? What did you say about my mother? What did you say about my mother?” She said her brother said, “Nothing. I didn’t say anything. I was talking about Priya”.
22.Ms Nand said that she could hear sounds of what she described as the sounds of a struggle and heard the defendant screaming out in Hindi. She said that all of a sudden it just got really loud and out of control. Ms Nand said that she could hear a rustling sound like a scuffle. She said she did not know what was going on at that point so she drove to her brother’s house. She also contacted her father and told him what was happening and that there was a fight at the home.
23.Ms Nand said that she saw her cousin and his wife standing very close to her brother. She said she beeped the car horn hoping to stop the altercation and to attract their attention. She said she then saw the defendant and his wife walk back to their car. His wife got into the car and the defendant remained outside.
24.They had a conversation about why he was there fighting with her brother. And he replied asking what Nikhil said about his mother. It seems that Ms Nand does not appear to have seen any physical contact in the first altercation, although she heard what she described as signs of a struggle; rustling like someone is trying to push you. I note that the prosecution has particularised the charges occurring at the first incident.
25.What she does say however is that when she did arrive she saw a bit of a commotion and she recalls her brother telling her, “He choked me. He choked me. Ask him, he choked me.”
26.I note that is consistent with the 000 call and also what Mr Ryan, a neighbour, said he heard him say.
27.Further, Ms Nand said that she spoke to the defendant and asked if he did choke her brother and he said to her, “Where’s the proof?” I note that the beeping of the horn and the question, “Where’s the proof?” was unchallenged in cross examination.
28.Ms Nand went on to say that her father arrived and spoke with the defendant and asked him whether he had choked his son. He responded by demonstrating that he did not choke him but he grabbed him by the shirt with both hands. Mr Nand said to his father, “No he did choke me, dad”, or words to that effect.
29.Ms Nand also said that the defendant upon questioning from her father pushed or moved her father away.
A. In Cross-examination
30.Ms Nand said that when she arrived she saw the defendant and her brother very close together with the defendant’s wife. They were arguing near the door. She denied that the defendant was in his car and explained the difference in her statement as being “he wasn’t in the car, he was getting to the car and that he came toward her very close”. She said to him, “I don’t want to fight you”.
31.She agreed that she had not seen the first incident however said she did see the second where the defendant grabbed her brother, stood very close and pushed him with both hands on his chest backwards.
32.I note that is not inconsistent with what Mr Ryan says he saw and heard. I found Ms Nand to be a credible witness and I have accepted her evidence.
Nitya Nand
33.Nitya Nand, is the complainant’s father. His evidence consisted of an evidence in chief interview on the 8th of October and evidence before me.
34.In evidence in chief Mr Nand gave evidence about what had occurred in the house prior to the incident that is the subject of the charge. He gave evidence that he was advised by his daughter that something had occurred at his home and said that the defendant was at the home and that he was having a go at his son. He said that his daughter told him there was fighting, like an argument.
35.He said he drove back and when he came back he said he saw the defendant and asked him what was going on. The defendant told him that he was there because of something Nikhil had said to his mother. Mr Nand said to the defendant, “You had better go or I will call the cops”, and his son Nikhil told him that the defendant had choked him. He then said to the defendant, “Why do you want to do this? It is against the law”. The defendant denied choking and then showed Mr Nand what happened and demonstrated that he did not choke him but grabbed him by the shirt collar. Nikhil said that was false and the defendant did choke him.
36.In his evidence before me Mr Nand said that he was driving and received a call from his daughter telling him that the defendant was at his home having a go at his son. He said he drove up and saw the defendant holding his son’s shirt right over the neck strangling him. The defendant demonstrated that by grabbing his own shirt around the collar.
37.He said that he asked the defendant, “What are you doing? Stop this. What’s the matter?” He said the defendant said, “I came to fix him” and Nitya said, “What do you mean?” He said he tried to push him away but he pushed him and then pulled his sons shirt and head-butted him.
38.I must say his evidence was difficult as he seemed to exaggerate much of what he said, and I was left with the impression of not knowing what was true and what was not. However, I note that some of what he said is consistent with what Mr Ryan sees and hears and is also consistent with what Nikhil and Preeti Nand say happened. That part of his evidence is corroborated and to that extent I can accept it.
Robert Ryan
39.Mr Ryan’s evidence consists of a 000 call which was recorded and transcribed, and a statement to police signed on 12 July 2017.
40.In the 000 call Mr Ryan asserts the following:
(a)He rang because he thought that there was an assault at his neighbour’s house;
(b)there was a lot of shouting and it had been going on for 10 minutes;
(c)the young fellow who lives there was yelling out about someone else who is there with a bunch of people in a car;
(d)the young neighbour claimed that the other guy tried to choke him and they are yelling and screaming and going on;
(e)he heard several males yelling and screaming and a female as well; and
(f)the young neighbour was saying that he had been choked and telling the people to go away and that he was going to call police, so Mr Ryan decided to call for him.
41.In his statement he said he heard distressed yelling from several people and that it sounded like a very aggressive fight. He saw 2 males, one slim (Nikhil) and a taller, bulkier male (the defendant), both of Indian appearance. The slimmer male appeared extremely distressed and yelled something like, “How dare you come to my house and assault me? How dare you come to this country and act this way? That’s not how you should act in this country”. He saw the larger male walk toward Nikhil and heard a woman say, “Just come back to the car, we have got to go”. He called police and after that the yelling stopped.
Komal Sharma
42.Ms Sharma gave evidence before me. She is the wife of the defendant. Her evidence was to the effect that they received a phone call from Nitya Nand inviting them over to his place to see relatives. As they were driving towards Mr Nand’s house they received a phone call from the defendants father telling them that his wife and he had been abused by Nikhil Nand when they were at his home shortly before. I note that the phone call about the invitation to the defendant and his wife was never put to Nitya Nand.
43.Ms Sharma described what she says occurred on the day as being her husband (the defendant) walking to the door, speaking with Nikhil. He asked whether the grandparents were in and then asked about what had happened in relation to his parents-in-law. She then said that Nikhil was screaming at the defendant and pushed the defendant with both hands. She said the defendant stumbled backwards and she walked towards him to make sure he was okay. She said that when he got his balance back he turned around and looked at her and said we need to get away from here.
44.She said they turned around and walked back to their vehicle. Ms Sharma said they heard Nikhil say, “Neighbour, neighbour, this man is abusing me”, and that he also said, “I’m going to get you locked up. You have no qualifications to be in this country. You can’t even speak English properly”. She said they ignored him and kept walking to the car. She said that he followed them halfway down towards the car.
45.Ms Sharma said they continued walking toward their car when Nikhil came screaming at them, abusing and saying “Neighbour, neighbour, this man is abusing me”. She said they both then got into the car. She said they had the car in reverse and were attempting to leave when Nikhil’s sister came and blocked their car.
46.Ms Sharma then said that she asked Ms Nand to move her car and she refused saying, “You must speak with my father”. I note that was never put to Ms Nand in cross examination.
47.Ms Sharma described her husband as being very calm and normal. She said nothing about him was angry. She said, “He was not angry. He is not an angry person”. She also said that his demeanour did not change at any stage during this incident.
48.That evidence is at odds with the independent evidence of Mr Ryan who sees the defendant and hears him. It is also at odds with the photographs taken by Nikhil Nand.
49.I also note that Ms Sharma was asked questions about the defendant’s citizenship, which is apparently on hold until this matter is decided. It was suggested that her evidence was given to exonerate her husband’s conduct because of the citizenship issue.
50.I must say I found her evidence to be less than helpful. It would appear that she was giving a version of events most helpful to her husband (the defendant). Much of what she said is inconsistent with other evidence before the court, including the photographic evidence and the evidence of Mr Ryan, both of which I consider to be objective evidence.
51.I also note that I asked her questions in relation to why they were attending at the address of Mr Nand. She said that they were calling in and that no phone call had been made to tell them that Nitya Nand was going out to dinner with her grandparents. I found this to be inconsistent with her earlier evidence in relation to being contacted by Nitya Nand.
52.I reject her evidence as to what occurred on that day.
Surend Shankar
53.Surend Shankar gave evidence of a conversation he had when he was at Nitya Nand’s house. Mr Shankar is the defendant’s father-in-law. His evidence described the conversation he said happened between himself, his wife and Nikhil Nand. He relayed a bizarre conversation that Nikhil had killed someone, that he was not a man, that he (Nikhil) would be killing someone in his family, that his testicles are not good, and that he asked Mr Shankar’s wife if she would teach him how to be a man and have sex with him. Mr Shankar also said that Nikhil locked the door and would not let them out. He also said that Nikhil was aggressively loud and that he had not seen him in that condition before. He said Nikhil was shouting.
54.Mr Shankar then said that he called his son to tell him about the bizarre conversation he said he had with Nikhil and how angry Nikhil was toward them. The prosecutor suggested to him that this was all made up and was made up to denigrate Nikhil Nand. It was done so because of the situation with the citizenship issue that his son faced which he denied.
55.Mr Shankar’s evidence was quiet bizarre. I note nothing was ever put to Nikhil Nand about this event and I suspect this evidence was given in order to denigrate the complainant to make him look like he was the perpetrator and was done to protect his son. I reject this evidence. I note that Mr Shankar did not see the incident which took place the subject of the charge so his evidence about the circumstances of the charge and the demeanour of the defendant is rejected.
Liam Armstrong
56.Constable Armstrong gave evidence that he is the informant. He said that he observed Mr Nand as very panicked and visibly upset. He also said that he spoke with Preeti Nand, Mr Nand’s sister, who said that she had heard the argument between her brother and the defendant over the phone when she was speaking with her brother at the time. Constable Armstrong said that she advised that she could hear a physical fight in the background as she listened.
57.Constable Armstrong indicated that Nikhil Nand had participated in a recorded conversation with him outlining the allegation of the assault.
Sharneel Shankar
58.I also heard evidence from the defendant. I remind myself that the defendant does not have to give any evidence or prove anything. It is for the prosecution to prove the elements the offence beyond reasonable doubt.
59.However the defendant chose to give evidence and I will treat his evidence like I would any other witness.
60.The defendant stated that he was on his way over to the Nand family home where he had been invited when he received a phone call from his father telling him that Nikhil had abused them. This phone call was received as he was driving into driveway of 22 Bargang Street, Ngunnawal.
61.The defendant said that he approached the door with his wife Kamal who was behind him. He said that he either pressed the doorbell or knocked on the screen door of the residence. Nikhil opened the door but not the screen door. The defendant said, “Hi”, and Nikhil said, “What do you want?” The defendant said he asked if the grandparents were here and Nikhil told him no. The defendant asked Nikhil what he had said to his parents. The defendant said Nikhil lost it and started screaming at him saying, “You have no right to question me”.
62.The defendant said that Nikhil had his phone in his hand. The defendant said he told Nikhil to “calm down” and asked why he was shouting. The defendant said that Nikhil opened the door, came out of the house and pushed him in the chest with both hands.
63.The defendant said that Nikhil asked him why he was on his premises. His voice was high pitched and screaming. The defendant said he told Nikhil that he was leaving when Nikhil said, “Neighbour, neighbour, he is abusing me” in English and Hindi.
64.The defendant said he started to walk away and Nikhil followed him, screaming at him. Both he and his wife were walking away towards their car when Nikhil said, “You don’t have a right to be in this country. No qualifications and no English”.
65.The defendant said as he was leaving he heard a car horn coming from a blue BMW which stopped and parked behind his car. The driver (Preeti Nand) asked him why he was there. The defendant said he told her he had come to see the grandparents. There was further conversation in relation to the phone and waiting for her father to arrive.
66.The defendant described, with the aid of the tendered photos, where he was standing and identified the various vehicles.
67.The defendant said that Nikhil told his father that the defendant had abused him and choked him. The defendant said he told Mr Nand that it was Nikhil who abused him and pushed him. The defendant said that after a few minutes Preeti moved her car and he left.
68.The defendant admitted that he was studying for his English exam for citizenship.
69.In cross examination it was suggested to the defendant that essentially he had no good reason to go to Nikhil’s house because he knew the grandparents were not there. The reason he went there was because his father had told him Nikhil had been rude to his mother. It was for that purpose he wanted to confront Nikhil and that he was angry with Nikhil.
70.The defendant denied that and said that he had been on his way to Nikhil’s place to visit the grandparents and was virtually at the driveway when he received call from father. The defendant denied choking Nikhil and denied that he saw Nikhil’s phone until he was leaving in his car.
71.The defendant said he was calm and asked Nikhil to calm down. He (Nikhil) was the aggressor, the defendant walked away from the confrontation towards his car and he heard the beeping. He agreed that Preeti asked him what he was doing at the residence and what had happened between him and Nikhil. The defendant said that it was Nikhil who was screaming and that’s why he was leaving. He said that throughout the incident he remained calm and did not raise his voice.
72.The defendant agreed that no questions were asked of the witnesses, particularly Nitya Nand, about the telephone conversation regarding the grandparents and that he was coming over to his Uncle Nitya’s house despite that being an important factor in his account.
73.The defendant denied that Nikhil said, “How dare you come to my house and assault me”. He denied that Nikhil said, “How you dare come to this country”, but instead said, “You don’t belong in this country”.
74.It was suggested that rather than being calm as he claimed, the photo showed him being very aggressive. The defendant denied that it showed him being aggressive, not calm. The defendant said it just showed he was saying something and it showed him being calm.
75.The defendant denied that the photos of himself and his wife showed him pushing her away. The defendant agreed that the only persons present were himself, his wife, and Nikhil.
76.The defendant denied that his failure to mention the conversation with his grandmother about Nikhil acting up and being disrespectful meant it was made up because it was never put to the relevant witnesses that it had occurred.
77.The defendant denied that he had made all of this up to protect his citizenship application.
Submissions
78.The Prosecutor, as I have already said, made comprehensive submissions with a summary of the evidence given in this trial.
The Credit of Preeti Nand
79.There was a suggestion that Ms Nand did not see a second incident (so described) because of words ascribed to her. However, the prosecutor explains at paragraphs 86-91 that the word ‘there’ was not a word she used in the application for a protection order once the transcript had been provided. If she had that would mean she had given evidence that she had not seen the second incident.
80.This was used I suspect to discredit Ms Nand. Ms Nand says she did see the second incident (which I note is not the subject of a charge). Her evidence on that point is supported by the independent evidence of Mr Ryan and shows that the version given by the defendant is false in relation to his assertion that he was calm at all times and walked away from Nikhil after the incident at the door.
81.Defence Counsel also summarised her case with reference to transcript.
82.Defence said that Nikhil had a motive to be untruthful which was that he felt betrayed by the family and was still upset at their efforts to bring an end to the relationship; that his evidence lacked credibility and he had a motive to lie, which was to teach the defendant a lesson. (At this point I asked myself rhetorically why that is?) I do not accept that submission about a motive to lie as there is no evidence to prove that assertion. Defence said that I should keep in mind that photos are a split second representation of what occurs, which I accept.
83.I accept that Ms Nand did not see a physical fight (first incident) although she heard what sounded like one.
84.Ms Nand says there was a physical confrontation (second incident) which both she and her father refer to. I also note that Mr Ryan saw the defendant walking toward Nikhil aggressively at that point in time.
85.I reject the submission in relation to Mr Ryan’s statement. The statement was exhibited by consent of both parties. If Defence wished to rely upon its assertion that his evidence is unreliable they should have had him called for cross examination. This submission is unsustainable given the consent to tender. The evidence is unchallenged and I consider it to be a truthful account of what happened that day.
86.I also had the benefit of listening to the 000 call from Mr Ryan and Nikhil Nand.
87.I accept that some of the witnesses may have exaggerated to some extent what they say they saw happen.
88.The prosecutor referred to Wyper v The Queen [2017] ACTCA 59 to assert that even if some parts of a witnesses testimony could be rejected that does not mean all parts should be rejected.
89.I set out the passage referred to:
It was open to the jury to doubt or even disbelieve the complainant’s evidence about property damage yet accept her evidence about the offence beyond reasonable doubt. If there is a rational basis for doing so, a factfinder may accept part of a witness’s evidence but reject another part: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [34]; see also, Cashin v The Queen [2017] ACTCA 13 at [26]; GW at [60]. As the trial judge directed the jury in this case:
It's important to appreciate that in relation to accepting the evidence of any witness, you're not obliged to accept or reject the whole of the witness's evidence. You may accept all of the evidence given by a witness, a part of the evidence given by a witness, or none of the evidence given by a witness. You may, if you think it right, accept part of a witness's evidence and reject another part of it. The fact that you don't accept a portion of the evidence of a witness doesn't mean that you must reject, necessarily, the whole of that witness's evidence.
90.In that case there was some evidence of denial from a complainant as to damaging property which clearly on the evidence was implausible. There was however independent medical evidence to support her assertion of digital penetration.
91.In this trial it is not just a case of word against word. There is credible independent evidence as to what took place which to some extent corroborated the evidence of Nikhil, Nitya and Preeti Nand.
92.That evidence consists of the evidence of Mr Ryan, the 000 calls from Mr Ryan and the observations by Constable Armstrong as to Nikhil’s demeanour when he arrived at the premises.
93.To the extent that evidence from Preeti Nand corroborates the evidence of Nikhil which is also corroborated by Mr Ryan, I accept that evidence.
94.I reject the evidence of the defendant and his wife Komal in relation to the assault as charged, the invitation to attend from Nitya Nand and the behaviour and demeanour displayed by the defendant . I also reject their evidence in relation to the evidence that Nikhil was the aggressor and that the defendant remained calm throughout.
95.Much of their evidence on critical points is inconsistent with the independent evidence of Mr Ryan, particularly as to the words used and the demeanour of the defendant but also in relation to his motive for attending the Nand residence that afternoon.
96.The defendant’s version is inconsistent with the photographs as well.
Decision
97.I find as a matter of fact:
(a)On 8 October 2016 Nikhil Nand was at his residence at 22 Bargang Crescent, Ngunnawal when the defendant arrived at approximately 3.30pm;
(b)The defendant was with his wife Komal Sharma;
(c)They arrived by car and parked in the visitor area near the home;
(d)The defendant knocked on the door and Nikhil Nand answered the door;
(e)At the time he was on the phone to his sister Preeti Nand;
(f)Nikhil answered the door;
(g)The defendant confronted Nikhil about what he purportedly said to the parents of the defendant, which is corroborated by Preeti Nand;
(h)The defendant was aggressive and confrontational, which is clearly seen in the photographs tendered and is consistent with what Mr Ryan sees and hears;
(i)The defendant grabbed Nikhil around the neck and pushed him up against the door (the choke);
(j)Nikhil yelled words to the effect “How dare you come to my house and assault me? How dare you come to this country and act this way? That’s not how you should act in this country”;
(k)That version is consistent with what Mr Ryan hears;
(l)The defendant remained aggressive and walked back towards Nikhil sometime after those words were said (second incident);
(m)Nikhil told police via a 000 call that the defendant had come to his door, and as Nikhil opened the door he described that the defendant choked him;
(n)That is the incident which is particularised in the charge of common assault;
(o)That is consistent with what Mr Ryan heard Nikhil say to the defendant;
(p)That is consistent with the scuffle heard by Preeti Nand;
(q)That Constable Armstrong observed Nikhil to be very upset, panicked, and visibly upset which is consistent with Nikhil’s version that the defendant was aggressive and had choked him;
(r)That the defendant concocted the story about being at the residence at that time because he had been invited over to see his grandparents by his uncle, Nitya;
(s)That the defendant went to the Nand residence for the purpose of confronting Nikhil about what he allegedly said to his parents earlier;
(t)That the defendant was aggressive and confrontational during the whole episode;
(u)That the defendant assaulted Nikhil by grabbing him around the throat area and pushing him backwards.
98.I find the offence of common assault upon Nikhil Nand on 8 October 2016 proved beyond a reasonable doubt.
I certify that the preceding ninety eight [98] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter
Associate: Cecilia Pascoe
Date: 20 July 2018
0
3
0