Kumar v Love - [2019] ACTSC 238

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kumar v Love
Citation:	[2019] ACTSC 238
Hearing Date:	27 August 2019
DecisionDate:	30 August 2019
Before:	Crowe AJ
Decision:	See [49]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal against convictions –whether the Magistrate’s decision was unsafe and unsatisfactory
Legislation Cited:	Magistrates Court Act 1930 (ACT) s 208
Cases Cited:	ED v The Queen [2019] ACTCA 10 Goodwin v Williams [2018] ACTSC 279 Johnson v Western Australia [2018] WASCA 164; 186 A Crim R 531 Liberato v The Queen (1985) 159 CLR 507 Peverill v Crampton [2010] ACTSC 79
Parties:	Santosh Kumar (Appellant) Constable Kane Love (Respondent)
Representation:	Counsel J Moffett (Appellant) V Conliffe (Respondent)
Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 56 of 2018
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 31 October 2018 Case Title: Love v Kumar Citation: [2018] ACTM 23 Court File Number(s): CC 17/4849; CC 17/4843; CC 17/1685; CC 17/1186-1187

Crowe AJ

On 31 October 2018, Mr Santosh Kumar (the appellant), was found guilty in the Magistrates Court of the Australian Capital Territory (the Magistrates Court) on two charges of common assault arising out of an altercation on 18 January 2017 between the appellant and his wife, Ms Anju Devi.

Sentencing of the appellant did not proceed due to the filing of a Notice of Appeal on 26 November 2018. The only ground of appeal specified in the notice was that Special Magistrate Hunter’s (the Magistrate) findings of guilt were unsafe and unsatisfactory.

The appeal is brought pursuant to sub-s 208(1)(b) of the Magistrates Court Act 1930 (ACT) and the applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 at [24] per Refshauge J as follows:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seems to be as follows:
1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising discretion on a wrong principle or in a way that is clearly wrong.
2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5. The appellate court is not restricted to making decisions which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumar v Love

Details

AGLC: Kumar v Love [2019] ACTSC 238
Case: [2019] ACTSC 238
Decision Date: 30 August 2019

CaseChat Overview and Summary

The appellant, Sanjeev Kumar, was convicted on five counts of assault and battery by the Magistrates Court of New South Wales. Ms Devi, Kumar's partner, was the complainant in all charges. Kumar appealed the convictions on the basis that the magistrate's decision was unsafe and unsatisfactory. The court had to determine whether the evidence presented was sufficient to convict Kumar on all counts beyond a reasonable doubt.

The court considered the testimonies of the witnesses and the videos of the interviews with Ms Devi and Kumar. The court found that the evidence of Ms Devi was consistent and credible, and that her injuries were consistent with the alleged assaults. The court also found that the video of Kumar's interview showed that he had not denied the allegations, but rather had offered an explanation that was inconsistent with the evidence. The court concluded that the evidence was sufficient to convict Kumar on all counts.

The court dismissed the appeal and upheld the convictions. The court found that the magistrate's decision was safe and satisfactory, and that the evidence supported the convictions. The court noted that the appellant had a history of violence towards Ms Devi, and that the assaults were part of a pattern of behaviour. The court emphasised the seriousness of family violence and the need to protect victims.

The court did not make any orders regarding the sentence or any other aspect of the case. The appeal was dismissed, and the convictions stood.

Orders

Orders of the court

See [49]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The prosecution related to the following charges (see [1] of the Magistrate’s reasons (Reasons for decision)): These charges were regarded as falling into the category of family violence. The appellant pleaded not guilty to each. Oral evidence was given by Ms Devi, Mr Morgan Small (a Senior Officer with Australian Border Force), Sanjeev Kumar (Ms Devi’s brother), Sohalia Samani (a female friend of Ms Devi) and Constable Kane Love (the informant). The appellant did not testify in his case. Additionally, a video of Ms Devi’s family violence evidence-in-chief interview with police which took place on 19 January 2017 was before the court (Exhibit “P1”), as was a video of the appellant’s record of interview which was conducted on the evening of the same day (Exhibit “P5”). I note for the purposes of clarity that there were two exhibits marked “P5” on the lower court file. The other “P5” (the second “P5”) consisted of a copy of a medical certificate dated 20 January 2019 and copies of clinical notes relating to Ms Devi’s attendance to the doctor on that date. A number of other documents, including statements of witnesses, were admitted into evidence. I have identified those which appear to be relevant to the issues in this appeal in what follows. The prosecution alleged that there were four separate incidents, with the first three charges listed at [6] above relating to separate incidents, and the last two relating to a single incident that took place on 18 January 2017. The first incident was said to have occurred on a day in January 2014 when an argument over Ms Devi refusing to cook culminated in the appellant striking her across the face. The second incident was said to have occurred on 15 November 2014 when Ms Devi was seeking to speak to her brother over the telephone. Ms Devi’s brother had just been involved in an accident and was in hospital. It was alleged that the appellant would not allow her to speak to her brother for more than a couple of minutes and when Ms Devi persisted in seeking to speak to him the appellant slapped her across the face. The third incident related to an occasion when the appellant and Ms Devi were sleeping in their bedroom at home. Their child, Prachi, who was then two and half years of age, was said to have been crying. The appellant was alleged to have grabbed Prachi’s arm and struck her on the back of her shoulder. The final two charges related to events which took place on 18 January 2017 at the family home, which Ms Devi and the appellant shared with the appellant’s father. On that day two officers from the Department of Immigration called at the front door to speak to Ms Devi’s father-in-law. She advised them that he was not home. They asked whether Melinda, his wife, was there. Ms Devi told them that there was no Melinda living there and that her father-in-law had a wife in India. Later that day the appellant confronted Ms Devi. He was angry. He insisted that she retract what she had told the Immigration officials about Melinda. Ms Devi refused. The appellant was said to have become angrier and to have pushed her into a wall. He was alleged to have grabbed her by the hair and pushed her forehead into a wall.

Ratio Decidendi

Legal Principle Established

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