Kumar v Love
[2019] ACTSC 238
•30 August 2019
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 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 and decide the matter on the law as at the date of the appeal.…
In relation to the challenge based on the assertion that the Magistrate’s judgment was unsafe or unsatisfactory, the approach to be taken by the appellate court was relevantly summarised by the Court of Appeal in ED v The Queen [2019] ACTCA 10 at [43] per Murrell CJ, Mossop and Bromwich JJm, in the following terms:
…
(b) The appeal court is to make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, but in doing so it must give full weight to the primacy of the jury and their “advantage” in “seeing and hearing” the witnesses: M v The Queen (1994) 181 CLR 487 (M v The Queen) at 492–494; MFAv The Queen [2002] HCA 53; 213 CLR 606 (MFA) at [59]; SKA v The Queen [2011] HCA 13; 243 CLR 400 (SKA) at [22]–[24]; Baden-Clay at [66]; Dickson v R [2017] NSWCCA 78; 94 NSWLR 476 at [84]–[85]; BI at [15].
(c) On an appeal against conviction on the ground that a verdict was unreasonable, the ultimate question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 494–495. The question is “whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; M v The Queen at 492–494; Kaddour v R [2019] NSWCCA 90 (Kaddour) at [128].
These principles are applicable to a challenge to the decision of a Magistrate (see Goodwin v Williams [2018] ACTSC 279 at [136]-[140] per Penfold J).
Hearing in the court below
The prosecution related to the following charges (see [1] of the Magistrate’s reasons (Reasons for decision)):
(1) CC2017/4849 – the appellant slapped Anju Devi across face between 1/1/14 and 31/1/14 – because she would not cook for him;
(2)CC2017/4843 – the appellant slapped Anju Devi across face on 15/11/14 – because she persisted with wanting to speak to her brother who had been involved in motor cycle accident and was in hospital;
(3)CC2017/1685 – the appellant struck his child Prachi Prajapati back of shoulder because she was crying;
(4)CC2017/1186 – the appellant pushed Anju Devi’s forehead backwards striking the wall behind 18/1/2017;
(5)CC2017/1187 – the appellant grabbed Anju Devi’s hair and twisted her head and hit her face on wall 18/1/2017.
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.
The appellant denied all of the alleged assaults. In his record of interview he said that although he and Ms Devi had argued on 18 January 2017, the only time he touched her was to tickle her just before he left for work around 5:30 PM. He said that at one point Ms Devi had pulled her own hair, although he could not say whether she had bumped her head on the wall.
The defence case before the Magistrate was that, having just obtained her Australian citizenship, Ms Devi had fabricated the assaults with the intent of bringing the marriage to an end.
The Magistrate’s decision
Her Honour accepted Ms Devi’s account of what happened on 18 January 2017. She said at [208] of her Reasons for decision:
I am satisfied beyond a reasonable doubt of the following in relation to the 2 assaults said to have been committed on 18th January 2017:
a.Ms Devi gave information to Mr Small which could have had a significant impact on the review of Mr Dhari’s citizenship rejection;
b.Ms Devi did not recant that information;
c.Ms Devi complained to her brother about the controlling behaviour of the defendant in relation to family and social contact and physical abuse;
d.The bruising to her forehead complained of after the alleged assault on 18th;
e.The complaint of a sore scalp from her hair being pulled on the 18th;
f.The complaint of her marriage troubles to Sohalia on the 18th;
g.That she had a secret SIM card given by her brother so she could make covert contact with family and friends.
After rejecting the evidence of the appellant about Ms Devi pulling her own hair and the tickling, Her Honour said:
[214] Having considered that evidence and my findings above, I am satisfied that the defendant did assault Ms Devi by pushing her into the wall and pulling her hair. There is independent evidence of the push (slight lump to forehead consistent with her evidence, seen by Constable McKelvie, her complaint to her brother and the medical staff). There is motive being the adverse information given to Immigration re his father and the refusal to recant this information. When Ms Devi refused to lie to the Officials I am satisfied that defendant became very angry and pushed her against the wall when she continued to refuse he then grabbed her by the hair and pushed her forehead into the wall.
[215] I find both offences proved.
In relation to the other charges the Magistrate said:
[223] I note that the charges brought other than the charges on 18/1/17 appear to be isolated incidents over a very long period of time. There is no independent evidence to corroborate those charges other than circumstantial evidence such as complaint to Ms Devi’s brother about the slap said to have occurred in November 2014. That complaint was not made until sometime after the brother’s accident and was never made to police.
[224] The defendant denies that they occurred. In order for me to be satisfied beyond a reasonable doubt in relation to those charges, even if I believe (or prefer) the evidence of Ms Devi I would need to disbelieve the evidence given by the defendant in order to find the offences proven.
Her Honour dismissed the first three charges.
Submissions
Submissions of the Appellant
The appellant argues that the Magistrate’s findings of guilt were unsafe and unsatisfactory on the basis that (a summary of what is contained in submissions):
(1) It was not open to the Magistrate to wholly reject the appellant’s evidence. On that basis that appellant was entitled to an acquittal based on Liberato v The Queen (1985) 159 CLR 507 and Johnson v Western Australia [2018] WASCA 164; 186 A Crim R 531; and,
(2) Aside from the evidence of the appellant, there were a number of significant parts of the evidence relied upon by the prosecution which should have given rise to a reasonable doubt as to the appellant’s guilt.
In relation to the first ground, the appellant’s counsel, Mr Moffett, submitted that the version of events given by the appellant in his record of interview (the first Exhibit “P5”) should be believed. In that version, the appellant denies that he had pushed Ms Devi and denies that he hit her head into the wall. He claims that she had pulled her own hair in anger and frustration.
Alternatively, if that submission is not accepted, it is argued that there is a possibility that it is true, which is sufficient to justify an acquittal.
In relation to the second ground, the appellant points to the following matters: the lack of complaint to Soheila Samani about the assaults; the fact that Constable Love did not observe any physical injuries on the complainant; and, that the evidence of the complainant’s brother, Sanjeev Kumar, should have been given little weight.
The appellant says, by reference to those matters, it should be concluded that there was no objective and independent corroboration of the complainant’s claims, and, on that basis the appeal should be upheld. Indeed, Mr Moffett argued that the doubt created by these matters should have been increased by the apparent motivation of Ms Devi to leave what was an unhappy arranged marriage.
Submissions of the Respondent
The respondent, represented by Ms Conliffe of the DPP, says in relation to the appellant’s evidence as contained in his record of interview that the Magistrate comprehensively considered that evidence. It was submitted that the appellant’s account during the interview “constantly shifted, evolved and contradicted itself…”. In essence, that the respondent’s account lacked credibility and the Magistrate was entitled to reject it.
Submissions were then made as to the details of the interview to support the assertions of the respondent as to the unsatisfactory nature of the appellant’s account.
As to ground two relied upon by the appellant, the respondent addressed each of the individual matters relied upon. In relation to the evidence of Ms Samani, it was pointed out that her statement (Exhibit “D13”) was not obtained until 18 September 2017. At [9] of that statement she said that she could not remember if something had happened that night (i.e. the night of the call on 18 January 2017) to cause Ms Devi to make the call. She said she thought “that something may have happened for Anju to call me” (at [9]). It was also put that the Magistrate was entitled to take into account the communication problems between the two women (Ms Devi’s primary language is Hindi, while Ms Samani’s is Farsi). Moreover, the complainant was upset, crying and whispering during the call.
In relation to objective injury to the complainant’s forehead, the respondent pointed to the evidence of Constable McKelvie (Exhibit “P6”) that she observed slight swelling on the morning of 19 January 2017. This was supported by the clinical note of Dr Edib (the second Exhibit “P5”). Finally, it was pointed out that the Magistrate had some reservations about Constable Love’s observations. These had been expressed during an exchange with counsel during submissions.
The respondent also submits that there is no basis on which to challenge the Magistrate’s acceptance of the evidence of Sanjeev Kumar of his sister’s contemporaneous complaint.
As to the proposition that the evidence of Ms Devi was not reliable because of her motivation to leave the marriage, Ms Conliffe took me to evidence which suggested that the complainant had been invested in the marriage and wished to give the appellant every chance to change his behaviour (see the 19 September 2017 transcript, “T 23 l1-8”, “T 91 l20-25”).
The respondent argues that none of the points made by the appellant with respect to the evidence provides a proper ground for challenging the Magistrate’s assessment of the credibility of the witnesses. There was no basis in the arguments put by the appellant for concluding that the Magistrate “must” have had a reasonable doubt as to the appellant’s guilt.
Consideration
I have watched the video recording of the appellant’s record of interview (the first Exhibit “P5”) and the evidence in chief video of Ms Devi (Exhibit “P1”). I have also read the transcript of the evidence before the Magistrate.
The first ground
In relation to the first ground relied upon by the appellant, I see no basis upon which to doubt the Magistrate’s rejection of the account of the appellant as contained in “P1” (see her Reasons for decision at [211]-[212]). Indeed, as submitted by the respondent, the appellant’s version shifted and changed as the interview progressed. After initially saying that he had not touched her at all during the afternoon of 18 January 2017 he then said that he had tickled her. He denied grabbing his wife’s hair, but then a little later says that she had pulled her own hair.
Later again in the interview he claims that he had put his hands on his wife’s head to try and stop her from pulling her hair. He demonstrates what he said happened with the assistance of Constable Marshal who was present during the interview. I must say that I consider that demonstration to be quite unconvincing. It also seems most improbable that he could have “no idea” whether Ms Devi had bumped her head on the wall while he was trying to pull her hands away from her head.
The respondent also points to inconsistencies in the circumstances of the appellant’s return to work that afternoon. At “QA150” (transcript of “P1”) the appellant said that he had tickled his wife to cheer her up after the hair pulling incident. At “QA164-7” he said that she responded positively to the tickling and then he went to work.
However, at “QA195-205” the appellant said that after the discussion about child care, his wife took his bag into the bathroom, locked the door and searched the bag. After he retrieved his bag he then hugged his daughter and left to return to work. There is no mention of tickling his wife to make her happy in this version of his recollection of events.
Making every allowance for the fact that English is obviously not the appellant’s first language, his account in “P1” does not provide a basis for any reasonable doubt of
Ms Devi’s testimony as to the events of the afternoon of 18 January 2017. I reject the first ground of the appellant’s challenge to the Magistrates decision.
The second ground
In relation to the second ground, it is true that Ms Samani did not give evidence directly corroborating the evidence of the complainant (see 18 September 2017 transcript,
“T23-4”). The appellant submits that in cross-examination
Ms Samani agreed that what was in her statement to police reflected everything that Ms Devi had said to her on 18 January 2017. While that is broadly correct, it is worth noting Ms Samani’s exact response to Mr Whybrow’s question. The question and answer were (see 15 January 2018 transcript, “T 49”):
MR WHYBROW: And what about everything that Anju told you on 18 January, on the phone and on WhatsApp?
INTERPRETER: Yes, and I said I will tell you the evidence as I remember, I kept on saying it, and the police typed everything. Because that time also we didn’t have an interpreter, that’s why I’ve said and he kept on writing.
As the respondent submits, the evidence of Ms Samani does not contradict the evidence of Ms Devi. The discrepancy is explicable by reference to the extent of
Ms Devi’s distress at the time of the telephone call, the physical and language communication difficulties at that time and the delay between the call and Ms Samani’s statement to police. I do not see this discrepancy as providing a basis to reasonably doubt Ms Devi’s evidence as to the appellant’s violence towards her on 18 January 2017.
As to the evidence of the objective sign of injury on Ms Devi’s forehead, the Magistrate was entitled to accept the observation of swelling by Constable McKelvie and the clinical note of Dr Edib dated 20 January 2017 (the second Exhibit “P5”). The fact that Constable Love did not see it is of little consequence, particularly given the Magistrate’s assessment of the value of his observations (see 16 January 2018 transcript,
“T 20 l 28-30”).
The evidence of some sign or mark of injury is an important objective matter corroborating the complainant’s account of what occurred to her. That is particularly so in relation to the observation made by her GP, Dr Edib. It is true that the value of that evidence could be undermined if there was some other explanation for it, including, as the appellant suggests, that it was self-inflicted. However, in order to for that argument to have real force the appellant had to have at least put that suggestion to Ms Devi in cross-examination. That did not occur. There is no evidence of an alternative explanation for the swelling/bruise on Ms Devi’s forehead in the days after 18 January 2017. Again, the evidence of Constable Love in that regard does not provide a basis to reasonably doubt Ms Devi’s evidence as to the appellant’s violence towards her on 18 January 2017.
Finally, the appellant argues that the evidence of Sanjeev Kumar was very general and in any event should be discounted due to his relationship with the complainant. The transcript evidence does in fact provide some detail of the conversation between him and his sister on 18 January 2017 (see 15 January 2018 transcript, “T 17”). It goes well beyond the reference to the appellant hitting her. It certainly corroborates the circumstances recounted by Ms Devi in relation to the visit of the Immigration Department officials as being the catalyst for the argument which followed between Ms Devi the appellant. Moreover, Mr Kumar was not challenged in cross-examination as to this evidence.
The suggestion that this evidence should be discounted because the complainant and Mr Sanjeev Kumar were siblings or were likely to have colluded was rejected by the Magistrate; (see 16 January 2018 transcript, “T 23 l 36-8”; and, Reasons for decision at [146], [213]).
In relation to the evidence of Mr Kumar, the Magistrate had the advantage of seeing and hearing his testimony. She clearly accepted him as a witness of truth, which she was entitled to do. I can see no basis on which that acceptance can be challenged.
Moreover, it is clear that the Magistrate accepted the complainant as a witness of truth as to her recollection of the events of 18 January 2017. Having regard to her findings she necessarily rejected the proposition that Ms Devi had made the whole story up in order to bring to an end what had become, for her, an unhappy marriage. The Magistrate was entitled to reject that proposition having regard to the totality of the evidence.
Conclusion
It follows from the above that I am not satisfied that there are any grounds on which the Magistrate must have formed a reasonable doubt as to the evidence of the complainant as to the batteries committed against her by the appellant on the afternoon of
18 January 2017. Indeed, having undertaken my own assessment of the evidence I am left without any concern that the appellant was wrongly convicted.
Accordingly, the Orders of the Court are as follows:
(1) The appeal is dismissed and orders of the Magistrate are confirmed.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 30 August 2019 |
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Amendment
3 September 2019 Replace “SCC 56 of 2018” with “SCA 56 of 2018” in the Case Title field
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