Love v Kumar

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Love v Kumar
Citation:	[2018] ACTMC 23
Hearing Dates:	18-19 September 2017 15 and 16 January 2018 9 July 2018
DecisionDate:	31 October 2018
Before:	Special Magistrate Hunter OAM
Decision:	See paragraphs [193]-[226]
Catchwords:	CRIMINAL LAW – common assault – offences against the person – family violence
Legislation Cited: Cases Cited:	Crimes Act 1900 (ACT) s 26 Liberato v The Queen (1985) 159 CLR 507
Parties:	Constable Kane Love (Informant) Santosh Kumar (Defendant)
Representation:	Ms S Janackovic (Informant) Mr S Whybrow (Defendant)
Solicitors ACT Director of Public Prosecutions ( Informant) Kami Saeedi ( Defendant)
File Numbers:	CC 17/4849; CC17/4843; CC17/1685; CC17/1186-1187

SPECIAL MAGISTRATE HUNTER

REASONS FOR JUDGMENT

5 charges of common assault over a period of 5 years:
a.CC2017/4849 – slapped Anju Devi across face between 1/1/14 and 31/1/14 – because she would not cook for him;
b.CC2017/4843 - 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;
c.CC2017/1685 – struck his child Prachi Prajapati back of shoulder because she was crying;
d.CC2017/1186 – pushed Anju Devi’s forehead backwards striking the wall behind 18/1/2017;
e.CC2017/1187 – grabbed Anju Devi’s hair and twisted her head and hit her face on wall 18/1/2017.

PROCEEDINGS

I heard this matter over a period of 4 days on 18 and 19 September 2017 and 15 and 16 January 2018. The Crown opened its case indicating there were four separate incidents. The defendant and the complainant are married and were married in February 2012. There is a daughter of the marriage named Prachi. The daughter was three years old at the time of the alleged 2017 offences. The three together with the defendant’s father all lived at a unit in Herd Street Mawson. The 2014 allegations arose, it is said, because the complainant was pregnant at the time and was unwilling to cook because of a skin condition she suffered.
In relation to charge CC 89 of 2017, it is alleged that one day in January 2014 the defendant became angry about the complainant refusing to cook and struck the complainant across the face.
In relation to charge CC 4843 of 2017, the allegation is that on 15 November 2014, when the defendant and complainant were at their residence, the complainant was advised by telephone that the complainant’s brother Sanjiv had been involved in a motorcycle accident. It is alleged the defendant refused to allow the complainant to speak to her brother on the phone. When the complainant persisted in speaking with her brother the defendant slapped her across the face.
In relation to charge CC 1685 of 2017, it is alleged in November 2016 that the complainant and the defendant were sleeping their bedroom at the home, and their child Prachi was continuing to cry: she was two and a half years of age at the time. It is alleged the defendant grabbed the child by the arm and struck her to the back of the shoulder.
In relation to charge 1186 of 2017, it is alleged that approximately 4 PM on 18 January 2017 the complainant and the defendant were in their lounge room and were arguing about what the complainant ought to say to Department of Immigration officials. As a result of this argument, when the complainant was standing with her back to the wall facing the defendant, the defendant raised his hand and placed it on the forehead of the complainant. The defendant pushed the complainant’s head backwards and she hit the wall behind her.
In relation to charge 1187 of 2017, it is alleged that after being pushed backward, the defendant grabbed the complainant by the top of her hair and pushed her face against the wall. This caused some minor swelling to the complainant’s forehead. Following this incident the complainant became apprehensive and when the defendant left for work she contacted her brother Sanjiv Kumar and her friend Sohalia Samani.
After this confrontation and fearing retaliation, she contacted police the next day and participated in an evidence in chief interview. The defendant was arrested and participated in a recorded interview with police.
Defence Counsel opened his case and stated that the whole of the accusations by the complainant had been fabricated, and that she did so in order to leave the marriage which had been an arranged one. The plan was a unilateral one to leave the defendant and take the child. Defence Counsel asserted that there has been no financial, emotional or psychological abuse, and it is all a pack of lies done in order to take the child and the money from the defendant.
Defence Counsel also said that whilst the defendant was in custody the complainant took all of the monies out of his account.
An interpreter was sworn in relation to interpreting for the defendant.

EVIDENCE
Anju Devi
A. Evidence in chief

I heard from Anju Devi, the complainant in the matter. A videoed evidence in chief interview was played. The interview is summarised as follows.

(a)Video interview

Ms Devi told police she was 23 years of age. She said the day before coming to the police station, being the day of the incident, she was home alone and two officers from the Department of Immigration came to the door. They asked if her father-in-law was at home. She advised that he was not there at the time. They asked about whether Melinda his wife was there. Ms Devi told them that there was no Melinda who lived there and her father-in-law has a wife in India. Ms Devi told them that she had been living in Australia for five years. The officers asked her to ask her father-in-law to contact them and left a card. Ms Devi also advised that her father-in-law would require an interpreter as he does not speak English well.
Her husband called her at some point and was very angry. He wanted her to retract what she had said and to tell the Department of Immigration that Melinda did live with them. Ms Devi told her husband that she would not lie to an Australian Official or to the Australian people because Melinda did not live there with her father-in-law or at all.
Her husband became enraged that she would not do as he wanted her to do. He yelled at her in front of their daughter Prachi. Ms Dev told police that her husband abused her and pushed her into the wall. He grabbed her by the hair and pushed her forehead into the wall. He did that twice, and this behaviour is the subject of two of the charges.
Ms Devi told police that when that happened she cried a lot and she was scared. She said the child was also scared. Ms Devi also told police that her husband was controlling and would not let her speak to her parents or her brother who, at that point, was living in Australia.
Ms Devi said that when her husband had left to go to work she called the Department of Immigration and told them the truth about what was occurring in the home. She then called her friend Sohalia who advised her to go to the police station the next day. Ms Devi went to the police station the next day and gave an interview. The police interview was solely in relation to the assaults alleged to have occurred on 18 January 2017.
Ms Devi also made allegations in relation to several other incidences of assault which resulted in further charges being laid.

(b)Testimony

Ms Devi also gave evidence before me. In her evidence in chief she said that the matters came to a head after the Department of Immigration attended her home. She said that the defendant was at work at the California Cafe. She said the Department of Immigration officers asked her about a person called Melinda. She said that no person by that name was living there. She said she had seen the name Melinda in her father-in-law’s phone where they had exchanged messages in relation to payments.
She said she told the defendant by phone about the visit from the Department of Immigration and that he did not come home at the usual time of two thirty PM. Instead, he arrived around four PM. They argued about what she had told the Department of Immigration officers. He pushed her and hit her head into the wall. She was standing near the wall which was near the television. She said he pushed her with open palms quite hard on her forehead and pushed her head into the wall. She said that it hurt and she cried.
He did this another time a few minutes later. She said that she got angry because the reason he was angry with her was because she denied that Melinda lived with them. She said he then grabbed her by the hair and the top of the head when they were face-to-face and pushed her into the wall again. The complainant said she had bruises and swelling to her face which she showed police. The complainant said that their two and a half year old child was there at the time and became upset.
It was as a result of these incidences that she considered that he may not stop this behaviour and it will continue indefinitely, so she made up her mind to tell police. She called and left a message with the Department of Immigration official. She then called her friend Sohalia and told her that her husband had hit her and had done so before. She said at this point she was crying when she told her of her plight. Sohalia said she should go to the police who would help her. The complainant said she spoke with Sohalia because she too had suffered from domestic violence and she was the only friend she could call.
The complainant then told her brother about what had happened. She said she went to the police because she wanted to live in a safe place.
I had before me a medical certificate dated 20 January 2014 which indicated that the complainant had attended her medical practitioner. However, there was no indication of why.
The complainant said that in January 2014 whilst pregnant she had itchy skin which became worse as it became hotter. She said the defendant was upset because she was not cooking in the usual way because of the heat. They had also commenced sleeping separately and had stopped speaking to each other because she was not cooking as he would have liked. She said that he indicated other women are pregnant and work. She told him that her health was more important than cooking for him.
The complainant said the defendant then slapped her in the face using his right hand. She said that she was between the door of the bedroom and she fell onto the door and hurt herself. She said at that point she was crying. She said her father-in-law was very close to where they were and would have seen it happen. She said her father-in-law did say something to the defendant but she did not know what.
She said this slap occurred in January because it was only in December when she started to become itchy. She said that she used bio oil for the itchy skin in January 2014 which she purchased from a chemist. She said she consulted her GP on 21 March 2014 and was prescribed topical ointment for the complaint. She said that the slap in front of her father-in-law occurred before she got the cream.
In November 2014, it is alleged that the defendant slapped the complainant because she continued to ask him whether she could have permission to speak with her brother. That came about as a result of a phone call which the defendant answered. The call was in relation to her brother who had been involved in an accident and was in hospital. She was concerned and asked permission to speak with him. The defendant refused to let her. She kept asking him persistently and he then slapped her.
She continued to ask him and he did allow her to speak for two minutes. However, he cut her off after that time.
Ms Devi said that she spoke to her brother and told him about that incident at a later time at the Woden library in January 2015. She said she had met up with him on some occasions at that place.
Ms Devi said she did not tell police at that time because she wanted her marriage to work and she wanted to give the defendant a chance to change.
Ms Devi said that her husband did not allow her to see her brother and refused to allow him to enter the home on 25 December 2016. As a result of that refusal, she saw her brother only once or twice a year. However, she did ultimately get his phone number and had called him from public phones.
Her brother then gave her a SIM card to speak to him, which she used in a phone she had at home. This was done without the knowledge of her husband the defendant.
In relation to the incident of November 2016 she said that her daughter was sleeping between her parents and was making some noise. The defendant was tired so he grabbed the child on the left arm and hit her on the left shoulder area. The child immediately cried and Ms Devi pulled her daughter towards her to comfort her. When she looked at the husband, he said don’t say anything or I will hit you was well. He appeared angry.
She said she did not tell police about this incident because it was the first time the defendant had hit the child. She also said she knew it was in November 2016 because they were going to Sydney in the December of that year.
In answer to a question from me, the defendant said she had a mobile phone between 2014 and 2017. Her husband had given her the phone in 2015 and, after using it for a short period of time, he took it from her. It was that phone which did not have a SIM in it, which she used to put the SIM that her brother had given her so that she could call him. She said she did so without the defendant’s permission and when he was not around.

B. Cross-examination

Ms Devi was asked what number the SIM was that she was given by her brother. She said she could not recall the number. When it was suggested that it was 0469 679 051, she said that was the one. Ms Devi agreed that that was the number she used to contact Sohalia in January.
She was asked how long she had the SIM card and she could not recall, although she said a long time. She said it was after she had used the public phone to make calls to her brother. She said she had used the phone a lot. She said that she had only two SIM cards: one that her husband had given to her and one that her brother had given to her. Ms Devi said her husband did not know that she had the SIM card from her brother and he would have been angry at her for it.
She agreed that she had come to Australia in 2012 to marry her husband, that it was an arranged marriage, and that they were married in India. She agreed that her parents met the defendant’s parents at the wedding, and that the defendant’s father lent her parents $10,000.
Ms Devi was asked whether she recognised a woman who stood next to Counsel and she said she had never seen her before. Ms Devi denied that the woman had been to her house five to six times. Ms Devi said she had never seen the woman before and in court was the first time she had seen her. It was suggested that she knew who this person was but she denied that, saying that she just seen her now. It was suggested to her that the person was Melinda Ford, and Ms Devi said this was the first time she had seen her and she had never seen her before.
It was suggested to Ms Devi that the incident which led to her going to the police was the Immigration Department enquiries, because it caused an argument between her and her husband. She agreed to that proposition.
She also agreed that she had completed her citizenship in September the year previous, being 2016, and she was a citizen in 2017. She agreed that she had done the test in September 2016, however she denied knowing about her citizenship progress at that point in time because it was her husband who received correspondence in relation to any confirmation. She also denied that she was told by the Department of Immigration a couple of days before she went to the police station that she was being made an Australian citizen. She agreed that she sat the test but she said her husband went with her. She said that she did get mail out of the letterbox but she was not allowed to open the mail. She denied receiving the letter that was said to have been sent on 19 January 2017. She also denied that she knew that there was an invitation for the citizenship ceremony.
Ms Devi said she spoke with domestic violence support workers who gave her a number to contact the Immigration Department to change her address, phone number, and email. She changed those details and it was at that point she asked about the certificate in citizenship. She was told they would contact her and let her know by post.
She said that after going to police she went back to the house to collect her belongings. She left the house and moved elsewhere, never to return.
She said that when she spoke with the Department of Immigration and asked them about her citizenship, she was told her citizenship had been granted and this had occurred in February. They told her about an earlier email and she said that she did not receive it. Ultimately, Ms Devi received an invitation for a ceremony on 16 March which she attended.
The emails and letters in relation to the test and correspondence in relation to advising of the citizenship were exhibited before me, as well as a photograph of Ms Devi receiving her citizenship. It was suggested that Ms Devi knew that her citizenship had come prior to her making complaints against the defendant, which she denied.
Ms Devi denied she knew anything about a loan made by the defendant’s father to her father. Ms Devi indicated that she did not have any knowledge of a money transfer and had nothing to do with it, although she knew that her father owed money to her father-in-law but not in any detail.
Ms Devi said she had an email account which she did not use except for matters such as Centrelink or Immigration, as her husband “used to give his ideas” I infer this means he wanted to deal with those matters himself.
Ms Devi said she did not have many friends in Australia. Although she did know some people in her community, she did not consider them to be her friends rather they were acquaintances. She had a friend from the CIT named Sohalia. Ms Devi said she attended there to learn English and that she went by herself. She gave a version which indicated that she was not free to do as she wished. She had time limits on where she went and was spoken to when she did not meet them.
Her evidence was effectively that she had to have her husband’s permission to go anywhere, even to the doctors. Either her husband or her father-in-law would go with her on those occasions. She indicated that she only went to the doctors on her own once or twice and denied that she had freedom to move about as she wished.
She denied she had any access to cash, except for $20 odd that her husband gave her in cash. The upshot of her evidence was she had to be with either her husband or father-in-law and was not allowed to speak to family either. In terms of banking, she said she had a card but no PIN and therefore could not withdraw money from the account.
She admitted taking all the money out of the accounts, some $18,000. She said that it was her money because of some work she did, as well as Centrelink payments and parenting payments. Ms Devi said that her husband received family tax benefits for Prachi into his personal bank account. It was suggested to her that money withdrawn by her husband was for a car for her to drive. She indicated she does not know how to drive and indeed it was for him to buy a better car.
It was suggested to Ms Devi that when she found out that she had Australian citizenship, she wanted to get out of the marriage and she made up the assaults in order to do so. However she denied that.
Ms Devi did agree that she took all the money from both accounts after she had made a complaint to the police but said it was five days afterwards and she had decided not to go back to the relationship. She also indicated that it was after she had spoken with the domestic violence workers and a lawyer that that she withdrew the money from the bank.

It was suggested to Ms Devi that she told Sohalia that she just wanted to be happy and free. Ms Devi said she told her that she wanted to separate from him and not live with him anymore. Ms Devi said that she confided in Sohalia because of her own experience in domestic violence and divorce. Ms Devi said that she told Sohalia that the defendant had assaulted her, grabbed her hair and pushed her into a wall. MS Devi said that she had a bruise on her forehead from being pushed into the wall by the defendant.
She denied that she ever hit her husband with a box of medicine. She said there had been an incident but it was an accident that he had been hit by a box containing medications.
Ms Devi agreed that she had two phones: a Nokia and a Samsung. The Samsung was purchased by the defendant. The Nokia was not being used. Ms Devi said she also had a Motorola at some point. Ms Devi said that she had used the Nokia secretly, without the knowledge of her husband. She said she did this because she was unable to call her family, because her husband did not allow it. Ms Devi used the SIM given to her by her brother to make phone calls to her family.
Ms Devi gave a history that after one year of being able to speak to her parents freely, she was allowed to speak to them only when she was given permission by her husband. After her sister died, she surreptitiously spoke to them because he would not allow her to speak to them.
Ms Devi was asked questions about her passport and returning to India when her sister died. Ms Devi denied that she refused to go because of the consequences for her citizenship.
Ms Devi denied that she has made the whole thing up and had planned the whole lie to get out of an unhappy marriage. That she did so because her father would not have to pay back the $10,000 loan from the defendant’s father.
It was suggested to Ms Devi that she did not tell police about prior allegations of assault and abuse. It was suggested to her that she never told police about the kicking. She said this was because police had told her that if she could not name the month and year, they would not do anything.[1] It was suggested that she told police these things in order to get an order for custody of her daughter from the Family Court, which she denied.
[1] transcript P76.13
It was suggested that the reason why Ms Devi refused to cook for her husband was not because she had itchy skin and the heat made it worse. Ms Devi denied this and said that she did have itchy skin. I note there is evidence of her suffering from Pruritus whilst she was pregnant. I also note she had a thyroid condition. Both of which could account for her condition of itchiness.
Ms Devi agreed that she was able to contact her family but did it secretively because of her husband’s refusal to allow her to speak to them, including her brother. Ms Devi said that she had told her brother about the abuse, and she did so at the library when she met him there. Ms Devi also said that she used Facebook, but that was not known to her husband because it was without his permission.
It was suggested to her that her husband did allow contact with her family after her sister died. She said that was only for a short period and then he stopped her. She denied that she lied about not being able to go out by herself. Ms Devi said her life was essentially one of control and she denied that that was painting a bad picture of the defendant. She said that was what life was like with Santosh.
Ms Devi agreed that she took a number of items from the unit, including paperwork, because she knew she was not coming back. She did, however, leave her diary which was unintentional.
In relation to her friend Sohalia, Ms Devi said that she could not speak to her about domestic violence at first because she essentially wanted to make a go of her marriage.
In relation to the phone calls, Ms Devi agreed that she had made calls to her father and mother from her father-in-law’s phone in 2013. She said at that point she had no phone or SIM and used her father-in-law’s phone to call. Ms Devi said that, at one point, she could receive calls but could not place calls using her phone.
The upshot of this was Ms Devi did use a phone but the defendant did not know she was using it. At one point earlier in the relationship, her father-in-law knew and had let her use his phone. It was not until after her mother-in-law came to live with them and after the mother-in-law had had a misunderstanding with Ms Devi about the type of relationship Ms Devi had with her father-in-law that the father-in-law stopped her using his phone.
Ms Devi said that her father-in-law knew that the defendant hit her. Ms Devi said her father-in-law could not do anything about it because the defendant is his son.
It was suggested to her that she did not get up to a crying daughter to feed her and that it was either her husband or her father-in-law that did so. Ms Devi denied this,[ I must say I find it difficult to accept that Ms Devi would do that to her daughter, there is absolutely no evidence to suggest that Ms Devi was anything other than a good mother to Prachi]
It was suggested that the defendant did not hit Prachi. Ms Devi said that he had hit her. Even though it was dark at the time, Ms Devi said there were some light and she saw it happen.
It was also suggested Ms Devi knew about the loan. Ms Devi said that she did not know about the details of any loan.
It was also suggested that on the evening of Christmas Day, her husband allowed her brother into the house. Ms Devi denied this.
In re-examination, Ms Devi said she did not know about the citizenship ceremony until she was told by Doris workers to call the Immigration Department. She also said she took all the money from the bank because she was told to do so by the lawyer recommended by Doris workers.

Morgan Small

Morgan Small gave evidence before me. He said he was an Australian Border Force Senior Officer and his statement was tendered as Exhibit P11. In the statement he set out what happened when he visited 6 Heard St Mawson on 17 January 2017 in relation to establishing the relationship between the defendant’s father Tilak Dhari and Melinda Fordham.
At the residence, Mr Small had asked to speak first to Mr Dhari and then to his wife Melinda Fordham. Ms Devi replied that Mr Dhari lived with them, she did not know he was married, and in 5 years had never seen Melinda Fordham nor indeed knew who that was. Mr Small said that Mr Dhari’s partner visa had been refused but he had requested a review by AAT and they were investigating on behalf of AAT.
In his statement, Mr Small said Ms Devi told him she did not know anyone named Melinda, did not know Mr Dhari was married and in the 5 years she had lived there had not seen Melinda Fordham. Later that day, Ms Devi contacted Mr Small advising him Mr Dhari had returned but that he would need an interpreter. A phone interview was conducted with Mr Dhari later that day.
Mr Small was asked about the process of taking the citizenship test. It was his evidence that if all other aspects of the application are fulfilled and the test is passed, that would lead to citizenship eligibility.
Mr Small was shown a document advising Ms Devi of her citizenship approval. He was not able to assist the court in determining the process or outcome of her citizenship application.

Sanjeev Kumar

Sanjeev Kumar is the brother of Anju Devi.
Mr Kumar came to Australia in October 2014. The first time he saw his sister in Australia was on 25 December 2014. His evidence was that he knocked on their door because he had wanted to see his sister and provide gifts to her family. He said he went to their house at approximately 10 PM as he knew that they were going to be in Sydney that day and were returning to their home.
He said the defendant’s father opened the door and greeted him. The defendant’s father then bad-mouthed his sister and did not invite him into the house. Mr Kumar said when his sister and the defendant arrived, he spoke to the defendant and his sister. He was told by the defendant that he must ring first before he comes to their house. Mr Kumar said that his father (in India) had told him that the defendant had spoken with him and told him that Sanjeev was not allowed to come to the house.
Mr Kumar said he did not try to contact his sister because he did not have her phone number. He said he met his sister at the Woden library in January 2015 by chance. He said it was not planned and it was a surprise.
He said that he had a pushbike accident on 14 November 2014 and went to hospital. He said his friend called the defendant because he wanted to let his sister know that he was in hospital following an accident. He said he was in hospital for seven days. On one occasion, Mr Kumar said he was allowed to speak to his sister for a short period of about one and a half to two minutes. He said that, when he was on the phone to his sister, he heard the defendant tell her to cut the call and then the call ended.
Mr Kumar said he spoke with his sister at the library in Woden and she told him that she and the defendant had had an argument and he had slapped her. His sister also told him that she was sad because the defendant would not allow her to go to the hospital to see Mr Kumar when he was there.
Mr Kumar said that he gave her his phone number so that she could call him from a public phone at the library. Eventually he gave her a SIM card so she could call him. Mr Kumar said on 18 January 2017 he received a call from Ms Devi. Mr Kumar said she was highly distressed and crying, and she told him the defendant had hit her. Mr Kumar said his sister told him this occurred after immigration officials had come to the house questioning her about her father-in-law, and that she had said to the officers that she did not know the woman who he was purportedly married to and living with.
Mr Kumar said his sister told him the defendant had tried to force her to change her statement in that regard. This occurred after she told the defendant that she would not change her statement because it would be lying. The defendant had then hit her head into the wall and told her he was going to kill her. It was then she said that she was going to go to the police and report him. Mr Kumar said he told her to go to police straightaway.
When questioned, Mr Kumar said that between October 14 and January 17, he only saw his sister on very rare occasions except when he bumped into her at the library. However, they spoke on the phone on a regular basis because he had given her a SIM card. He said that on the occasions when they met up, the defendant was not with his sister.
In cross-examination, Mr Kumar agreed that he had given 2 statements to police but he had never spoken to the prosecutor. He agreed that Ms Devi had left him a message on 17 January. He also agreed that he had regular contact since that date with his sister and her daughter Prachi.
Mr Kumar agreed that when he first arrived in Australia, he had the defendant’s phone number. He said he tried to speak to the defendant’s father but not the defendant because he had been told the defendant did not want him to go to the house to see his sister.
He agreed that he went on Christmas Day to the defendant’s house and that he had tried to phone when he had the bike accident.
Mr Kumar agreed that his accident was in November and that he did not go to the house until 25 December. He agreed he knew their residential address. He thought that before the marriage, in 2011 or 2012, he had spoken to the defendant and Ms Devi and all was okay. He said that he knew their residential address because of a visa application.
He said he told Constable Love about the Christmas incident. He agreed that he ran into his sister with Prachi, but he had not seen her before that time. He said they spoke for 10 minutes. He then saw her the next week and then a few subsequent times, perhaps three.
Mr Kumar stated they both now live together and that he had not decided whether or not he was going to apply for Australian citizenship. He said he was aware that his sister is an Australian citizen but he did not attend the ceremony. He denied knowing that his sister had her citizenship before the marriage split.
He said that the reason he spoke to her on the phone but did not meet her was because the defendant would not allow her to meet with him. Mr Kumar said he saw her in Woden because the defendant would not allow her to go anywhere else because he worked in that area.
It was suggested that Ms Devi had worked in Tuggeranong. Mr Kumar was unaware of this.
He knew Ms Devi had called her parents on the phone. He said his sister had died and he had been unable to attend the funeral because of exams, although he said he wanted to. He said that Ms Devi had also wanted to go but the defendant would not allow it. He denied the suggestion that the reason she did not want to go was because of her citizenship issue.
He agreed that he used Facebook and Skype but mostly contacted Ms Devi using Facebook and Gmail.
Mr Kumar said he once went to Temple at Mawson and he knew his sister went there, but she does not now go. Mr Kumar said he only moved in with his sister in July - August because before that she had lived in a refuge. He said he had spoken to the police twice and made two statements. He also said he did not see any physical abuse between his sister and the defendant.
Mr Kumar said that his sister had told him the defendant had hit their daughter. However, this disclosure occurred after she had left the defendant. He also said that his sister had told him on two separate occasions about the slap.
Mr Kumar denied that the defendant invited him in on Christmas Day and invited him to have a cup of tea. Mr Kumar agreed he had bought presents for Prachi and the family, but he said he left them outside because he was not allowed inside.
He was adamant that his sister had wanted to go to the funeral in India and that there was nothing stopping her in relation to her citizenship.
Mr Kumar agreed he had attended the house with two of his friends to speak with his sister when his other sister had died in India he agreed that he came in and hugged his sister. He said he denied ever planning to go to India because he’d already spoken to the defendant and the defendant had told him that his wife could not go and that Prachi did not have a passport.
However he agreed that there was a plan discussed for all of them to go and they were to get a passport for Prachi in order to do this. He said those plans had not been made when he went to the home because he and his sister were very upset. He said the defendant denied his sister being allowed to go by herself. He again denied that his sister refused to go to India because she was worried it would jeopardise her citizenship application.
He denied that he spoke with the defendant but agreed that his friends spoke to his sister. He said he was inside but he was crying and depressed and did not speak with the defendant. Ultimately he said he did not know why they did not go as a family group.
In relation to his bike accident he said he recalls the telephone call to the defendant and that at that time he was alone and without his family, was in hospital and he said he heard the defendant’s voice say cut the call that night and that it was disconnected.
He said that he had spoken to the defendant only once when he first arrived in Australia but he had spoken to him before the marriage and after on the phone number of times and in his voice.

Sohalia Samani

Sohalia Samani gave evidence before me and speaks the Persian language Farsi. Ms Samani said she was a classmate of Ms Devi English language at the C I T. She said she saw her four days per week in class before Ms Devi became pregnant. Ms Samani said that she sometimes called her to tell her things. Ms Samani said she never saw Ms Devi without her husband being present however she did speak with her on the phone may be once in three months or two months.
She said she recalled speaking with Ms Devi on 18 January 2017 it was the afternoon that she called her and told her that her husband was troubling her and asked her advice as to what she should do. Ms Samani indicated that she had similar a circumstance and had some experience about this matter.
She said that Ms Devi told her he would not let her out of the house by herself she had no money and could not see her brother and she had periods of not seeing her family. Ms Samani told the court that when they were at the C IT Ms Devi told her that not all was well at home and that she could not leave home. She had told her that she was just a servant to them and asked what she could do to leave her husband. Ms Samani told her to contact the police and they will guide you.
Ms Samani said she knew this because she had a similar experience and knew the organisations and gave her the contact number for Toora women’s shelter. She said they exchanged texts in order for her to do so and Ms Samani told her to go to the police because the police would assist her.
In cross-examination Ms Samani agreed she had told police what she knew about the defendant and his wife and she did so without the use of an interpreter.

Constable Kane Love

Kane Love, a constable of police, gave evidence. He said that he met with Ms Devi and was the informant in the matter. He said that his observations were that she was calm with no physical injuries that he observed. Constable Love conducted a family violence interview in chief, and attended with Ms Devi to the family home and then with two domestic violence crisis service workers to collect personal items. At that time the defendant was not at home.
Constable Love said that Ms Devi had complained of physical and emotional violence at the hands of the defendant for the majority of their relationship. She did so at their very first meeting on 19 January 2017. Later on he attended the family home and arrested the defendant. The defendant participate in a recorded interview with police.
Constable Love said that he had obtained medical records from Ginninderra Medical Centre. That was exhibited as exhibit P5 and indicates that she presented to the doctor saying that her husband grabbed her hair and hit her head into the wall three days ago. Since then she had mild headache no nausea or vomiting the doctor noted on observation she had a small bruise on the left side of the forehead tender to touch. The doctor reassured her that she may have a mild head injury and to use a heat pack and Panadol for pain and to return if there is any concerns.
Constable Love agreed that he did not see any physical injury to the complainant and did not take any photographs when he conducted the interview with her.
Constable Love agreed that he had left cards at both the workplace and home of the defendant but was not aware that the defendant had rung twice in response to the card that he left. He agreed that telephone records show he did make a phone call to the police number. The cards and the phone records were tendered before me as exhibit D 15.
Constable Love agreed that the complainant had given a generalised version of abuse but could not identify particular matters. It was suggested that indeed she had given the generalised version after the evidence in chief interview. The officer was questioned as to whether if she had said something about that earlier he would have covered in the family violence interview he said its possible but once again as they couldn’t be specified it’s nothing that I could cover in the family violence interview itself and rather something that could be covered later on in further statements once they could be specified.
It was suggested that she did not make any mention of it in her family violence interview and only focused on what had occurred the day before. Consul Love said as far as he was aware she did mention it but he didn’t cover it in the family violence interview occurred because he was going to do it in a further supplementary statement.

It was suggested to Constable Love that if matters had been covered such as being refused to see his sister on Christmas Day and like conversations about that it was most likely that if he had been told he would have written it in his notes. The officer suggested that was possible [although it seemed to me that he was not sure whether some of the information was significant to him].
It was suggested to Constable Love that he and Constable Marshall were not permitted to put questions to the defendant in the recorded interview with him such as why would she lie and the like. Constable Love said that he didn’t know that was impermissible but agreed that the defendant did say that the reason she may make it up is because her father owed his family money. He also agreed that it was clear from the tenor of the interview that the defendant was denying that he assaulted his wife.

Record of Interview

The defendant said that the day of the arrest that he and his wife had had a discussion about childcare for their daughter with Ms Devi wanting 2 days a week and the defendant saying it was only for one day. The discussion ended with the defendant saying that she was only go to go one day and that he recorded that Ms Devi was a little angry saying that essentially she needed some time away and that she had the baby and he said everyone has a baby will we have to manage our time. The defendant said that he wanted her to stay in the home until the child went to school and then she would have time for work or study. The defendant said that his wife did not agree with him and “so this thing happen and I – and after I just, arm, left, are, my – my room I went to work he came home went to bed and that’s what happened”.
He also discussed them talking about going to India that she had been back five years and he said they will go one day that he had other things to consider such as buying a house and he was saving to do so. He indicated that he was very busy with work but he tried to give them some time and that she was unhappy with this because she did not have sufficient time and he wasn’t spending time with them. The defendant indicated that once they have a house that he would reduce his work time and spend more time with them.
He also indicated that he had told her he was going to buy her an automatic car so she could learn to drive so that she can use it to pick up the child when it goes to day-care and go to the shops and school. He said that was all they discussed. He said because she was a little bit angry and he did not like to speak to her then.
The defendant denied touching his wife at all that afternoon when he came home from work. He also denied grabbing her. He said he was trying to make her happy and he was tickling her despite having just said that he didn’t touch her. He said that when he tickles her she laughs he said he then just left for work.
The defendant demonstrated that he tickled her on the tummy and that she laughed and was happy. He denied grabbing her hair at all and said that he was feeling cool and that when she gets angry he doesn’t speak to her at all. He said he did not threaten to kill her, nor did he threatened her. The defendant gave a version where he said that she pulled her hair by her hand and this was between 2.30 and 5 PM. Then he said she did that because she was angry and that because he was not listening to her about sending the child to day-care for two days. He said he told her don’t do that because it will be painful. He says she was doing it because she was concerned about not spending enough money and he was concerned because he wanted to buy a home.
He said the tickle happened after she had pulled her hair and that was because he wanted to make her happy. He was asked whether he pushed his wife’s head into the wall and he said I didn’t maybe I should have. And I should have had a camera in place there to see exactly what happened.
The defendant stated that his wife took his bag which had his work clothes and a few other items including some paperwork and took it into the bathroom and wouldn’t let him in. When she eventually came out he said that he checked the bag and some papers were missing. He said that after that he sat on the chair hugged his daughter and then left for work. He said he said goodbye to his wife who did not answer him.
The defendant gave a version of events again to Constable which seem to suggest that the conversation was quite amicable and that it went from there to his wife pulling her hair and being angry. He said they were speaking about going to India and he said yes some time but not now.
The defendant then again described how his wife was pulling her hair and said that he took her hands in order to pull away from her hair. He said that she had previously been to the doctor and had some nerve pain and asked her why she was doing what she was doing to herself because she will have more pain later on. He also made some comments about treatment that the doctor had recommended in the form of shampoo which was successful.
He said that at the time she started doing that he was sitting on the chair he had not gone near her. He said that after that she went and laid down on the bed in the corner of the room she was very quiet she wasn’t angry and he wanted to cheer up a bit after the argument so he tickled and then she felt good.
He said that when she was pulling her hair she was standing near the wall. The defendant demonstrated how he was taking her hands from her hair. He said that he did not notice whether she banged up against the wall or not.
The defendant was shown the evidence in chief interview with the complainant. The defendant denied her version of events and suggested that a camera should have been in the room so the truth could come out. The defendant said that the matter about Melinda and his father is a separate matter. The defendant denied touching her the night before. He suggested that she was lying. He then stated that his father had lent her father money and had asked for the money to be repaid.
The defendant also made a comment where he said that her friend who was divorced or something and maybe was not happy and told his wife to contact the police.
The defendant also said that he would not allow her to have the child in day-care and that it would take some time, they couldn’t do it immediately, essentially until the child was at school and they had sorted out their finances to buy the house.
The defendant also made some comments about suggesting she not travel a lot because of an incident that occurred on a bus. He was essentially thinking of her safety and what she could do in trying to help. He said sometimes arguments occur between husband and wife but not hitting her.
There was some evidence before me in relation to telegraphic transfers, and Action bus transaction report which indicates a number of uses of a card between 3 February 2016 and 31 January 2017.

SUBMISSIONS

Essentially, Defence Counsel submitted that the complainant made up these allegations for the following reasons:
a.   To leave the marriage once she had obtained her Australian citizenship;
b.   So the defendant would be charged and remanded, and she could then close their bank accounts, leave him and take their child with her;
c.   Her father owed the defendant’s father $10,000.00 and that had not been paid back;
d.   To leave the defendant.
Defence counsel teased out the motive for this by suggesting:
a.   She was not controlled by her husband and his family, that she was free to go to classes and Temple and had also worked prior to caring for their child;
b.   Ms Devi gave her evidence in a forceful way and was not a shrinking violet who was controlled by her husband;
c.   She had given her phone number to the doctors’ surgery which is inconsistent with secreting her phone calls made on the secret SIM card.
d.   She was unhappy because the defendant wanted her to return to work and there had been an argument about how many days the child could go to day care.
Defence Counsel also pointed out that her best friend gave no evidence that Ms Devi had told her about the assault in January.
Defence Counsel referred to Ms Devi giving evidence about never being allowed to go unaccompanied to the doctors. Ms Devi had said she was accompanied by either her husband or father-in-law. Defence Counsel suggested the medical notes did not reflect that position, save for one entry. [I must say that I cannot find that Ms Devi lied about that because there is no direct evidence that the doctors she saw would actually note that fact. I cannot rely on that evidence to prove she was being untruthful on that issue].
Another issue canvassed by defence Counsel was about not being allowed to go to India to see her family upon her sister’s death. Again, I can make no finding in relation to that issue. Defence Counsel suggested it is one more lie about the control. However, it is clear that she wanted to go but it was decided that they go as a family and that Prachi would need a passport. The defendant in his recorded interview said they could not afford to go to India. In my view the evidence about Prachi’s passport is also consistent with Ms Devi’s wish to travel to India with Prachi as well.
Defence counsel relied upon the evidence of Ms Devi being diagnosed with a lipoma (which is a fatty lump) to suggest that was the reason why the defendant pulled her hands away from her pulling her hair. There is no evidence before me that the lump caused any irritation or soreness such that the defendant would be worried about Ms Devi hurting herself if she pulled her hair.
Defence Counsel submitted that the one independent witness who gave evidence did not say that Ms Devi complained to her about assault just that she wanted to get out of an unhappy marriage. The witness did not give any evidence of complaint about assault.
I note that Ms Sohalia did not refer to Ms Devi telling her about an assault but referred to it as having troubles. I also note that she recommended that Ms Devi contact police because of those troubles for the purpose of assisting her to leave, as well as contact details for a Women’s refuge. That fact is consistent with the evidence of Ms Devi that she wanted to get out of a violent relationship.
Defence counsel suggested that Ms Devi and her brother colluded to get their stories straight. That they should not be believed. [I must say that was not my impression of either of them when they gave their evidence.]
In relation to cleaning out the bank account, I note and defence counsel alluded to the fact that the account contained payments for parenting and the like so in her view that money belonged to her. I understand he had a separate account where family benefits was accrued.
In terms of the credibility of witnesses, defence counsel submitted that I could not rely on the evidence of Ms Devi because if I cannot accept her beyond a reasonable doubt about any of the matter upon which she gave evidence I cannot accept her in relation to these allegations.[2]
[2] Transcript p38 16/1/18
Defence counsel submitted “The allegations of 18 January are undermined in two significant ways. Now, taking into account the sort of Liberato principles, that if there is one witness and there’s a competing version, it’s not just a matter of rejecting that other version, you’ve got to be satisfied beyond a reasonable doubt about the complainant.”
In considering that submission I set out the direction given In Liberato v The Queen (1985) 159 CLR 507 at 515, Brennan J in his dissenting judgment (Deane J agreeing) said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
Defence counsel has squarely raised that the complainant has a motive to lie. If established that may substantially affect the assessment of her credibility. I must be satisfied as to whether that motive has coloured her evidence and should not be believed. In doing so I must consider all of the evidence given including any independent evidence which substantiates her version thus displacing the motive to lie. I must be satisfied beyond a reasonable doubt as to those facts which go to prove the elements of the offence.
There is also the Murray Direction which in this case I must apply as the evidence of the complainant is essential to the Crowns case. I will remind myself that I must use caution before convicting on the evidence of the complainant. That I must be satisfied beyond a reasonable doubt as to the honesty, reliability and accuracy of the complainant before finding the defendant guilty beyond a reasonable doubt. In doing so I can accept or reject some or all of the witness’s evidence.

Prosecution submissions

Counsel submitted that the issue boils down to whether the assaults occurred as described by Ms Devi or they were actually fabricated by her.
Counsel submitted that Ms Devi gave her evidence by participating in an evidence in chief interview less than 24 hours after the event. That she gave her evidence barely without a pause as she described “stream of consciousness type of story. That her evidence both at FVIC and in Court was internally consistent with each other.
Ms Devi described how she was grabbed by the hair and hit into the wall twice. She demonstrated that she was pushed into the wall with the back of her head hitting the wall then was grabbed by the hair and the defendant pushed or shoved her head into the wall. If that was accepted that would form the basis of 2 x common assaults on 18 September 2017.
I was invited to examine how the complainant gave her evidence particularly her Evidence in Chief Interview. That I could assess her as being earnest and truthful. As an example that she would not lie to the Immigration Officials about her father in laws situation as she did not want to lie to the Authorities or the people of Australia.
The prosecutor submitted that I should accept the complainant’s version because she was able to give such depth of detail which tended to suggest it was not fabricated. The prosecutor said the complainant did not embellish or overstate her evidence.
I was reminded that I should take into account that the complainant’s first language is not English.
I was asked to reflect on the position that in terms of the Sim card the complainant said she did have it and she used it but she did so surreptitiously. The prosecutor suggested it was not that she did not use it, it was that she was not permitted to do so by her husband. But she did use it and in a covert way.
The prosecutor suggested that the complainant’s truthfulness could be gleaned by her evidence in relation to the assault on Prachi. The prosecutor submitted that when questions were asked as to why she did not tell the police about it she said that that was because it had been the first time he had assaulted the child. I was asked to consider that she did not embellish that answer or make it worse for the defendant.
The prosecutor submitted that I would find that the complainant was measured, firm but polite when giving her evidence she was not aggressive when she was cross-examined, she made concessions where appropriate. The prosecutor submitted that the complainant was honest and had admitted taking the money from the bank account when asked. That she did not paint herself as being shy or retiring at all.
In terms of the assaults and whether there is any corroborative evidence the prosecutor submitted that the allegation of January 2014 is corroborated by the incident she recalls of having an itchy skin problem. There are medical records to support that she attended her GP in March 2014 for that condition.
Other corroborative evidence is that the assault which occurred in November 2014 was the night her brother had his accident where the complainant said that she was slapped after trying to insist that she speak with her brother for more than the very short period she had spoken to him. Corroborative evidence is given by her brother of complaint in that she told him that her husband had hit her. That was when he saw her at Woden and at a time when she had no intention of complaining to the police about it.
The prosecutor submitted and accepted that there was no corroborative evidence in relation to the allegation that the defendant slapped, Prachi.
The January 18 assault was corroborated by the immigration official incident, her brother’s evidence and also her complaint such as it was to Sohalia. The prosecutor submitted that that complaint evidence was given on the evening of 18 January. Mr Kumar gave evidence that his sister rang him on that evening and told him of the assault following the immigration officials’ contact with her at her home the day before. He also gave evidence of the context of the assault being that it resulted from her refusal to lie to the Immigration officials.
The prosecutor also submitted that Constable McKelvie stated that she observed that the complainant was visibly distressed, and noted a slight swelling on her forehead. Medical evidence two days later informs that there was evidence of a bruise on her forehead. That is consistent with the evidence she gave, corroborated by her brother that she was assaulted and her head hit the wall.
In relation to being controlled, Mr Kumar in evidence gave a similar story of him not being allowed to see his sister, their meeting at the Woden library and that he had provided her with the Sim in order that she could contact him and their family.
It was submitted that I would be impressed with him as a witness he was honest he conceded where appropriate and conceded that she told him about Prachi after the marriage had ended and that she had not told him about this before then or indeed told him about any other acts of violence against her.
I was invited to consider that evidence suggests that there was no collusion between them because if there had been, their story would have been the same and very strong. The prosecutor went on to suggest that the evidence shows that the defendant did display some measure of control over the complainant and that is so in his answers that he gives in his recorded interview where he said that he had told the complainant not to travel a lot and that he would go with her if she need to go somewhere.
The prosecutor submitted that the assault in November 2014 arose because she wanted to speak to her brother after he had had an accident. As a result of her insistence she was slapped.
In relation to the assault on 18 January 2017 this arose as a result of the complainant refusing to lie to the immigration officers about the situation in respect to her father-in-law. The prosecutor conceded that there was no complaint of abuse to any medical practitioner. (I wondered whether this was perhaps because there was someone with her during the consultation). It was submitted that she did not know what to do or who to turn to, for her to make those complaints and that is consistent with her phone call to Ms Samani because she asked her what she should do and noted that Ms Samani had experienced a similar situation.

The prosecutor submitted that the complainant did not display a desire to leave the marriage as evidenced by her conversation with her brother when he suggested that she should go to the police and she said no I want to give him a chance to change.
The prosecutor submitted that in relation to the question of an absence of complaint to police when she did go to them she said the complainant did allude to the police that there had been several instances of physical and emotional abuse but because she could not specify the particulars there was nothing they could do about it.
In relation to the lack of complaint to Sohaila on the 18^th the prosecutor submitted that that could be put down to 2 things, first speaking different languages of origin and conversing in English together and secondly that Ms Samani was not asked to give a statement in relation to the matter for some eight months after the event which could explain the lack of complaint given in evidence by her.
In terms of motive, this was explored at length in cross examination. One of the motives was that she had sole custody of Prachi. However there was no evidence she was going to take the child and her reference to my child when questioned was answered with an apology and an acceptance that of course the defendant is and will always be the father of Prachi.
In terms of the debt owed by her father, the prosecutor submitted that the complainant knew very little about it and there was no evidence to suggest that leaving the marriage would have had any impact on the contractual arrangements between the two fathers.
The prosecutor submitted that I could be satisfied that in her evidence she was not trying to portray the defendant a bad light, she denied it and apologised if that was what was understood.
In terms of the control she did not place it any higher than she did there was no suggestion that he had her under lock and key and hidden away somewhere.
In relation to the My Way card the prosecutor submitted that the evidence shows a person who over a significant period of time who had no car was not working and had plenty of time on her hands only used the bus over a period of 11 months on 26 trips. [I note that these ‘trips’ do not indicate whether they were return trips or not.]
In terms of using the phone it is clear from the records from 2013 that she used it to call her mother and father on numerous occasions. However, after 26 May 2014 there was only one call to them and that was on 1 July 2014. There were no others. It was submitted that that supports the assertion that she was not allowed to use the phone except when permitted by her husband. It was noted that at that time the mother-in-law arrived in Australia and the complainant was not allowed to use her father-in-law’s phone from that time which is of her evidence.
The prosecutor submitted that the citizenship issue is a furphy. The prosecutor submitted that the fact that she had made a complaint to her brother at the Woden library and had also on 18 January contacted Ms Samani in relation to troubles brings that issue into doubt. The prosecutor noted that 18 January was the day of the assault which was the day after the immigration officers had attended.
I also note that the letter which she never received dated 19 January 2017 informed her that she was an Australian citizen. There is nothing to suggest it was delivered to her and indeed Counsel for the defence conceded that she had never seen it his client had received it.
The prosecutor submitted that the defendant in his recorded interview which was exhibited before me displayed internal inconsistencies. Some of those inconsistencies were that he gave version of events which did not mention that he tickled her, did not mention that he had tried to stop her from pulling her hair. The prosecutor submitted that these were added layers to his original story once police had challenged him about that. [I note that the defendant is also of Indian descent and English is not his first language either which may explain some of that internal inconsistency and layering of his evidence].
The prosecutor submitted that I would find the offence is proven beyond reasonable doubt, particularly the immigration assault, the assault of the slap the day of her brother’s accident and the head pulling were corroborated by other evidence some of it independent.
Defence counsel in re-examination referred again to Liberato v R and said that it is not one version against another. And that the onus of proof is upon the prosecution at all times. Defence counsel read from Liberato v R 159 CLR 507:
Where a case turns upon a conflict between evidence of prosecution witness and the witness the defence witness its commonplace for the judge to invite the jury to consider who is to be believed. Thankfully it appears a subsequent law said don’t do that because it is apt to confuse. “The jury must be told that, even if they prefer the evidence for the prosecution, they should not convicted unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt.
Defence counsel suggested that the evidence given by the defendant gives rise to a reasonable doubt. He also went on to say that even if Ms Samani and the complainant had a disconnect, there is no evidence to suggest why the complainant rang her that day and she says so.
In relation to the issue of not exaggerating in relation to Prachi, defence counsel said that’s no reason to find she is credible because she didn’t make up more. In terms of the money the honesty doesn’t add up because there were documents which show she was a bookkeeper.
The complaint evidence about the brother is a two edge sword that just because they both said it, does not make it so and there is insufficient evidence to say that it was.
In terms of the citizenship, the defence counsel suggested that although it may be put as coincidence about not knowing about her citizenship she made a statement to police saying I am an Australian citizen but I’m not going to lie are all suggestions to show that she knew at the time.
In terms of control by the defendant, defence counsel referred to the incident where the complainant had been assaulted on a bus and it was in that context where his client the defendant was advising her about her safety essentially.
Defence counsel also indicated that the defendant of course does not have English as a first language and I must take that into account.

DECISION

I remind myself that my role is to listen to the evidence with an open mind. I also remind myself that the defendant does not need to prove anything. It is for the Prosecution to prove each element of the charge beyond a reasonable doubt. In making my decision, I, as part of the exercise must also consider the witnesses and how they gave their evidence. I need to consider the reliability of each witness’ evidence. I can accept all, part or none of a witness’ evidence.
I must find facts, draw inferences from them, and apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. I must deliver my decision according to the evidence.
If the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of an offence, then I must dismiss the charge. If I am satisfied that there may be an explanation consistent with the innocence of the defendant, or I am unsure of where the truth lies, I must find the charge has not been proven to the requisite standard.
The defendant did not give oral evidence during his hearing, and he was not required to do so. No inference, adverse to him, can be drawn from his decision to exercise his right to silence in that regard. I note the defendant participated in a recorded interview with police. That interview was tendered before me and forms part of the evidence. I must consider that evidence like I would any other evidence before me.
Ms Devi, the complainant gave her evidence from a remote witness room as she is entitled to do as a relevant person [see s36B]. I must also warn myself as the trier of fact in relation to the giving of that evidence from the remote witness room pursuant to s 13 of the Evidence (Miscellaneous Provisions) Act 1991 that I should not draw any inferences from the fact the evidence was given remotely.
I have set out a summary of the evidence given by the witnesses above.
I have taken into account the elements of the offence of common assault pursuant to s 26 of the Crimes Act 1900 (ACT). That is the unlawful application of force upon another without their consent to that application of force.

My impression of the evidence given by the witnesses

I note at the outset that most of the civilian witnesses spoke English as a second language and an interpreter was used for both Ms Devi and the defendant
I will deal with the offences said to have been committed in January 2017.
It appears that the allegations in relation to that day being the 17^8thof January came about because Immigration officials came to the house where the defendant, Ms Devi and Mr Talik lived. Ms Devi was at home and was asked by the Officials about her father in laws (partner/ wife). Ms Devi advised the Officials that she did not know the woman they named and her father in law was married to a woman in India and lived with them. After this revelation I dare say that raised a suspicion as to his bone fides in relation to his application for Australian Citizenship.
That is something which would raise the ire of her husband in my view whatever the accuracy of the information. The evidence if I accept it is that the defendant then tried to coerce his wife into recanting her story to Officials. When she refused to do that he became angry and pushed her into the wall. She continued to refuse because she says she did not want to lie to Officials (which may have jeopardised her application for citizenship). The defendant then grabbed her by the hair and pushed her forehead into the wall.
The objective evidence supports the assertion that Immigration officials came to the house for the purposes of establishing the Bone fides of the defendant’s father on 17 January 2017. [3] I am also satisfied that Ms Devi gave important information in relation to Mr Dhari’s citizenship review. On that evidence together with the evidence of Ms Devi which to some extent is corroborated by Mr Small I am satisfied that the defendant would have been upset by this information being given to the Immigration Officials.
[3] Evidence of Mr Small and statement Exhibit P4
Ms Devi gave evidence that the defendant was very angry with her for giving this information and ordered that she recant her statement. When Ms Devi refused he became angrier and pushed her once and then by grabbing her hair pushed her forehead into the wall.
There is objective evidence that she had a bruise on her forehead which is consistent with her version of events. There was uncontroverted evidence that she had a sore scalp as well.
I note that the defendant denies this assault and states that he was invariably tickling her to calm her down and tried to stop her from pulling her own hair because of her (lump/lipoma) on her scalp. I also note that the defendant did not mention the tickling or pulling of hair by his wife when giving a narrative about what had happened that evening when giving his version of what happened to police when asked to do so.
Taken together the evidence if accepted of giving information to officials at Immigration, the refusal to recant that information, the bruise to the head which is consistent with the allegation on 18^th and the general information such as not allowing Ms Devi to have a phone, not allow her to contact her brother and the like which could lead to a conclusion that the defendant was controlling her life, (which is not unknown in domestic violence situations). It also leads to a conclusion that Ms Devi is speaking the truth and should be believed.
I am satisfied beyond a reasonable doubt of the following in relation to the 2 assaults said to have been committed on 18^th 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 18^th;
e.   The complaint of a sore scalp from her hair being pulled on the 18^th;
f. The complaint about her marriage troubles to Sohalia on the 18^th;
g.   That she had a secret SIM card given by her brother so she could make covert contact with family and friends.
I am also satisfied that she had been controlled at least to some extent. That is supported by uncontroverted evidence that she had to secret a SIM card so that she could contact her family and brother by phone. This is consistent with the evidence from her brother that she had no access to contact him except by public phone until he gave her the SIM card. I am also satisfied she had limited access to friends and family. That evidence was corroborated by her brother and by the fact she used the SIM card he gave her to make the various phone calls she made to family and friends. I also note the Defendant had alluded to that control in some of his answers in the ROI such as those referred to by Prosecution counsel in her submissions.
In relation to the pain in her scalp the defendant also accepted that she had pain in her scalp albeit that he gave some vague explanation re the lump on her scalp said to be a lipoma and he was stopping her from pulling her own hair.
In relation to physical contact with Ms Devi the defendant suggested that he had been tickling Ms Devi rather than assaulting her to calm her down and that seemed to work. When he was asked about what happened in January by Police in the ROI he never mentioned touching his wife and disavowed that. It was only when questioned about whether he struck her or threatened her he then mentioned the tickling. I note there was no evidence in Cross examination about the tickling on the night of the alleged assault and it was never put to Ms Devi that the tickling was the only contact the defendant had with Ms Devi that night.
Considering the evidence before me as to what the defendant says happened, I do not believe that version that he was tickling her and then trying to stop her from pulling her own hair.
Defence counsel also suggested that Ms Devi’s brother had a motive to lie, although I am not sure why and that was certainly not the impression he gave me when giving his evidence.[4]
[4] Transcript p 23. 36 16/1/18
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.
I find both offences proved.
As to the other charges, Ms Devi did not mention those other alleged assaults at her recorded interview on18th January. That may have been because Constable Kane Love who conducted the interview kept bringing Ms Devi back to the incident of 18^th January 2017 he was dealing with when she strayed onto other incidents.
The first in time allegation is the slap when she refused to cook because of her itchy skin. Ms Devi said that because she had refused to cook he was angry and they had an argument about this. Ms Devi also said that her father in law was there at the time, heard the argument and saw the slap. Unfortunately he was unable to give evidence as an independent witness in these proceedings as he was terminally ill.
Ms Devi gave detailed evidence of how the assault occurred and could only suggest that it occurred in the summer months of 2014, particularly March. There was evidence of a skin condition which involved itchiness before me. Ms Devi did not tell police about that slap when she first contacted them.
The evidence in relation to this allegation and the allegation that the defendant slapped her after she wanted to speak to her brother is that she never reported these incidents as well as the slap to Prachi to police or her doctor who she was seeing at the time.
I note that there was no complaint about the slap in relation to 15^th November 2014. Mr Santosh gave evidence that Ms Devi told him about that but as I understand his evidence that was not until sometime later that she told him everything that was going on[5].
[5] Transcript p 22 19/9/17.21
Ms Devi said that she told her brother that the defendant slapped her because she wanted to talk to her brother and was insistent. That evidence; that is, the complaint, was corroborated by her brother in his evidence. I note Ms Devi said she did not tell police about that slap. The defendant was asked about this incident and denied it ever happened.
I will deal with the allegation that the defendant assaulted his child Prachi. Ms Devi says that she saw the defendant hit Prachi on the shoulder. In my view the allegation in relation to this charge lacks sufficient detail to enable me to come to a proper conclusion as to what happened that night. The defendant denies it and on the evidence before me even if something did happen I could not be satisfied that it was an assault. I find that charge not proved and I dismiss it.
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.
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.
The defendant said in summary that he did not slap his wife. It was suggested to Ms Devi that she did not have itchiness and that was a lie. I am satisfied on the independent medical evidence that she did have itchy skin, however with no other independent evidence, [there was no complaint to family or her GP (a fact which I note is often present in domestic violence situations) and no complaint to police even in the Evidence in Chief interview [see my note re this supra]] it is difficult to be satisfied beyond a reasonable doubt given the denial by the defendant, the lack of any independent evidence save for the fact that she did have a skin condition, of the assault occurring. On this there is no good reason to reject the defendant’s evidence on this allegation I cannot be satisfied beyond a reasonable doubt the assault occurred.

ORDERS

In relation to charge CC2017/4849 I find the offence not proved and I dismiss the charge.
In relation to charge CC2017/4843 I find the offence not proved and I dismiss the charge.

In relation to charge CC2017/1685 I find the offence not proved and I dismiss the charge.
In relation to charge CC2017/1186 I find the offence proved.
In relation to charge CC2017/1187 I find the offence proved.
I certify that the preceding two hundred and thirty five [231] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.
Associate: Cecilia Pascoe
Date: 31 October 2018

[2018] ACTMC 23

31 October 2018