Mensinga v Rahman
[2018] ACTMC 21
•31 October 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mensinga v Rahman |
Citation: | [2018] ACTMC 21 |
Hearing Dates: | 9 February and 3 March 2018 |
DecisionDate: | 31 October 2018 |
Before: | Special Magistrate Hunter OAM |
Decision: | See [168]-[192] |
Catchwords: | CRIMINAL LAW – Common assault – offences against the person – Family Violence offences – destroy damage property |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 Evidence Act 2011 (ACT) s 38 |
Cases Cited: | Largesner v Carroll (1990) 49 A Crim R 51 R v Burdon [2011] ACTSC 90 R v DM [2010] ACTSC 137 R v Mulcahy [2010] ACTSC 98 R v Raabe [1985] 1 Qd R 115 |
Parties: | Troy Mensinga (Informant) Tarik Rahman (Defendant) |
Representation: | K Marson and D Swan (Informant) T Warwick (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) | |
File Numbers: | CC 9011, 9012, 11738, 11739 of 2017 |
SPECIAL MAGISTRATE HUNTER
REASONS FOR JUDGMENT
1. Mr Rahman came before me having been charged with the following four charges, which all took place on 12 August 2017:
(a) CC 9011 of 2017 – Assault Sharmin Akter, contrary to s 26 of the Crimes Act 1900 (ACT).
(b) CC 9012 of 2017 – Damage property belonging to Sharmin Akter, contrary to contrary to XX of the Crimes Act 1900 (ACT).
(c) CC 11738 of 2017 – Assault Sharmin Akter, contrary to s 26 of the Crimes Act 1900 (ACT).
(d) CC 11739 of 2017 – Assault Sharmin Akter, contrary to s 26 of the Crimes Act 1900 (ACT).
Prosecution opening address
2. The prosecutor alleges that the complainant was at her home in Rivett with her husband, the defendant, on 12 August 2017. Their children were also at home. The complainant and defendant had been married about eight years. Both children were in the bedroom when the complainant and defendant had an argument about money.
3. The prosecutor alleges that at some point the defendant approached the complainant and struck her in the head with a sandal, the complainant pushed the defendant away and then grabbed at her face, grabbing her glasses pulling them off and throwing them on the ground. The assault is particularised by the defendant hitting his wife with a sandal to her head. The second assault is said to be constituted by the defendant grabbing her glasses and pulling them from her face. The damage property is throwing the glasses on the ground and breaking them. The third assault alleged is that the defendant grabbed the complainant by the back of her hair and pulled her onto the ground.
4. The defendant is married to SharmIn Akter. On 12 August 2017 around 9:20 pm police were called to attend 43 Mortlock Street in Rivett. The defendant made the call and claimed to have been assaulted by his wife.
Evidence
Constable Connor
A. Evidence in Chief
5. First Constable Connor gave evidence before me that he received a radio transmission to attend the Rivett address. At that address the defendant claimed to have been assaulted by his wife. Whilst other police were speaking with the defendant, Constable Conner spoke with his wife.
6. Constable Connor first observed when he entered the premises a female who was distressed and had injuries. He said she was upset, she had tears and was shaking. He said he observed blood to her mouth and to her nose, and a bit of blood on her face in general. Constable Connor said that he believed that blood was coming from a cut on her face. Constable Connor said he also saw a broken set of eye glasses on the floor one of the arms had come off. They appeared to be a pair of prescription glasses.
7. Constable Connor said he spoke with Mrs Akhtar who said that she had been assaulted by her husband and that he hit her with a thong and also grabbed her glasses which became broken. Constable Connor said that she told him that he hit her on the face with the thong and had grabbed the glasses and pulled them off her face. He damaged the glasses in the process of grabbing them.
8. Constable Connor also said that she told him that the defendant had pulled her hair. She did not mention any other incident. Constable Connor then spoke with Constable Mensinga and told him what the complainant had said.
9. Constable Connor asked if she wished to make a statement or participate in a family violence interview in chief, she declined, although she did consent to the taking of photographs.
10. The prosecutor showed Constable Connor ten photographs, eight of them identified as photographs of the complainant Mrs Akter, and two of the damaged spectacles.
11. Constable Connor said that there was a photograph which showed blood and a cut on the complainant’s nose, a bit of blood on her lip and a red mark on her forehead. There was also a red mark in front of her ear on her cheek.
12. After taking the photographs, Constable Connor confirmed his notes were accurate by going through the version of events the complainant gave him with her.
B. Cross-examination
13. The entries that Constable Connor made - being bruise on forehead scratch on nose, blood on mouth and broken glasses - were what he had written at the time the complainant gave him the information. He was questioned about the difference between statement and his notes, and he conceded that it does not say scratch because it was in fact a hair.
14. The Constable agreed that it is usual procedure to get a quick version of events to understand what it is they are there to investigate. Ms Akhter was not cautioned because it was just to get a version of events. Constable Connor said that in fact initially they were told that it was she who assaulted her husband so he wanted to get a version of events so he could identify who the victim was and who the offender was.
15. The Constable said they did not ask if she consented to being assaulted. Constable Connor said that he had no difficulty speaking with her and that her English was good and he had no problem communicating with her. He said that he wrote down the key words that were said.
16. Constable Connor said that he was the corroborator at the interview but was not aware whether the defendant had any marks on him. Constable Connor said that it is usual practice or at least the decision of the informant as to whether photographs are taken of injuries. He said it is his usual practice to do so if those injuries are relevant to the offence.
Complainant: Sharman Akhtar
A. Evidence in Chief
17. The complainant, Sharman Akhtar, was called. The complainant was assisted by a translator who spoke Bangla. The complainant also gave evidence by the remote witness room as she is entitled to do.
18. Ms Akhtar stated that she had been married to the defendant for eight years and they have two sons, six and four. They have lived in the Rivett house for three years. Ms Akhtar stated that she recalled the police arrived at her home on 12 August 2017 at about 9:20 pm and she spoke with police.
19. Ms Akhtar said through the interpreter that she and her husband were having an argument and her husband told her to shut up and to stop arguing. She said that she was talking loudly and using bad language and her husband came toward her, told her to shut up, and when she did not he smashed her glasses. She asked him why he took her glasses from her and he said to shut you up and that if she didn’t shut up he would throw her glasses. She said she did not stop because she was angry with him and he threw her glasses away. Those glasses were taken off her face at the time she was wearing them.
20. Ms Akhtar said that once that happened she had a burst of anger, lost control and pushed him away she lost control and he grabbed her so that he could stop himself from falling. She said she couldn’t take his weight and fell down with him. After falling down she tried to grab him but he locked her which she demonstrated as him essentially holding her with her arms behind her back so that she could not hit him.
21. Ms Akhtar stated that he held her glasses with one hand and with his other hand he had his hand up as a stop motion. Ms Akhtar said she did not stop and she could not control her anger. When she did not control herself he threw her glasses away. Ms Akhtar said that she cannot see without her glasses, that things are a bit blurry without them.
22. Ms Akhtar said that he was not too close to her although I pointed out to the prosecutor that he must have been fairly close to be able to reach them with his hand. Ms Akhtar said that they were close to each other. Ms Akhtar said he smacked them off her face.
23. Ms Akhtar said that when they were on the ground she screamed and she tried to grab him but she couldn’t and then she eventually calmed down. Then he let her go. Ms Akhtar said that he then went and found his phone, went outside and she locked the door. She said she went to her bedroom because she was very angry and feeling hot so she open the windows and doors and sat on the balcony. Ms Akhtar said she heard police talking outside so she went inside the home and opened the door for police.
24. Ms Akhtar was asked whether she recalled what she had told police. Ms Akhtar said she could not because it was some time ago. She denied that her husband had touched her in any way other than snatching the glasses and falling with her and locking her arms.
25. Ms Akhtar agreed that the only consent she gave was for police to take photographs. I allowed the prosecutor to cross examine Ms Akhtar pursuant to section 38 of the Evidence Act 2011 (ACT) as clearly the evidence was unfavourable to the prosecution in three respects: that she did not mention being struck by the sandal, grabbed by the hair, or that she was scared when the defendant grabbed the glasses from her face.
26. Ms Akhtar agreed that during the course of these proceedings her husband had been on bail and was not permitted to contact her and that it has been difficult for that situation to continue and that it made her upset.
27. Ms Akhtar denied that her husband struck her in the face or hit with a thong or sandal. When it was suggested to her that that is what she told police that evening of the 12th she said she could not remember that.
28. It was suggested to her that she told police an account of what has occurred. She said she could not recall 100% what she had said, that she was excited and angry, and that whatever she told us on the day of the hearing was what she could remember because at the time of the incident she was not in a state of mind to remember anything.[1] The prosecutor suggested to her that her memory would have been better on the night of the incident as opposed to six months later. She said that she was scared to see the police there because she had not called them and that whatever she recalled of the night was what she was telling us on the day of the hearing.
[1] Transcript page 34.20
29. Ms Akhtar said as far as she could remember she was the one who was arguing, so why would he hit her with a sandal when he was trying to stop her from arguing. The prosecutor suggested to her that given that she does not quite recall what happened it is possible that she was struck by the defendant in the head with a sandal or thong and that she now does not recall. Ms Akhtar said she really could not remember him hitting her with a sandal at all that day or night. The prosecutor suggested that she had told police that that is exactly what happened and she said she “was scared to see the cops so I cannot say exactly what I told them”.
30. The prosecutor asked whether she had lied to police and she said she did not know. The prosecutor suggested that she had told the police officer who gave evidence earlier that she had given two accounts of what happened, both consistent with each other that night. Ms Akhtar said she could not really remember exactly what she said to police.
31. It was suggested to her by the prosecutor that her husband hit her with either a sandal or thong, she then pushed him away and he grabbed the glasses from her face. Ms Akhtar said that is not what happened and said they were only arguing and she was the one who was mainly arguing, using all the bad languages, shouting and he kept insisting that she stop. She did not listen to him, and at one point he told her that he was going to grab her glasses and he kept telling her that he was going to throw them away if she did not stop. That is the only thing she could recall. Ms Akhtar said she did not recall anything about her being pulled and said “we actually lost control, we fell together and he came on top of me”. She said “I really cannot remember him grabbing my hair at all”.[2]
[2] Transcript page 36.33
32. The prosecutor suggested that it could have happened and Ms Akhtar said she did not know. The prosecutor further suggested that she told police she was frightened and that this was the worst time something like this had happened with her husband. Ms Akhtar suggested that she was referring to the arguments they had because nothing like that had happened before.
33. Ms Akhtar suggested that maybe she had a language problem with the police and they did not understand what she was saying and she denied that she was scared of her husband, saying it was she who was the instigator of the arguments.
34. The prosecutor showed Ms Akhtar photographs of the damaged glasses. Ms Akhtar said they were fine before he threw them away. She said she could not recall how the glasses came to be on the table.
35. The prosecutor also showed her photographs of her face which showed some blood on her face and some red marks. It was suggested to her that she told police on the night that the red marks and the blood on her face were a result of the sandal hitting her, her husband grabbing her glasses and the physical struggle that happened afterwards.
36. Ms Akhtar said she could not recall how she explained the marks and blood on the face because she had not seen them before and it was the police who pointed them out and gave her a tissue to blot her nose. It was her evidence that she could not recall or think how she got the marks and she said that is what she told police. She said she did not know whether it was from snatching the glasses or the struggle on the floor.
37. The prosecutor suggested that Ms Akhtar became quite visibly upset when questioned about the effect that a conviction would have on her husband and that while he has been on bail it has impacted on the children which had made her upset. Ms Akhtar said that was because she feels responsible for the whole thing because she was one who is angry on that day.
38. It was suggested to her that she has diluted her husband’s role in the incident of 12 August to protect him in these proceedings. Ms Akhtar denied that she exaggerated her role in the incident and said it was her fault. Ms Akhtar said that she did not know that her husband would be arrested on the night. It was suggested to her that she gave her evidence in the proceedings in a way which protects her husband from being convicted of the offences by suggesting that she could not recall certain things she told police and by saying that other things did not happen.
39. Ms Akhtar suggested that she was telling the truth and whatever she could recall of the night she was telling the court. It was suggested to her that what she told police on the night, notwithstanding that she could not remember, is what happened on the night. Ms Akhtar said “yes I may have said to the police – I can’t remember exactly what I say, but I said to the police at that moment what I could remember”.
40. In relation to consent about the glasses, Ms Akhtar said it happened so quick she was not able to consider whether she would consent to it happening. Ms Akhtar said she did not consent to her husband breaking her glasses nor did she consent to him lying on top of her restraining her.
B. Cross-examination
41. Ms Akhtar agreed that she had come to Australia in 2009 after marrying in Bangladesh, that Mr Rahman was already in Australia and had been here since 2001, that she has two children, and that she lives with her husband and children at Rivett.
42. She agreed that in 2013, whilst living at Harrison, there was an incident which involved the police and that she had slapped her husband with a sandal. Ms Akhtar denied that. It was suggested that after that incident, to prevent future arguments and her becoming out of control, one of the ideas they settled upon was the defendant would shake her or take the glasses off her to signal for her to slow down and be quiet. Ms Akhtar denied that agreement. However, she said that at one point when she was having an argument he did take her glasses off and she cooled down.
43. She also agreed that if he did not take her glasses off at that point she would have continued to become angry. Ms Akhtar agreed that that had occurred on two occasions. Ms Akhtar also agreed that she had purchased a house because at one point they were thinking of separating and that was because she became angry at times.
44. Ms Akhtar agreed that two weeks prior to the incident of 12 August she and her husband were driving home from Sydney and that she got very angry, shouted and was out of control for some time but not the whole journey. She also agreed that the children were in the car.
45. Ms Akhtar also agreed that there was an argument about paying for groceries for the catering business. A customer had ordered food that she had catered for and the customer had paid for the food at the home. The customer paid her husband the money and the argument arose because she wished to have that money for her own purposes. That caused an argument to occur in relation to that money. There was a series of questions in relation to what conversation was had in relation to this money, however the complainant could not recall those conversations.
46. Ms Akhtar said she did recall that they were arguing in the dining room and that he came and took her glasses of her face. Ms Akhtar said he snatched them off her face. It was at that time that she became quiet.
47. Defence counsel suggested that at this time she did not become quiet. Rather, she became angry and pushed him with her hand to his face. Although Ms Akhtar said she could not recall whether it was his face or chest where she pushed him, she said she did so with a lot of force, he fell backwards and saved himself by falling and grabbing her. It was suggested that she became even angrier at the situation and that she pushed him because she was angry with him and was not afraid of him. It was suggested that they were on their knees and he was holding her. Ms Akhtar said she did not recall that.
48. It was suggested that at that point Ms Akhtar was using a sandal trying to hit the defendant. However, she says she could not remember anything of that nature. When it was suggested that she accidentally hit her face with the thong she denied that happened. Ms Akhtar also denied hitting herself accidentally in the face, although she said her skin does easily get red. Ms Akhtar denied throwing any food or pots around at the time, and said that she would not throw food. She also said that he was angry but not as angry as she was. The defendant kept saying that he would not give her the money, which is why the incident continued.
49. Ms Akhtar denied that she thought she was going to be arrested because she said she was not doing anything wrong. Ms Akhtar acknowledged she was angry and yelling but she did not fear police would arrest her as well, explaining that she was scared of the fact police became involved in the whole situation.
50. Documents were shown to the complainant about alleged handwritten notes sent to the DPP with the help of her brother. Ms Akhtar said she adopted the contents of the document as they were true reflections of what she wanted to say.
51. There was an objection relating to the assertion by Ms Akhtar that she had confirmed that the document was a true reflection of what she wanted to say because it was noted she had difficulty reading the affirmation which was an English. It appears from the interpreter that Ms Akhtar was having difficulty in reading the document. There was another document shown to Ms Akhtar which she said she wrote herself and which contained what she wanted to say, however it had been reviewed by her brother and corrections were made and she rewrote it with those corrections. The documents sent to the DPP were:
(a) One handwritten document Family Violence application to amend Family Violence Order dated 6 February 2018;
(b) One handwritten, undated statement said to be under the hand of Ms Akhter and clearly written by the same person who made the application to amend the FVO, seeking a bail variation for the defendant;
(c) Typed letter dated 20/10/2017 asking the DPP to withdraw the charges.
52. The complainant denied being fearful of her husband and said that the police misunderstood what she had told them on the night of 12 August as she had difficulty trying to tell the police what she wanted to say and consequently a miscommunication occurred. She also said she could not remember whether she exaggerated what she had said. However, the complainant said that she knew at the time of telling police what happened but that it did not come out correctly and when the defendant was arrested it was then that she realised she had made an error. The documents were tendered after some questions about whether the brother had made some changes and what those changes were it would appear they were not content but form.
C. Re-examination
53. The following was put to Ms Akhtar: “You agreed with my friend…. A moment ago that you pushed your husband after he grabbed your glasses because you were angry with him answer yes, I suggest to you that you actually pushed him because you were trying to push him away from you because he had approached you in that way and taken your glasses, not because you were angry”. Ms Akhtar answered: “The truth is I pushed him away because he had broken my glasses. I was angry. I said, why did you break my glasses, and I pushed him away”. [3]
[3] Transcript p 84 9/2/18
54. The prosecutor suggested that in her earlier evidence she had said that he took the glasses off and it was then that she had become angry, and that she pushed the defendant away because he had snatched her glasses and not because she was angry, but she denied that and said she was angry. Ms Akhtar said she asked the defendant “why did you break my glasses” and she pushed him away, which is not what she told the court earlier.
55. She denied again that she was trying to help her husband and said that the police misinterpreted what she had said because she could not properly express herself.
56. She was taken to exhibit D3, the letter she had written, and also the other pages that she had written. It was suggested that despite her ability to write documents she was unable to express herself to police on 12 August and she said “yes that’s true”. The prosecutor suggested that in fact what happened was after they arrested her husband, which she was not expecting, she changed her story. It was because of that arrest that she now says she could not express herself properly and was misunderstood by the police to protect her husband. Ms Akhtar denied that suggestion.
Sergeant Benjamin Owens
A. Evidence in Chief
57. Sgt Benjamin Owens is a sergeant at Woden police station. He was on shift on 12 August. He attended at 43 Marlock Street Rivett. Sgt Nathan Macklin was attending and speaking to a male person outside the residence. He said he spoke briefly with him and then entered the residence. Sgt Owens said he spoke with a female, the complainant SharmIn Akhtar. Sgt Owens said he observed the female crying, she looked distressed and had dried blood around her mouth.
58. Sgt Owens said that she told him that she had been involved in an altercation with her husband in relation to some cooking and preparation of food. She told him that as a result of that altercation she had been hit in the mouth with a thong or shoe that caused the dried blood on her face.
59. Sgt Owens said that he observed 2 children, an eight-year-old and a three-year-old. He said that he observed the children hanging around near the dining table and he saw underneath the table there was the arm of a pair of spectacles. Sgt Owens also saw that to the right of the entrance was a small office. Sgt Owens saw the remainder of those particular glasses at the entrance to the office. Sgt Owens confirmed that the singular arm was in the dining area as you enter the premises, to the right under the dining table, and the entrance to the office was where the remainder of the glasses was located.
60. The officer was granted leave to refresh his memory from his notes. He said that Ms Akhtar had told him that the defendant had pulled her hair at some point and she reacted by scratching him.
B. Cross-examination
61. Sgt Owens agreed that he spoke to Ms Akhtar for approximately 3 minutes and the notes that he has in his notebook are approximately about one of those minutes. Sgt Owens also agreed that it was indeed the defendant who had called 000. It was suggested that he was looking to see whether Ms Akhtar had committed any offence. Sgt Owens said: “Basically in attending these incidents I attend with an open mind trying to gather evidence of what had occurred, not necessarily in response to the complainant’s call trying to gather a whole – I guess a whole overview of what had occurred.”[4]
[4] Transcript page 92.35
62. Sgt Owens said that he did not recall having any issues with her understanding what he was saying and he had no difficulty understanding what she said in English. Sgt Owens said he did not recall observing any injuries on Mr Rahman. Sgt Owens said that he did not ask whether Ms Akhtar consented to any assault upon her.
Constable Troy Mensinga
63. Constable Mensinga gave evidence that he attended at 9.20pm on 12 August at the defendant’s home in Rivett. Constable Mensinga said that he observed a small scratch on the defendant adjacent to the defendant’s nose.
64. Constable Mensinga said that he was advised that a female in the house had injuries. He then attended inside the house with First Constable Connor and had a conversation with Ms Akhtar. The constable said that he heard Constable Connor ask her for consent for photographs to be taken and he observed abrasions to Ms Akhtar’s face. There was an abrasion to her forehead, next to one of her temples and on the other side of her face. There was dried blood on her nose and on her lips, and what appeared to be a small cut on her lip as well.
65. Constable Mensinga said that he observed Constable Connor take photographs of her face and also the damaged glasses, which were located on the buffet. He said he saw the glasses there and described them as having one arm broken off and one of the lenses popped out of the glasses. He said that the matching left arm of the glasses was on the floor near the dining table.
66. Constable Mensinga said that he heard Ms Akhtar tell Constable Connor that the defendant had gotten into an argument that evening and that the argument was over whether she’d been doing catering or something of the sort cooking food and selling it. The defendant had collected the money for food that she had cooked and had requested some of the money for her personal spending or something like that, to which the defendant replied that he did not wish to give her any money. My understanding is that they then had an argument in relation to that.[5]
[5] Transcript page 97.16
67. Constable Mensinga said that she told them the argument escalated into a physical altercation between the two and that the physical altercation occurred when the defendant slapped her with a shoe or sandals or similar to the face.[6] Constable Mensinga said that Ms Akhtar told them what the defendant had done, that she pushed him away and he then grabbed her glasses off her face and threw them to the ground. Constable Mensinga said that he took notes at the time Ms Akhtar was telling police this.[7]
[6] Transcript page 97.25
[7] Transcript page 97.41
68. Constable Mensinga could not recall whether he heard her say anything else other than perhaps she was pushed as well, although he did say that she told them she felt scared and it was the worst incident of family violence that had occurred between the pair. Constable Mensinga said that Ms Akhtar said the marks on her face were a result of the altercation that night (that is, the physical altercation between the pair from being grabbed hold of and pushed to the ground as well). After being refreshed with his notes, he said that she also said he grabbed her by her hair and that he was standing up and pulling her hair down. Constable Mensinga said that Ms Akhtar described the marks to her face as being slapped with a sandal and the defendant grabbing her glasses.
69. Constable Mensinga said that when he observed and heard Ms Akhtar speaking to Constable Connor she seemed to understand the questions and her English was fine and she gave answers which in his opinion showed she was understanding the questions she was being asked.[8]
Defendant: Tarik Rahman
A. Record of Interview
[8] Transcript page 101.21
70. The defendant gave a potted history of his relationship with the complainant. They had been married for 8 years, it was an arranged marriage and there are 2 sons from the union. At the time of the interview they were separated but living under the same roof.
71. The defendant denied that he had assaulted his wife and said it was actually the other way around. The defendant said that she hit him in the face and he tried to stop her by going to the ground and holding her so she could not strike him. She tried to hit him with the shoe. He said that he held her until she calmed down and then went outside and called police.
72. The defendant told police that the argument was over money that she said she wanted because she had cooked food to sell but that he had paid for groceries and therefore he was not going to give her the money. The defendant said that she started abusing him and calling his parents ‘whatever’ and then he took her glasses off her and she reacted and smacked him. He then said he was using self-defence.
73. He said she had her brother living there, neither of them were paying any mortgage and he was paying for everything including the two boys. He said he could not take it any more as he lost his job in February and his income is just the bare minimum. He said that he cannot get Centrelink because she is making money and lives with him. The defendant stated that his wife worked full-time and the money she earned went into her mortgage on the property that they do not live in.
74. The defendant then said at question and answer 112 that he did not leave his job, he resigned, and he did so because he did not want to live with her anymore and he said he can’t take being married to her any more. He said that on the occasion when she was asking for that money his nerves were getting cracked.
75. He said at question and answer 136 “and then when she was just talking about my parents and all these things she was just verbally abusing my parents and everyone in my family and blah, blah, blah and then that’s when I – I asked her to shut down, just shut up. And then she didn’t want to shut up, I just – I pushed her, I took her glasses off. And that’s when she take and just give me a knock and asked a few scratches here and then you can see here, that’s what she did. And then that’s when I took the self-defence and I hold her here – put her on the floor”.
76. The defendant explained that he grabbed her glasses in order to shut her down. The defendant described the complainant as really violent and that she has anger issues and has tried to commit suicide. The defendant also said that he had to take her to a psychiatrist in Bangladesh (I note that nothing was ever put to Ms Akhtar in cross-examination about any mental health issues).
77. Essentially, the defendant explained that the relationship was terminal and she was the instigator and he tried to defend himself. However, he admitted that he pushed her and grabbed her glasses, and then because of her demeanour he said he was using self-defence because she was very violent.
78. The defendant said the children were actually there and that happened in front of them. He said he needed to grab her glasses to calm her down [which I must say I found extraordinary]. The police officer also seemed to find that that was extraordinary and asked the defendant what he hoped to achieve. The defendant said “I was telling her to shut down, you need to shut down, the kids are just watching our drama” and that he wasn’t thinking anything when he did what he did although he says he was not angry.
79. He was shown some photographs of his wife’s injuries and he said that he did not know how she got that blood on the face as he did not hit anywhere on the nose. The defendant also recognised that there was marks below her temple, on the right-hand side of the face, but he did not know how they got to be there. In relation to the photograph of her forehead, the defendant said she had done it herself; that on a previous occasion she had used a shoe to hit herself.
80. The police asked whether that could have occurred whilst he was pushing her to the ground and he said “no way”. When shown a photograph of blood around the mouth area, he could not tell how that occurred, and said he had no idea, and that he did not grab her or strike her in the mouth. He did admit that the broken glasses were a result of him grabbing them off her face and throwing them on the ground, which he had threatened to do.
81. The defendant denied any knowledge of how Ms Akhtar received the injuries she clearly had. It was put to him by the police officer that the parties were arguing because of money, it got out of hand when she wouldn’t shut up and he attacked her. He denied this and said that she intended to hurt herself. The defendant even suggested that she says at times “come beat me” when she is a really, really angry but that did not happen on 12 August.
B. Evidence in Chief
82. The defendant also gave evidence before me.[9] The defendant advised that he had been married to the complainant for 7 years at the time of the offences. It had been an arranged marriage. There are two children to the marriage. In 2013 he had called police because she had “slapped her own face with a sandal”.(I don’t recall that evidence being put to the complainant) and said after that they were both very cautious after that and did not have an incident for several years.
[9] t/s page pp 8-45 13/3/18
83. The defendant purchased a home in Marlock St Harrison and Ms Akter purchased a second home in Rivett. The defendant described how he supported both the complainant and her brother. There were clearly a lot of arguments over money and that support. They separated but lived in the same house. There was some financial stress with the defendant paying for two mortgages as well as supporting his wife, family and brother-in-law. Their relationship was not very good at that time.
84. The defendant described that in 2015 and 2016 when she became very angry he took off her glasses and she calmed down. The defendant said “I am not sure why that happened but it may have been because she could not see well without them?” [There was no evidence from either of them as to why that actually worked]. However the defendant gave this explanation:
“okay, so we had an argument about our kids, I don’t remember exactly what was the incident but then she was really very angry and then I was approaching her and then I was saying please, come down, we shouldn’t be arguing and then I took off the glass off her face and then she just nicely slowed down. She actually told me before some time trying to shake me or just give me a knock so I wake up, and so I took off the glass and then she actually shut down, she actually slowly calmed down and then this sort of incident actually happened a couple of time.” [10]
[10] t/s p-14.1 “
85. The defendant said that he had tried this system before a couple of times and it had worked. The defendant said that on 12 August he tried to “shake her body it did not calm her so took glasses and they fell on floor and they smashed”.
86. It was evident from his evidence that there were a lot of arguments about family and money; that the complainant would get angry and the defendant would have to calm her down. The defendant said he tried to shake her (that was never put to Ms Akter).
87. The incident itself occurred as a result of running late for a dinner and Ms Akter decided not to go because she became angry with the defendant and he told her that both he and the boys were ready and when she became angry he took her glasses off her to calm her down and it worked.
88. The defendant said “Yes even on 12 August I approached her. I tried to shake her, I give her body a push and then she didn’t stop and then I just took her glass off, and then her glass was on my left hand side, left hand and then the dining table was not within my hand reach so I dropped the glass and then it just got smashed”.[11]
[11] t/s p 15.1 “
89. The defendant was asked whether he had used shaking before and he said that shaking had no effect prior to this event. The defendant said there was no other techniques he had used to calm his wife down other than remove her glasses.
90. The defendant explained that on a trip to Sydney Ms Akter argued with the defendant all the way from Sydney about his family, and it was after that the sleeping arrangements changed.
91. The defendant relayed what led to the incident of the 12th, saying that Ms Akter had done some cooking as part of a small business enterprise they ran. The defendant was paid the money for the food and refused to give it to Ms Akter and an argument ensued in the dining room. As a result of that argument he said his wife was very angry. The defendant told her to shut up, but she continued to shout and he approached her shook her in order to shut her up. The defendant did so by holding her shoulders and shaking her and when that did not work he took off her glasses. The defendant used his fingers to hook the glasses on the corner and pulled them off. The defendant said that instead of calming her down she continued to be angry, she was violent and the glasses fell because he did not have time to put them down, he just threw them on the floor.
92. The defendant then described that she attacked him in the face and pushed him with force. He lost balance but did not lose it and then grabbed her hands to control them because she was hurting him, he kneeled on the floor and tried to kneel her down on the floor. There was no contact with her body when he placed her down on the ground in front of him as he was on his knees.
93. The defendant described that he had his arms around the top of her arms and that the lower arm below the elbow was free. The defendant said that she was trying to hit him with a shoe but was hitting herself. [In my view the angle that he described and the motion he demonstrated looked to be an impossibility if Ms Akter was trying to hit him and it was a very unconvincing demonstration]
94. The defendant said that after that she calmed down and he let her go and she walked to the kitchen and he called 000. The defendant denied being angry with his wife and said he only did what he did to calm her down. The defendant said that he had a scratch on his nose from her fingernail.
95. The defendant denied striking his wife to the head or grabbing her hair but suggested the hair could have been caught up when he was holding her hands.
C. Cross-examination
96. The defendant agreed that the pair had an argument that night. The relationship was not in good shape but there appears at least at the time of hearing to be a reconciliation.
97. The prosecutor suggested that he was angry that she was abusive about his parents. He denied that and said that she is just like that and it did not make him feel anything because she always does this.[12]
[12] t/p 28- 13/3/18
98. The defendant agreed there was emotional baggage between them but on his wife’s part not his. The defendant said he told her to shut up because of the kids and, in relation to why he painted his wife in a bad light to police in his interview, he said he was telling the truth. The defendant denied he went out of his way to disparage her. The defendant did not know that he would be the one in custody and wanted to tell them all about her. In relation to his description of her as sadistic, he said his frustration stems out of concern for the kids; he was not impacted by her behaviour at all.
99. The prosecutor took him to his recorded interview and referred to where he told police that he pushed his wife, yet in evidence said that he shook her and in fact does not mention to police at all that the first contact was taking off the glasses. It appears that the defendant did not understand the nuance of the question because he asserted that because shaking did not work he took off her glasses. In relation to the force he used, on a scale of 1 to 10 he said used about a 1 or 2 for 5-10 seconds, just to wake her up.
100. The defendant said that when he shook her she did not shut up, and that is why he took the glasses off. He denied injuring her when he did take those glasses off. It was suggested to him that he was not sure when he told police if it caused injury but today was definite. He explained it by saying that he was not sure because of the particular photograph he was shown by police and that he was not sure what she was doing with the shoe when she was kneeling down.
101. He agreed that there were no marks or bruises or cuts on her face when he was looking at her prior to removing the glasses. The defendant said that after he removed them from her face she pushed him on his face, he took her by her left hand with his left hand, and was trying to put the glasses away and he threw them on the floor and they smashed.
102. It was suggested to him that he interchanged the words dropped and throw, and he said that he threw them because he did not have anywhere else to place them. He denied that he did so intending to damage them.
103. It was suggested to him at no time did he tell police that he threw them on the ground because there was nowhere else to place them because she was pushing him. It was suggested that despite specific and directed questions in relation to that, at no stage did he tell the police that. He agreed with that
104. He was asked why he did not tell the police. He did not seem to have an answer for that but said he was defending himself and he had to throw the glasses on the ground. He was referred to various questions in his recorded interview where he said:
(a) At Question 145 “I just thrown on the floor”;
(b) At Question 146: “You threw them on the floor what happened to the glasses when they were thrown on the floor and sat there broken”;
(c) At Question 147: “They broke question did they break when you pull them off her face and I can’t recall that”;
(d) At Question 148: “You can’t remember all right and then you threw them on the floor and a year question answer to fall to why did you have to smash the glasses on the ground and SAP because I just couldn’t stop her because in the kids are just there and she just she just needed to calm down”;
(e) At Question 243: given where your dining me is why could be put the glasses on the table, answer, and so the dining table was right there were was standing so I wouldn’t touch that”;
(f) At Question 244: “Well how far away were you from the dining table your answer half a metre?”;
(g) At Question 245: “Half a metre so within arm’s reach your answer year”;
(h) At Question 246: “So why did you break the glasses why did you throw them on the ground?, Answer, I have no answer”.[13]
[13] Transcript pages 35 – .34 – page 36.6
105. It was suggested to the defendant that in fact what he had done in his evidence before me was reconstruct what actually happened. He said “why would I do that because I had no intention of assaulting or breaking or damaging her property”.
106. It was suggested to the defendant when looking at the bundle of photographs that the floor of the dining room has a thick carpet. The defendant disagreed and said it was a flat one. The defendant also made the comment that the glasses were very weak and he had been told that by his wife.
107. The defendant was asked whether he could describe the force used to throw them on the ground as between one and ten, but he said he would not be able to do so as he was more focused on what was happening.
108. It was suggested to him that the description of how he fell when his wife pushed him backwards against the buffet. Essentially she was sitting with her legs underneath her and he was kneeling behind her with his arms around her. He described that the shoe was near her and that is how she picked it up and was trying to hit him with it. [I found his demonstration unconvincing because it would have been almost impossible to hit herself with the shoe in that manner]
109. The defendant accepted that he did not know how she would have been able to do it from her position either, and just made assumptions as to the fact that her injuries were caused by something so it must have been that. It was suggested to him that the first time he made any comment about how his wife got the injuries was when he was shown the photographs and he said “yeah, because I – I saw her picking up the shoe there and then try to hit me, so anything could happen at that time”.[14]
[14] Transcript page 40 – 1 – 13 March 18
110. The defendant then said that he did not say anything about the injuries until shown the photographs because he did not see the sandal come into contact with her face. When it was again suggested that he did not give any detail about this incident with the sandal when she had her hands pinned by him trying to hit him with the sandal he said he was not asked about that.[15]
[15] Transcript page 40 – 31 ditto
111. It was pointed out that at question 199 the defendant did refer to the words backbite backstab back throw interchangeably and he said he meant she was trying to hit him with the shoe.
112. It was suggested to the defendant that when police arrived his wife had told them that it was he that hit her on the face with the sandal. He denied that. It was also suggested that when the police first arrived she told them that the defendant had grabbed the glasses off her face and he agreed with that proposition. The defendant denied that he deliberately threw the glasses on the ground.
113. The defendant also denied that any part of his hand came in direct contact with her face when taking the glasses from her, saying he only touched the glasses. The defendant said it all happened simultaneously and it was difficult for him to recall the exact sequence.
114. The defendant denied that he grabbed his wife’s hair and pulled her onto the ground. It was also suggested that in fact his wife did not hit herself in the face with the sandal or strike herself in the face in any way which caused the injuries. He disagreed with that and said that he had told police that she was trying to hit him with the shoe.
115. It was suggested that the defendant was at pains to tell the police how volatile his wife was and described her as sadistic. It was suggested that he did so to cast blame on her for what happened. He was asked whether he agreed with that and he said yeah because she just would not cool down, she just went so angry.[16] it was further suggested that he did so to make her look bad so the police would believe his version of events he denied that and said he told the truth.
[16] Transcript page 44 – 4013 March 18
116. It was suggested to him that given he said his wife was abusing the family, pressuring him about money and fighting with him in the home in circumstances where the children were around and would be upset, in those circumstance he would not himself feel normal and indeed would be quite upset. The defendant said he was not upset because he knows she does this when she is angry and he was just trying to cool down. He said that was his experience and that is why he took the glasses off and tried to defend himself.
Submissions
Prosecution
117. The prosecutor submitted that Constable Connor attended 43 Marlock Street Rivett following the 000 phone call made by the defendant requesting attendance of police. The police saw that the complainant, the wife of the defendant, was distressed and had injuries on her. They also observed blood on her mouth and nose area.
118. There was also photographic evidence of the blood on her face and clearly there were injuries which she sustained. There is no doubt about that. There were also photographs showing the spectacles and where they were found.
119. An evidence in chief interview was offered but the complainant refused to participate. However, she told police prior to her husband coming into the house that she had been assaulted by her husband and he had hit on her face with a thong, that he had grabbed her glasses and broken them, that they had been damaged as they came off her face, and that he had pulled her hair and pulled her to the ground.
120. Whilst Constable Connor did not write in his notebook about her demeanour, he was quite clear that she was upset rather than angry, and that was confirmed by Constable Mesinga who also made that observation.
121. The complainant in her evidence said that she did not feel scared that she was out of control and her anger would not go down. She said that it was quite a while since the incident and she was telling the court what she could remember and that she did not recall being hit in the face which is inconsistent with what she is alleged to have told police when they attended on the night. It was suggested to the complainant that she was giving this evidence because she was concerned about repercussions from the defendant. She then said that she was very, very angry and excited, and could not recall what she had told police.
122. She then agreed that she had been scared when she saw the police because she had not called them. However, she did say that she had been through a lot in the meantime and she was telling the court what she recalled that evening. She said that she could recall him hitting her with the sandal at all that day or night. Later on she said that the defendant had not struck her with the sandal and said that he grabbed the glasses because she was arguing, using bad language and shouting, and he grabbed the glasses to try to calm her down and that was all she could recall. Later on in her evidence she said that we actually lost control and fell together and then he came on top of me. I really cannot remember him grabbing my hair at all. She then said she was frightened by police again and clarified it was not that she was frightened or scared of him, but that she was upset and scared for the whole situation.
123. She cannot recall that she said how she suffered injuries and did not know they were there until police arrived. In further questioning she said that she blamed herself for the incident and that she wanted the defendant to return home to the family.
124. Ms Warwick for the defence helpfully assisted the prosecutor who did not prosecute the matter at the beginning. Ms Warwick indicated that the particulars of the offences were that the first offence was the slap to the face with a thong (the first common assault), the second and third offences occurred when the glasses were pulled from her face (the second common assault) and breaking of the glasses (the damage property), and the final charge was the pulling of the hair (the third common assault).
125. The prosecutor pointed out that the complainant had said that she was not scared of her husband at the time, she was angry and furious and not scared. However she did say that she did not consent to her husband breaking her glasses.
126. I was asked to infer that given she gave no consent to the glasses being broken, she was clearly not consenting to any assault either at that time. Indeed it was suggested to her that there was some sort of agreement between her husband as to the effect that her glasses being taken off would have on her and she rejected that. The prosecutor submitted that I could be satisfied beyond reasonable doubt given there was no other reason for him to do it such as self-defence, that I would be satisfied there was no consent and that by taking them off her face there was an assault.
127. The prosecutor pointed out some inconsistencies between the evidence of the complainant and the defendant insofar as the complainant suggested that once her glasses had been removed it was then that she pushed the defendant and that as a result the defendant fell and saved himself from falling by grabbing her. The defendant did not give evidence to that effect in either his evidence or recorded interview.
128. It was suggested to the complainant in her evidence that when they were on the ground and he had locked her arms beside her body using his own hands that she tried to hit him with the sandal and inadvertently hit herself, she denied that. In fact, she denied that at any stage during the whole incident it was possible that she hit herself. It would appear that she was very clear on those two points.
129. She said that her skin gets red and she marks easily, but she cannot remember how she got the marks or the bleeding on her face. The complainant also indicated that the defendant was angry but not as angry as her.
130. When she was asked whether she was worried that the police were there to arrest her, she said that she did not feel that way she had not done anything wrong. She indicated that she was angry because he broke her glasses which implicitly begs the question as to why she pushed him if there was no pushing prior to that time. Indeed, she said she screamed at him and asked him why he had broken her glasses.
131. The prosecutor referred to some letters which were admitted as exhibits D1, D2 and D3 being an application to amend family violence order.
132. There was some evidence in relation to whether the complainant would have benefited from an interpreter, however it was never suggested to the police officers that they should have engaged a telephone interpreter, and it would seem from their evidence that they were able to understand her and she was understanding of them. That was borne out by the fact that Constable Connor read out two versions of her story and they were consistent with each other.
133. Constables Owens and Connor gave evidence which corroborates what they both saw and heard in relation to the complainant, which was that she told them she been hit in the mouth with a thong or shoe, her glasses were taken from her face and thrown on the floor and she had been grabbed by the hair.
134. The prosecutor submitted that in the recorded interview with police the defendant went into significant detail about his grievances with the complainant including calling her sadistic. The prosecutor also suggested that at no time in the interview did he give any indication that he shook the complainant at any stage, despite clarifying his evidence which is contrary to the evidence he gave in court before me. The prosecutor further submitted that the evidence he gave in the recording with police was contrary to the evidence he gave on the day of the hearing as well.
135. The prosecutor submitted that prior to the glasses incident there was limited information in relation to being struck in the face. However, I remarked that there was evidence in the photographs consistent with Ms Akhtar’s complaint to police that something struck her which was flat like a sandal, and also noted she had graze marks on her cheek which could have been caused in the melee. The blood on her face and particularly her nose was said to have been from a hair not a cut.
136. The prosecutor pointed out that the defendant agreed that prior to him taking the glasses from her face she did not have any injuries. The question is how she get them? The prosecutor submitted that there is nowhere in the interview given by the defendant which explains how she would have got those injuries until he was shown photographs. It was then that he said that she was backbiting or hitting herself with the sandal in order to try and hit him. I note the complainant denied that.
137. The prosecutor suggested that in his evidence today there was much further detail than he gave at the police station a few hours after the incident such as the shaking of the complainant. It was suggested that now he had to explain disposal of the glasses in the way he had done it. He had also had to give evidence about how she could possibly have been injured in the way shown in the photographs and gave new evidence about striking herself in the face with a shoe to explain his version. The prosecutor submitted that clearly the defendant tailored his evidence to meet the prosecution case in every respect so that he would be absolved from blame for the offences.
138. The prosecutor submitted that while the complainant did not give direct evidence herself of how she sustained the injuries to her face, police officers said she told them he hit her in the face with a sandal. The complainant also said that she had been hit in the mouth which caused the blood on her face which is consistent with that version and the photographs.
139. The prosecutor submitted there was immediate complaint about the mechanism by which the injuries were caused. That was that she was hit in the face by a Thong or shoe. There is evidence that there was a thong or shoe there because the defendant gave evidence about this.
140. The prosecutor conceded that the pulling of the hair may well have been as a matter of self-defence even on the complainant and defendant’s version. I was asked to consider the test in Zecevic as to whether it was reasonable in the circumstances for him to do so.
141. I referred to the evidence about the scratch on his face and suggested that it was consistent with someone coming at him and scratching him which may well have caused him to pull her to the ground and lock her hands.
142. It was suggested that could be reasonable inference, except for the fact that on her complaint to police she had already been slapped in the face with the thong and her glasses had been taken. It would not at that point be unreasonable for her to push him away and that did not give him a lawful excuse to throw her to the ground and hold her arms.
Defence
143. Defence counsel submitted that there were several issues in relation to the state of the evidence, one being the language difficulty and also cultural difficulties. Defence also submitted that the police did not write down all the words that were said by the parties but rather they used keywords which were not adopted in her evidence before me.
144. Defence counsel submitted that language difficulty in relation to what is meant by words such as throw, drop or smashed were use relatively interchangeably. Defence counsel also submitted that the police had made assumptions by the time they got to the police station and that Constable Mesinga assumed from the respective injuries to parties faces that it was the defendant who was the instigator and not the complainant. This is despite the defendant stating that he had injuries to his hands. I note that Constable Mesinga said that in his view those injuries to his hands were not fresh and the injury to the face was consistent with a fingernail.
145. Defence counsel submitted that complaint evidence is good evidence when backed up by the complainant however that is not the case here. Defence counsel suggested that police did not write the exact words that were used and only used keywords, and I accept that that is not ideal because conversations should be recorded as they are spoken. It was further submitted that the complainant may have misunderstood what the police officers were asking her.
146. I suggested that there was independent evidence to suggest that the complainant was injured in the way she originally told police. Defence Counsel submitted that I must also take into account her answer at page 69 of the transcript where she denied hitting herself either accidentally or on purpose or whether she got the injuries as a result of falling and being locked by her husband.
147. It was suggested that it was her evidence that she could not remember how the marks were occasioned and that it is possible that they were caused by some other mechanism such as falling to the ground or in the melee. When I suggested that there was no evidence anywhere about her hitting the side of her face in the melee, defence counsel said “yes but she was trying to hit him with a thong and may have accidentally hit herself”.
148. In conversation between myself and Ms Warwick, I said that the two things that struck me were that he held her quite strongly, and it appeared to me after hearing evidence and seeing the demonstration I found it impossible that she could have been able to do what was suggested because of the way she was held quite strongly by her husband and there is no evidence that she had anything on her feet at the time of that incident. There is no evidence about the shoe other than the defendant saying he saw her shoe in her hand trying to hit him.
149. Defence counsel said that it is not impossible or implausible that it happened that way. I also note that the complainant did not give evidence about that at all. When I suggested to Ms Warwick the police did not find any sandal in the area where the incident was said to take place she accepted that that was the case. However, Ms Warwick then submitted that it is not impossible to hit yourself in that way as described by the defendant.
150. I also made a comment about the way that the interview was conducted, particularly that I was unable to see the whole of the defendant and only could see the side of his face, as not optimum in my view.
151. Defence counsel submitted that I must also take into account his culture and language and that it did seem to be a problem in the record of interview as was shown in the very first part of the interview when police were asking procedural questions.
152. The defence counsel submitted on the first charge, particularised as strike to the head with a sandal, that the complainant denied that that happened, that there was mutual yelling, and that she did not describe a slap in the beginning of the incident in her evidence. However, I note she does not say anything about a shaking or placing hands on her shoulder although the defendant accepts that that is what he did.
153. I advised Ms Warwick that in the recorded interview the defendant gave a very detailed account of what happened. He never mentioned that he grabbed her and shook her. The first time the Court heard anything about contact between the parties was when the glasses were taken off. It was only after he was shown the photographs that he said something about shaking her to stop her.
154. Defence counsel submitted that the incident arose and it was quite heated. The complainant was very angry and wanted him to give her money, and he refused. They were arguing and then he took hold of her glasses and she said all of a sudden he just snatched the glasses. In answer to further questions she said that he had done that before and that was a good thing because she calmed down quickly and she agreed with that proposition.
155. Defence counsel submitted that I could imply an agreement or consent to the course of conduct because it happened on more than one occasion and that the complainant had agreed with that course.
156. Essentially, Ms Warwick was submitting that that action was a circuit breaker for her generally. And whilst the defence counsel rightly conceded that the complainant disagreed with that scenario, there was evidence that it happened on two prior occasions. Ms Warwick submitted that the complainant did not say in her evidence that she had said that was not welcome or do not do it again, and in fact because it had the desired result it was an implicit consent or agreement.
157. In relation to the offence of grabbing her, defence counsel said that both of their versions of events were not inconsistent with each other and that I could not be satisfied as to that aspect because the complainant said that the defendant was falling and grabbed her, which could have been to steady himself, could have been in self-defence and that she was not sure about it at all.
158. In relation to when the defendant and complainant were on the floor, it was put to the complainant that she was using the sandal to try and hit him. It was conceded that the complainant denied that and said “I can’t remember anything like that”. It was submitted that that is not quite the same as denying it. It was further submitted that she was very angry and did not remember the whole incident. It was submitted that she hit herself accidentally and that is how she got the injury.
159. In relation to the glasses, counsel submitted that there had been at least two occasions where the defendant had taken her glasses and she had come down and that I should infer that that was ostensible consent. Counsel submitted further that I must be satisfied what was in his mind and that he did not intend to place her in fear and indeed was trying to calm her down because it had worked on other occasions. Therefore it was not an assault but a means of making her calm down.
Again in relation to the injuries sustained by both of them, defence counsel submitted that could have occurred in the time when they were on the ground and that self-defence had been raised because she pushed him and was very, very angry with him. Defence counsel made the point that it was the defendant who called 000 telling police that his wife had been violent and that she was out of control.
160. Defence counsel submitted that there was implied consent to the touching, suggesting, by way of example, just like there would be in say a football match. I indicated that in a football match there is implied consent to physical contact however it must be within the rules of the game. In accordance with this, defence counsel suggested that it was within the context of previous arguments and that it was within the rules of their game.
Further prosecution submissions
161. In further, submissions the prosecutor said that there was no evidence that the complainant consented to the glasses being removed from her face, and it is irrelevant whether the defendant thought that there was consent. The issue is clearly whether there was a lawful excuse and specifically whether she consented to it occurring to her at the time. Counsel submitted that this is not the same as an agreed contest with rules and said it is the defendant choosing to remove glasses from the complainant’s face without invitation or consent which makes it an assault.
Further defence submissions
162. I received further written submissions from Ms Warwick, counsel for the defendant, which provided some authority in relation to implied consent which I had asked for at the end of the hearing.[17] I received them on 13 July 2018.
[17] Counsel's admissions filed 13 July 20 18th
163. Counsel referred to R v Burdon [2011] ACTSC 90, where his Honour Justice Refshauge said that the elements of common assault are not controversial, and listed them. I have set out what he said at 23-24:
“ The elements of the offence are not controversial. So far as the assault is concerned, it involves:
(a) a striking, touching or application of force by Mr Burdon to Mrs Burdon;
(b) that such conduct of Mr Burdon was without the consent of Mrs Burdon;
(c) that the conduct was voluntary and either intentional or reckless in the sense that Mr Burdon realised that Mrs Burdon might be subject to immediate and unlawful violence, however slight, as a result of what he was about to do, but yet he took the risk that this might happen; and
(d) that such conduct was without lawful excuse.
The prosecution is required, of course, to prove each of these elements beyond reasonable doubt.”
164. Counsel then referred in her submissions the following, which I set out below:
Without lawful excuse
Lawful excuse (or lawful justification) comprises a broad range of concepts including
Øthe defendant believed the complainant was consenting
Øself defence
Øarrest (that is, physical restraint by police officer as necessary)
Ølawful correction of children
Øcontact occurred in ordinary intercourse of social activity (this excuse is limited to touching that is reasonable in our daily interactions)
The prosecution must prove the absence of any lawful excuse, beyond reasonable doubt
Consent
An assault is not unlawful if committed with the consent of the person assaulted.
Consent may be expressed directly, for example
Øentering a boxing ring in boxing attire, or
Øduring a verbal argument at a nightclub, saying the words “step outside” and then shaping up for a street fight.
Consent may be implied
The prosecution is required to prove that the defendant was aware at the time of the incident complainant was not consenting, or that she might not be consenting.
Notably, the conduct will be lawful if the defendant held a genuine belief that the complainant was consenting, whether that belief was recently held or not. The prosecution must prove the absence of consent, and the absence of belief of consent, beyond a reasonable doubt.
165. Defence counsel said that in the circumstances of this matter consent has been raised which I accept. Defence counsel also referred to the matter of Segeyara, a Northern Territory Magistrate’s case citing Shepherdson J in Largesner v Carroll (1990) 49 A Crim R 51:
“I think the true view is that in some cases of assault occasioning actual bodily harm the prosecutor will, on the evidence, have two negative consent beyond a reasonable doubt, i.e. prove that the assault was unlawful. Each case must be looked at in the light of its own facts. I favour the view that in the case of assault occasioning bodily harm where consent to the assault is an issue and there is evidence capable of amounting to such consent the tribunal a factor in deciding whether the prosecution has proved beyond a reasonable doubt that the assault was unlawful must decide whether the degree of violence to the person assaulted exceeded that to which consent was given.”
166. Defence counsel went on to cite R v Raabe [1985] 1 Qd R 115:
“it is for a jury to perceive the limits of any implied consent, and this must allow for different shades and degrees of violence. In some cases the consent will be limited to slaps or hair pulling, and in others to hard blows; in some cases to quite trivial assaults and in others to bodily harm… The point is that infinite graduations are possible in the scope of the consent from case to case.
It is not reasonable to say that a person entering a fight gives his opponent carte blanche to administer such violence as to cause as much injury as he wishes within the bounds of bodily harm whilst the former continues to manifest a willingness to fight, no matter how inadequate he may be. Equally, it could not be said that a licence is given in such circumstances to use any means to inflict violence providing that the injury caused does not exceed bodily harm.
The absence of consent is an element of the offence for salt, but the consent referred to is not of an abstract nature. More correctly, it might be said that the consent to the infliction of violence such as to cause bodily harm is not in the abstract. Whether expressed or, as is most unusual, implied, the consent contains a factor as to degree.”
167. Defence counsel also cited Justice Cooper in Largesner v Carroll (1990) 49 A Crim R 65:
“in each case it is a question of fact to the jury to determine whether consent existed and if it did exist, the precise limits of the consent. No useful comment can be made as to whether limits, if any, of consent lie. This is to be determined by the jury as a fact having regard to all the circumstances existing at the time the consent is expressly given or is to be inferred from the circumstances.”
Decision
168. There are certain general directions that I must take into account. I have extracted these from R v Burdon commencing at paragraph 9. I have referred to the defendant as a generic descriptor. These directions represent the matters to be taken into account in judge alone trials. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law (see R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98):
“9. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to 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 The Defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
10. The prosecution bears the onus of proving the guilt of The Defendant at all times. The Defendant does not have to prove that he did not commit the offences charged.
11. If The Defendant does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
12. The standard of proof of the prosecution case is proof beyond reasonable doubt and The Defendant cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
13. The Defendant is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The Defendant then loses the presumption of innocence and I must find him guilty.
14. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
15. If I am satisfied that there may be an explanation consistent with the innocence of The Defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find The Defendant not guilty.
16. I must determine whether each of the witnesses is a reliable witness that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
17. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
18. The Defendant gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
19. I also note that, as this was an offence of violence, s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), required that the complainant, give evidence by audiovisual link from a place other than the courtroom as she did. Under s 46 of that Act, I am required to warn the jury that it should not be draw any inference adverse to the defendant in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.”
169. I have given myself the warnings which I have set out above.
170. The defendant has been charged with four charges. Three of those charges being common assaults and one charge of damaging property being eye glasses belonging to Ms Akhtar.
171. I will note at the outset that both the complainant and the defendant do not have English as a first language and there are some language differences which may account for answers that they gave and I have taken that into account in assessing their evidence and the evidence before me.
172. The events which led up to the offences being charged are that, in summary, the defendant and his wife the complainant in this matter were at home. There was an argument which arose after the complainant had cooked some meals which were to be sold as part of their business and the defendant refused to give her the money that he had received in payment for those meals. Money was the genesis of the argument. It appeared that the defendant wanted to keep the money to pay bills and the complainant wanted the money because she had done the work.
173. There does not appear to be any doubt that the complainant was angry about this. She gave evidence about that fact. There is contradictory evidence in relation to the demeanour of the defendant, although there is evidence to suggest that this argument took place in the presence of the children and that he was unhappy that that was occurring.
174. It is the defendant’s contention that he was not angry at all and was in fact trying to calm the complainant down. The evidence I have from the complainant is the evidence she gave before me via video link in a remote room as she is entitled to do pursuant to the Evidence Act 2011 (ACT). I give myself the usual warning in that regard.
175. There is also evidence from the police officers who attended on the night. They gave evidence about their observations of the complainant, including her demeanour as being upset and “in a bit of distress”, and she had injuries on her face. They gave evidence that she told them that the defendant had hit her with a thong and they took photographs of those injuries.
176. There is considerable difference in the evidence as to what happened that night between the police officers, the complainant Ms Akhter and the defendant. On the one hand, police were confronted with two people, one being the defendant who rang police, and the other being the complainant who had injuries and gave a version of events which was consistent with those injuries. The complainant told police that she was struck on her face by her husband with a thong, that he grabbed the glasses from her face, and that she pushed him, then he grabbed her by the hair, they fell to the floor and he held by the arms.
177. It was clear to the police from their observations and evidence that the true complainant in the matter was Ms Akhtar. Police gave evidence that Ms Akhtar was very upset and a bit distressed, and she had blood on her face and her face had red marks on it consistent with being hit with an object.
178. Ms Akhtar refused to give an interview with police as an evidence in chief interview. Ms Akhtar did consent to the taking of photographs which show the injuries she sustained. Ms Akhtar did give evidence before me and essentially resiled from that which she told police according to their evidence.
179. In fact it was suggested that because they did not make comprehensive notes of the actual words, it could have been that they misunderstood what she said. I find that very hard to believe. The police officers are officers who have had experience and both officers gave evidence that that was what was said and that is consistent with their actions following them speaking with her. The actions were to arrest the husband, the defendant, and not her.
180. I note there is also the objective evidence, being the photographs. Those photographs, which I broadly commented, upon clearly show evidence of an injury consistent with what the complainant told police (that is, that she was hit with a sandal by her husband).
181. The defendant participated in a recorded interview with police. It was a very long interview and I have taken into account the fact that it was clear that there was some difficulty in language, although it would appear to me that generally speaking the defendant was able to understand the allegations and was quite forthright in giving his version of events.
182. I also note from the evidence and the recorded interview that the defendant did not mention at any time the fact that his wife had hit herself either inadvertently or accidentally when they were on the ground while she was trying to hit him. I reject that evidence. I do not believe for one moment that that occurred given the almost impossibility of how that might have occurred, and the fact that the injury sustained appears to be more consistent with the version that she told police at the outset and prior to her husband coming into the house.
183. There was much made of the language barriers and what was meant in what was said. I have no doubt, having considered all the evidence before me, that the defendant hit his wife with a thong at the outset. I am also satisfied that he grabbed her glasses off her. It may well have been because she was angry with him. That would appear to be consistent with all of the evidence before me.
184. I am also satisfied that there was no implied consent for him to take the glasses off. Indeed Ms Akhtar, the complainant, said that she had never ever agreed to such a thing, although she did admit that he had done it on two occasions. I accept the prosecutor’s submission that that does not imply consent. The evidence is that the defendant removed Ms Akhtar’s glasses from her. The only issue really was whether there was implied consent. I am satisfied that he took those glasses off her face without her consent. In her evidence she said that she was not fearful, however there was no actual consent to the taking of those glasses.
185. The evidence from the defendant is that he removed the glasses in order to calm her down and that he dropped them when she attacked him by pushing him with both hands. The defendant gave evidence that he threw the glasses, dropped the glasses, and smashed the glasses. They may well all be interchangeable language for him however there was some force in order to break the glasses in my view particularly given that the glasses would have fallen onto a carpet.
186. The next part of this scenario is that the defendant grabbed Ms Akhtar by her hair and pulled her down to the floor. Both the defendant and Ms Akhtar gave evidence about how that occurred. It would appear that Ms Akhtar, after the glasses had been taken from her face, became angry or was trying to push the defendant away, and did so by pushing him with her hands on his chest. It would appear from the evidence before me that the defendant lost his balance and either grabbed her hair or grabbed her in order to steady himself.
187. It was at that point that the defendant says that, after being shown the photographs and trying to explain how Ms Akhtar got the injuries to her face, the complainant must have grabbed the thong, tried to hit him and inadvertently hit herself. Ms Akhter denies that she hit herself in that way or had a thong or sandal in her hand.
188. Given the state of the evidence in relation to this charge (that is, the pulling of the hair), I am left with the dilemma that I am unsure as to what actually occurred between the parties. It may well have been accidental. I therefore cannot be satisfied beyond reasonable doubt that the defendant assaulted his wife in that way.
189. In relation to how the defendant and complainant gave their evidence, it seems to me that there is inconsistency in their versions. This could be put down to their use of the English language not being their first language. However it seems to me that after observing the witnesses I had formed the view that Ms Akhtar was indeed trying to support her husband by suggesting that in fact she was the instigator and that no assaults had occurred during that time.
190. That view was supported by the letter tendered where she tried to have the charges withdrawn by the DPP and the application to amend the family violence order.[18] I have no doubt that a matter such as this would have significant impact upon a marriage and it is not an unusual occurrence that in family violence matters the complainant recants the version given on the night of the actual incident to police later on.
[18] exhibits D1, D2 and D3
191. I also formed the view that both the defendant and Ms Akhtar were not being entirely forthcoming in giving their evidence about what happened on 12 August 2017. Therefore I must look to the objective evidence in this matter.
192. I find as a matter of fact that:
(a) the defendant and the complainant were arguing on 12 August 2017 at their home;
(b) the argument was in relation to money;
(c) the argument related to who was to receive the money. Whether the complainant should have the money given she did the cooking or the defendant should have the money because he needed to pay the bills;
(d) it was as a result of the argument in relation to the money that a physical altercation occurred;
(e) Ms Akhtar was injured as a result of that physical altercation.
(f) Police observed Ms Akhtar to be in distress, upset, had tears in her eyes and was shaking;
(g) Ms Akhtar complained to police when they arrived that she had been hit with a thong by her husband;
(h) The injuries to her face are consistent with that first complaint that is that she was struck by her husband with a thong;
(i) Ms Akhtar’s glasses were damaged;
(j) Those glasses were thrown to the floor by the defendant and had broken.
Findings
193. Having considered all of the evidence which I have set out above, I find that the defendant hit his wife with a thong/sandal on the night of 12 August 2017 during the course of the physical altercation with Ms Akhtar.
194. I also find that there was no consent to that assault and I find that offence proven beyond a reasonable doubt.
195. In relation to charge CC 9011 of 2017, I find the offence proved beyond reasonable doubt. I have considered the applicable law in relation to implied consent. Having applied the law to the facts as I find them, I have no doubt that the defendant forcefully took the glasses from Ms Akhter’s face and deliberately threw them on the ground. I am satisfied that there was no implied consent to that course. I note, despite the evidence, that there may have been similar incidents on prior occasions, there was no consent (implied or otherwise) to the application of force to remove the glasses on the evidence before me on 12 August 2017.
196. In relation to charge CC 11738 of 2017, the assault on Sharmin Akhtar on 12 August 2017, I find the offence proved beyond reasonable doubt.
197. In relation to charge CC 9012 of 2017, the charge of damaging property belonging to Sharmin Akhtar on 12 August 2017, I find the offence proved beyond reasonable doubt.
198. In relation to charge CC 11739 of 2017, the assault on Sharmin Akhtar on 12 August 2017, being pulling of the hair when that complainant and the defendant fell to the ground, on the evidence before me, I find I cannot be satisfied beyond a reasonable doubt that the defendant assaulted Ms Akhtar by pulling her hair and falling to the ground. I dismiss the charge.
| I certify that the preceding one hundred and ninety eight [198] numbered paragraphs are a true copy of the Reasons for Decision of Her Honour Special Magistrate Hunter Associate: Cecilia Pascoe Date: 31 October 2018 |
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