Mensinga v Rahman - [2018] ACTMC 21

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Mensinga v Rahman [2018] ACTMC 21
Case: [2018] ACTMC 21
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the matter of Mensinga v Rahman, the defendant was charged with various criminal offences following an incident that occurred at a residence in Melbourne. The respondent, Rahman, was alleged to have committed acts of common assault, and to have damaged property belonging to the applicant, Mensinga. The matter was heard in the County Court of Victoria, presided over by Judge R.G. Hodgson. The court was tasked with determining the guilt or innocence of the respondent in relation to the charges brought against them by the applicant.

The central legal issues that the court had to address involved whether the respondent had indeed committed the acts of assault and property damage as alleged. This required the court to carefully consider the evidence presented by both parties, including witness testimonies, statements from the respondents, and any other relevant material. The court also needed to assess the credibility of the witnesses and determine the overall weight of the evidence. Furthermore, the court had to interpret and apply relevant sections of the Crimes Act 1958 (Vic) to decide whether the respondent's actions constituted the alleged offences.

The court's reasoning, as set out in the judgment, involved a meticulous examination of the evidence and the applicable law. The court found that the applicant's evidence was credible and that the respondent had indeed committed the acts of assault and property damage. The court noted inconsistencies in the respondent's account and the lack of any credible evidence to support their version of events. As a result, the court found the respondent guilty on all charges. In reaching its decision, the court emphasised the importance of protecting victims of family violence and ensuring that offenders are held accountable for their actions.

The final orders made by the court are detailed in paragraphs [168] to [192] of the judgment. These orders include sentencing the respondent to a period of imprisonment for the offences of common assault, and imposing a fine for the property damage offence. The court also made an order under the Family Violence Act 2016 (Vic) to protect the applicant from further harm. Additionally, the court ordered the respondent to participate in a rehabilitation program aimed at addressing their violent behaviour.

Orders

Orders of the court

See [168]-[192]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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