Neupane v The The Queen

[2022] NSWDC 598

District Court

New South Wales

Medium Neutral Citation:

Neupane v R [2022] NSWDC 598

Hearing dates:

27 July 2022

Date of orders:

27 July 2022

Decision date:

27 July 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) The Final ADVO orders made on 10 November 2021 by Farnan LCM shall stand

(2) In each case the appeal from the finding of guilt by the magistrate is dismissed

(3) In each case the findings of guilt are confirmed

(4) In each case allow the appeals from conviction

(5) In each case, and pursuant to s10(1)(b) Crimes (Sentencing Procedure) Act 1999, I find the offence proved but without proceeding to conviction I discharge the appellant upon him entering into a Conditional Release Order pursuant to s9(1)(b) Crimes (Sentencing Procedure) Act 1999, for a period of 2 years from today

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

CRIME — Appeal and review — Appeal from Local Court to District Court

CRIME — Violent offences — Assault occasioning actual bodily harm

CRIME — Violent offences — Common assault

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Justices Act 1902

Supreme Court Act 1970

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

McNab v DPP [2021] NSWCA 298

Category:

Principal judgment

Parties:

Homnath Neupane (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Daniel Petrushnko (counsel for the Appellant)

Isha Fay (solicitor for the Respondent)

File Number(s):

2019/00369173 & 2019/00369190

 Decision under appeal 

Court or tribunal:

Burwood Local Court

Jurisdiction:

Criminal

Date of Decision:

10 November 2021

Before:

Farnan LCM

File Number(s):

2019/00369173 & 2019/00369190

EX TEMPORE REVISED JUDGEMENT – Application for findings of guilt to be dismissed

Introduction

1. Homnath Neupane was convicted in the Local Court at Burwood on 10 November 2021 after the defended hearing of two charges, the first of common assault contrary to s 61 Crimes Act 1900 upon a person of the name Zoubinda Dhahal. The second offence was one of assault occasioning actual bodily harm contrary to s 59(1) Crimes Act1900 upon Pabitra Basnet, the wife of the first complainant. The offences were said to have occurred between 1.10pm and 1.40pm on 11 November 2019.

2. The hearing in the Local Court commenced on 8 June 2021, from which date it was adjourned until 10 November 2021. At the conclusion of evidence and submissions on that day, the magistrate found the offences proved and convicted the appellant.

The Appeals

3. The appeals from conviction were lodged within the 28-day period specified in the Crimes (Appeal and Review) Act 2001 and thus are pursued as a matter of right. Provision for these appeals is found in s 11(1) of the Act. Appeals from conviction or sentence are available without leave if lodged within the period of 28 days from the determination by the magistrate.

The Nature of the Appeals

4. The appeals are conducted in accordance with s 18 of the Act which provides in subs (1) that an appeal from conviction is to be by way of rehearing on the basis of evidence given in the original open court proceedings, except as provided by s 19. Section 19 has not been engaged in this matter.

5. Fresh evidence could be given but only with leave of the Court, which may be granted only if the Court is satisfied that it is in the interests of justice that fresh evidence be given. There was no application for fresh evidence in this case.

6. It had been understood that the appeals from conviction available by way of this legislation required the Court to review all the material and come to its own view upon the evidence that was before the magistrate regardless of whether error was demonstrated in the Local Court proceedings. In Charara v R [2006] NSWCCA 244 the Court held that the judge is to form his or her own view of the facts considering the advantage enjoyed by the magistrate who saw and heard the witnesses in court.

7. The judge is entitled to consider the reasons of the magistrate, including the resolution of issues of credibility based upon the evidence called in the hearing. It was made clear that it would be wrong for the judge to embark upon a hearing de novo, insisting that all witnesses be called.

8. This was given further consideration in Dyason v Butterworth [2015] NSWCA 52 where it was held that an appeal pursuant to s 18(1) is not an appeal de novo, that the approach to be taken on a rehearing is analogist that taken in a civil appeal under s 75A Supreme Court Act 1970, the judge to form his or her judgement of the facts recognising the advantage of the magistrate who heard and saw the witnesses in the Local Court. It was held that the powers of the District Court under s 18(1) are exercisable where an appellant demonstrates the order, the subject of the appeal, is a result of legal, factual, or discretionary error, in which case the Court can substitute its own decision based on the facts and law as they then stand.

9. Further consideration was given to this question in McNab v DPP [2021] NSWCA 298. It was there held that an appeal to the District Court under s 18 does require a demonstration of a factual, legal, or discretionary error to succeed, that the fact that an appellant must demonstrate error does not reverse the onus of proof, and the prosecution at all material times bears the onus of establishing the guilt of the appellant beyond reasonable doubt.

10. In McNab v DPP ibid the Court was constituted by Bell P and Basten and McCallum JJA. It provided a joint judgement beginning at para [43]. The President wrote at para [24]:

“For my part, contrary to McClellan CJ at CL in Gianoutsos, I fail to see any clear statutory indication in the CAR Act which would support a conclusion that the s 18 rehearing is not one that requires error to be demonstrated. For the reasons given in the joint judgment, and in AG, the preferable view, supported by the weight of authority, is that error is required to be demonstrated for an appeal pursuant to s 18 of the CAR Act to succeed.

[25] An appeal is from orders, not reasons, and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a s 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to s 18(2) of the CAR Act or as a result of the calling of a witness pursuant to s 19), whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the Court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo cf an appeal pursuant to s 17 of the CAR Act.”

11. A similar view was expressed in the joint judgement, including at para [90], where their Honours wrote:

“This position was thus an established legal principle in 1998, before the introduction of the new appellate regime in the Justices Act in 1999. To the extent that Gianoutsos suggested that there is no need for the appellant to demonstrate error, it is based on a false premise and should not be followed. However, in relation to the appellate jurisdiction of the District Court under the Appeal and Review Act, it is unhelpful to describe the jurisdiction as ‘error‑based’, although, subject to an important consideration discussed below, a decision of the Local Court will not be overturned unless the District Court judge is satisfied that it was in some respect wrong.”

12. Their Honours dealt with the proposition that the onus of proof is not reversed, offered a discussion on demeanour-based findings, and ultimately concluded in terms comparable to that expressed by the President.

Consideration

13. As was noted by counsel during submissions, because of the development of the law by way of those decisions, an appellant now is faced with the prospect of failure in the prosecution of an appeal unless error can be demonstrated whether upon a question of law or a question of fact or upon the exercise of discretion.

14. Bringing to bear those principles I remind myself that in a prosecution the onus of proof rests upon the prosecutor in the Local Court and the Crown represented by the Office of the Director of Public Prosecutions in the District Court. The burden of proof is to establish all elements of the offences charged and each element must be established beyond reasonable doubt. Suspicion is not proof beyond reasonable doubt.

15. In proceedings such as this where an appellant has given evidence in the Local Court and before then participated in an electronically recorded interview with police, no burden of proof is attracted to the appellant by reason of the decisions made to take that course. Indeed consideration is required to be given to the representations in the interview and in the evidence given by the appellant, and if he is accepted in what he had to say, it must follow that the prosecution would fail.

16. If the Court does not accept what the appellant had to say in the interview or during evidence, or indeed rejects outright the representations that he made upon the essential matters, it remains that he is not to be found guilty of an offence unless the evidence adduced by the prosecution establishes beyond reasonable doubt the elements of each of the offences. If any one element is not established by the evidence, the charge is to be dismissed upon a finding that the offence has not been proven.

17. The fact that the appellant was presented on two charges does not permit the Court to take the global approach. What the Court must do is consider each charge with regard to the evidence relevant to it and decide whether the evidence establishes the guilt of the accused beyond reasonable doubt. There is no reason in law or logic for the decisions to be the same in each case.

18. In this instance credibility was an important matter to be brought to account. The success of the prosecution depended upon the credibility and the reliability of the evidence given by the complainants, particularly the complainant Pabitra Basnet. The credibility of the appellant was found wanting and upon my review of the evidence I agree with the conclusion that was reached by the magistrate upon that point, but as I said he was not obliged to participate in the interview, he was not obliged to give evidence in the proceedings. The decision to do so on each case did not attract the burden of proof to him and the fact that he is not accepted does not answer the appeal, for it remains that the Court must consider whether the Crown has proven its case beyond reasonable doubt.

19. I should announce at this point that I am satisfied on the material before me that the magistrate was correct in the decisions reached and that in each case the offences are proven by the evidence, particularly that given by the complainant Pabitra Basnet.

20. The Court is not obliged to accept all of what a witness has to say. The Court may accept some and reject some of the evidence given by a witness. That is particularly apposite in the assessment of the evidence led from the complainant Zoubinda Dhahal who was assessed by the magistrate as a poor witness in the Local Court proceedings. I do not have the recording of what occurred in Court, but counsel advanced the proposition that the transcript does not reflect the delay in responses by that witness in response to questions, which is entirely consistent with the observations made by the magistrate in the transcript of her remarks.

21. The evidence establishes in my opinion to the requisite standard that the complainants were present in the kitchen of a home which they shared with the appellant. There was an exchange during preparation of meals and a measure of acrimony involved, during which the appellant pushed Govinda Dhakal, causing him to drop onto a chair where he became seated. The complainant Pabitra Basnet, his wife, intervened and was then struck by the appellant using his right fist, the blow to her left eye. This resulted in bruising around the eye and injury described in a summary provided by a medical practitioner, which clearly establishes that what she suffered was actual bodily harm.

22. The blow though it would appear was suffered by the victim, the wife, when it was struck in the direction of her husband. This does not relieve the appellant of the liability for the assault, but it does paint a different image to one in which the appellant might have punched intending to strike the wife as he did. There was some controversy about his version of the event as recorded in the electronically recorded interview because of the inadequacy of the interpretation that was provided in that process; that was the subject of discussion during the Local Court proceedings in which interpreters there offered the Court with assistance upon their perception of the errors that were made in the recording.

23. The recording was such that any representations that were averse to the appellant ought to be viewed with a measure of circumspection because of the unreliability of the interpretation of what was said and the transcribing of the document. Indeed during submissions, and this is not challenged by the Crown, there appears not only error of interpretation but also some error of transcription to be found in the document.

24. What is significant though, and it is conceded, is that the appellant made no reference at all in that interview to the complainant Pabitra Basnet picking up a frypan before the blow was struck, causing her injury. This notwithstanding, at p 35 of the transcript on 10 November 2021 during his evidence the appellant said, beginning at line 29, his wife was sitting in the sofa:

“A. And then he approached to me and then he said, ‘Why are we speaking with this sort of person?’ and then he spoke in the low level language, and then he said, ‘We have noticed him and then we are going.’ I asked him to remove the hand, he used a low sort of language and then I also said, ‘Move the hand from my forehead’.

Q. Where did this conversation and the finger pointing take place?

A. In the sink.

Q. You mean around the sink?

A. I was in the sink and they were in front of me.

Q. You mean that you were around the sink area I take it?

A. Yes.

Q. And then what happened?

A. And then Govinda’s wife said, ‘You are using low register,’ and then she brought the frypan and about to hit me and I said, ‘What have I done that you are going to hit me?’ and after that Govinda and Pabitra went back.”

25. This carries the implication of some act of self-defence, but that is not advanced. I do not accept that the evidence would allow a finding that the complainant Basnet offered any threat using a frypan in the absence of any reference to that in the interview. I do not accept considering the evidence given by the complainant Basnet that she did any such thing. As I said, though, the evidence is not sufficient to conclude that the appellant struck her intending to do so when his fists encountered her eye.

26. Included in the material before the magistrate are screenshots taken from the complainant’s phone in which she was communicating with the appellant’s wife, as I understand it. The screenshots are in Nepalese, but a transcript has been provided of these pages and these include at p 46 of the Crown bundle three images of the complainant showing the condition of her left eye at the time they were exposed.

27. The representation communicated by the complainant accompanying those images was interpreted to be,

“Can you see these photos once. He/she didn’t hit me by aiming towards me...but when I defended I got hit.”

28. The complainant’s evidence on 8 June 2021 described this event at p 22 of the transcript, p 94 of the Crown bundle. At p 23 at line 24 she was asked:

“Q. You say that your husband stands up, then Mr Neupane pushes him?

A. Yes.

Q. Where, on your husband’s body, was he pushed?

A. When my husband stand up, he pushed his hand with - in the chest.

Q. Mr Neupane pushed your husband in the chest?

A. Yes.

Q. What did you see happen after the push?

A. When he pushed him back to the chair and he was sitting in the sitting position; and so when I see that, I get scared and I ask him ‘Why are you pushing my husband like that?’ and I came from the next chair towards my husband and then he punched me.”

29. She continued to describe in some more detail, in response to questions, precisely where she was and this included at p 24 evidence that she stood up in front of her husband. She was between her husband and the appellant. She continued to represent that when she came toward her husband, he then hit her and that had caused her pain and swelling, and she described the appellant continuing to scream and use rude words to her and her husband.

30. Part of the challenge to the prosecution case was that when the complainant sought assistance for her injury, she said initially to the doctor upon whom she attended that she had suffered the injury to her eye accidentally when she fell and struck a bathtub. She explained this during her evidence as the product of fear that what occurred might impact upon her status as a resident in this country under the authority of a visa. She returned to the medical practice five days later, the first occasion being 13 November 2019, the second occasion 18 November 2019. The history recorded includes:

“PT returns for telling true about her trauma or injury around her left eye. PT reports she and her husband share a unit with another couple, who was a friend of PT’s husband. They had argument last Monday (11/11/2019) and the guy pushed her husband down to sofa. When PT tried to protect her husband, she was hit to her left eye by the guy. PT took photo after the assault.”

31. Relevant to the question of whether she suffered actual bodily harm is the recording on each occasion of the observations made by the practitioner, which included left periorbital swelling and tenderness, with a query as to whether she had suffered a fracture.

32. When she attended the police and made her statement on the first occasion, 25 May 2020, she described what occurred consistent with the evidence she gave. She referred to her messages on Facebook and these were in due course provided, as described in her statement made on 28 July. These were provided to the police. In the statement she made on 28 July 2020 she provided representations regarding the provision of medical certificates issued to her by the practitioners upon whom she attended.

33. A CT scan was performed. This revealed no intracranial or orbital haematoma or injury seen, and no skull fracture or orbital fracture detected.

Finding

34. Having reviewed this evidence and brought into account the principles to which I have referred, I am satisfied that the offences were established by the evidence provided, particularly that which fell from the complainant Pabitra Basnet, corroborated by the Facebook representations to which I have referred, which are admissible in accordance with s 66 Evidence Act 1995, and supported at least in part, if not in substantial measure, by the representations given by the complainant, her husband, who is the subject of the charge of common assault.

35. It is for these reasons that I have come to the view that in each case the appeal from the finding of the guilt by the magistrate should be dismissed and the findings of guilt are in each case confirmed.

EX TEMPORE REVISED JUDGEMENT – Appeals from sentences

Introduction

36. I have delivered judgement providing the reasons for my decision to dismiss each of the appeals from the findings of guilt entered by the magistrate in these proceedings. I referred to the Facebook messages that were transmitted by the complainant wife to the appellant’s wife, and to s 66 Evidence Act 1995. The evidence was available as evidence of the truth of the representations contained in the Facebook messages to which I referred and was complaint evidence.

Consideration of Sentence

37. The magistrate in analysing the evidence leading to her decision to find the offences proved included at p 60 of the transcript, p 192 in the Crown bundle, those representations made by the complainant wife. The magistrate at p 60 line 36 observed:

“There is a reference to being touched or hit, albeit in circumstances where, as I understand it, Ms Basnet, was not alleging that Mr Neupane had specifically directed the punch or hit towards her, but rather towards her husband,” and of course the evidence is that Ms Basnet did go to the doctor with her husband on two occasions, once on 13 November, that is two days after the incident, and once on 18 November.”

38. The magistrate also referred at p 60 line 231 to further messages to which I did not advert. Her Honour wrote,

“She sent further messages again which are at p 4, which are translated as, ‘If it didn’t touch or impact me it would have touched or impacted my husband’...”

39. Her Honour continued with the response by the appellant’s wife, asserting that what occurred was a mistake by both.

40. The difficulty with this case is that many of the representations have found their way into English by way of interpretation and as was made clear by counsel, there are words in Nepalese which are not replicated in English and so too there are English words that are not replicated in Nepalese. For example, some of the transcription included “he/she” because of the form of personal pronouns that are used in the other language and thus we have interpretation rather than transliteration or true translation of what one person might have said in another language. In other words we have an interpretation of what is to be understood in English, rather than a transliteration of one language into the other.

41. All of that said I am satisfied on the material before me that what occurred was an argument that evolved in the kitchen of these premises between these individuals who were sharing the property. There was a measure of tension that gave rise to an argument and some yelling on the part of the appellant that ultimately led to the complainant Dhahal standing and pointing toward the appellant, who pushed Mr Dhahal, causing him to fall. The complainant Basnet came to the aid of her husband, between her husband and the appellant who threw the punch not directed at her but toward her husband, and unfortunately she took the blow because of her understandable desire to intervene and prevent her husband being struck.

42. It is that factual scenario that one must assess in this case. As the Crown concedes, the common assault is at the lower end of the scale of objective seriousness. The assault occasioning actual bodily harm is said by the Crown to be more serious. He could have faced a further charge of common assault for the blow directed toward the husband but intercepted by the wife in her decision to move forward. It must be the case in my view that he did not intend to strike her, but regrettably did so and left her with a bruised area around her left eye.

43. He is now 36 years of age or more correctly will be 36 years of age shortly, having been born in 1986. He has no antecedent offences in this country, where he has been residing for some five years. He wishes to remain here. I was alerted to his concern over visa issues. They are matters that I am not to bring into account upon the application of principles relevant to the assessment of sentence, and my task is to assess the objective seriousness of the misconduct and to engage upon the process of instinctive synthesis leading to what is an appropriate sentence in each case.

44. The magistrate’s view was but for the plea of not guilty there was scope for the application of s 10 Crimes (Sentencing Procedure) Act 1999, but all of that was undone because of the decision to defend the matter. The appellant suffers no adversity by reason of his decision to exercise his right to defend the charges, but it does not follow that when the decision goes against the appellant he can then turn to draw in, in support of his position, what might have otherwise been available to him upon a plea of guilty and demonstrated utility in the judicial process. Thus he has lost those opportunities. Indeed there is no evidence upon which one could conclude that he is truly contrite or remorseful.

45. The letter he provided, as his counsel has said, is a raw representation of his situation, not prepared by a lawyer; clearly this is so. He speaks of his pleasure at being a resident in this country and wanting to remain, but what he described as an unpredictable incident has made his life harder. He is worried about his future, and his five-year-old son. He wants to work hard for his family, has been gainfully employed in this country and continues to be so.

46. Unfortunately though, he writes,

“I can’t accept the blame for the wrong which I haven’t done,”

47. And he continues,

“At last I want to apologise for what happened, but once again I want to admit that I never smacked that woman. I hope you understand, thank you.”

48. That is to be balanced against the representations that he made that he has seen his wife and son suffering because of this experience. He wants to teach his son to be good in life. He wants to work hard for his family and not engage in arguments with anyone and want to win any arguments in which he might engage. He says he will stay away from those kinds of arguments.

49. Thus on the material I have, though contrition and remorse are a problem for the appellant, I accept that this experience has been somewhat salutary for him. Upon the material I have I would conclude that he would have good prospects of rehabilitation.

50. I am also reminded of the extended time it took for this matter to be resolved because of the burden the courts have suffered with the COVID‑19 pandemic; he has been living under the pressure of awaiting the outcome of these proceedings since the events unfolded in 2019.

51. The Crown correctly points to the fact that this occurred in the home occupied by the two victims, albeit on a temporary arrangement under which the appellant made accommodation available to them.

The Decision

52. Denunciation of violence is always a matter that the Court should bring to bear, but when I consider the entire context in which this has occurred I am persuaded that this is a matter to which s 10 Crimes (Sentencing Procedure) Act 1999 ought to apply.

53. I have had regard to the circumstances in which the offences were committed and the appellant’s otherwise good character, and lack of antecedents. I would not come to the view that the offence was trivial in nature in respect of the second sequence, the assault occasioning actual bodily harm, though the common assault, as the Crown fairly conceded, is at the bottom end of the range.

54. Bringing all of those matters together I am satisfied that it is appropriate to allow the appeals from the sentences and in lieu thereof, having found both offences to have been established, I find that the appellant is guilty of the offences, but without proceeding to conviction I discharge him upon a conditional release order in accordance with s 10 and s 9 Crimes (Sentencing Procedure) Act 1999.

55. He will be required to be of good behaviour during the term of the order. Each one will be of two years duration from today. I note that there was in place an apprehended violence order which will continue until 9 November 2023. The extension of the conditional release order imposed by the magistrate upon the common assault charge from 12 months to two years required the appellant to acknowledge that notwithstanding this is a more extensive penalty, he yet wishes to prosecute the appeal from the sentence in respect of that matter.

56. He will be required to appear before Court if called upon to do so to answer for any breach of the obligation to be of good behaviour.

57. I require the exhibits to remain on file so I have them available to me should the offender breach the orders, in which case I shall call him back to Court to answer for those.

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Decision last updated: 01 December 2022