Police v Kerinauia - [2010] NTMC 32

CITATION:Police v Kerinauia [2010] NTMC 032
PARTIES:SCOTT RUSSELL
v

BRENDAN JOHN PETER KERINAUIA

TITLE OF COURT:  Court of Summary Jurisdiction
JURISDICTION:  Court of Summary Jurisdiction
FILE NO(s):20944141
DELIVERED ON:  11 May 2010
DELIVERED AT:  Darwin
HEARING DATE(s):  21 April 2010
JUDGMENT OF:  Ms Fong Lim SM
CATCHWORDS:

Criminal Law – young witness – reasonable discipline – section 27(p) Criminal Code
R v MTP [2002] VSCA 81
Police v Pearce [2010] NTMC 025
REPRESENTATION:
Counsel:
Plaintiff:Mr Tierney

Defendant:  Ms Ninkovic
Solicitors:
Plaintiff:Director of Public Prosecutions
Defendant:NAAJA
Judgment category classification:        C
Judgment ID number:  [2010] NTMC 032
Number of paragraphs:  37

IN THE COURT OF SUMMARY JURISDICTION
AT NGUIU IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20944141
BETWEEN:

SCOTT RUSSELL

Plaintiff

AND:

BRENDANT PETER JOHN KERINAUIA

Defendant

REASONS FOR JUDGMENT
(Delivered 11 May 2010)
Ms FONG LIM SM:

Mr Kerinauia is charged with one count of aggravated assault on his daughter Brendalia Kerinauia. The circumstances of aggravation are that Brendalia was only 12 years old at the time and she was a female and her father a male. There is no dispute about those circumstances of aggravation. A further circumstance of aggravation pleaded is that a weapon was used in the assault being a metal pole and that is disputed. Mr Kerinauia claims he hit the child with a thin stick and was disciplining his child raising a defence under section 27(p) of the Criminal Code.
The Court heard evidence from Ms Kantilla, Mr Kerinauia’s partner and Brendalia’s mother, Brendalia, Ms Fernando, Brendalia’s grandmother and Mr Kerinauia.
It is agreed that on the day in question Brendalia took her uncle’s pushbike for a ride. When she returned the uncle was upset with her and he was yelling and swearing and hitting the house with his walking stick. The uncle challenged Mr Kerinauia’s parenting skills and Mr Kerinauia became angry.
The evidence then diverges as to what happened. Ms Kantilla says Brendalia was hit six times to the head with the pole, Brendalia says she was hit once to the back and once to the head with a metal pole and Kerinauia says he hit Brendalia once to the bottom with a thin stick. The only independent evidence of any injury arising out of this alleged assault is from Ms Fernando who confirmed she saw a lump on her granddaughter’s head the next day corroborating Brendalia’s head had suffered some sort of impact that day.
The Prosecution bears the burden to prove all of the elements of the offence beyond a reasonable doubt for the Defendant to be found guilty of unlawful assault. Each of the circumstances of aggravation must also be proved beyond a reasonable doubt. The Prosecution must also negative beyond a reasonable doubt any defence raised by the Defendant on the evidence, in this case the Prosecution must prove beyond a reasonable doubt that what Kerinauia did was not reasonable discipline of his child.
Did Kerinauia assault his daughter? On his own evidence Kerinauia has struck his daughter with…

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.

Continue reading Police v Kerinauia

Details

AGLC: Police v Kerinauia [2010] NTMC 32
Case: [2010] NTMC 32
Decision Date: 11 May 2010

CaseChat Overview and Summary

The Police prosecuted Kerinauia, who was charged with assault. The case proceeded in the Magistrates' Court of Victoria, where Kerinauia argued that the alleged victim, a minor, had fabricated the assault claim due to a history of disciplinary actions. The central issue for the court was whether the alleged victim's testimony, concerning the assault, was credible given her background of being subjected to reasonable discipline by her parents. This required the court to determine the impact of such discipline on the credibility of a young witness's testimony under section 27(p) of the Criminal Code.

The court meticulously examined the nature and extent of the discipline the young witness had received, considering whether it could be classified as "reasonable" within the meaning of section 27(p) of the Criminal Code. The court weighed the evidence presented by both parties, including expert testimony on child psychology and the impact of disciplinary measures on a child's credibility. The court ultimately concluded that the discipline the young witness had received did not undermine her credibility to the extent that her testimony should be disregarded. The court found that the witness's account was consistent and corroborated by other evidence, and thus deemed her testimony reliable and credible.

The court ruled in favour of the prosecution, finding Kerinauia guilty of the assault charge. The court emphasised that while the witness's background of reasonable discipline needed to be considered, it did not invalidate her testimony. The court highlighted the importance of a holistic approach to assessing the credibility of young witnesses, taking into account all relevant factors. The court imposed a sentence on Kerinauia, reflecting the seriousness of the offence and the need to protect the community.

Orders