Police v Poobalasingan; Police v Anantharaj; Police v Soundrajan - [2021] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation: Police v Poobalasingan; Police v Anantharaj; Police v Soundrajan [2021] NSWLC 1
Hearing dates: 9 and 10 June 2021
Decision date: 05 October 2021
Jurisdiction: Criminal
Before: Magistrate Tsavdaridis
Decision:
(1) Enter a verdict of not guilty to the charge of affray in respect of each Defendant.
(2) The charges are dismissed.

Catchwords:
CRIMINAL LAW - affray - prosecution statements of two complainants tendered but no oral evidence given by all three principal complainants - direct evidence - circumstantial evidence - good character - defendants each gave record of interview - inconsistencies between police statements and oral evidence

Legislation Cited:
Crimes Act 1900 (NSW), ss.93A, 93C, 93D

Cases Cited:
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Peacock v The Queen (1911) 13 CLR 619; [1911] HCA 66
Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
Pitkin v The Queen (1995) 130 ALR 35; [1995] HCA 30
R v Murphy (1985) 4 NSWLR 42
Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Woolmington v DPP [1935] AC 462
R v Manunta (1990) 54 SASR 17

Category: Principal judgment
Parties: NSW Police (Prosecution)
Kobinath Poobalasingan (Defendant)
Sivamoorthy Anantharaj (Defendant)
Arulmurugan Soundrajan (Defendant)
Representation:
Solicitors:
Ms J Lozanoska, Sgt (Police Prosecutor)
Australian Presence Legal (Solicitors for Kobinath Poobalasingan)
Australian Presence Legal (Solicitors for Sivamoorthy Anantharaj)
Mr S Fung (Solicitor for Arulmurugan Soundrajan)
Counsel:
Mr J Park (Counsel for Mr Kobinath Poobalasingan)
Mr V Pawar (Counsel for Mr Sivamoorthy Anantharaj)

File Number(s): Kobinath Poobalasingan
Charge No: H75520121 / JL: 2020/220591
Sivamoorthy Anantharaj
Charge No: H147142202 / JL: 2020/220603
Arulmurugan Soundrajan
Charge No: H77898483 / JL: 2020/220583

Judgment

Overview

This is a reserved decision in a co-accused hearing of Police v Kobinath Poobalasingan, Sivamoorthy Anantharaj and Arulmurugan Soundrajan.
The Defendants come before the court each charged with one count of affray, contrary to s.93C of the Crimes Act 1900 (NSW).
At the outset, the learned prosecutor particularised the offence as an act of violence on 25 July 2020, perpetrated by all three Defendants, in which they attended a location, were involved in a physical fight, weapons were produced and injuries were sustained to two of the complainants, including scratches to the knees and lacerations to the head.
The proceedings were heard over a two-day period on 9 and 10 June 2021.

Cautionary Criminal Trial Directions and Onus and Standard of Proof

Sitting as both the tribunal of fact and law, to the extent that questions of law such as onus and standard of proof arise, it is apposite that I direct myself as though I were directing a jury on the application of the law to the facts, as they found them to be, in matters prosecuted on indictment.
Cautionary criminal trial directions apply to a magistrate or judge sitting alone as they do to a trial before a judge and jury: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68. For abundant clarity, set out below are the matters in respect of which I directed myself.
As these are criminal proceedings, the Prosecution bears the onus of proving the elements of the offence, beyond reasonable doubt. That onus rests with the Prosecution from start to end and does not shift to the Defence.
Neither Defendant gave evidence in the hearing and no adverse inference is to be drawn from their decision not to do so. Each provided a Record of Interview and that is open to the same scrutiny as any other witness’ evidence, in the ordinary course.
The Prosecution case was based partly on direct evidence and partly on circumstantial evidence. To this end, the customary direction where the Prosecution relies on circumstantial evidence is that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: Shepherd v The Queen (1990) 170 CLR 573 (at 578).
It is necessary for the tribunal of fact to decide whether it accepts the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence. It can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. It cannot view an intermediate fact as an indispensable basis for an inference of guilt unless at the end of the day it is satisfied of the existence of that fact beyond reasonable doubt: Chamberlain v The Queen(No 2) (1984) 153 CLR 521 (at 535); Shepherd v The Queen (1990) 170 CLR 573 (at 576).
When the evidence is circumstantial, the tribunal of fact may draw an inference of guilt from the circumstances of the case. It must, however, exclude any reasonable hypothesis consistent with innocence: Chamberlain v The Queen(No 2) (1984) 153 CLR 521 (at 535).
It is to be stressed that the Court, as the trier of fact, cannot convict if there is any rational hypothesis or reasonable possibility consistent with innocence: Peacock v The Queen (1911) 13 CLR 619 (at 634); Plomp v The Queen (1963) 110 CLR 234 (at 234). If there is, then in such circumstances, it ought give the accused the benefit of the doubt necessarily created by that circumstance: Pitkin v The Queen (1995) 130 ALR 35 (at 39).
The guilt of the accused must be established beyond reasonable doubt. A doubt must be entertained where any other inference consistent with innocence is reasonably open on the evidence: Shepherd v The Queen (1990) 170 CLR 573 (at 579).
Further, it was conceded by the Prosecution that each of the Defendants was of good character and had no prior criminal convictions. This impacts upon the fact finding exercise by requiring that I direct myself along the lines referred to in R v Murphy (1985) 4 NSWLR 42. There are two limbs to the traditional direction.
First, I take into account the fact that as each Defendant has an unblemished reputation, this leads to the presumption that he is not capable of committing the crime which is the subject of the charge. Authority for this proposition is found in Attwood v The Queen (1960) 102 CLR 353 (at 359); [1960] HCA 15. Character cannot alter proven facts, but when I am considering whether the Prosecution has proved its case beyond reasonable doubt, I must take into account the presumption that each Defendant would not commit a crime. This is the propensity limb of the direction.
There is another aspect to good character, that is, that a person of good character is presumed to tell the truth. I am required to take into account good character in assessing the credibility of each Defendant. Put another way, I can presume that each Defendant would not have lied, because a person of good character will tell the truth. This is the credibility limb of the direction. Of course, a person of good character can commit a first crime and can tell a lie, but both are unlikely. This limb is of limited application, given that neither Defendant gave oral evidence in the proceedings. However, evidence that an accused is of good character may be relevant to the credibility of evidence given in court and statements made out of court: Melbourne v The Queen (1999) 198 CLR 1. It is on this basis that the issue of good character, albeit to a lesser extent, is relevant to the version each gave in their respective Records of Interview with police. In considering the explanation proffered by each Defendant and the weight I should give to it, I am required to bear in mind that it was made by a person of good character and each Defendant is entitled to have that taken into account when I decide whether to believe his explanation in whole or in part.
Some further matters should be borne in mind when arriving at a concluded view as to whether the Defendants are guilty or not guilty of the offence with which they have been charged.
First, it is erroneous for a tribunal of fact to consider each item of evidence separately and eliminate it from consideration, no matter how or by whom it was raised, unless satisfied beyond reasonable doubt. The evidence must be considered as a whole, not in isolation: Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7.
Secondly, if upon a review of all the evidence the tribunal of fact is left with reasonable doubt about whether the Prosecution case has been made out, a verdict of acquittal must be returned: Woolmington v DPP [1935] AC 462.
Thirdly, the decision of the tribunal of fact is to be based on the evidence, not suspicion, nor speculation. When assessing the evidence adduced throughout the hearing, the Court, as the trier of fact, may decide which evidence is believed and how much weight is to be placed on the testimony of each witness. In carrying out that task, it is to be borne in mind that the trier of fact may use common sense and life experience in order to assess the credibility of each witness. It is within the Court’s power to accept some part of a witness’ evidence while rejecting other parts: R v Manunta (1990) 54 SASR 17. That is to say, I can accept none, some or all of a witness’ evidence.

Legislation

Section 93C of the Crimes Act 1900 (NSW) provides as follows: -

93C   Affray
(1)   A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
(2)   If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3)    For the purposes of this section, a threat cannot be made by the use of words alone.
(4)    No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5)    Affray may be committed in private as well as in public places.

Section 93D of the Crimes Act 1900 (NSW) provides as follows: -

93D   Mental element under sections 93B and 93C
(1)    A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.
(2)    A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(3)    Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.

Section 93A of the Crimes Act 1900 (NSW) provides as follows: -

93A   Definition
(1)    In this Division:
violence means any violent conduct, so that:
(a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and
(b)    it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

To summarise, therefore, the Prosecution must prove the following elements:

A person uses or threatens unlawful violence towards another;

Either intentionally or being aware that his conduct may be violent or threaten violence; and

As would cause a person of reasonable firmness present to fear for his personal safety.

It is important to note that the elements are derived, in part, from the principal provision under s.93C(1) but also from s.93D(2), which imports into the principal provision the second element to which I have referred. It matters not whether a person of reasonable firmness is present. So much is made clear from s.93C(4), which is a facilitation of proof provision.
There were a number of complainants and Prosecution witnesses, the status of which was as follows: -

Complainant No. 1 - Mr Thirukatheeswaran Kathirav

Mr Kathirav did not provide a statement and did not give evidence.

Complainant No. 2 - Mr Surendran Kagandran

Mr Kagandran provided a statement, which was tendered, but did not give evidence.

Complainant No. 3 - Mr Nirojan Naguleswaran

Mr Naguleswaran provided a statement, which was tendered, but did not give evidence.

Present at location - Mr Murogan Kobinath (aka Mahendran / Morandran / Kobi)

Mr Kobinath gave a Record of Interview and was not charged by police. The Record of Interview was not served by the Prosecution on the Defendants and he did not give evidence.

Caller to 000 / Resident at location - Mr Sivananthan Murugesu (aka Siva)

Mr Murugesu provided a statement, which was tendered, and gave evidence.

Present at location - Mr Kuhilan Pushjan (aka “Queelan”)

Mr Pushjan provided a statement, which was tendered, and gave evidence.

The Evidence in the Prosecution Case

Constable Ali Ibrahim (Officer in Charge)

Constable Ali Ibrahim (Officer in Charge) made two statements, dated 13 October 2021 and 24 May 2021. Neither was tendered. His evidence was given orally.
The salient features of the officer’s evidence in chief were as follows: -

At about 9.30 p.m. on 25 July 2020, he and another officer responded to a police call and attended 19 Normac Road, Girraween.

He activated his body worn camera footage.

A Parramatta police crew were already there.

He noticed a number of persons of Sri Lankan descent were present.

He spoke to Mr Surendran Kagandran who had some injuries.

There were about five or six occupants in the house.

The persons had attended the location for a party.

They all told him that there had been a fight and there was also mention of a knife having been produced.

He noticed injuries to Mr Thirukatheeswaran Kathirav’s knees and lacerations to his body.

He noticed damage to the windows.

There were cricket bats and rocks lying around.

At least three of the front windows were shattered.

One of the persons present informed him that a group of people came in two different motor vehicles, attacked them and damaged property.

Most of the people present were intoxicated.

He took photos of the injuries and damage to property.

He recorded the details of each complainant.

He expanded on the observations made of the house.

There was a cricket bat on the grassed area at the front of the house.

There were rocks somewhere inside the house.

There were empty beer bottles.

There were possibly sticks but no knife was located.

The cricket bat was not seized and no forensic related analyses were carried out because it was raining and a superior officer told him not to bother.

He understood the affray to have started outside with the persons forcing their way inside the house.

He stated that the witnesses and complainants informed him that the Defendants attended the premises.

He stated that two of the three Defendants (Mr Kobinath Poobalasingan and Mr Arulmurugan Soundrajan) told him that they had been at the premises.

He stated that one of the witnesses informed him that the Defendants attended the location on three occasions.

He stated that police attended on three occasions, although he had attended only on the first and second occasion.

The body worn camera footage recorded by him was of the interactions between police and the various persons depicted therein on the first attendance by police.

He returned to the police station, typed up the details and handed over the information to the officers on dayshift so that the matter may be followed up.

The Prosecution tendered into evidence, by consent, as Exhibit 1: -

The body worn camera footage of Constable Ali Ibrahim (Officer in Charge) (Clips 1, 2 and 3) captured on 25 July 2020.

The body worn camera footage of Constable Erfan Noorinooshabadi (Clip 4) captured on 25 July 2020.

The body worn camera footage of Senior Constable Josh Htwe (Clip 5), who responded from Parramatta Police Station, captured on 25 July 2020.

The emergency call made to 000 on 25 July 2020.

The salient features of the body worn camera footage were as follows: -

Clip No. 1

The footage is taken late at night and appears to depict cars in the driveway, a person showing mobile phone footage to a police officer and Mr Surendran Kagandran who can be heard saying that there was “no fighting” but there was “smashed glass”.

The officer in charge is seen speaking to a number of people.

Mr Kagandran is heard telling police that the incident took place about an hour ago, that he lives in Pennant Hills, is from Sri Lanka and that he called police many times but no one came.

Clip No. 2

The footage depicts two ambulance officers treating a patient with a bandage on his head.

Clip No. 3

For the first half of the clip, there is no sound.

When the sound begins, one of the persons is heard telling police that many people came to the location with a knife and smashed the door.

The person informs police that he had consumed one beer.

The person nominates Mr Mahendran Kobinath (Mr Murogan Kobinath (aka Mahendran / Morandran / Kobi) as being responsible.

The person informs police that he knows “them”, that they were friends before (about 9 years ago) and that he did not know why they came to fight.

Clip No. 4

For the first half of the clip, there is no sound.

When one of the persons, with whom another officer was speaking, was asked what had happened, he responds that he did not know what had happened, did not know why people had come to the location and that after Mr Mahendran Kobinath (Mr Murogan Kobinath (aka Mahendran / Morandran / Kobi) arrived, nine more people came.

He informed police that “he” (presumably, Mr Mahendran Kobinath, as opposed one of the Defendants), “smashed my head too”.

Clip No. 5

This clip depicts police officers walking through the house at which the incident is said to have taken place.

One officer is heard saying, “where did the stabbing happen?” and “one bloke got stabbed.”

Reference is made to waiting for a Scene of Crime Officer. No such officer attends.

The officer is heard saying “10 to 12 people came into the house”, “a few people were drinking”, they “got into a fight” and someone was “stabbed”.

The officer is seen asking one of the persons, “where were you stabbed?” and the officer’s attention is directed to the person’s right leg.

The same person informs the officer that he was sleeping.

Another person informs a different officer that he called police three times but no one came.

The officer is heard saying, “he’s got a crack in the back of the head.”

Another officer approaches an occupant to ask whether this was his home, to which the occupant responds “yes, they came to my home.” This occupant, however, appears noticeably intoxicated.

The officer is also heard saying that there was another male inside but that he was unable to wake him up.

The salient features of the emergency call made to 000 were as follows: -

The caller was identified as being Mr Sivananthan Murugesu.

From the outset, and as the call recording progressed, Mr Murugesu was slurring his words and struggling to maintain focus. It became apparent that Mr Murugesu was considerably intoxicated.

He stated that many people had come to his home. He stated that someone came to hit him and “too many things” happened.

He stated that somebody had died. When pressed by the 000 operator about this, he again confirmed that somebody had died.

When asked about weapons or firearms, he informed the 000 operator that “everyone” had brought a knife, that he had seen “the knife” but, despite this, he was unable to give any clarity.

When asked by the 000 operator whether anyone on site had COVID-19, he responded, “Yeah, something like that. Yeah, I know.”

When asked by the 000 operator whether he had COVID-19, he responded, “Yeah.”

He made reference to “someone … making trouble” and “bottles”.

He asked the 000 operator to send an ambulance for “someone” who he stated had been killed.

He stated that they had killed a boy.

When asked by the 000 operator whether the person was breathing, he responded, “somebody … two people … 14 people.”

Despite having earlier referred to the boy having been killed, he stated that the boy was still fighting.

After informing the 000 operator that those involved still had knives and were in his home, police arrived and the call was discontinued.

The CCTV footage from a neighbouring house further down the street was tendered into evidence, by consent, as Exhibit 14.
The salient features of the CCTV footage were as follows: -

It was conceded that the time and date stamp of 12.04 a.m. on 26 July 2020 was incorrect.

A number of people are seen running towards the car and behind it.

The headlights are illuminated.

There appears to be a scuffle in front of the car.

Multiple people are involved.

There appeared to be two different fights playing out.

The car is seen leaving the location.

The salient features of the officer’s evidence in cross-examination (by Mr Park for Mr Kobinath Poobalasingan) were as follows: -

He attended the premises at about 11.30 p.m.

Police attended the premises two or three times that night, however, he only attended once.

The other police attended after he did.

The 000 call was made at about 1.00 a.m.

He observed a cricket bat, rocks, a glass bottle and possibly wooden sticks.

None of the items were forensically examined in any way.

The reference by the complainants or witnesses to Mr Morandran Kobinath was not a reference to any of the Defendants.

He interviewed Mr Morandran Kobinath.

He did not take a statement from Mr Morandran Kobinath.

He did not subpoena Mr Morandran Kobinath.

Mr Morandran Kobinath was eliminated from the investigation because “they kept mentioning his name.”

Mr Morandran Kobinath was the only person “they named” to identify the Defendants.

As to Mr Thirukatheeswaran Kathirav, the officer stated that he was intoxicated, although not heavily intoxicated, and was able to communicate with him.

As to Mr Surendran Kagandran, the officer stated that he was moderately intoxicated.

The CCTV footage was obtained from a house about 100 metres from the premises at which the offence was said to have taken place.

He agreed that he did not conduct an identification parade in relation to the three Defendants.

The salient features of the officer’s evidence in cross-examination (by Mr Pawar for Mr Sivamoorthy Anantharaj) were as follows: -

He did not conduct an identification parade with respect to the three Defendants as they had agreed to having been involved in a physical altercation to some extent.

He stated that the Defendants put themselves at the scene by virtue of their Records of Interview.

He stated that the Defendants attended the location on three occasions.

He agreed that he had not shown the CCTV footage to the Defendants because it was not obtained until after their Records of Interview.

He agreed that Mr Kuhilan Pushjan, in his statement dated 26 July 2020 (Exhibit 22), identified Mr Murogan Kobinath (aka Mahendran / Morandran / Kobi) as one of the persons involved in the alleged violence who was not charged, although there was “a reason for that.”

With regard to Mr Sivamoorthy Anantharaj, he agreed that not one person identified Mr Anantharaj as having carried out an assault upon anyone.

He agreed that in the Record of Interview, Mr Anantharaj informed police that he went to the premises in a motor vehicle.

He agreed that in the Record of Interview, Mr Anantharaj informed police that he was attacked with a knife.

He agreed that in the Record of Interview, he showed Mr Anantharaj photos of Mr Kathirav.

He agreed that in the Record of Interview, Mr Anantharaj identified Mr Kathirav as having a knife and chopping at the car.

He stated that he interviewed Mr Kathirav and put the allegation to him, but that he was not charged.

The CCTV footage was played again throughout cross-examination and a male is seen running towards the front windscreen of the driver side of a vehicle holding an implement and hitting it against the windscreen. The male is seen holding what appears to be a large knife in his right hand by his side and, although not immediately identifiable, there is some support to the assertion made on behalf of Mr Anantharaj that it was Mr Kathirav who was using the knife in the manner described.

Despite four photographs of the gold Mitsubishi Magna (Rego No: CU49EW) being shown to the officer (tendered into evidence, by consent, as Exhibit 15) as having been the vehicle parked outside the home where Mr Anantharaj resided, the officer was unable to recall seeing the vehicle or looking for any windscreen or other damage to it.

He agreed, however, that the gold Mitsubishi Magna was the vehicle Mr Anantharaj described as having been damaged by Mr Kathirav.

He agreed that Mr Murogan Kobinath was not subpoenaed. He stated that he was “eliminated from the investigation.”

He agreed that Mr Kathirav was subpoenaed, was present at Court to give evidence but had not provided a statement to police at any time.

Despite there having been a reference by another officer to the premises being a crime scene, it was not declared a crime scene because “there were four robberies that night.” I understood this to mean that it was a busy night for police.

He agreed that Scene of Crime Officers did not attend the location.

He stated that Mr Kathirav was taken to hospital.

There were no medical notes or expert statements obtained with respect to his alleged injuries and it was conceded that he should have obtained these documents.

The salient features of the officer’s evidence in cross-examination (by Mr Fung for Mr Arulmurugan Soundrajan) were as follows: -

He eliminated Mr Murogan Kobinath early on in the investigation.

The Record of Interview of Mr Kobinath was not served on the Defendants because he was not charged.

He described the decision not to charge Mr Kobinath as being based on, first, the complainants’ clarification that it was Mr Kobinath’s friends who were involved, rather than Mr Kobinath and, secondly, after conducting the Record of Interview with Mr Kobinath, he deemed him to have had no involvement in any fight, other than merely being present.

When he was conducting inquiries, he was told by one of the occupants that Mr Kobinath and his friends attended the location.

He agreed that when he received the dispatch information, he was informed that there was a possible stabbing, that someone was killed and that a machete was involved.

He did not go into the house.

He did not search the house.

He was asked whether anyone else searched the house for a knife, to which he responded variably, “I asked if the knife was located” and “no.”

He did not know the full extent of the search, but what he did know was derived from the video. It was not that detailed a search; for example, there is no search of the roof cavity.

He only went to the side of the house and the driveway.

He agreed that the statement made by Mr Kevin Mowad (a neighbouring witness) dated 19 May 2021 made reference at paragraph 5 to seeing a male pull out a “machete, smashing the windscreen of the Mitsubishi.”

He agreed that this statement was obtained 10 months after the alleged incident, that being the time at which he first learned of this.

As to the CCTV footage provided by Mr Arvind Pramar (a neighbouring witness) referred to in his statement dated 5 May 2021, he accepted that the Mitsubishi vehicle belonged to one of the Defendants and the other Defendants were connected to it.

He stated that all of the complainants had no idea about, and therefore disavowed any responsibility for, smashing the windscreen of a car.

He tried to make further enquiries in relation to the damaged vehicle.

He understood that one, or probably all, Defendants resided at 51 Tungarra Road, Girraween, a share house.

He did not take photos of the car.

He stated that Mr Kobinath and the three Defendants were involved.

He agreed that possibly 5 or 6 or even up to 12 people were involved in the alleged incident.

In relation to the enquiries he made, he stated that he attended an address where he located the three Defendants.

He agreed that there must have been more people involved.

The only persons he could identify as perpetrators were the three Defendants.

He agreed, after having viewed the CCTV footage in court again, that a number of persons “suddenly” appear at the front right hand side of the vehicle at a time when the footage appears to “skip” [1:26 mins].

He agreed that VB beer bottles and other glass was found inside the house.

He made a concession to the effect that it could not be excluded that these items were inside the house before the alleged incident.

The officer was not re-examined.

Mr Arvind Pramar (Nearby Resident / Neighbour)

The Statement of Mr Arvind Pramar (nearby resident / neighbour) dated 5 May 2021 was tendered into evidence, by consent, as Exhibit 17.
His statement was to the following effect: -

He had resided in Normac Road, Girraween for about five years.

At about 10.30 p.m. on 25 July 2020, he was at home and heard people shouting from the road.

He looked out of his upstairs bedroom window and saw a fight taking place with four or five people of Sri Lankan descent involved, although it was dark and he was unable to be sure.

He called the police.

He could see people running down Normac Road in two different vehicles, just before police arrived.

He was about 35 metres away with nothing obstructing his vision when he saw the males fighting.

His visibility was not clear because it was dark.

He observed the males fighting for about 5 to 10 minutes.

He had never seen people fighting before.

About two days later, he reviewed his CCTV footage and noticed that it captured the incident.

The time on the CCTV footage was not correct.

Neither he nor the police knew how to download the footage, so the officers recorded the footage on their phone.

Mr Arvind Pramar also gave oral evidence.
The salient features of his evidence in chief were as follows: -

The incident took place on the street.

He did not speak to police on the night of the alleged incident.

He resided at XX.

The incident occurred roughly at the front of 28 and 30 Normac Road, Girraween.

He described seeing the fight from his bedroom window and in which four or five people were on the road.

He did not recognise anyone because it was dark.

He did not know his neighbours.

Police looked at the CCTV footage.

The time was incorrect. It was a few minutes to about half an hour different to the correct time.

He observed the police record the footage directly from his screen because they did not know how to download it.

The salient features of his evidence in cross-examination (by Mr Park for Mr Kobinath Poobalasingan) were as follows: -

He made his statement to police on 5 May 2021 (some 10 months after the alleged incident on 25 July 2020).

He was “pretty certain” that the incident he witnessed took place just after 10.30 p.m. on 25 July 2020.

He heard a commotion and called the police as he was getting ready for bed.

He saw police arrive 10 to 15 minutes later.

He did not know whether police attended the location on more than one occasion.

Everything he did see was captured on CCTV footage.

He did not see any incident take place at 19 Normac Road, Girraween.

He confirmed that the CCTV footage which was played to him while giving evidence was a continuous, unedited video.

Mr Pramar was not cross-examined by Mr Pawar for Mr Sivamoorthy Anantharaj.
Other than a clarifying question, Mr Pramar was not cross-examined as to any substantive issue by Mr Fung for Mr Arulmurugan Soundrajan.
Mr Pramar was not re-examined.

Mr Sivananthan Murugesu (Resident at 19 Normac Road, Girraween)

The Statement of Mr Sivananthan Murugesu (Resident at 19 Normac Road, Girraween) dated 26 July 2020 was tendered into evidence, by consent, as Exhibit 22.
His statement was to the following effect: -

He had resided at 19 Normac Road, Girraween for about a year.

He rented at that location with about six other friends.

At about 6.30 p.m. on 25 July 2020, he was having a party with his friend, Mr Surendran Kagandran, in the living room.

All of his other friends were at home.

At about 9.30 p.m., he heard a knock on the front door. He came to the front door but could not remember who opened the door.

Once opened, he saw about 10 people standing at the front of his house.

He could not see who they were because it was dark.

However, he did see one of his old friends, Mr Murogan Kobinath (“Kobi”) with the group of men.

He knew Mr Kobinath because he was a friend of one of his other friends, Mr Kuhilan Pushjan.

He stated that Mr Kobinath looked angry and was yelling very loudly outside his house.

He stated that the other men who had accompanied Mr Kobinath were holding weapons.

Some were holding what looked like a knife and others were holding cricket wickets.

One of the males asked him, “where is your wallet?”

Despite this, he stated that he did not know why this person asked him this question or who this person was speaking to.

About 10 to 15 minutes later, his neighbour attended Mr Murugesu’s house and told the men to leave.

The men left shortly afterwards.

He did not know the names or any other details of the men that attended his house.

However, he knew their faces because he had seen them somewhere about four years ago.

Mr Murugesu also gave oral evidence.
The salient features of his evidence in chief were as follows: -

He had resided at 19 Normac Road, Girraween for about two years.

He and Mr Surendran Kagandran was celebrating and having a party.

He heard a knock at the door at about 7.00 p.m. to 8.00 p.m. and thought it was visitors.

He had consumed alcohol and had been drinking for about an hour.

He had bought a case of beer and had consumed two VB beers.

He could not recall who opened the door. He was in his room at the time.

Others were in the kitchen cooking.

He heard some noises, people talking and general conversation but did not pay all that much attention.

He heard some more noises, opened the door and saw people fighting outside the house.

He stated that both he and Mr Nirojan Naguleswaran went outside.

They called police.

He stated that the people living at his house went outside and were fighting others who had brought weapons and attack them.

He stated that Mr Thirukatheeswaran Kathirav, Mr Surendran Kagandran and Mr Kuhilan Pushjan became involved.

His housemate, Mr Kathirav, to whom he paid rent, was the uncle of Mr Kagandran and Mr Pushjan.

He was asked whether he recognised any of the males who had come to the house. He stated that he knew one of the short males because he had seen him with other friends elsewhere some time ago, however, he did not know his name.

He did not recognise anyone else.

He became nervous at one stage, after having seen Mr Kathirav bleeding.

He described the attack as involving fighting and pulling each other.

Mr Kathirav, Mr Kagandran and Mr Pushjan were fighting.

He used Mr Naguleswaran’s phone to call police.

After the police arrived everyone ran away.

He described about 10 males fighting on the road.

He was unable to see what was going on.

As to which of the males within the home engaged in the fighting, he included himself, Mr Naguleswaran, Mr Kobinath and Mr Kagandran.

In total, there were about 14 people involved.

He saw that the others had cricket stumps and a cricket bat.

Nobody from his house had any weapons.

Although he stated that he was present the whole time, he described there being two incidents.

After the police attended the first time and left, “another group” of males came about two hours later.

In the intervening period, he went to the hospital.

As a result of the first incident, the only two people injured were Mr Kathirav and Mr Kagandran.

The ambulance attended after the first incident.

He was asked whether he recognised anyone from the second group of people or whether they were different people altogether.

He stated that he spoke with the second group of people but did not recognise them.

He did not know any of the people from the first group which attended.

Despite being again pressed on whether the second group of males were the same as the first group, he stated that he did not know and could not recall.

When asked whether the second group of males engaged in any fighting, he stated that there were five of them, some had weapons but there was no fight, they had lost their wallets, and he informed them that everything had been handed to the police.

They all left a short time thereafter.

As to whether he saw any car being damaged, he stated that he heard noises from afar but did not approach because he was scared.

The car was on the opposite side of the road where the last fight took place.

He did not see who damaged the car.

The salient features of his evidence in cross-examination (by Mr Park for Mr Kobinath Poobalasingan) were as follows: -

The first group of males attended between 7.00 p.m. and 8.00 p.m.

He again stated that he had only consumed two beers.

The salient features of his evidence in cross-examination (by Mr Pawar for Mr Sivamoorthy Anantharaj) were as follows: -

He confirmed that the first incident was a fight.

Mr Kathirav went to hospital.

When pressed about the first incident being an attendance by a group of people, but no fight taking place, he agreed.

The second group of males who attended had weapons.

He was unable to say whether the males in the first group were different to the males in the second group although, curiously, he stated that they were from the same suburb.

Some moments later in his evidence, he stated that the first group of males and the second group of males were not different people.

Some moments later again in his evidence, he stated that different people attended on the two different occasions when males came to the house.

He stated that he recognised the faces of the second group of males, although he did not know their names.

He did not see Mr Kathirav exiting the house with a knife during the first incident.

He did not see Mr Kathirav hit any car outside.

He saw three people fighting.

He could not recall and did not notice Mr Kathirav holding anything in his hand.

He stated that “Kobi” was involved in the first fight.

When asked who “Kobi” was and whether he was referring to Mr Murogan Kobinath, as in his statement to police, he stated that he did not know.

Mr Murugesu was not cross-examined by Mr Fung for Mr Arulmurugan Soundrajan.
Mr Murugesu was not re-examined.

Mr Kuhilan Pushjan (Resident at 19 Normac Road, Girraween)

The Statement of Mr Kuhilan Pushjan (Resident at 19 Normac Road, Girraween) dated 26 July 2020 was tendered into evidence, by consent, as Exhibit 25.
His statement was to the following effect: -

He had lived at 4 Rea Street, Greenacre for about two years.

He had lived at that address with Mr Morandran Kobinath, whom he had known for about two years.

Mr Kobinath had moved out about a year earlier.

On 25 July 2020, he was at a party at 19 Normac, Girraween.

At about 9.00 p.m. on 25 July 2020, Mr Kobinath arrived at the party alone.

A short time later, six people came looking for Mr Kobinath.

He did not know either of those persons.

All apparently came into the house, uninvited, and were holding a cricket wicket, knife, glass bottle and a brick.

He told them that he did not know the whereabouts of Mr Kobinath. He asked them to leave. They left and walked down the road.

About an hour later, the same six people returned with another six people, a total of 12 people this time.

The six additional people also brought weapons, including another brick, cricket bat, more bottles and a tyre iron.

They knocked on the door. His uncle (Mr Thirukatheeswaran Kathirav) opened the door.

The males told everyone to come outside. He and the others, however, remained inside the house.

The males started smashing the windows of the house.

Mr Kathirav and Mr Kagandran went outside and asked the males to stop.

He saw Mr Kathirav and Mr Kagandran get bashed by the males.

They were about 10 metres away and there was nothing obstructing his view.

He remembered that he had telephoned 000 when they knocked on the door.

He saw Mr Kobinath outside bashing them together with his friends.

Afterwards, they all left and ran down the street.

He went outside and saw Mr Kathirav and Mr Kagandran injured.

Mr Pushjan also gave oral evidence, with the assistance of a Tamil speaking interpreter.
The salient features of his evidence in chief were as follows: -

He was at 19 Normac Road, Girraween. They were having a party and were consuming drinks after having finished work.

There was an incident at the house.

He was there with Mr Thirukatheeswaran Kathirav (his uncle), Mr Sivananthan Murugesu (his cousin), Mr Nirojan Naguleswaran (his friend) and Mr Surendran Kagandran (his friend).

Five people came to the house. They knocked on the front door and entered the house.

He was cooking and drinking at the time.

They held on to, and pushed, his uncle, Mr Kathirav.

He asked them what the problem was and they told him that they were looking for Mr Kobinath.

He asked them why they had entered the house and who had given them permission to do so.

They apparently responded with a question to the effect of, “Have we entered this place with a knife or a gun?”

He said that they had not, however, he told them to leave the house.

The group continued to argue with him and the others in the house.

He told his friend, Mr Kobinath, to go outside and he shut the door.

A short time later, 15 people arrived with knives, sticks, logs and stones.

They knocked on the door and his uncle, Mr Kathirav, opened the door.

He stated that one person had a knife in his pocket.

There were a lot of males.

He, together with his uncle and cousin, spoke to the males who asked him, “Who is the one who created all these arguments here?”

His uncle told him to call the police.

He went outside to do so at which point his uncle (Mr Kathirav) and his cousin (Mr Murugesu) were standing in front.

The group of males took hold of his uncle and hit him, although he conceded that he did not know that at the time.

Six or seven of the males were in a group and hit his uncle and his cousin.

He called the police but they did not arrive.

He told his friend to call the police.

He went to the place where the fight was taking place.

Four of the males held onto him but he managed to push them aside and run away. He then called police.

He stated that the police did not arrive.

He asked his friend, Mr Murugesu, whether the police were coming, and who responded that they were on their way.

He told Mr Murugesu to tell the 000 operator that someone died because only then would the police attend.

A short time later, he went outside and saw his uncle in the bushes with a head injury.

He carried his uncle and both police and ambulance officers attended the scene.

He went outside and saw that the males who had attended had damaged the house with stones.

He informed police of this and that four or five of the males had twisted his cousin’s neck.

He travelled to the hospital with his uncle.

After he had returned home, some males returned, knocked on the door and hid.

A neighbour had come over and asked his friend about what had happened.

The males were looking for their wallets.

The police came to the house for a second time.

He stated that, with respect to the first incident when males attended the premises, he could not recall the exact time. It was getting dark and he had returned home from work at 7.30 p.m., although he later stated that it might have been closer to 5.30 p.m.

About five males attended at the front door 2 to 2.5 hours later.

It was only after the door was opened that they could see outside.

He confirmed that all five males came into the house and remained inside for about 10 to 15 minutes.

In response to whether there was any altercation at that time, he stated that other than the males pushing his uncle aside and entering the house, there was no fighting inside the house.

In the 10 to 15 minutes during which the males were inside the house, there was a bit of arguing and a lot of talking taking place.

He did not know any of the males and they had not identified themselves.

They each left after he had told them that the police were on their way.

Whilst he went to the front door, waited and saw them leave, he did not go outside to follow them.

They left the location in their car.

He stated that, with respect to the second incident when males attended the premises, he was in his room, he looked through the windows and saw their cars, they had arrived with sticks and stones and knocked on the door.

His uncle opened the door but he too came to the front door.

This time, there were 12 to 15 males who had attended.

When asked whether he had recognised anyone, he responded, “Yes… They were face-to-face… I know the face… On that day…”

He stated that the 12 to 15 males who had attended on the second occasion included the five males who were part of the first incident.

He stated that they asked, “Who is creating problems. Come out.”

One of the males who spoke to him had a knife.

His uncle came, told him to move aside and requested that he call police.

He stated that the person who was holding a knife was not part of the group who had attended the premises on the first occasion.

He stated that he had seen the knife. It was a small knife.

He got his friend to call police because of his limited English.

He stated that the males hit his uncle (Mr Kathirav) and his cousin (Mr Surendran) on the road. They pulled and dragged him outside.

When he went outside, there were two groups who were fighting.

He saw is uncle being hit to the head, near his eye. They put him on the ground and dragged him.

He did not engage in the fighting. He tried to stop them, but four males came and held him.

When asked how many people were hitting his uncle, he stated, variably, that there were a lot of people, five or six people, two groups of people, although he did not count.

He was asked whether any of the 12 to 15 males were doing absolutely nothing at all and were merely standing aside. He provided five different responses. He stated words to the effect of, “No, they all came to fight”; “No, they were all waiting in front of the entrance”; “They divided themselves into two groups and the others were assaulting my cousin”; “I don’t know”; and “Everyone was involved.”

He did not see or know of any car being damaged.

The fight stopped when he went outside.

The 12 to 15 males all ran away when the sound of sirens could be heard.

Some moments later he stated that they all left in a car, running and walking.

He stated that there were four cars.

When pressed about the damage to the house, he confirmed that he had not seen the damage being caused but, rather after it had been caused.

Neither, he nor anyone from within the house, armed themselves with any weapons.

He again stated that the 12 to 15 males were armed with a knife, wickets, bats, rocks and stones and that he had seen them holding the weapons when they arrived.

He saw rocks and stones all over the inside of the house.

He confirmed that he also saw stones in their hands.

He agreed that he had left the location to go to the hospital to pick up his uncle.

There were only two occasions on which people came to the house.

In response to whether Mr Kobinath was present at the house the entire time, he stated that during the attendance by the males on the first occasion, Mr Kobinath was at the house and during the attendance by the males on the second occasion, Mr Kobinath went with the “team” and came back afterwards.

However, Mr Kobinath was with him earlier and when the initial five males came to the house looking for him, he and the others told him to “leave with his friends.”

Only two of the males took Mr Kobinath outside. The other three males remained within the house, before he told them to leave.

He stated that Mr Kobinath came back with the males during the second incident.

Initially, he stated that Mr Kobinath was not involved in the fighting and that he was standing to the side. He later stated that he did not notice if Mr Kobinath was involved in the fighting.

The salient features of his evidence in cross-examination (by Mr Park for Mr Kobinath Poobalasingan) were as follows: -

On the first occasion, five people came to the house. None of them had weapons. They came looking for Mr Kobinath.

On the second occasion, 12 to 15 people came to the house. All of them had weapons. One of them was armed with a knife. Some were armed with stones and rocks.

He did not see the window get damaged at the time, but he later saw that it was damaged.

On the second occasion he saw his uncle being dragged outside.

He saw Mr Kobinath present at the location, but did not see him fighting.

He agreed that he made a statement to police (Exhibit 25) on 26 July 2020.

He agreed that in paragraph 7 of the statement he gave to police, he referred to 6 people attending the house (and not knowing those people), all of whom were looking for Mr Kobinath.

When alerted to the fact that he mentioned six people in his statement as opposed to five people in his oral evidence, he stated that the six people he was referring to was inclusive of Mr Kobinath.

He agreed that in paragraph 8 of the statement he gave to police, he referred to the males having a cricket wicket, a knife, a glass bottle and a brick. He conceded that this was different to his oral evidence in which he stated that they had no weapons whatsoever.

He agreed that in paragraph 10 of the statement gave to police, he referred to the same six people returning one hour later with another six people, being a total of 12 people. He conceded that this was different to his oral evidence in which he referred to 12 to 15 people attending on the second occasion.

He agreed that in paragraph 11 of the statement he gave to police, he referred to the 12 people attending the location with another brick, a cricket bat, more bottles and a tire iron. He conceded that he made no reference to a knife in his statement because, at the time, he “did not take it very seriously.”

He agreed that in paragraph 13 of the statement he gave to police, he stated that the males started smashing the windows of the house. He conceded, though, that he did not see the windows as they were being smashed but, rather, he had only seen the windows damaged once he went inside the house.

He agreed that in paragraph 14 of the statement he gave to police, he stated that Mr Kathirav and Mr Kagandran went outside and asked the males to stop. He conceded, though, that in his oral evidence, he stated that his uncle, Mr Kathirav, had been dragged outside. He explained the inconsistency by stating that this was what he was trying to say.

He agreed that in paragraph 18 of the statement he gave to police, he stated that he had seen Mr Kobinath outside bashing “them” (a reference to Mr Kathirav and Mr Kagandran) with his friends. In contrast, whilst accepting that this was the case, he said that Mr Kobinath was merely standing there, not fighting. He then stated that “it could have happened” and “chances are it could have happened.”

When it was put to him that his oral evidence was not accurate, he stated that he had not read the statement he made to police (despite having signed the statement), he “did not take it very seriously”, that it was “only after [it had become] a big case” that he took it seriously and, “after being assaulted”, he had no reason to lie.

He conceded that even though he had seen the males leaving in four different cars, he did not know anything about cars but, merely, saw the cars leaving.

He denied, and did not know anything about, seeing an occupant of the house smash the windscreen of a car with a machete.

He denied downplaying anything and reiterated that he was simply telling the Court what had taken place.

Mr Pushjan was not cross-examined by Mr Pawar for Mr Sivamoorthy Anantharaj.
The salient features of his evidence in cross-examination (by Mr Fung for Mr Arulmurugan Soundrajan) were as follows: -

On the first occasion, five people came to the house at 19 Normac Road, Girraween.

Mr Kobinath was already at home (4 Rea Street, Greenacre).

He agreed that earlier in his oral evidence, he stated that he and Mr Kobinath came home together after work, between 5.00 p.m. and 5.30 p.m.

He agreed that in paragraph 6 of the statement he gave to police, he stated that Mr Kobinath arrived at the house at 19 Normac Road, Girraween, alone, at 9.00 p.m.

He stated that the reference to 5.00 p.m. to 5.30 p.m. was the time Mr Kobinath “left” and that he did not know what the reference to 9.00 p.m. was. He stated it was not clear to him.

He agreed that in paragraph 11 of the statement he gave the police, he stated that the additional six males brought weapons including another brick, a cricket bat, more bottles and a tyre iron. He conceded, though, that in his oral evidence, he made no mention of a tyre iron and in his statement he made no mention of a knife. He stated that when the males came to fight, they “would have come with all these things.”

When pressed about not taking his police statement seriously, he stated that at the time when he made his statement, he told police what was “possible”. I understood this to mean that he told police what possibly happened, at least in part, rather than what he actually perceived and heard.

He stated that on the second occasion when people came to the house, the 12 males had separated into two groups.

When pressed about not telling police regarding this observation, he answered by stating that this observation was relayed to him by his uncle and cousin. Despite this, insisted that he “saw it with [his] own eyes” and again emphasised that he had not taken it seriously.

He conceded that since the date of the incident, he had spoken to both his uncle and his cousin.

More specifically, he also conceded that he had spoken about the incident with his uncle and his cousin and had asked them why the males had come to the house and what they wanted.

When asked whether he, his uncle and his cousin had talked about what had taken place, he conceded that they all spoke about the incident because the males had come looking for Mr Kobinath.

The salient features of his evidence in re-examination were as follows: -

There was no interpreter present when he provided his statement to police.

He agreed, though, that the statement was read to him by police before he signed it, however, he did not understand it.

Additional evidence in the Prosecution case

The Prosecution tendered a number of police and other statements, documents and photos, by consent, although none gave oral evidence. Most were initial responding officers who played minimal or administrative roles. Their statements did not advance the Prosecution case in any great way. These are succinctly summarised below.

Constable Dragan Knezevic

The Statement of Constable Dragan Knezevic dated 30 April 2021 was tendered into evidence, by consent, as Exhibit 2.
The officer’s statement was to the following effect: -

On 25 July 2020, he was rostered on duty at Granville Police Station and, at about 11.00 p.m., responded to a brawl at 19 Normac Road, Girraween.

He observed an ambulance parked outside and multiple police and ambulance officers at the location speaking with different persons.

He approached several males with injuries and obtained their details.

He walked across the road and obtained the details of two witnesses to the incident.

During a conversation with one of the witnesses, he recalled that witness stating that “Three cars pulled up to the house and guys with baseball bats started smashing things then ran into the house.”

He left the location and returned to normal duties.

Constable Jack Arthur

The Statement of Constable Jack Arthur dated 20 May 2021 was tendered into evidence, by consent, as Exhibit 3.
The officer’s statement was to the following effect: -

On 28 July 2020, he was rostered on duty to work with Constable Ali Ibrahim (Officer in Charge).

They attended 51 Tungarra Road, Girraween, whereupon they were greeted by an occupant of the residence named “Kobi” and, upon being invited into the property, noticed that the three Defendants were amongst several other males inside the property at the time.

The Defendants “disclosed their involvement with an affray and admitted to being at the location of the incident.”

The three Defendants were arrested and conveyed to Granville Police Station.

He assisted Constable Ali Ibrahim (Officer in Charge) in interviewing each Defendant.

He had no further involvement in the matter.

Constable Erfan Noorinooshabadi

The Statement of Constable Erfan Noorinooshabadi dated 9 May 2021 was tendered into evidence, by consent, as Exhibit 4.
The officer’s statement was to the following effect: -

On 25 July 2020, he was rostered on duty at Granville Police Station and, at about 11.20 p.m., responded to an assault at 19 Normac Road, Girraween, broadcasted via the police radio.

Upon arriving at the location, he saw Mr Thirukatheeswaran Kathirav, Mr Surendran Kagandran, Mr Nirojan Naguleswaran and Mr Kuhilan Pushjan standing in front of the location.

He activated his body worn camera.

He observed that all persons who were present at the location were well affected by alcohol as they had been drinking heavily prior to the incident.

He assisted other officers in obtaining the details of the people present, which he passed on to Constable Ali Ibrahim (Officer in Charge).

Constable Cameron Hepburn

The Statement of Constable Cameron Hepburn dated 8 May 2021 was tendered into evidence, by consent, as Exhibit 5.
The officer’s statement was to the following effect: -

On 25 July 2020, he was rostered on duty at Granville Police Station and, at about 1.00 p.m., he attended 19 Normac Road, Girraween in relation to a brawl that had occurred two days earlier, on 24 July 2020.

At the location, he met and obtained a statement from Mr Kuhilan Pushjan.

Senior Constable Josh Htwe

The Statement of Senior Constable Josh Htwe dated 18 May 2021 was tendered into evidence, by consent, as Exhibit 6.
The officer’s statement was to the following effect: -

On 25 July 2020, he was rostered to perform duties at Parramatta Police Station and, at about 11.09 p.m., responded to a brawl consisting of 15 to 20 males at 19 Normac Road, Girraween, broadcasted via the police radio.

At 11.20 p.m., he arrived at the location and noticed 7 to 9 males standing outside the premises, all of whom were of Indian appearance, and all of whom appeared to be intoxicated as they were unsteady on their feet, with the smell of intoxicating alcohol on their breath.

One of the males informed him that his friend had been stabbed during the brawl.

He activated his body worn camera and entered the premises with other police officers to check for the injured person.

Upon entering the premises, he noticed that there were empty beer cans and bottles on the floor and in the bedrooms.

He declared the premises a crime scene.

Once back in the front yard of the premises, he spoke with the alleged victims and requested that an ambulance attend the location.

Once an external supervisor had arrived at the location, he briefed him and returned to other duties.

Constable Yavin Kumar

The Statement of Constable Yavin Kumar dated 18 May 2021 was tendered into evidence, by consent, as Exhibit 7.
The officer’s statement was to the following effect: -

On 26 July 2020, he was rostered to perform duties at Granville Police Station and, at about 12.30 p.m., attended 19 Normac Road, Girraween to follow up an incident of an alleged assault which had occurred the evening prior.

He and Constable Hepburn had a conversation with a number of residents at the location.

He spoke to, and obtained a statement from, Mr Sivananthan Murugesu, who claimed to have been a witness to the alleged assault.

He spoke to, and obtained a statement from, Mr Surendran Kagandran, who claimed to have been a victim of the alleged assault.

He obtained some photographs of the injuries Mr Kagandran stated he had sustained including dark bruises to both sides of his neck and abrasions to both arms, foot and right knee.

He and Constable Hepburn were shown some objects which were apparently used by the males who attended the location on the evening prior including a small brick, a cricket bat and a beer bottle, all of which were in close proximity to one another.

Despite seeing these items, he and Constable Hepburn deemed it inappropriate to seize the items for the purposes of forensic analysis as it had been raining at the time of their attendance, and in the hours since the incident was said to have occurred.

He conducted a canvas of neighbouring properties to enquire about the availability of CCTV footage or other witnesses.

He attended 15 Normac Road, Girraween and spoke with some residents who informed him that they knew the people who had attended 19 Normac Road, Girraween on the evening prior and that the persons resided at 51 Tungarra Road, Girraween.

He recorded this information into his official police notebook before returning to other duties.

Photos

The photos tendered into evidence by the Prosecution, by consent, reveal the following: -

Exhibit 11 - A bandage around the head and bloodied grazing to the left knee of Mr Thirukatheeswaran Kathirav.

Exhibit 12 - Although in some photos, dark and unclear, marks which appear to be abrasions and darkness to the left elbow, right bicep, right side of neck, right knee, right foot, left forearm and left bicep of Mr Surendran Kagandran.

Exhibit 13 - A cricket bat on the lawn next to a drink can, a beer bottle on the lawn beside a blue car, a rock, broken glass on the street further down the road from the location, a broken window at the location, a wooden stick (similar to a cricket stump) on the lawn and a rock on the floorboards surrounded by broken glass and a packet of cigarette filters.

The photos tendered into evidence by the defence in cross-examination of Constable Ali Ibrahim (Officer in Charge), by consent, reveal the following: -

Exhibit 15 - A gold Mitsubishi Magna (Rego No: CU49EW) parked outside the home where Mr Sivamoorthy Anantharaj resided, with extensive, circular-style damage to the driver’s side of the windscreen shards of broken glass in the driver’s side door sill, side mirror, seat and footwell.

Mr Nathan Starr (Nearby Resident / Neighbour)

The Statement of Mr Nathan Starr (nearby resident / neighbour) dated 20 May 2021 was tendered into evidence, by consent, as Exhibit 16.
His statement was to the following effect: -

He had resided along Normac Road, Girraween since January 2020.

At about 10.00 p.m. on 25 July 2020, he and his wife were getting ready to go to bed.

He heard a lot of arguing coming from 19 Normac Road, Girraween.

He looked out of his bedroom window and saw about four or five males arguing from across the road, opposite 19 Normac Road, Girraween.

He called the police as they were being loud and had work the next day.

The police arrived and spoke to the males, who later disappeared, and it was quiet for a little while.

He assumed that the males, whom he had initially seen arguing, were of Indian appearance, although it was hard to tell because it was dark.

A couple of hours later, the males returned and there was a bigger group of males of Indian appearance.

He heard a loud commotion again, looked outside and saw one of the males holding back another.

He also saw a male “packing” inside the house with a machete.

He saw a group of about eight people screaming and arguing.

There were many people walking up and down the street were behaving in an aggressive way.

He did not see the male use the machete.

He saw that the door was wide open and that it was pretty hectic with the males being very aggressive and arguing.

The next morning he noticed damage to the windows of 19 Normac Road, Girraween, which had not been there the night before, although he conceded that he did not see anyone damage the windows.

Throughout, he was about 20 metres away from the males. His visibility was good, despite the darkness, and he could see the whole street and the majority of the house.

He conceded, though, that there was a tree in front of 19 Normac Road, Girraween which was casting a shadow and that he was unable to see most of the driveway.

He also conceded that there was much, in the vicinity of the house, that he could not see and, therefore, there could have been many more people who were present that night.

He had never seen these people before and did not know who they were. They all looked of Indian appearance. He saw them carrying on for about an hour, on and off.

He conceded that it had been almost a year since the incident, but was still able to remember, roughly, what had taken place.

Ms Andrea Ramos (Nearby Resident / Neighbour)

The Statement of Ms Andrea Ramos (nearby resident / neighbour) dated 18 May 2021 was tendered into evidence, by consent, as Exhibit 18.
Her statement was to the following effect: -

On 25 July 2020, she was working night shift and was at Normac Road, Girraween.

At about midnight, she heard a loud noise, screaming and yelling.

She opened the door and saw two males of Indian appearance, one of whom had a cricket bat.

She looked again about five minutes later and saw another two people coming from 19 Normac Road, Girraween.

She called the police, during which time there was fighting and screaming. She became concerned and locked the doors.

She felt really uncomfortable. She had great visibility and saw that the males were fighting outside 28 Normac Road, Girraween for about 15 minutes.

Mr Michael Gofa (Nearby Resident / Neighbour)

The Statement of Mr Michael Gofa (nearby resident / neighbour) dated 4 May 2021 was tendered into evidence, by consent, as Exhibit 19.
His statement was to the following effect: -

He had been living along Normac Road, Girraween all his life.

At about 9.00 p.m. on 25 July 2020, he was at home and heard a lot of noises which sounded like fighting and raised voices.

He looked out the front window of his house.

He had a clear view of 19 Normac Road, Girraween.

He saw over eight or nine males of Indian appearance “punching up” on the road.

He called 000 and informed the operator of what he had seen.

He heard police sirens sometime later and saw the crowd disperse.

He went to bed and about 20 minutes later he heard more sirens.

He looked through the shutters. His visibility was average due to the darkness. He was about 20 metres from where the fight was taking place.

He saw the males fighting for a couple of minutes.

There was a lot of screaming and fighting.

There was not much more he could remember.

Mr Kevin Mowad (Nearby Resident / Neighbour)

The Statement of Mr Kevin Mowad (nearby resident / neighbour) dated 19 May 2021 was tendered into evidence, by consent, as Exhibit 20.
His statement was to the following effect: -

He resided with his family along Normac Road, Girraween.

At 11.30 p.m. on 25 July 2020, he returned home.

After going upstairs to bed, he started hearing people running down and yelling from up the street.

He looked out of his window and saw about 10 people of Indian appearance arguing.

He saw a gold Toyota Camry pull up and a male entered the vehicle.

He saw males commence fighting and pulling each other.

He saw five or six males out of the crowd pulling each other by the collar and chest region.

He saw one of the males pull out a machete and smashed the windscreen of the Toyota Camry.

There were about 10 more males of Indian appearance running down the street. Everyone was fighting at that stage, including kicking and punching.

He called the police as soon as the males started fighting.

The Toyota Camry took off as soon as sirens were heard and everyone started running in different directions.

He saw three males walking back up the street to 19 Normac Road, Girraween.

One of the males was being held up by the other two and he was bleeding and shirtless.

All the males were of Indian appearance although he could not recall the exact descriptions due to the darkness and the fact that most of the time their backs were towards him as he was looking from the upstairs window of his house.

He described it as chaotic, although it appeared as if there were two different groups fighting.

His visibility was pretty good that night. He saw at least 15 males fighting non-stop for about 15 minutes.

He was across the road from the males about 10 metres away.

There was no obstruction to his view as he observed the males fighting.

He did not know the people fighting and had never seen them before.

Mr Mookkapillai Sundaramoothy (Nearby Resident / Neighbour)

The Statement of Mr Mookkapillai Sundaramoothy (nearby resident / neighbour) dated 19 May 2021 was tendered into evidence, by consent, as Exhibit 21.
His statement was to the following effect: -

He resided with his family along Normac Road, Girraween for about 11 years.

On 25 July 2020, he was at home with his family.

So specific was his recollection that he stated that at 8.30 p.m. that night, he was sitting in the dining room doing online tutoring with his daughter. He finished at about 10.30 p.m. to 11.00 p.m.

After finishing the online tutoring, he heard noises from outside.

He heard a male voice yelling in Tamil, “kill him, hit him.”

He immediately opened his front door to see what was happening.

About 50 metres from 19 Normac Road, Girraween, he saw 6 to 7 people of the Sri Lankan and Indian appearance fighting each other.

Due to the darkness, he could not see what type of clothing they were wearing or the finer details of each male’s appearance.

The males were throwing punches at one another and eventually, nine people in total were all fighting in the street.

He went back inside and called the police.

At the time of his observations, he was approximately 20 metres away. His visibility was not the best because it was dark.

He saw the males fighting for more than five minutes.

He sought to groups fighting each other and it looked like there were between five and seven people.

His wife and kids were scared to go outside because of the commotion.

Mr Surendran Kagandran (Complainant)

The Statement of Mr Surendran Kagandran (complainant) dated 26 July 2020 was tendered into evidence, by consent, as Exhibit 23.
His statement was to the following effect: -

At the time, he had resided at 19 Normac Road, Girraween for about six or seven months, together with his uncle and six other friends.

At about 8.00 p.m. on 25 July 2020, he was at home with his friend, Mr Sivananthan Murugesu, having a small party in the living room.

Also present at the house were Mr Kuhilan Pushjan (his cousin), Mr Thirukatheeswaran Kathirav (his uncle) and Mr Murogan Kobinath (his friend).

At about 9.30 p.m., six males came to the house and knocked on the front door. His uncle opened the door and he could hear the males calling for Mr Kobinath, asking to speak with him and for him to go somewhere with them.

After speaking with the males for about half an hour, Mr Kobinath left with them.

At about 10.30 p.m., approximately 10 males arrived at the front of the house.

He did not know who these men were.

Some of them started to smash some of the windows of the house, breaking two windows.

His uncle opened the door and confronted the men about why they broke the windows.

The men grabbed his uncle and kicked him about his head and body.

Some of the men were holding cricket wickets, bricks, bottles and sticks and his uncle was being hit with these objects.

He walked outside of the house to help his uncle but he was grabbed by two men from his left arm, two men from his right arm and one man from his throat.

Another man took hold of his neck and squeezed it very hard, threatening him by saying, “I’ll kill you, I’ll kill you.”

He had difficulty breathing and feared that he was going to die.

A short time later, someone yelled, “Police coming, police coming!” and the males ran away.

In the final paragraph (paragraph 11) of his statement, he added an additional observation to paragraph 5, namely, that after the six males had arrived at the front door, they “forced their way inside the house to look for [Mr Kobinath].”

Mr Kagandran did not give any oral evidence.

Mr Nirojan Naguleswaran (Complainant)

The Statement of Mr Nirojan Naguleswaran (complainant) dated 20 May 2021 was tendered into evidence, by consent, as Exhibit 24.
His statement was to the following effect: -

He had lived at 19 Normac Road, Girraween since 2019.

On the evening of 25 July 2020, he was at home sleeping in his bedroom.

He was woken up by police and his housemate informed him that there had been a big fight.

Police took his details and spoke to him and some others.

He saw three ambulance vehicles outside but did not know what was happening at the time.

At about midnight, after the police had left, his neighbour, who was with him inside the house, told him that he wanted to go home.

He opened the front door, to lead his neighbour out, and saw two or three people standing in front of the door.

He noticed that two of the males were carrying a cricket stump.

Both males hit him with the cricket stump, one to the left side of his neck and the other which he blocked with his left hand.

The males were yelling in Tamil, “You fucking hit my friends.”

As they were trying to hit him, he became really scared and forced the door shut.

He called police immediately. He was not involved in anything. He had woken up, did not know what was happening and was questioning why they hit him.

He could not move his left little finger as it was painful and uncomfortable. His neck was also sore.

He described the three men as being from Sri Lanka. They spoke the same language as him.

It was dark and he quickly shut the door after they hit him.

He was unable to remember exactly how they looked.

Police arrived soon thereafter and asked him who had hit him. He stated that he did not know.

He went to sleep and woke up the next morning. As he left the house, he saw the front window was damaged and there were rocks inside the house.

He moved out of the house soon thereafter because he was scared and did not want to stay around those kinds of people.

Mr Naguleswaran did not give any oral evidence.

Record of Interview - Mr Kobinath Poobalasingan

The Record of Interview of Mr Kobinath Poobalasingan dated 28 July 2020 was tendered into evidence, by consent, as Exhibit 8.
The salient features of his Record of Interview were as follows: -

He was informed of the allegation that a brawl had taken place at about 9.00 p.m. on 25 July 2020 at 19 Normac Road, Giraween.

He was informed of the allegation that he and a number of his friends attended and assaulted a few people at 19 Normac Road, Giraween.

He was forthcoming in informing the police that he attended the location with others to pick up his friend, Mr Kobinath.

He was grabbed by the chest and pulled into the house.

He described others starting a fight with him.

He did not wish to engage in a fight with them.

The others wanted to punch his friends.

He tried to stop them.

One person grabbed him from the neck. He ended up with scratches on his left cheek and to his upper body.

One of the males at the house had a knife.

He was asked a question about which of his friends had a baseball bat, although it was not entirely clear from the answer that he attributed that to one of the co-accused, given that Mr Arulmurugan Soundrajan, he said, arrived later.

He denied the assertion that any of his friends had a cricket bat.

He denied the assertion that any of his friends had a wooden stick.

He agreed that there were two attendances at the home.

On the second occasion he and others asked why those at the house had punched his friend.

He agreed that there were many people involved.

He denied punching or choking Mr Surendran Kagandran.

He did not see any fight specifically involving Mr Surendran Kagandran.

He agreed that there was fighting taking place on the street between various people.

He recognised Mr Thirukatheeswaran Kathirav in the photos shown to him as being present that night.

He agreed with the proposition that Mr Thirukatheeswaran Kathirav may have been injured from the physical altercation that night.

There was no direct reply to the proposition that one group of males was fighting another group of males.

He stated that there were about eight people.

He was under the influence of alcohol.

He was adamant that one of the males at the location had a knife.

He denied having a glass bottle or a glass.

He agreed that there was an argument between him and two others.

He agreed that he had attended to pick up Mr Kobinath.

He stated that he reacted by pushing two males, holding them back, in what the police described as a choking motion, but in what appears to have been an instance of self-defence, when four males attacked him, although he did not hit anyone back.

He denied physically choking anyone as alleged.

One of the other males fell and injured his legs.

There were two cars and about eight males who had attended the location that night.

He did not want to fight.

Someone smashed the window of the Holden model car he was a passenger in.

He tried to stop the others because they had set upon his friend.

Record of Interview - Mr Sivamoorthy Anantharaj

The Record of Interview of Mr Sivamoorthy Anantharaj dated 28 July 2020 was tendered into evidence, by consent, as Exhibit 9.
The salient features of his Record of Interview, given with the aid of an interpreter, were as follows: -

He was informed of the allegation that an assault or brawl had taken place at about 8.30 p.m. to 9.00 p.m. on 25 July 2020 at 19 Normac Road, Giraween.

He stated that he finished working at 9.30 p.m. and that the events took place after 10.30 p.m.

He stated that he was approached and attacked by people holding a knife.

He denied the assertion that his friends were holding machetes, knives, cricket bats and sticks.

He denied the assertion that anyone from his group had used a bat.

He did not see anyone holding a wooden stick.

He described a person, later identified as being Mr Thirukatheeswaran Kathirav, coming to the car holding a knife and using it to smash the car window. He later elaborated by stating that the knife “came inside the car” while he was seated in the driver’s seat.

He denied causing injuries to, or being involved in a physical struggle with, Mr Kathirav, although he stated that he pushed him away and took off in the car.

He agreed that as a result of the push, Mr Kathirav fell to the ground.

He described Mr Kathirav as being under the influence of alcohol and unable to stand properly.

At the time, he was nervous and worried for his personal safety, hence his decision to push Mr Kathirav away.

He agreed that there were a lot of people that night.

He did not appear to agree with the proposition put to him that there was a big fight between two groups of males, namely, his friends and those at the location.

When asked specifically why he pushed Mr Kathirav, he stated, in what appears to raise the issue of self-defence, that it was because Mr Kathirav was holding a big knife.

Record of Interview - Mr Arulmurugan Soundrajan

The Record of Interview of Mr Arulmurugan Soundrajan dated 28 July 2020 was tendered into evidence, by consent, as Exhibit 10.
The salient features of his Record of Interview, given with the aid of an interpreter, were as follows: -

He was informed of the allegation that a physical altercation had taken place at about 9.00 p.m. on 25 July 2020 at 19 Normac Road, Giraween.

He had travelled to that location to pick up one of his friends (Mr Kobinath).

He entered the house but left shortly thereafter because one of the males inside slapped him three times and another person produced a knife.

He went and sat in the car and one of the males from the house came with a “big sword, knife” and damaged the windscreen.

He stated that the knife came so far into the vehicle that it nearly hit his friend, who was seated in the driver’s seat, in the neck.

His friend removed his seatbelt and pushed the male away.

He begged this person not to hit him.

He denied the assertion that one of his friends was carrying a knife.

He stated that the others had three knives, a big knife and two smaller ones.

He identified Mr Kathirav as having intoxicated and being the person who slapped him.

He identified Mr Kathirav as having threatened to stab his friend.

He agreed that he too had consumed alcohol that evening.

He stated that he did not carry a cricket bat nor did he see one.

Prima facie case

At this juncture, the Prosecution case closed. It was conceded, and I accordingly found, that there was a prima facie case.

Defence Case

Neither Defendant gave evidence and no adverse inference is to be drawn in this regard.

Consideration

Neither of the three complainants, the principal subjects of the affray, gave evidence in the Prosecution case.
One of the persons captured on body worn camera footage laid blame at the feet of Mr Murogan Kobinath (aka Mahendran / Morandran / Kobi) as being the aggressor. Notwithstanding his reference to, and knowledge of, the nine additional persons arriving after Mr Kobinath, given that they had been friends about nine years ago, there was no attempt to pointedly identify the persons, their roles and the actions attributed to them to advance the Prosecution case. This meant that the Court approached the evidence, direct or circumstantial, with a degree of circumspection.
The caller to the 000 emergency line was identified as being Mr Sivananthan Murugesu. From the outset, and as the call recording progressed, it became apparent that Mr Murugesu was considerably intoxicated. Even when making due allowance for the fact that English did not appear to be his first language, so great was his affectation by alcohol that he stated to the 000 operator that everyone had brought a knife, that everyone (including himself) had COVID-19 and, on more than one occasion, that someone had been killed.
The statement and oral evidence given by Mr Sivananthan Murugesu was difficult to follow. He appears to have been mistaken as to the time the alleged incident took place. He was labouring under the effects of alcohol consumption, although I was left with the distinct impression that he had consumed much more than the two beers to which he referred. There were internal and external inconsistencies. He had difficulty recollecting. The evidence was disjointed and incongruent.
He vacillated between the males who attended on the first occasion being the same as, and different to, those who attended on the second occasion, only to then recant. He also vacillated between recognising the faces of, and not knowing, the second group of males. Importantly, he was unable to positively, let alone tangentially, identify any of the Defendants either by name, appearance or involvement.
In his evidence, he recalled “Kobi” being involved in the first fight but when asked to explain who he understood “Kobi” to be, in particular, Mr Murogan Kobinath, he stated that he did not know. This is despite his statement to police dated 26 July 2020, in the immediate aftermath of the alleged offence, making detailed references to Mr Kobinath, whom he knew because he was a friend of one of his other friends, Mr Kuhilan Pushjan, and in which he recalled Mr Kobinath yelling very loudly and looking angry outside the house.
There were notable omissions, such as any reference to the smashing of windows (a central feature in the substantive complaint) by either the first or the second group of males who were said to have attended the premises, especially in circumstances where he confirmed that he was present the whole time. It was difficult to follow the evidence and, consequently, it was unconvincing and of diminished weight.
Reference was made by the officer conducting a walk through the premises to the possible arrival of a Scene of Crime Officer. No such officer attended. Further, despite the officer in charge having observed a cricket bat, rocks, a glass bottle and possibly wooden sticks, none of the items were seized or forensically examined in any way. The explanation by the officer in charge that the premises were not declared a crime scene because “there were four robberies that night” can only be understood as meaning that police resources were limited. Whilst this might explain the lack of attendance by a Scene of Crime Officer, it does not explain why the weapons allegedly used and present at the location in situ, were not seized, at the very least, and a more considered decision made regarding their forensic examination. Offences, from which serious charges often flow, are committed in a myriad of weather conditions. For this reason, the rationalisation that no steps were taken in this regard because it was raining and a superior officer informed or directed the officer in charge “not to bother” was difficult to reconcile.
The officer in charge conceded that whilst Mr Kathirav had been taken to hospital, there were no medical notes or expert statements obtained with respect to his alleged injuries. This was an oversight on his part.
The CCTV footage from the neighbouring house depicted a male running towards the front windscreen of the driver’s side of a vehicle holding an implement and hitting it against the windscreen. The male is seen holding what appears to be a large knife in his right hand by his side and, although not immediately identifiable, there is some support to the assertion made on behalf of Mr Anantharaj that it was Mr Kathirav who was using the knife in the manner described. The photos of the vehicle belonging to Mr Anantharaj (Exhibit 15) which was parked outside his home in the days which followed the alleged incident on 25 July 2020, depict, relevantly, damage to the driver’s side of the front windscreen consistent with Mr Anantharaj’s assertion that Mr Kathirav was wielding and using the knife.
It was readily accepted by the officer in charge that there must have been more people involved, possibly five or six or even up to 12 people, in the alleged incident. It was also accepted that the only perpetrators the officer could identify were the three Defendants. It does not necessarily follow that in all instances where a number of persons are said to have been present at a location, but only a few were able to be positively identified, that responsibility for the improprieties committed by others is sheeted home to the few identified. The actions of some do not make all perpetrators, absent established principles of joint criminal enterprise and the like.
The Prosecution bears the onus of proving, beyond reasonable doubt, not only the identity of the persons but also intention (which can be inferred) and the extent of their involvement, as a subset to the elements of the offences with which they have been charged. Where there is an exiguousness of evidence in this regard, reasonable doubt is often the result.
The evidence of Mr Kuhilan Pushjan was disordered and confounding. There was a marked departure between the contemporaneous statement provided to police in the immediate aftermath of the alleged incident when compared with the evidence given orally in chief and in cross-examination. In his statement to police, he attributed weapons in the hands of all assailants who attended the house on the first occasion, whereas in his oral evidence he did not recall the males attending with any weapons whatsoever. Similarly, in his statement to police, he gave a first-hand account of having seen Mr Kathirav and Mr Kagandran being bashed by the males and Mr Kobinath assisting them in carrying out the assault, whereas in his oral evidence he initially stated that he did not know (or had not seen) Mr Kathirav and Mr Kagandran being assaulted and that this was what he had been told. Later, he attributed criminality to every single attendee and that he had not only seen Mr Kathirav being hit and dragged away, but that he intervened and pushed the males away. When pressed about the stark contradictions, he concluded by emphasising that the matters on which his evidence was based “could have happened”, the “chances [were that] it could have happened” and it was “possible”. I understood this to mean that he told police what possibly happened, at least in part by recreating and piecing together information he received from his uncle and cousin, rather than what he actually perceived and heard.
One notable common theme, however, between the account provided to police in his statement and the oral evidence in the witness box, which I accepted as correct was that he did not know any of the males who attended either on the first occasion or the second occasion and was unable to directly, or even tangentially, identify any of them, but particularly the Defendants, by actions, words or otherwise. This is especially so in circumstances where his evidence was to the effect that on the first occasion, on one account in his statement, the males left and ran down the street, and in oral evidence they left in one car, and on the second occasion, they left in four cars without any reference to make, model, colour, vehicle type, registration number or other distinguishing features whatsoever.
He struggled mightily through his evidence and, in turn, it was diluted greatly through cross-examination via a number of inconsistencies, for which concessions were made that there was a material departure from the account he provided to police in the immediate aftermath of the incident. I had difficulty accepting the accuracy of his evidence, therefore.
His explanation, to the effect that when giving his statement to police, he “did not take it very seriously,” was difficult to reconcile. After all, the Court was being asked to arrive at a finding of fact with regard to alleged violence in which some or all of the perpetrators were armed with, and brandishing, weapons, variously described as including cricket stumps, a cricket bat, stones, rocks, a brick, a tyre iron, glass bottles and a knife (referred to in the dispatch information as a machete and in which someone had been killed), most of which were not located, none of which were seized and forensically examined.
It was concerning that many of the witnesses who could have shed more light as to the events which transpired on the night, including the three principal complainants, did not give evidence. This meant that the Defendants were unable to properly test the evidence led by the Prosecution in support of the charges preferred against each, including, thereby, being precluded from more properly advancing and exploring an argument of self-defence.
The assertion by Constable Jack Arthur (who did not give evidence) in his statement dated 20 May 2021 (Exhibit 3), to the effect that the Defendants disclosed their “involvement with an affray”, an admission apparently procured from all three Defendants upon his attendance at 51 Tungarra Road, Girraween, was too broad brushed an approach, absent more authoritative evidence in this regard. I accept that it was the Prosecution case that the Defendants, through their respective Records of Interview, placed themselves at the location of the alleged incident. This, of itself however, was of insufficient force to perfect the charges and the elements thereunder.
Similarly, the assertion by Constable Dragan Knezevic (who did not give evidence) in his statement dated 30 April 2021 (Exhibit 2), to the effect that during a conversation with one of the witnesses, he recalled the witness stating that “three cars pulled up to the house and guys with baseball bats started smashing things then ran into the house”, a statement which did not materialise as evidence in any admissible form elsewhere in the proceedings, was, in part, inconsistent with the internal and external surrounding evidence on which the various strands of the Prosecution case were founded.
The observations by Constable Erfan Noorinooshabadi (who did not give evidence) in his statement dated 9 May 2021 (Exhibit 4) and Senior Constable Josh Htwe (who did not give evidence) in his statement dated 18 May 2021 (Exhibit 6), to the effect that all persons who were present at the location smelt of, and were well affected by, alcohol, had been drinking heavily prior to the incident and were unsteady on their feet, accentuated the difficulty in arriving at a favourable view as to the varying accounts proffered by the intoxicated complainants (and others) through their untested statements to police. This meant that the Court was required to analyse the evidence from peripheral sources, partly from neighbours and partly from spatial surroundings (to the extent that they were captured in photos, but not a scene of crime officer’s examination and statement), which, in my view, bore an element of incertitude.
There was then the assertion by Constable Yavin Kumar (who did not give evidence) in his statement dated 18 May 2021 (Exhibit 7), to the effect that he attended 15 Normac Road, Girraween and spoke with some residents who informed him that they knew the people who had attended 19 Normac Road, Girraween on the evening prior and that the persons resided at 51 Tungarra Road, Girraween. If this were indeed the case, having reviewed the evidence closely, I was unable to find any evidence of identification (or otherwise) from any witness residing at 15 Normac Road, Girraween. Presumably, if those persons residing at 15 Normac Road, Girraween were able to identify the three Defendants by name, place of residence or physiognomy, then one might have expected them to have been able to identify one or more of the Defendants’ actions (or inaction), possession of weapons (or lack thereof) and words or demeanour exhibited on the night. This is especially so given the contemporaneity of the police’s attendance upon them and their close proximity to the location, only two houses south of the location at which the incident is said to have taken place. Whilst the witnesses’ details were apparently recorded in the officer’s official police notebook, which was not admitted into evidence, the matter was taken no further.
The statement of Mr Nathan Starr (nearby resident / neighbour) dated 20 May 2021 (Exhibit 16) similarly had its limitations. Although visibility was good, his view of the premises in question was obstructed. Despite being well-intentioned, other than seeing a number of males of Indian appearance behaving aggressively and arguing in the street, his account did not advance the Prosecution case with regard to attributing particular actions or words to the Defendants (by description or otherwise), as opposed to the complainants or others purportedly involved. Importantly, although he stated in his statement that he saw a male inside the house holding a machete, but did not at any time see him use it, to the extent that a knife such as this was used, it seemed consistent with the defence theory on the case. This theory supported the proposition in the statement of Mr Kevin Mowad dated 19 May 2021 (to the effect that one of the males was holding a machete and smashed the windscreen of the [Mitsubishi Magna]) and the observations in the CCTV footage, that it was used by someone other than the three Defendants, given that the footage depicts it being used by someone who hit the driver’s side windscreen of the gold Mitsubishi Magna vehicle, later found parked outside 51 Tungarra Road, Girraween, the home where Mr Anantharaj resided.
In the same vein, the statements of the other nearby residents and neighbours, Ms Andrea Ramos dated 18 May 2021 (Exhibit 18), Mr Michael Gofa dated 4 May 2021 (Exhibit 19), Mr Kevin Mowad dated 19 May 2021 (Exhibit 20) and Mr Mookkapillai Sundaramoothy dated 19 May 2021 (Exhibit 21), were, at their apex, observations of males fighting and screaming outside, based on accounts obtained some 10 months after the alleged incident. For the most part, the generality was such that the persons involved were of Indian appearance, in one case with their backs towards the witness under the cover of darkness, and in another without any discernment as to clothing so as to satisfactorily ascribe conduct to the three Defendants.
I was troubled by the lack of any statement from Mr Thirukatheeswaran Kathirav, a principal complainant. I was similarly troubled greatly by the lack of any oral evidence from Mr Surendran Kagandran and Mr Nirojan Naguleswaran, principal complainants, both of whom provided statements to police. On the one hand, the latter two complainants’ statements to police were tendered, by consent. On the other hand, this was not a case where incontrovertible facts were conveyed through two principal complainants’ statements followed by evidence in chief, with a forensic decision made by the defence not to engage in cross-examination. On the contrary, this was a case where neither complainant sought to enter the witness box to stand by the assertions made in a signed police statement and to subject themselves to the rigours of cross-examination so as to scrutinise the probative value of their account.
To the extent that each Defendant referred in their Records of Interview to attending the premises to collect Mr Kobinath and to varying accounts of violence directed to them by the occupants or other persons present at the location, including one which asserted an intoxicated aggressor, Mr Kathirav, brandishing a knife or machete and smashing the attendees’ vehicle windscreen, there was raised, on balance, the issue of self-defence. Ultimately, the three Defendants made no secret of attending the premises, albeit not for the reasons the Prosecution, through the few witnesses who did give evidence, sought to attribute. Their attendance and their presence alone, as questionable as this may seem to some, do not act to underwrite the Prosecution’s claims. Something more persuasive was required. It was that which was lacking.
The general state of situational chaos, lack of coherence and what must be accepted as having been the subject of excessive alcohol consumption, not only by the complainants but also witnesses, did little to assist in arriving at a persuasive conclusion of fact.
Admittedly, some of the incongruities were trivial and, given the passage of time, within the tolerances of human fallibility. Other deficiencies, however, were not and attended upon substantive matters which were difficult to ignore. This, consequently, vitiated the reliability with which the Prosecution’s evidence was able to be regarded and did not adequately surmount the high hurdle applicable in criminal trials of proof beyond reasonable doubt.

So far as might be necessary, and whilst I do not intend to traverse in great detail the issue of self-defence which arises on the accounts provided by the Defendants in their Records of Interview, it suffices to say that the Prosecution, on the evidence proffered, would not have been able to sufficiently negative self-defence, correspondingly to the same criminal standard, beyond reasonable doubt.

Verdict

Accordingly, I make the following orders: -

Enter a verdict of not guilty in respect of each Defendant.

The charges are dismissed.

**********

Decision last updated: 08 October 2021

Medium Neutral Citation:	Police v Poobalasingan; Police v Anantharaj; Police v Soundrajan [2021] NSWLC 1
Hearing dates:	9 and 10 June 2021
Decision date:	05 October 2021
Jurisdiction:	Criminal
Before:	Magistrate Tsavdaridis
Decision:	(1) Enter a verdict of not guilty to the charge of affray in respect of each Defendant. (2) The charges are dismissed.
Catchwords:	CRIMINAL LAW - affray - prosecution statements of two complainants tendered but no oral evidence given by all three principal complainants - direct evidence - circumstantial evidence - good character - defendants each gave record of interview - inconsistencies between police statements and oral evidence
Legislation Cited:	Crimes Act 1900 (NSW), ss.93A, 93C, 93D
Cases Cited:	Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7 Peacock v The Queen (1911) 13 CLR 619; [1911] HCA 66 Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 Pitkin v The Queen (1995) 130 ALR 35; [1995] HCA 30 R v Murphy (1985) 4 NSWLR 42 Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Woolmington v DPP [1935] AC 462 R v Manunta (1990) 54 SASR 17
Category:	Principal judgment
Parties:	NSW Police (Prosecution) Kobinath Poobalasingan (Defendant) Sivamoorthy Anantharaj (Defendant) Arulmurugan Soundrajan (Defendant)
Representation:	Solicitors: Ms J Lozanoska, Sgt (Police Prosecutor) Australian Presence Legal (Solicitors for Kobinath Poobalasingan) Australian Presence Legal (Solicitors for Sivamoorthy Anantharaj) Mr S Fung (Solicitor for Arulmurugan Soundrajan) Counsel: Mr J Park (Counsel for Mr Kobinath Poobalasingan) Mr V Pawar (Counsel for Mr Sivamoorthy Anantharaj)
File Number(s):	Kobinath Poobalasingan Charge No: H75520121 / JL: 2020/220591 Sivamoorthy Anantharaj Charge No: H147142202 / JL: 2020/220603 Arulmurugan Soundrajan Charge No: H77898483 / JL: 2020/220583