Pruckner v Sharma - [2020] ACTMC 23

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pruckner v Sharma
Citation:	[2020] ACTMC 23
Hearing Date(s):	6 - 7 August 2020
DecisionDate:	18 November 2020
Before:	Special Magistrate Hunter OAM
Decision:	See paragraph [198] – [215]
Catchwords:	CRIMINAL LAW
Legislation Cited:	Crimes Act 1900 (Cth) The Evidence Act 2011 (Cth) Evidence (Miscellaneous Provisions) Act (Cth)
Cases Cited:	Queen v Murray (1987) 11 NSWLR 12 Cubillo v Commonwealth (2000) 174 ALR 97 R v HC [2017] ACTSC 276 SB v R [2020] NSWCCA 207 Papakosmas v the Queen [1999] HCA 37 South v R [2007] NSWCCA 117 R v Salih (2005) 160 a Crim R Williams v R (1986) 161 CLR 278 R v Al-Harazi (No.6) [2017] ACTSC 30
Parties:	AJ Pruckner (Informant) Nikhil Sharma (Defendant)
Representation:	Counsel Ms E Priestly (Crown) Mr J Robertson (Defendant)
Solicitors ACT Office of the Director of Public Prosecutions (Informant) Sharman Robertson (Defendant)
Charge Number(s):	CC 13535 of 2019; CC 13536 of 2019; CC 8632 of 2020; CC 9120 of 2020; CC 9336 of 2020

SPECIAL MAGISTRATE HUNTER:

The defendant has been charged with four offences of common assault and one offence of choke, suffocate, or strangle his wife Silky Parbhaker.

The prosecutor in her opening address alleged the offences occurred in the early hours of 24 December 2019. At around 1:00 am in the morning on that day the defendant returned home from a Christmas party. He resided at his home with his wife, his brother and sister-in-law.

Upon arriving at 1:00 am that morning the defendant told his wife (the complainant in this matter) to wash his pants because he had soiled them. The defendant then had a shower, after the shower he became upset that the complainant had not washed his pants. The complainant then placed the pants in the washing machine, but an argument ensued about whether they would be washed now or later. In the course of this argument the defendant is alleged to have hit the complainant with a pillow at least once and slapped her face with his hand. This conduct is the subject of charge 13535 of 2019.

The complainant then slapped him back, and the defendant grabbed her around the neck with one hand and pushed her down onto the bed. That conduct is the subject of charge 8632 of 2020. The prosecution indicated that they also rely on the statutory alternative of common assault for this charge.

The prosecutor alleged that when the complainant then attempted to get up, the defendant kept pushing her down, twisting her left arm, thereby preventing her from getting up. That conduct is the subject of charge 13536 of 2019.

At this point the defendant picked up a slipper and started hitting the complainant with it whilst continuing to twist her left arm. That conduct is the subject of charge 9120 of 2020.

The defendant’s brother entered the room whilst the defendant was hitting the complainant with the slipper. The brothers then began to argue and the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Pruckner v Sharma [2020] ACTMC 23
Case: [2020] ACTMC 23
Decision Date: 18 November 2020

CaseChat Overview and Summary

The case of Pruckner v Sharma involves a criminal dispute where the defendant was charged with domestic violence-related offences. The matter was heard in the Magistrates' Court of Victoria. The central issue before the court was the admissibility of the family violence evidence in chief (FVEIC) given by the complainant. The court had to determine whether the FVEIC was properly obtained in accordance with the legislation and if it could be admitted as evidence. Additionally, the court needed to assess the credibility of the complainant's testimony considering the language barrier and the potential influence of her husband, who was also the defendant's brother.

The court concluded that the FVEIC was admissible because the officers had complied with the statutory requirements. The complainant's reluctance to fully disclose the truth during her testimony was noted, but the court found that the FVEIC provided an accurate account of the events. The difficulty posed by the language barrier was acknowledged, but the court found that the complainant's fear of her husband's potential imprisonment influenced her testimony. Despite her discomfort and reluctance, the court determined that the FVEIC was truthful about the incident.

The court admitted the FVEIC into evidence, finding it to be a reliable record of the events as they occurred. The court observed that the complainant exhibited signs of distress and discomfort during her testimony, particularly when discussing specific injuries. These observations, combined with the detailed account provided in the FVEIC, supported the court's decision to accept the FVEIC as truthful.

The court also ruled that the prosecutor could cross-examine the defence witness, Mr B Sharma, under section 38 of The Evidence Act 2011. Mr B Sharma's awareness of the case and the potential consequences for the defendant were considered, but his testimony was deemed admissible.

Orders

Orders of the court

See paragraph [198] – [215]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ultimately, I was satisfied that the witness did understand that the evidence in chief interview would be used in court at a hearing. I was satisfied that the officers complied with the legislation and therefore the FVEIC was admissible and I admitted it into evidence. I have no doubt that in giving evidence before the Court she was less than forthcoming. I have taken into account the difficulty with the language barrier but having considered all of the evidence as a whole I found her to be a witness scared to tell the truth for fear her husband (who was her whole life) would or could go to jail if found guilty. I am however satisfied that the family violence evidence in chief was the truth about what went on that night. The principal behind the statutory scheme in relation to conducting evidence in chief is to get the fresh evidence prior to any influences or a change of heart being made and then a retraction of the charges. During the evidence in chief I observed that she kept touching her neck and appeared to be very uncomfortable and was moving about as if in discomfort. I noted that she touched her neck when relaying what had happened. I also noted that she referred to and touched her left arm. I also noted that she gave very specific details for something which she later said did not happen. Bhanav Sharma (“Mr B Sharma”) is the defendant’s brother. They lived in a house together with both of their wives. Mr B Sharma indicated that he and his brother the defendant attended a Christmas party in Bruce. There was a lot of drinking at that party. It was his evidence that he drank approximately one bottle of Johnny Walker Scotch whiskey black label between 6:00 pm and 12:00 midnight or thereabouts. Mr B Sharma said the defendant also drank around about the same amount. Mr B Sharma indicated that both he and the defendant were fine after drinking that much alcohol. Mr B Sharma said that he changed his clothes, had some water, and went to sleep. Mr B Sharma indicated that not long after perhaps 25 minutes his wife woke him up and said that the defendant and Ms Parbhaker were arguing and asked him to go and have a look. Mr B Sharma said that they were arguing about clothes washing or something of that nature. Mr B Sharma said that he went into the defendant’s bedroom and asked what was going on. Ms Parbhaker said that she had told the defendant that she was washing his clothes but, in the morning, and the defendant insisted that they be washed immediately. Mr B Sharma said that they were each one side of the bed and they were just arguing. Mr B Sharma said he did not see any physical activity at all. I then ruled that the prosecutor could cross examine him pursuant to section 38 of The Evidence Act 2011. It was suggested to Mr B Sharma that he had given a statement to police some six months after the event, had been in court for the bail applications with the defendant and in fact interpreted at one stage for him. Mr B Sharma agreed with that proposition he also accepted that he knew the case against the defendant and that the charges carry terms of imprisonment. Mr B Sharma also accepted that if the defendant was found guilty that he may go to jail and said, “It just depends on the court.” [16][16] Transcript of Proceedings, 7 August 2020, 109.34.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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