Pruckner v Sharma

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 complainant left the bedroom. After the argument with his brother finished, the defendant went into the living area and punched the complainant in the back. The complainant then moved to the other side of the room and the defendant pushed her against the wall. That is the subject of charge 9336 of 2020.

The argument continued and eventually the defendant left the location.

Police attended the residence as a complaint had been made from a neighbour about hearing yelling.

The complainant participated in a family violence evidence in chief interview (“FVEIC”). This was the subject of a hearing on voir dire.

The prosecutor by consent tendered a statement from Constable Rebecca Davidson dated 19 February 2020, that was exhibited as P1. A second statement of Constable George Blattman dated 17 February 2020 was exhibited as P2. A statement from Carly Hill dated 13 February 2020 was exhibited as P3.

Defence counsel conceded that there was an argument and yelling between the complainant and the defendant and between the defendant and his brother but did not concede the allegations the subject of the charges.

Evidence of Silky Parbhaker (“the complainant”)

The prosecutor called Ms Parbhaker to give evidence. Ms Parbhaker was assisted by an interpreter who interpreted from the Hindi language to English and from the English language to Hindi.

Ms Parbhaker was sworn and gave the following evidence. Ms Parbhaker indicated that she was studying cookery and was 29 years of age. She said that she was married to the defendant and has been for five years.

Ms Parbhaker indicated that she recalled speaking with police and participating in the recorded statement with them. That recording was played in court.

Immediately upon the playing of the FVEIC, objection was taken to it insofar as there was an issue raised as to the capacity of Ms Parbhaker to engage in the interview. It was submitted that the jurat given to her at the beginning of the interview was in English and that she did not understand the jurat.

Defence counsel submitted that Ms Parbhaker told them that she wished to speak in Hindi. I note that at all material times there was a Hindi interpreter on the phone available to Ms Parbhaker if she required it during the FVEIC.

Evidence on the voir dire

I was asked to consider whether Ms Parbhaker understood what was happening. In the course of the evidence on the voir dire, it appeared to me that she understood what was asked of her and did have the assistance of a Hindi interpreter available in doing so.

Ultimately there was argument in respect of whether she did indeed understand the jurat. I had the benefit of a statement from Constable Hill in respect to a conversation she had with Ms Parbhaker. It would appear from that conversation that Ms Parbhaker understood sufficient English to converse with Constable Hill.

Evidence of Constable Ainslee Pruckner

I then heard from Constable Pruckner. Constable Pruckner gave evidence that she attended at the defendant’s address in relation to a disturbance. A female opened the door; that female was Amandeep Dhanesar, the sister-in-law of the complainant. The officer asked her what had happened and was told that the complainant and the defendant were having an argument in the bedroom. Amandeep told Constable Pruckner she didn’t see anything but heard arguing.

Constable Pruckner said that she entered the house and went to the far end of the house where she saw Constable Hill having a conversation with the complainant.

Constable Pruckner said she heard the complainant telling Constable Hill that she had an argument with her husband over him soiling his pants and demanding they be washed. She refused because it was so early in the morning, so he became angry, hit her with a pillow and then pushed her and grabbed her around the throat

Constable Pruckner said that she observed Ms Parbhaker to be extremely upset, holding her body in a protected matter, and that she appeared very scared and timid. Constable Pruckner said Ms Parbhaker told her that she had limited English and preferred to speak in Hindi.

Constable Pruckner said that she spoke to Ms Parbhaker about providing a FVEIC and she agreed. It was also agreed that an interpreter be available on the telephone. Constable Pruckner said she recalled telling Ms Parbhaker that the interview was a recorded statement. Constable Pruckner also recalled telling Ms Parbhaker that she did not have to consent if she didn’t want to, and consent was explained to her.

Constable Pruckner said that Ms Parbhaker appeared to understand and gave her consent and said she was happy to participate in a FVEIC. Constable Pruckner said she explained it as:

I asked her on two occasions whether she wanted to do it and we then talked about - I used the word ‘consent’ when I first started and then I said, ’Consent means you don’t have to or, you know, you don’t have to but you’re choosing to,’ and she said that she understood and she wanted to [1]

[1] Transcript of Proceedings, 6 August 2020, 24.11.

Constable Pruckner indicated that she understood what Ms Parbhaker said, and Ms Parbhaker appeared to understand what was said to her.

In cross examination Constable Pruckner indicated that she was aware that Ms Parbhaker’s first language was Hindi and that she was having some difficulty communicating in English. She said that Ms Parbhaker’s English was somewhat broken, her responses were shortened, and she told Constable Pruckner that she preferred the Hindi language.

Constable Pruckner agreed that in her statement she wrote that Ms Parbhaker said she understood English, however wished to respond in Hindi. Constable Pruckner also agreed that the interpreter was on the line prior to the commencement of the FVEIC. Constable Pruckner did agree that during the FVEIC Ms Parbhaker did struggle to answer some of the questions in English and required an interpreter.

It was suggested to Constable Pruckner that she could have asked the interpreter to interpret the jurat. In response, she indicated that during the interview when Ms Parbhaker required something to be interpreted, she would ask the interpreter to do so.

The Constable agreed that Ms Parbhaker, when asked questions, would respond in Hindi and have that response translated.

In order to determine the issue raised, the first thirty seconds of the interview were played in court. After having heard and seen the recording I was satisfied that Ms Parbhaker did understand the jurat, save for consent which she asked about and asked to be explained to her.

I note the remarks I made during proceedings that there is an evident difference between when Ms Parbhaker did not understand something and when she did, and that is fairly obvious on the tape:

‘Certainly, it’s different on this transcript when I was trying to work it out, but when I’m just looking at her now it looks to me as if she did understand that first part.’ [2]

[2] Transcript of Proceedings, 6 August 2020, 31.38.

The evidence of Ms Parbhaker was suspended for the day because she was unwell.

Evidence of Stephen Bahr

I heard evidence from another witness Stephen Bahr.

Mr Bahr gave evidence that on 24 December 2019 he was awoken by some loud arguing and loud noises. Mr Bahr gave evidence that he could not see anything when he looked out of his window but could hear aggressive talking in an Indian language. Mr Bahr said that the argument took about 10 minutes. After a while he called police.

After he had call police the argument continued and then the parties moved inside and continue to argue. Mr Bahr said in answer to my questions that the argument was coming from the driveway.

He saw police arrive and enter the house. Mr Bahr said the argument took place in the house to the left of his own and was approximately five to ten metres from his room. Mr Bahr said the argument appeared to be coming from the driveway.

In cross examination

Mr Bahr advised that he gave his statement in April 2020. He agreed that his memory would be better on the day than it would be during the present proceedings. Mr Bahr agreed that he had said to the police officer who he spoke to that there was aggressive yelling from both the female and a male.

Mr Bahr said that after the police arrived, they went immediately to the house. Mr Bahr said he had a conversation with one police officer and that the substance of his conversation was similar to that of his statement.

It was suggested to Mr Bahr that he had said to the police officer that it didn’t sound like anyone was getting hit and they were not having a go. Mr Bahr rejected that and said that he did not think he would say such a thing.

Evidence of Constable Pruckner continued

Constable Pruckner was asked questions in respect to an enquiry she made of two mobile phones – one belonging to the defendant and one to Ms Parbhaker.

Essentially the evidence of the report identifies that the defendant’s mobile called Ms Parbhaker’s mobile. Constable Pruckner also said that she was aware that the defendant had participated in an interview but not until February 2020. Those records were exhibited as P6.

Evidence of Silky Parbhaker continued

I then continued hearing the evidence of Ms Parbhaker.

Ms Parbhaker said that she did not recall talking with police prior to giving her evidence in chief statement. Ms Parbhaker said that she did not recall speaking to the police anywhere other than in the lounge area of her home.

Curiously when asked a question about not recalling any conversation with police prior to the video, the witness said, and I quote:

“No. That’s because when the police were speaking, I did say – I kept quiet, because my English is not very good.” [3]

[3] Transcript of Proceedings, 7 August 2020, 61.46.

On application by the prosecutor pursuant to section 38 of the Evidence Act 2011, I allowed the witness to be cross examined as an unfavourable witness and that also applied as to her credibility.

Ms Parbhaker indicated that she was still married to Mr Sharma and is a chef by trade.

It was suggested to Ms Parbhaker that in the recording played she indicated that her husband had been asking her for a divorce. The witness said she did not remember that. When asked to accept that she may have said something like that on the recording, she said she did not remember. When it was suggested to her that she might be upset if he asked her for a divorce she answered: “No, there wasn’t anything like that”. [4]
[4] Transcript of Proceedings, 7 August 2020, 63.45.

It was suggested to the witness that if her husband had asked her for a divorce, that would make her quite upset. She replied, “Okay, so if he said that at that time I was under a lot of stress, but I don’t think he said that.” [5]
[5] Transcript of Proceedings, 7 August 2020, 64.2.

Ultimately Ms Parbhaker agreed that she would be upset if he had asked her for a divorce. Ms Parbhaker also agreed that she had a strong emotional attachment to Mr Sharma and wanted what was best for him.

It was suggested to Ms Parbhaker that she had said in her statement that Mr Sharma had told her that she was only in Australia because of him. She said he did not say that. The complainant replied in the negative to the following suggestion:

Is it the case that you are in Australia because of Mr Sharma? --- No [6]

[6] Transcript of Proceedings, 7 August 2020, 65.46.

Ms Parbhaker said that she is in Australia on a student visa. Ms Parbhaker identified her mobile number and that of her husband, the defendant.

Ms Parbhaker agreed that she went to the police station of the afternoon of 24 December 2019 with her brother-in-law. Ms Parbhaker accepted that it was approximately 2:00 pm in the afternoon, that she spoke with a female police officer and told the officer that an incident had occurred the night before.

It was suggested that Ms Parbhaker had told that police officer that the incident had involved slapping, pushing and other things. Ms Parbhaker said she couldn’t remember that.

It was suggested to the witness that she told the police officer that she wanted the charges against her husband discontinued, which she agreed with.

It was suggested to Ms Parbhaker that she told the officers that she had not had any contact with her husband since the incident. It was suggested to her that she in fact had some contact with him, and she disagreed.

It was suggested to Ms Parbhaker that she had received two phone calls from the defendant on her phone. Ms Parbhaker said that the defendant may have called her phone, but her phone was being used by her brother-in-law.

Ms Parbhaker said that she had given her phone to her brother-in-law so that he could contact a solicitor for the defendant. Ms Parbhaker said that the brother-in-law was using two phones: his own phone to talk to people, and her phone to enquire about solicitors. Ms Parbhaker said she could not recall what time she gave her phone to her brother-in-law.

It was suggested to her that if her brother-in-law had told police officers that she had had contact with her husband, that would be a lie. She agreed with that.

Ms Parbhaker agreed that as of today she regrets having made the recorded statement and that is why she wants the charges to be dropped. With respect to the recorded statement, she agreed that she had not told police when she asked for the charges to be dropped that her recorded statement was a lie.

Ms Parbhaker also accepted that she may have spoken to police officers but said she doesn’t recall it because she was under a lot of stress. It was suggested to her that she had spoken to the police officers in her bedroom and she denied that.

When asked whether there was a possibility that she spoke to police officers in the lounge room before the FVEIC began, she said she told the officer she just didn’t understand what she was saying.

It was suggested to her that even though she says she could not understand, she would not have given a version of events in English which would have been a lie or made up. Ms Parbhaker indicated that she does get anxiety attacks, so she sometimes doesn’t remember what she is saying. It was suggested that the anxiety attacks don’t cause her to lie, and she said she was not aware of what she was saying.

It was suggested to her that she did have a conversation with two female officers prior to the FVEIC, Ms Parbhaker denied that. It was suggested to her at that point in time she told the police officers that she had an argument with her husband after he came home drunk. Ms Parbhaker denied that she had a conversation with a police officer in her bedroom and said she only had a conversation in the loungeroom and nothing before that.

It was suggested to her that she told police that he had soiled his pants and demanded that she wash them, and she indicated that everything she said was in the lounge room. It was suggested to her that she also told the two police officers that he had become angry because she had not washed his pants. Ms Parbhaker denied that. It was then suggested that she told the two female officers that “he sat you [her] on the bed in your bedroom and told you [her] you could not leave” she denied that. [7]
[7] Transcript of Proceedings, 7 August 2020, 77.45.

It was suggested to her that she told them that he had hit her with a pillow she denied that and said he did not hit her. It was confirmed she had not told that to the police officers. She denied that she also told the police officers that he had slapped her in the face and that she had slapped him back, that he had held her by her neck, and that one of the officers invited her to participate in the visual recording.

It was then put to her that she was suggesting that she was unaware the recording was going to be made when it was made. The witness denied that the police officer told her twice that she did not have to participate in the recording and she said: “No, because I had already told her that I don’t understand English, what you are saying to me.” [8]
[8] Transcript of Proceedings, 7 August 2020, 78.36.

It was suggested that was not true and when it was suggested to her that she told the police officer she could understand the caution but would prefer to respond in Hindi she said: “I can’t really say because I was under a lot of stress, but I did tell her that I can’t understand you.” [9]
[9] Transcript of Proceedings, 7 August 2020, 78.41.

It was suggested to her that in the recording which she had viewed that day there were occasions when the interpreter was speaking English and she corrected the English. Ms Parbhaker said she didn’t remember that.

It was also suggested to her that there were occasions when she did not understand the question and asked the interpreter to interpret in Hindi for her, she replied that she could not remember. It was clarified with the witness that she saw this exchange with the interpreter in the recording, she said, “Yes I saw it in the recording.” [10]
[10] Transcript of Proceedings, 7 August 2020, 79.15.

When it was suggested that at times the interpreter didn’t translate into Hindi but she answered the questions in any event, the witness answered that she was under a lot of stress but when it was clarified she said she would accept that’s what happened in the FVEIC.

The witness indicated that she was under a lot of stress so it could have been that certain things that she said had come to her mind and so she said them. It was suggested to Ms Parbhaker and she accepted that it would be an extraordinary coincidence the police officer asked a question and that she happened to respond to that very question not understanding what it was and she agreed with that. It was suggested that when she did not understand something, she asked for the help of the interpreter, she accepted that.

It was suggested to Ms Parbhaker that when Constable Pruckner told her she did not have to consent she said sorry and that was because she did not understand, she agreed with that proposition. It was suggested that Constable Pruckner then clarified and told her that she did not have to consent if you didn’t want to and she said yes. The witness then said “I didn’t hear that she said you don’t have to agree you don’t have to consent. Yes.” [11] It was suggested that if she did not hear it, why would she just not say sorry again and further seek clarification, and the witness answered that she was under a lot of stress and did not understand what was being asked.
[11] Transcript of Proceedings, 7 August 2020, 82.32.

It was further clarified with her as to why she did not say that she did understand when she had already done so earlier and she indicated that she was nervous and was not listening properly. She accepted that there was a translator on the telephone, and she knew that they were there, and despite that she didn’t ask for assistance at that point. When it was suggested to her that she responded yeah when told about the interview she said: “Maybe it just came out of my mouth.” [12]
[12] Transcript of Proceedings, 7 August 2020, 84.1.

It was suggested to Ms Parbhaker that when the police officer told her that the recording would be recorded and used in evidence and she said yes and nodded her head she said “Yes. I would have said yes.” [13] It was suggested that was because she understood what the police officer was saying, she denied that. When she was asked why she nodded her head and said yes, she said “I - at that time I wasn’t really aware of what she was saying to me.” [14]
[13] Transcript of Proceedings, 7 August 2020, 84.16.
[14] Transcript of Proceedings, 7 August 2020, 84.20.

Ms Parbhaker answered questions in respect to her knowledge of the recording and she said ultimately that she did not understand it would be a camera and did not see one because she did not have glasses on.

Ms Parbhaker agreed that her marriage was very important to her.

Ms Parbhaker said that she did not recall a male being in the house recording the interview. She did not recall because she was out of sorts and could not remember who was there.

It was suggested to Ms Parbhaker that she did not want to make a statement against her husband, and she indicated that “I can’t live without him, and I don’t want that anything should happen to him.” [15] . It was suggested to her that it was only now that she realised that something might happen and that is why she has given the evidence she has, she answered that she did not know what the officer was asking her or what she was saying as it would sometimes just come out of her mouth.
[15] Transcript of Proceedings, 7 August 2020, 88.9.

It was suggested to Ms Parbhaker that if her husband were to go to jail, she would have to accept that she would live without him. She answered that she could not live without him even for one minute and that the idea of him going to jail would be extremely distressing. The witness agreed that she would do everything in her power to stop her husband going to jail because she cannot live without him. It was suggested that she had not been entirely truthful in her evidence because she was scared her husband might go to jail. Ms Parbhaker replied that it wasn’t like that, whatever she said at the time, she was under so much stress and was not sure what was happening in these kinds of anxiety attacks she gets very often.

Ms Parbhaker described her anxiety attacks and when it was suggested that they do not cause her to lie, she said no but that she is sometimes unsure of what she is saying and sometimes forgets what she said. It was reiterated that having an anxiety attack does not make her be dishonest and she said no, I tell the truth.

Cross examination

Ms Parbhaker agreed that Hindi is her first language and that she understood that she was to tell the truth in evidence before the court. She also indicated that in Hindi nodding one’s head has two meanings. And that can mean either yes or no. Ms Parbhaker said she has a habit of nodding her head. It was suggested by her that if somebody asked her a question and she did not understand out of respect to she would nod her head.

Ms Parbhaker indicated that even today giving evidence her understanding of English means that some time she does not understand. But it may be a little better now than it was on 24 December and she sometimes she still does not understand.

It was suggested to her that the longer the questions asked and the more complex, it becomes more difficult for her to understand and she answered that in those situations if she does not understand out of respect something comes from her mouth.

In respect to the word evidence she said she did understand that but did not understand the word cross examination. Although she did understand the word hearing she does not recall that being used on 24 December 2019.

Ms Parbhaker denied that the defendant slapped her, hit her with the slipper, twisted her arm, grabbed her around the neck, or hit her with a pillow and said that he did not pushed her into a wall.

Ms Parbhaker indicated that she was stressed because police attended the home and she had not called them.

In relation to the Hindi interpreter, she said that she heard her on the phone and she interpreted what she was saying. When it was put to her that the jurat was read to her she said she did not hear that.

Ms Parbhaker said she would not lie for her husband. Ms Parbhaker indicated that she agreed that there was a verbal argument between herself and her husband.

In questions from me she indicated that the defendant came home in the early hours, had a shower and asked her to wash his pants. He then asked her if she had washed his pants. Ms Parbhaker indicated she told him that she would wash them in the morning because she was half asleep.

In re-examination Ms Parbhaker denied that her husband had touched her at all during the verbal argument. It was noted at the time that when she did so, she shook her head from side to side saying no [my emphasis].

I heard submissions on the voir dire in respect to the evidence of Ms Parbhaker from counsel for the defendant. It was submitted that I would have difficulty in disentangling the fact she was provided with a warning about lying to the court and was aware of that giving evidence to the court.

The submission ultimately was that I could not be satisfied that she understood the caution in respect to the FVEIC.

Decision

In my ex tempore oral decision, I outlined that the officers complied with the legislation, however the real issue for me to determine was whether she understood what was said. It seemed to me that even on her own evidence she understood what evidence was and she understood clearly what a court was in relation to a hearing.

I also noted that when she was saying no; she shook her head from side to side and when she was saying yes; she nodded her head up and down. Whilst it is accepted that people may nod their head up and down for yes but mean something different is one thing, but there is evidence to support the assertion that when she did not understand she said ‘sorry’ in other words: I didn’t understand that bit.

I also noted that when she was on the phone with the interpreter, she understood what was being said and indeed corrected the interpreter at one point.

It was submitted by Counsel that whilst she did understand the purpose of the interpreter was only for the translation from Hindi into English, it was suggested that she did not know that she could rely on the interpreter from English to Hindi.

It was submitted that even in her evidence before the court she indicated that she did not hear some of the questions. I suggested to her that in fact that is what she did for a number of questions in her evidence before the court which flies in the face of what was seen in the interview.[my note]

I indicated that I was satisfied that she did understand the particular words given her evidence before me. It was submitted that if I cannot be satisfied of some of her evidence than that is an insurmountable hurdle, however I rejected that assertion and said that I may reject some or all of her evidence as I would for any witness.

I also noted that when I asked questions in respect to the washing of the pants issue, she downplayed when answering my questions compared to what she said to the police officers. I also note that the officers were not challenged in relation to whether she did say that to them.

I accepted that there are always difficulty with language barriers but was firmly of the view, particularly after hearing the cross examination, that Ms Parbhaker understood the words that she was required to understand and she had the opportunity to ask the interpreter if she did not understand them. I am satisfied that where there was that circumstance, she did ask questions. I am also satisfied that she understood those questions where she did not ask the meaning of them.

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.

Impression of Ms Parbhaker

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

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.

Mr B Sharma agreed that he went to the police station the afternoon of 24 December and spoke to a female officer. Mr B Sharma said that he was trying to arrange for a solicitor, but it was difficult given it was 24 December. Also, he indicated that if the defendant was to come to the police station, they did not know what would happen.

Mr B Sharma indicated after questions from me that the defendant was not at home when the police attended.

It was suggested to Mr B Sharma that he had told a police officer that both Ms Parbhaker and the defendant had been in contact and had spoken to each other. Mr B Sharma denied that and said he did not.

It was suggested that when he arrived in the bedroom the defendant slapped Ms Parbhaker with the slipper, he said that did not happen they were both separate and that if Ms Parbhaker had said that it would be a lie. Mr B Sharma also denied that he had told Ms Parbhaker to leave the room and said to the defendant: “How dare you hit her.” [17]
[17] Transcript of Proceedings, 7 August 2020, 113.1.

Mr B Sharma accepted that he did have a big argument with the defendant. He also accepted that after drinking an entire bottle of scotch his memory may not be particularly good, but he said it affected him only a little bit.

Mr B Sharma agreed that both Ms Parbhaker and the defendant were having a loud argument. So loud, in fact, that it woke his wife up and she was concerned and asked him to have a look.

It was suggested to Mr B Sharma that he was lying because he did not want his brother to go to jail. In a question from me I asked whether he had gone outside and was arguing with anyone and he said that they were not but they were in a sunroom connected to the backyard for some seconds and it was then that he told the defendant to get out of the home because he would not listen to him.

Cross examination

Mr B Sharma agreed that the defendant was not listening to him about Ms Parbhaker not washing his clothes and him telling him to go to bed and agreed that the argument that he had with the defendant was very loud.

Mr B Sharma said that the defendant was adamant that Ms Parbhaker, his wife, should wash the clothes now rather than in the morning and he said that he told him 10 to 20 times to go to bed. Mr B Sharma said the defendant would not listen to him, so he told him to leave. The witness said he was worried about the neighbours hearing the argument. The witness said that the defendant said that he was not coming back to the house.

Mr B Sharma said that no point did he hear the defendant say that he assaulted his wife Ms Parbhaker and that at no point did she say that he had.

Mr B Sharma said that he had not spoken to Ms Parbhaker about the incident nor had he put any pressure on her to withdraw her statement. Mr B Sharma indicated that he went to the police station with her because of her lack of English and that he wanted to speak to the police and find out what was going on. Mr B Sharma said that he drove her to the police station.

Mr B Sharma indicated that he was surprised the police officer would say that he had told the officer that both the defendant and Ms Parbhaker had been on the phone to each other that morning. The witness said that was because he was using her phone trying to find a solicitor.

Mr B Sharma indicated that he was at the police station when the defendant came to the police station. He also indicated that he used Ms Parbhaker’s phone throughout that afternoon most of the time. The reason he was using her phone was because he was using one phone to call and one phone to look up solicitor numbers. Mr B Sharma also indicated that the defendant rang him from his phone to Ms Parbhaker’s phone which he had in his possession at the time. This was when he was in the police station. The defendant came to the Police station at around 3:30 pm.

In questions from me Mr B Sharma indicated that it was shameful for the defendant to have soiled his pants and he agreed that the defendant was drunk and that he told the defendant to leave the house.

In relation to the time that Mr B Sharma said he had hold of Ms Parbhaker’s phone he said he didn’t wake up till 10:00 am on the morning following the incident, and it was after that point that he called solicitors.

I note that there were phone calls between Ms Parbhaker’s phone and the defendant’s phone at 6:21 am. [18]

Impression of Mr B Sharma

[18] Exhibit P7.

I formed the view that Mr B Sharma was not forthcoming in his evidence before me. Particularly as to what he saw on the evening and in relation to the phone contact between Ms Parbhaker and the defendant.

It is clear from the uncontested records that a call had been made to Ms Parbhaker’s phone from the defendant’s phone at a time when Mr B Sharma said he was still asleep in bed. Further he had also told a police officer that there had been contact between the pair and he knew about it.

I am unsure as to whether he was lying to the court about not seeing his brother hit Ms Parbhaker or was unsure as to that evidence given his level of drunkenness, but I formed the view that his evidence could not and should not be relied upon in regard to those two issues.

Voir dire evidence of Constable Pruckner

I also heard evidence from Constable Pruckner on the voir dire. Constable Pruckner said that she attended an address in Kambah and spoke to Amandeep Dhanesar who said that her sister-in-law, Ms Parbhaker and her brother-in-law the defendant had an argument in the bedroom, but she had not seen anything.

Constable Pruckner said that she entered the house and went to a bedroom where Constable Hill was speaking to a woman now known as Ms Parbhaker. Constable Pruckner said she overheard the conversation where Ms Parbhaker said that she had had an argument with her husband over his pants being wet and he was demanding that they be washed, she said she would do it in the morning he became angry hit her with a pillow pushed her and grabbed her around the throat.

Constable Pruckner said that she observed Ms Parbhaker to be extremely upset, holding her body in a protective manner and appeared scared and timid. Constable Pruckner said that she told her that she has limited English and preferred to speak in Hindi.

Constable Pruckner said that she asked Ms Parbhaker whether she would participate in an evidence in chief interview and she said she would. They then agreed for a Hindi interpreter be available on the phone to explain the process. Constable Pruckner said that she recalled explaining what the evidence in chief interview was and also explained to her about her consent and that she did not have to consent if she did not wish to.

Constable Pruckner said that Ms Parbhaker told her that she did understand about the process and was happy to do so. Constable Pruckner said she also then further explained what consent meant and that she did not have to consent if she did not wish to. Constable Pruckner said that Ms Parbhaker understood what she had said and wished to participate. The evidence in chief interview was conducted in the living room where it was quiet, with no one there.

In cross examination Constable Pruckner said that she was aware that Ms Parbhaker had difficulty communicating in English, but she could understand what she had said to her. Constable Pruckner agreed that she understood English but preferred to speak in Hindi.

It was suggested to her that the jurat given prior to the interview commencing could have been given in Hindi, however Constable Pruckner said that during the time that she was conversing with her when she didn’t understand something she asked for it to be translated.

In the hearing proper Constable Pruckner provided further evidence in relation to the IPMD enquiry. Constable Pruckner said it was a request to Telecom requesting particular mobile number with the client record for that used number.

The numbers inquired about corresponded to the defendant and his wife Ms Parbhaker.

The second document was the CCR or reverse CCR which are called charge records. These indicate the parties calling each other and the numbers, times, dates, and whereabouts. The document was edited to only have the two relevant numbers being those of Ms Parbhaker and the defendant.

Constable Pruckner said the A number is the person calling out and the B number is a recipient. There is a location for both A and B. Those documents were tendered through Constable Pruckner.

In cross examination Constable Pruckner was asked to accept that the record does not indicate who it was actually making the call. She accepted that proposition. [19] There was also some evidence in respect to the location being consistent with the relevant tower which connects the call. [20]
[19] Transcript of Proceedings, 6 August 2020, 47.32.
[20] Transcript of Proceedings, 6 August 2020, 48 - 49.

Constable Pruckner agreed that she did not see any visible marks on Ms Parbhaker’s face or neck.

In re-examination Constable Pruckner said that she heard Ms Parbhaker speaking to Constable Hill and it was her view that there was no difficulty understanding what was being said.

Statement of Rebecca Davidson – Exhibit P1 Summary

Constable Davidson was attached to Tuggeranong police station on 24 December 2019. Approximately 2:00pm that afternoon Ms Parbhaker attended the office and spoke ultimately to Constable Davidson. At the time Ms Parbhaker was in the company of Mr B Sharma, the brother of the defendant.

Constable Davidson made enquiries in relation to the reference number then separated Ms Parbhaker from Mr B Sharma and spoke to her.

Constable Davidson indicated that Ms Parbhaker had said to her:

“Last night something happened with my husband. He had some issues. We slapped each other. There was pushing and other things.” [21]

[21] Exhibit P1.

Constable Davidson said that Ms Parbhaker asked to have the charges removed. Constable Davidson explained that she could not do so as it is a matter for the court.

Ms Parbhaker indicated to Constable Davidson that she had not seen her husband since the incident and denied being intimidated by him. Constable Davidson asked whether Ms Parbhaker would be safe at home and she said, “he is only scary when he has been drinking.” Ms Parbhaker was there referring to her husband the defendant.

Constable Davidson contacted the domestic violence crisis service (“DVCS”) and they had a conversation with the complainant. At this time DVCS had asked Mr B Sharma whether Ms Parbhaker had had contact with the defendant, and he said to the constable that “they had been talking on the phone that morning.”

Constable Davidson sent an email to Constable Pruckner advising her of the words said by Ms Parbhaker in relation to what happened the night before. She also advised Constable Pruckner that whilst the complainant said she had not spoken to her husband that morning, her brother-in-law Mr B Sharma said they had spoken earlier that day on the phone. The email was sent shortly after she spoke to Ms Parbhaker.

Statement of George Blattman – Exhibit P2 Summary

Constable Blattman attended the defendant’s address on 24 December 2019 at approximately 2:00am after a call out with Constable Pruckner.

The defendant’s brother Mr B Sharma indicated that they had been drinking and arguing two hours prior to police attending Ms Parbhaker, the defendant’s wife, had also been involved in the argument and it was over clothes washing. Constable Blattman went into the bedroom and saw the complainant.

Constable Blattman also went to a neighbour Stephen Bahr who told him that he had heard banging and yelling. At 2:44 am the complainant consented to a family violence evidence in chief interview. Constable Pruckner conducted the family violence evidence in chief interview.

Statement of Mikali Hill – Exhibit P3 Summary

Constable Hill attended the defendants address on 24 December 2019 at approximately 2:00 am after a report from neighbours that people were arguing. Constable Hill said that she entered the residence, walked to the rear bedroom and observed a female sitting on a bed sobbing. That person was Ms Parbhaker. Ms Parbhaker told Constable Hill that

Her husband had returned home after being out drinking. The pair began to argue. During the argument, her husband slapped her across the face, twisted her arm, hit her with a pillow before grabbing her throat and pushing her against the bed frame. Her husband also got a slipper and slapped her with it, before leaving the residence. Ms Parbhaker stated she had pain in her back from being pushed against the bed frame. [22]

Statement of Daniel Simpson – Exhibit P4 Summary

[22] Exhibit P3.

Constable Simpson was advised that the defendant had presented himself to the Tuggeranong police station and that he had been involved in a family violence incident the night prior and previously could not be located.

Constable Simpson spoke to the defendant and advised him he was under arrest for family violence offences. The defendant understood that he was not free to leave but indicated he spoke little English. He was cautioned and asked whether he wished to participate in the interview, to which the defendant replied that he did not understand.

A Hindi interpreter was organised by the phone service. The defendant was provided with his Part 1C Crimes Act 1914 rights from the Hindi translator. The defendant accepted the request. It was organised for an interpreter to be present whilst the interview took place. After receiving legal advice, the interview was suspended.

Statement of Damien Greenwood – Exhibit P5 Summary in line with that of Constable Simpson

The CCR and reverse CCR shows that on 24 December 2019 at 6:20 am there were two calls from the defendant’s phone to the complainant’s phone. One call lasted 2 seconds and the other lasted 234 seconds. This supports the assertion that the defendant had contacted the complainant prior to handing himself into police and prior to the complainant attending the police station.

Written submissions from parties

Prosecution submissions

The prosecuting counsel set out the factual circumstances alleging the various charges. In that, the defendant came home after a night out drinking at around 1:00am on 24 December 2019. He had soiled his pants and requested his wife Ms Parbhaker to wash them. He then took a shower and when he was finished, he became angry because she had not washed his pants. The argument became physical and he hit her with a pillow at least once and slapped her on the face. Ms Parbhaker then slapped him back and he then grabbed her around the neck with one hand and pushed onto the bed twisting her left arm. The defendant kept her on the bed and picked up a slipper and started hitting her with it whilst he twisted her left arm.

While this was occurring Mr B Sharma entered the bedroom and saw the defendant slap Ms Parbhaker and hit her with the slipper. Ms Parbhaker then left the bedroom and the defendant followed her, punching her in the back and pushing her against the wall.

It was clear that there was no issue as to there being a verbal argument between the defendant and Ms Parbhaker and the defendant and his brother Mr B Sharma.

The prosecutor rightly identified that it is for the prosecution to prove each element of the offence beyond reasonable doubt and that the defendant is presumed innocent.

The prosecutor then set out the elements of the choking offence as; choke being defined as applying pressure to any extent to the person’s neck. The prosecutor then set out the evidence in respect to the choke as twisting her left arm with one hand and using his other hand to apply pressure on the throat area. Ms Parbhaker indicated that she could breathe at the time and asked him why he was choking her. He became upset with her because she was arguing loudly. He slapped her again and when she said that she would call police he said he did not care they can put him in jail that may be his punishment.

Ms Parbhaker said that at that stage her brother-in-law, Mr B Sharma came in due to the argument and the noise and it was at that time that the defendant slapped her again and started hitting her with a slipper whilst twisting her left arm.

Ms Parbhaker said that Mr B Sharma asked the defendant why he was fighting and why he was slapping her. The defendant then started shouting at his brother Mr B Sharma and the two began fighting. The defendant then began hitting Ms Parbhaker with his slipper and pushed her against the wall.

The prosecutor submitted that I would accept the FVEIC as Ms Parbhaker evidence and reject the denials made by her in court. The prosecutor recognised that this was a difficult position given that Ms Parbhaker resiles from what she had told police in her evidence in chief interview.

The prosecutor referred of course to the Queen v Murray (1987) 11 NSWLR 12 and also Cubillo v Commonwealth (2000) 174 ALR 97 in respect to accepting some or all of the evidence and rejecting some or all of the evidence.

The prosecutor then referred to R v HC [2017] ACTSC 276 where his Honour Justice Burns referred to the objectives behind the Evidence (Miscellaneous Provisions) Act regarding permission of the audio-visual recording in family violence proceedings. Where his Honour said it is recorded at a time when “it is likely to be fresh in the complainant’s memory, thereby usually improving the quality of the testimony.”

The prosecutor submitted that the evidence given in the FVEIC was given at a time very fresh in the memory of Ms Parbhaker and it is clear that she was distressed when giving her evidence, that she appeared to be doing the best she could to recall the details at a time when it would have been stressful and frightening.

The prosecutor further pointed out that the FVEIC is supported by the evidence of Constables Hill and Pruckner where Ms Parbhaker told them what had happened. The prosecutor submitted that they rely on what was said to those persons about the assault being choked as evidence of the truth of the complaint. Referring to SB v R [2020] NSWCCA 207.

The prosecutor submitted that the unchallenged evidence of Constable Hill was that she was told by Ms Parbhaker that the defendant her husband had returned home after being out drinking, they began to argue during the argument he slapped her across the face twisted her arm, hit her with a pillow before grabbing her throat and pushing her against the bed frame. He then got a slipper and slapped her with it before leaving the residence. Constable Hill said that she took notes throughout the incident and those were attached to her statement exhibited as P3.

Constable Pruckner also gave evidence which was unchallenged about what Ms Parbhaker told her. That was that she had an argument with the defendants, her husband when he came home drunk, he demanded that she wash his pants and when she said no, he became angry. The prosecutor submitted that Ms Parbhaker told Constable Pruckner that the defendant then hit her with a pillow slapped her in the face and held by the neck.

The prosecutor submitted that I would accept the evidence of both officers of the complaints made to them and considered that the complaint evidence is truth of what occurred. It was further submitted that the complaint was made at a time and in a manner that would indicate that the content was reliable and that it was less likely to be fabricated by Ms Parbhaker and more likely to be accurate referring to Papakosmas v the Queen [1999] HCA 37.

The prosecutor further submitted that I may also take into account the distressed condition Ms Parbhaker was in at the time she gave her FVEIC. Constable Pruckner also noted she was extremely upset, scared and holding her body in a protected manner.

The prosecutor submitted that a motive to lie or to be untruthful, if it is established, may substantially affect the assessment of the credibility of the witness. The prosecutor further submitted that where there is evidence that a prosecution witness has a motive to lie, the task of the finder of fact is to consider that evidence and to determine whether they are nevertheless satisfied that the evidence given is true referring to South v R [2007] NSWCCA 117.

The prosecutor submitted that Ms Parbhaker gave evidence having been married to the defendant for five years, that they are still married and that she has a strong emotional attachment to him. Ms Parbhaker stated that she wants what is best for him and told the court that she could not live without him or indeed that they could not live without each other. It was submitted that the complainant agreed her marriage was the most important thing in her life.

Ms Parbhaker agreed that she had spoken to a police officer and told that officer on the afternoon of 24 December 2019 that she wanted the charges against the defendant dropped. Ms Parbhaker said that she regretted making the recorded statement or FVEIC and agreed that she did not want to make a statement which could be used against him as she did not let want to live without him and ‘did not want that anything should happen to him’. Further, Ms Parbhaker said she did not want her husband to go to jail and that idea was extremely distressing for her. It was submitted that was obvious in her evidence as well. It was also her evidence that she would do everything in her power to stop him going to jail.

The prosecutor submitted that is a powerful motive for lying in respect to the evidence given in court on 7 August 2020.

In relation to the individual charges it was submitted that the court would have regard to the explanation given in the evidence in chief interview. When it was suggested that she was under pressure and was suffering an anxiety attack she conceded that she would not lie and indeed at no point did she say that she had lied in her FVEIC.

The prosecutor submitted that I would be satisfied that Ms Parbhaker was dishonest when giving her evidence in court.

In respect to the phone calls and the denial of speaking to the defendant that morning, it was clear that Mr B Sharma did not have the phone with him and went back to sleep from 5:00 am until 10:00 am that morning. It was after that time that Mr B Sharma had called solicitors. On the basis of that evidence, Mr B Sharma could not have had the phone at 6:20 am when the call between the defendant’s phone and Ms Parbhaker’s phone took place. The prosecutor submitted that the inescapable inference is that Ms Parbhaker received a call from the defendant. That is supported by the unchallenged evidence of Constable Davidson that Mr B Sharma told her on 24 December that Ms Parbhaker and the defendant had been talking on the phone that morning.

In relation to the evidence of the neighbour, his evidence was uncontroversial, and it was he who called police.

In relation to Mr B Sharma the brother of the defendant, his evidence was that his wife woke him up because the defendant and Ms Parbhaker were arguing. He said that he went to their room and they were opposite each other on either side of the bed. He denied seeing any physical contact between the pair. This is clearly at odds with what the Ms Parbhaker said in her FVEIC interview.

The prosecutor submitted that the court should approach Mr B Sharma’s evidence with caution and that he was at the time intoxicated therefore his reliability may have been affected. Referring to R v Salih (2005) 160 a Crim R where the acting Justice Harper said

Neither side called any experts to speak on the subject, so the jury if they considered the matter at all must of necessity have done so by drawing on whatever experience they all individual jurors may have had the judge, of course, could not buy any direction of his for the gap left by the absence of expert evidence. The best he could have done was to remind the jury of the evidence about her consumption, and of her own assessment of its effects on her, and warm them that, as that is all they have, it would be unsafe to convicting applicant on the complainant’s evidence unless having very carefully considered that evidence they were satisfied that it was accurate. In my opinion, a direction of that kind should been given.

The prosecutor submitted that even on his own evidence the defendant drank an entire bottle of scotch over six hours. The defendant’s own assessment was that he was drunk when he was woken by his wife. It was further submitted that it was open that his memory of the day of the incident was not clear on the basis of the objective evidence given by Constable Davidson. Constable Davidson’s unchallenged evidence was that Mr B Sharma told her Ms Parbhaker and defendant had spoken to each other that morning Mr B Sharma denied the police officer asking that.

The prosecutor submits that in accepting Ms Parbhaker’s evidence in the FVEIC I would be satisfied beyond reasonable doubt that the defendant choked Ms Parbhaker, applied pressure to her neck. I would also be satisfied that he hit her with a pillow and slapped her, hit her with the slipper, twisted her arm and slapped her whilst Mr B Sharma was in the room.

The Prosecutor submitted that if the court does not accept the transcript of the FVEIC can be used as an aid memoir then the charge 9336 of 2020 could not be made out

Defence counsel submissions

I note that defence counsel accepts the summary of the prosecution case as outlined in their submissions.

Defence noted that like the prosecution, the court would be in a difficult position in relation to the two accounts given by Ms Parbhaker from the night of the allegation and her evidence at hearing.

Defence counsel submitted that the prosecution conceded that Ms Parbhaker’s evidence was given not in any entirely logical or chronological form when it was likely to be fresh in her memory thus improving the quality of the testimony.

Defence counsel pointed out that Ms Parbhaker in her evidence challenged the police officers account of what was said in their interaction whilst conceding that she did make allegations of assault against the defendant to police that evening. That is obvious given the evidence in chief interview which was audio and video recorded.

It was further submitted that whilst conceding the complaint had been made to police a question of Ms Parbhaker credibility was an issue and that her account should not be merely accepted because that is what she told police. It was submitted that her evidence in chief contradicted her (prolix account) to police.

It was submitted that it is difficult for the court to assess Ms Parbhaker’s evidence as to its truthfulness, given the difficulty partly due to the language barrier and partly due to her relationship with the defendant. Whilst it was accepted that Ms Parbhaker did not say that what she had told the police in the FVEIC was a lie, she said she did not remember exactly what she said to police but rather, only that she went to the police station with a view to having the charge withdrawn.

It was submitted that despite the prosecution accusing Ms Parbhaker of having a motive to lie to protect the defendant from criminal prosecutions, and the court warning Ms Parbhaker that charges could be laid if she was untruthful, she confirmed that she understood those issues and said she was telling the truth.

It was submitted that despite being cross examined as to whether she wished to ensure that the defendant would not go to jail and indicating that she could not live without him her evidence was that she would not say anything that is incorrect. [23]
[23] Paragraph 9 Defence submissions.

In relation to Ms Parbhaker nodding her head in acceptance of a question of proposition, it was submitted that nodding her head may indicate that she did understand and said yes or it may have meant that she said no because in Hindi nodding your head has two different meanings and that even if she did not understand something out of respect she would nod her head.

Defence counsel submitted that there was no evidence of any visible marks on the defendant’s face or neck at the time of the incident and it was submitted that given there was that allegations of slapping and choking this was inconsistent with “an application of battery upon the complainant.” [24]
[24] Paragraph 12 Defence s

Further, defence counsel submitted that given all of that evidence the court would be in doubt as to what actually occurred on 24 December 2019. The threshold of beyond reasonable doubt would not have been reached because of the lack of clarity in relation to the conduct itself as well as the lack of corroborative evidence in the form of injury to Ms Parbhaker so soon after the allegation. Therefore, the defendant should be found not guilty on all charges.

Decision

In coming to a conclusion in respect of these proceedings, it is important that I find the facts proven, draw inferences from them and apply the law to the facts that I find. In doing so it is important that I bring an open and unbiased mind to the evidence and view it clinically and dispassionately. I must not let emotion enter into the decision-making process. Both the defendant and the prosecution are entitled to a verdict free of partiality, prejudice or ill will.

I must at all times keep in the forefront of my mind that it is the prosecution who bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove anything. The standard of proof in a criminal proceeding is beyond reasonable doubt of any or all of the elements of any individual charge.

If I am satisfied that there may be an explanation consistent with innocence of the defendant or I am unsure as to where the truth lies, that I must find the charge has not been proven to the requisite standard and I must dismissed that charge. I have brought these principles to bear in deciding this matter.

Having taken into account all of the above considerations as well as prosecution and defence submissions I make the following comments.

Commencing with the submission that, given the lack of markings to Ms Parbhaker in relation to the slapping and choking that is inconsistent with an application of battery upon her, I reject that submission. Using my extensive experience and common sense it is clear that often victims being slapped or choked do not have any marks indicating this has occurred. It is also often the case that bruising does not come up for some time after the event. In my view that does not sway me one way or the other in respect to finding whether there was an assault upon the complainant.

Findings

I make the following findings of fact;

(a)Sometime in the early hours of 24 December 2019 the defendant and Ms Parbhaker engaged in an argument as a result of the defendant coming home after drinking a bottle of Scotch whiskey, soiling his pants and wanting his wife at 1:30 am in the morning to wash his soiled pants. I am also satisfied that the defendant wanted his wife to wash them then and there rather than wait until the morning.
(b)I am satisfied that Ms Parbhaker told the defendant that she was soaking them and would wash them in the morning. I am also satisfied that he argued with her as a result of this and became very angry. I am also satisfied that there was an argument between the pair which was very loud and aggressive. It appears that those facts are not controversial, and I find them beyond reasonable doubt.
(c)I am also satisfied beyond reasonable doubt that the defendant did contact Ms Parbhaker at around 6:20 am on the 24th December and spoke with her. That evidence is clear from the records and also from the evidence of Mr B Sharma’s comments to police that day at the police station.

However, what occurred next is in issue. Ms Parbhaker resiled from what she had said in her FVEIC and also from what she had said to police. It became clear that there was to be an argument as to what she understood given her lack of English. However, I have already ruled that I was satisfied that she did understand that the FVEIC would or may be used in court and that she did not have to consent if she did not wish to.

In relation to the evidence given by Ms Parbhaker in court, I prefer the evidence of the FVEIC as to what happened that evening. Much of what was said in that interview in chief was corroborated by police having had conversations with her prior to that event. I note the Prosecutor referred to Papakosmos per Gaudron and Kirby JJ who said (at 56):

The nature and degree of the connection necessary before a statement is probative of the fact asserted in it will, of course, depend on the nature of that fact and, if it be different, the fact ultimately to be proved. Even so, the connection will ordinarily be found in the close contemporaneity of the statement with the fact in issue and the consideration that the statement is a statement of the kind that might ordinarily be expected from the maker if the fact were true. Similarly, a statement that is closely contemporaneous with the fact in issue and is contrary to what would ordinarily be expected if that fact were true rationally bears on the improbability of its having occurred.

The reason why Ms Parbhaker resiled from the FVEIC is clear. That is, that she did not want to get her husband the defendant into trouble. I am in no doubt that after speaking with the defendant early on 24 December, Ms Parbhaker wanted to withdraw the charges as she did not want her husband to get into trouble. I also note that at the end of the interview it was offered that the defendant had asked her for a divorce on several occasions. That is important considering the evidence she gave before me as to her view that her marriage was her life, he and her marriage to the defendant was her life.

I am also satisfied that the evidence given by the police officers in court and in their statements about what was said corroborates the evidence given by Ms Parbhaker in the FVEIC.

It is not unusual in these types of family violence cases for a complainant to essentially get cold feet or be intimidated into “dropping the charges”. It is also after the heat of the moment has subsided that they consider that they do not wish to get their partner or husband into trouble. There is also of course the fact that they may be sentenced to a term of imprisonment if found guilty. That has been recognised in a number of decisions including R v HC [2017] ACTSC 276.

The FVEIC scheme for want of a better word was developed, amongst other things to reduce the opportunity for fabrication, invention or memory loss. See Williams v R (1986) 161 CLR 278.

In my view that is what has happened here, Ms Parbhaker gave evidence that nothing occurred or that she did not understand what was happening, in order for the matter to be found in her husband, the defendant’s favour. Similar but opposite circumstances are evident in R v Al-Harazi (No.6) [2017] ACTSC 30. Insofar as the evidence has been fabricated after interference by the defendant, after the interview in the present case and prior to the fourth interview in Al-Harazi.

I am also satisfied that Mr B Sharma gave evidence to exculpate the defendant, his brother on the same basis. There is no doubt that he was affected by alcohol. On his own evidence he had consumed a bottle of scotch that evening. That most likely would have impeded his memory in any event. I am satisfied that he was, either being dishonest or was mistaken as to the events of that evening.

As to findings of fact in relation to each offence

I am satisfied that the defendant, after consuming a bottle of Black Label Jonny Walker scotch over some 6 hours was intoxicated. I am also satisfied that he was angry that the complainant had not washed his pants immediately. I am satisfied that the argument became physical. I am further satisfied that Ms Parbhaker as per the FVEIC gave an account of what happened thereafter in that the defendant hit her with a pillow and slapped her on the face without her consent constituting charge 13535 of 2019. I find that offence proven beyond reasonable doubt.

I am further satisfied beyond reasonable doubt that the defendant then grabbed Ms Parbhaker around the neck and pushed her, twisting her left arm. As particularised in charge 8632 of 2019 I am satisfied that there was an application of pressure to her neck, although this was not sufficient for her to have her breathing impaired. I find that offence proven.

I am further satisfied that the defendant twisted her left arm and pushed her down on the bed, picked up a slipper and slapped her with it constituting an assault as particularised in charge 13536 of 2019 and also slapped her in the presence of her brother in law Mr B Sharma constituting the offence in 9120 of 2019. I find those offences proven.

In relation to the punch the subject of charge, 9336 of 2020 on a reading of the evidence I cannot be sure that this can be made out, therefore I cannot be satisfied beyond reasonable doubt that it occurred and I find that offence not proven.

I certify that the preceding two-hundred and seventeen [215] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM

Associate:

Date: November 2020

[2020] ACTMC 23

18 November 2020