R v Ramalingam - [2011] ACTSC 86

THE QUEEN v SHANKAR RAMALINGAM
[2011] ACTSC 86 (25 May 2011)
CRIMINAL LAW – trial by judge alone – common assault – accused found guilty.
CRIMINAL LAW – particular offences – offences against the person – common assault – involvement in a fight – whether an assault.
CRIMINAL LAW – particular offences – offences against the person – common assault – whether accidental or not – whether as part of a fight implies consent.
Crimes Act 1900 (ACT), s 26
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Pt 4, ss 43, 46
Supreme Court Act 1933 (ACT), s 68C
Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
Attorney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057
R v Bacash [1981] VR 923
R v Latimer (1886) 17 QBD 359
No. SCC 354 of 2008
Judge:             Refshauge J
Supreme Court of the ACT
Date:              25 May 2011
IN THE SUPREME COURT OF THE     )
  )          No. SCC 354 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
SHANKAR RAMALINGAM

ORDER
Judge:  Refshauge J
Date:  25 May 2011
Place:  Canberra
THE COURT FINDS THAT:
1.          On the first count on the indictment, the accused is guilty.

2. On the second count on the indictment, the accused is guilty.

3. On the third count on the indictment, the accused is guilty.

4. On the fourth count on the indictment, the accused is guilty.

1. The accused, Shankar Ramalingam, faces four charges which arise from the events at his home with his family on 8 July 2008.

2. The indictment, which sets out the charges, pleaded the following counts:

FIRST COUNT: ... THAT, on 8 July 2008 at Canberra in the Australian Capital Territory, he assaulted Vinoshan Shankar.

SECOND COUNT: ... THAT, on 8 July 2008, ... he assaulted Ranjina Shankar.

THIRD COUNT: ... THAT, on 8 July 2008, ... he assaulted Vinoshan Shankar.

FOURTH COUNT: ... THAT, on 8 July 2008, ... he assaulted Ranjina Shankar.

3. These are proceedings for offences under s 26 of the Crimes Act 1900 (ACT) (the Crimes Act). As such, they are violent offences for the purposes of Pt 4 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). Under s 43 (within Div 4.3) of the latter Act, the evidence of a complainant must be given by audiovisual link from another place than the courtroom unless the court otherwise orders. I was not asked to make such an order in respect of any complainant and they did give evidence in this way.

Trial by Judge Alone

4. Before the court first allocated a date for the trial of Mr Ramalingam, he made an election for trial by judge alone.

5. Under s 68C of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), a judge, who, without a jury, tries proceedings for the prosecution of a person on indictment, may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.

6. The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.

7. Section 68C of the Supreme Court Act also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.

8. There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.

9. As the judge of fact in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

10. The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he or she did not commit the offences charged.

11. If the accused does adduce any evidence which is consistent with his or her innocence, he or she does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.

12. The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his or her guilt.

13. The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant offence charged has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him or her guilty.

14. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he or she remains presumed innocent and I must find a verdict of not guilty.

15. If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.

16. In determining whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence, I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.

17. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experiences and wisdom in assessing the evidence.

18. The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.

19. I also note that, as this was a violent offence, s 43 of the Miscellaneous Provisions Act, required that the complainants give evidence by audiovisual link from a place other than the courtroom as they did. Under s 46 of that Act, I am required to warn the jury that it should not draw any inference adverse to the accused in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.

Evidence

20. At the trial, the two complainants gave evidence. I also had evidence from Ms Amrita Shankar, the accused’s daughter, and from neighbours, Mr Gordon Cameron and Ms Kersten Cameron and their guest that evening, Mr Paul Donohoe. A number of police officers gave evidence, Constables Rebecca Baynes, Rebecca Hodgkin, Luke Collyer and Sharon Lindley and Sergeant Craig McPherson.

21. I also admitted into trial as evidence the following exhibits:

A photo of a storage block of knives;

B photo of knife;

C photo of Vinoshan Shankar’s right cheek from 8/7/09;

D photo of Vinoshan Shankar’s left cheek from 8/7/09;

E photo of interior of front door and window of 66 Carnegie Crescent, Narrabundah ACT;

F photo of Ranjina Shankar;

G knife;

H transcript and tape recordings of AFP interview with accused from 8/7/09;

1 photo of accused from 8/7/09;

2 photo of 66 Carnegie Cr, Narrabundah ACT, as marked by Gordon Cameron.

The witnesses

The prosecution witnesses

Vinoshan Shankar(a)

22. Mr Vinoshan Shankar is the son of the accused and one of the complainants. He gave evidence of the time leading up to the events which unfolded on 8 July 2008. He remembered having some discussions with his father, Shankar Ramalingam, regarding university choices and a disagreement over which university would be appropriate for him to attend.

23. He said that this disagreement had lasted for a few days and became more heated on 8 July 2008. He said he was standing approximately one metre from the front door of the family home in Carnegie Crescent, Griffith, about to leave, when his father asked him whether he wanted to fight. His father then slapped him.

24. He described the slap as a back-handed slap across the cheek. He then hit his father back and his mother stepped in between them, being “caught in the middle”.

25. Vinoshan then told the court that he hit his father, causing him to tumble to the ground. He said that his father then went back inside the house to the kitchen area.

26. Vinoshan remembered some form of contact between his father and his mother, but he was a little unsure of the details; he thought it could have been an elbow to the cheek.

27. He described himself as feeling “very angry” at the time. He described his mother as being “[d]istraught. Absolutely devastated.” He described his father’s emotional state as “very, very angry” and “explosive”.

28. Vinoshan recalled leaving the house moments later, because his father had returned from the kitchen with a knife. He demonstrated the way his father was holding the knife, namely at head height, with curled fingers around the handle and the blade facing downwards towards the ground. At this stage, his father was approximately three metres from Vinoshan. He said he felt scared, “scared more than anything”.

29. Vinoshan recognised the knife at the time, but could not remember whether any of the people present said anything when his father came out of the kitchen with the knife.

30. At this stage, Vinoshan said he was in the front yard of the property while his father made comments about him being a terrible son, and throwing his possessions and clothes onto the front lawn.

31. Vinoshan said that his mother and sister then joined him in the front yard and offered words of comfort. The neighbours had also come to the front yard to comfort the family and to attempt to calm Mr Ramilingam down.

32. Vinoshan was shown two photographs of a knife storage block and of a serrated knife and said he recognised them as coming from his home, though the serrated knife looked different to that which he remembered his father had been holding.

33. He was then shown police photographs of his right and left cheek and confirmed that they showed some redness and puffiness sustained from being hit by his father.

34. In cross-examination, Vinoshan agreed that the situation was aggravated because his body language would have been seen by his father as a challenge to his authority.

35. Vinoshan also said he could not clearly remember the sequence of events, but stated that he believed his father hit him first but that then Mr Shankar might have thrown the first punch.

36. He was shown a photograph of Mr Ramalingam’s nose and agreed it was possible that the mark near the bridge of the nose had been the result of him punching his father.

37. It was suggested to Vinoshan that, after the initial altercation, he followed his father back into the house where he then saw his father partially remove a knife from the knife block but that the knife did not leave the block but he denied the suggestion.

38. In discussing the actions of his father throwing his clothes out the front door into the front garden, he recalled that his father had a verbal altercation with one of the neighbours regarding Australian culture. Approximately ten minutes later, the police arrived on the scene.

39. In re-examination, Vinoshan said he was “100% sure” that his father was the first to make connection with him with a back-handed slap and that he responded with a closed-fist punch.

Ranjina Shankar (b)

40. Mrs Ranjina Shankar is the wife of the accused, the mother of Vinoshan Shankar and Amrita Shankar and is the second complainant.

41. She recalled that, leading up the 8 July 2008, her son and husband had discussed the university at which Vinoshan should study and they disagreed. Mr Ramalingam told Vinoshan he would need to move out of the family home if he was not going to attend the university of his father’s choice.

42. At around 10.00 pm on 8 July 2008, she said she was preparing to take her son to look at a one bedroom unit in Narrabundah.

43. She confirmed that, when they were leaving the house, an argument began between Vinoshan and Mr Ramalingam which led to Mr Ramalingam asking Vinoshan to “come for a fight”, whilst holding both hands up to the top part of his body with clenched fists.

44. Mrs Shankar said that her husband starting hitting her son in a punching motion, which she repeatedly asked him to “please stop”. During this time, the hits thrown by Mr Ramalingam all connected with her, as she had put herself between Vinoshan and Mr Ramalingam to prevent her son being hit.

45. She said she placed her hands in front of her face to block the punches, but felt them connect with her knuckles and mouth, causing bleeding to her mouth and pain in her face and hands.

46. She recalled that her husband left the front door area, after a curtain fell down, and went into the kitchen. He then returned to the front door, where she was still standing with her son and was holding a knife. She was shown a picture of a knife which she identified.

47. She recalled telling her son to run away because Mr Ramalingam was coming towards him with the knife.

48. She identified a photo of her face saying it showed blood on her lips. She was unable to say for certain, however, whether that injury was caused by her husband or the curtain when it fell down.

49. In cross-examination, Mrs Shankar referred to the argument that had been festering for some time because of the difference in opinion between Mr Ramalingam and his son about university preferences. Mrs Shankar said she supported her son’s preference and his desire to stay living in Canberra at the family home.

50. She recalled that her husband’s response was to say: “going [sic] to look into internet and go and see a room and get out of my house, you can’t live here, I’m not going to support you anymore.”

51. She said that it was while her son was looking for a room to rent that the argument broke out on 8 July 2008. The trigger seems to be that a heater was left on. When the accused confronted Vinoshan about the heater, Mr Ramalingam became agitated at Vinoshan’s look or body language, which he seemed to have found disrespectful.

52. She was referred to her interview with police on 8 July 2008 and asked to explain why she told police “I don’t know who hit first” but referred to an earlier question which, she said, made it clear who made the first hit, namely her husband, the accused.

Paul Edward Donohoe (c)

53. Paul Donohoe was eating dinner at a friend’s house over the road in Carnegie Crescent on 8 July 2008.

54. He said he left the house at approximately 10.00 pm to go to his car parked in the driveway of the residence.

55. He recalled hearing loud arguing coming from the accused’s house across the road. He walked to the gutter opposite the house and saw a curtain fall down giving him a clear view inside. He then saw, through the unobstructed window, a large man strike a woman, who he now knows is Mrs Shankar, with a back-handed slap using his left hand. He described the man’s behaviour as very aggressive.

56. He then saw the man holding a knife in the air above his head with his right hand and the blade facing out in front of him.

57. Mr Donohoe then, with his friend, crossed the road to the house opposite but was reluctant to enter the property, as he feared for his safety having seen the knife earlier. He spoke to the two women who were still inside and encouraged the daughter to come outside.

58. After some time, he was able to convince Mrs Shankar to come down the stairs from the front porch to join her son, who had left the house earlier, and her daughter. Mr Ramalingam proceeded to throw clothing and other possessions out the front door onto the front yard.

59. Mr Donohoe then said:

We tried to speak a little bit to [Mr Ramalingam] but there didn’t seem to be a connection in the communication whatsoever. Quite frankly, I felt that we were speaking to someone who was not of the same mind of any rational mind and appeared as if [he] didn’t even know we were there

60. Mr Donohoe then took the children and mother with him across the road to his friend’s house. When the police arrived, he described the knife to police.

61. In cross-examination, Mr Donohoe was questioned about how much he could see. He said he was about fifty or sixty metres from the window and, although he could not remember the details, he said there were street lights and it was not pitch black. He agreed that he was looking up at about a thirty degree angle.

62. He confirmed that the window was not a full-length window but was about a metre and a half high and nearly a metre wide. He said he distinctly remembered seeing in the window a large man and a woman, whom he later identified as Mr Ramalingam and Mrs Shankar. The woman was standing to the left of the man and he saw the knife in the man’s hand before he spoke to anyone else at the scene, especially Vinoshan.

63. He was questioned about the knife because his friend did not see it, but said that he was positive that there had been a knife in Mr Ramalingam’s hand.

64. Asked to clarify the sequence of events, Mr Donohoe said that he heard noise and then saw the curtain in the window falling, (which then gave him visibility into the front of the house); he saw Mr Ramalingam strike Mrs Ramalingam with his left hand from the centre of his body with the back of the hand, and then Mr Ramalingam left and returned with a knife.

65. He rejected the suggestion that he only recalled that there was a knife in Mr Ramalingam’s hand because he had spoken to Vinoshan about it. He also rejected the suggestion that what he saw was a push not a striking.

66. He said that all the family had left the house by the time Mr Ramalingam began to throw items of clothing onto the front garden. He confirmed also that the family made their way across the road to his friend’s residence. His friend, Gordon Cameron, then had some conversation with Mr Ramalingam, who expressed negative views of Australian culture.

Sergeant Craig Cameron McPherson (d)

67. Sergeant McPherson was an AFP officer and on 8 July 2008, he was on duty supervising Constables Rebecca Baines and Rebecca Hodgkin. At 10:30pm that night, the two Constables were directed to attend a disturbance at Carnegie Crescent. He chose to attend also and arrived a short time later at 10:49pm.

68. Following a conversation with the two Constables, he telephoned Mr Ramalingam. They spoke on the phone and then Mr Ramalingam walked out of the residence and submitted to an arrest.

69. Mr Ramalingam was cautioned and arrested in relation to the family violence matter.

70. In cross-examination, Sergeant McPherson said that he could not recall there being any other lights on in the house other than the porch light, which he had asked the accused to switch on and possibly one in a room to the side of the front door.

71. He stated that Mr Ramalingam complied readily with instructions and appeared very upset.

(e) Amrita Shankar

Amrita Shankar is the daughter of Mr Ramalingam and Mrs Shankar. She was present at the scene on 8 July 2008; at the time, she was fifteen years old.
Ms Shankar said that she was in her bedroom when she heard yelling and came out to find her father, Mr Ramalingam, and brother, Vinoshan Shankar, yelling at each other in the front area of the house near the front door. She was unsure who initiated the punching, but does remember both her father and brother punching each other. She was unsure where her mother was. She remembered feeling upset and worried.
She said that the punching did not last very long and her father soon after went to the kitchen and returned with a knife which had been taken from a knife block on the kitchen bench.
She said that her father was using the knife with its blade in the air to threaten her brother.
Ms Shankar said that, soon after, Vinoshan left the house and her father went to Vinoshan’s room and began to collect clothes from it and throw them out of the house.
She went outside the house where her mother and brother were standing. She also saw her neighbours present. She remembers her brother looking “pretty distraught” and her mother being quite upset.
She also recalled that, during the altercation, the curtain rod fell from across the front window. She saw punches exchanged between her father and her brother. Whilst she did not see her mother get hit at this time, she did recall her mother later being hit by Mr Ramalingam in what she described as a “slap to the face”. She was about one metre away from her parents when this happened.
In cross-examination, Ms Shankar told the court that she did not see her father after 8 July 2008, for some time. When she did see him, she did not notice any sign of injury to his face.
She confirmed that she could not recall who threw the first punch in the altercation between Mr Ramalingam and Vinoshan.
She denied the suggestion that Mr Ramalingam only took the knife partially out of the knife block. She also rejected the suggestion that Mr Ramalingam had not hit her mother. She could not recall where Vinoshan was when Mr Ramalingam went to the kitchen and got the knife.
She said that she saw Mr Ramalingam take hold of the knife and remove it from the knife block. She was “pretty sure” that he took it right out of the knife block. She was also sure that he left the kitchen with the knife.
She could not recall the exact nature of the items that were thrown from the house, but agreed that they were just “generally things”.
(f) Kersten Cameron
Mrs Cameron lived in Carnegie Crescent, Narrabundah, opposite Mr Ramalingam’s residence.
She confirmed that on the evening of 8 July 2008, she and her husband, Gordon Cameron, had dinner with their friend, Paul Donohoe, at their home. At approximately 10pm, she went outside with Gordon to see Mr Donohoe off.
At this time, she heard screaming from across the road. She described the screaming as “hysterical”, from a woman’s voice. She was alarmed to think that someone was in danger. This caused her to look across the street where she saw the curtain covering the window at the front door of the Mr Ramalingam’s house fall down.
She walked to the kerb and asked, “Are you okay”, she got no response, so she returned back to her house to call the police. Her husband and their guest stayed outside to assist.
After calling the police, she returned outside and saw her husband and Mr Donohoe across the road with three people, who she described as follows:
... [T]he son was screaming hysterically, the mother was very upset, the daughter had tears running down her face and was totally shell-shocked.
The mother and son were both observed by Mrs Cameron to have blood on themselves.
Mrs Cameron then said she noticed that Mr Ramalingam began making several trips into the house and then to the front door, throwing clothes and possession out into the front yard.
She recalled him yelling, “He is of impure blood and he is not my son”. She described the volume of his voice as “clear and loud” and described his emotional state as “out of control, aggressive”. She noticed that he also had blood on his face.
In cross-examination, she confirmed that she had not seen a knife throughout the incident.
She was shown a photograph of Mr Ramalingam’s face which she identified and agreed that it showed the blood she recalled seeing on 8 July 2008.
She said that she, her husband, Gordon, and their friend, Paul, had picked up clothing from the front garden after the accused had thrown it from the house.
She was also asked about whether a tree or bush that was shown in a picture of the property had obstructed her view of the scene, but said she was sure that it had not.
(g) Gordon Cameron
Mr Cameron is the husband of Mrs Kersten Cameron and they both live in Carnegie Crescent, Narrabundah, virtually opposite the house of Mr Ramalingam and his family.
He corroborated the evidence of Mrs Cameron and Mr Donohoe about how he came to be outside of his house at about 10pm on 8 July 2008.
He said that when he had heard loud noises from across the street, he did not know at first what they were and thought it was a party. He recalled that the noise sounded like shrieks rather than words, but could not remember whether they were from a female or male.
When he realised that it was not a party, he walked further into his own front garden to where his friend, Paul Donohoe, was standing. They moved around a bus shelter and some bushes, to gain a clearer view of the house across the road.
Some curtains on the window had fallen down, so he could see into the front of the house, and he saw a man standing there and a woman re-enter the house.
He identified the man that he saw through the front window of the house as Mr Ramalingam, identifying him in the courtroom.
He stated that at this point he “vividly remember[ed]” that a lady walked back into the house and that Mr Ramalingam struck her with “a full-blown [right hand] backhander, straight in the head or face”. He said it was delivered with “full power”. He described the lady as “the mother”. She reacted by moaning in shock or pain.
After seeing this, Mr Cameron and Mr Donohoe crossed the road to lend assistance. They found Vinoshan outside the house. At some point the daughter also joined them outside. He described Vinoshan as very upset, shrieking and crying, and the daughter was “in shock”.
He then coaxed Mrs Shankar from the house while Mr Ramalingam was moving back and forth between inside and the door, throwing clothing out into the garden. He decided that he would not be able to reason with Mr Ramalingam.
In cross-examination, he confirmed that he did not see a knife at any time.
He confirmed that he clearly saw Mr Ramalingam “backhand” Mrs Shankar and then later saw him throwing clothes into the garden.
He said that although the street was not very well lit with streetlights, Mr Ramalingam’s house was well lit inside. He said he had a clear view of the other house and the events he described.
Mr Cameron was quite sure that what he saw was not Mr Ramalingam pushing his wife out of the way but that he was definitely striking her.
The witness remembered the accused having a “scratch or something” and a bit of blood on his face, but could not recall the extent of the injury in any greater detail.
(h) Constable Rebecca Hodgkin
Constable Hodgkin, an AFP officer, was on duty with Constable Rebecca Baynes on 8 July 2008.
She said that she arrived with Constable Baynes at Mr Ramalingam’s house at approximately 10:40 pm on that day. She then spoke with Paul Donohoe and Kersten Cameron and observed a conversation between Sergeant McPherson and Mr Ramalingam.
She saw that Mr Ramalingam was then walked to a caged police vehicle by Sergeant McPherson.
She and Constable Baynes had a conversation with Ranjina Shankar which she recorded on a tape recorder and took a number of photographs which were tendered.
Constable Hodgkin had the opportunity to observe Mrs Shankar’s demeanour and described her as “extremely upset”, shaking a bit and overwhelmed by the situation. She also had a chance to observe Vinoshan Shankar and described his as “down in the dumps”, upset. She observed Amrita Shankar whom she described as being “very quiet”.
She observed some redness on Vinoshan’s face. She observed blood on the lips and cuts to Mrs Shankar as well as some swelling on her hand.
Constable Hodgkin offered Mr Ramalingam the opportunity to participate in an interview, which she conducted with Constable Baynes and which was recorded. She noticed that he had a cut on the bridge of his nose, and that his nose was quite swollen.
(i) Constable Rebecca Baynes
Constable Baynes, of the AFP, also gave evidence. She confirmed that she was on duty with Constable Hodgkin on 8 July 2008.
She confirmed the evidence of Constable Hodgkin.
She followed Mrs Cameron into her house and spoke to Mrs Shankar and Vinoshan. She then went outside and informed Sergeant McPherson of the name and phone number of Mr Ramalingam. She saw Sergeant McPherson make a phone call to Mr Ramalingam. A short time later, Mr Ramalingam came to the front door of his house and Constable Baynes said she heard him speak to Sergeant McPherson. She then saw Sergeant McPherson caution Mr Ramalingam and place him under arrest and that he was taken to the City Regional Watchhouse.
She then spoke with Vinoshan. He pointed out the knife that he had mentioned to her. The knife was partially in the knife block, in the kitchen. The knife was seized.
She returned with Constable Hodgkin to the Regional Watchhouse at approximately 2am on 9 July 2008. She offered Mr Ramalingam the opportunity to participate in an interview which would be recorded. He agreed and the interview commenced at 2:12 am and ended at 3:24 am. The transcript of the interview was tendered.
In cross-examination, she was shown a photograph of the knife block and she confirmed that it was an accurate representation of how she found the knife.
(j)       Recorded Interview
123.     Mr Ramalingam was interviewed by police in the early hours of 9 July 2008 and it was recorded. He was informed that a member of the public (who later identified herself as Mrs Cameron) called police to Carnegie Crescent.
124.     He referred police to the “wound on my noes [sic] and my right side of my face”, which were later photographed. He said that his son had hit him and that there were blows exchanged with his son. He said his wife was “...hanging around in the middle and, you know, blocking...” He admitted there would have been physical contact, but it occurred in a short period of time. He said that while it was physical, it was not “...anything to make a big – mountain out of a molehill...”
125.     He explained the genesis of the dispute in that he wanted Vinoshan to find his own accommodation.
126.     He said on the night that he told his son “... go out of my house and find accommodation” and then the situation deteriorated. He said his son started “scowling at me ... talking back arrogantly”. He then said:
... I got a bit physical with him and I sort of – probably I went to – I – I may have just ... (indistinct) ... it became a little – shouting and physical, but I won’t say that we really hit each other or something.
And that is why I am surprised that he is making a complaint that I assaulted him, because ... (indistinct) ... I am more badly off than him and I should be really the complainant, telling that he hit me, but really, I don’t want to be complaining against my own son, so basically I will leave it at that.
127.     He said that when Vinoshan hit him, he would have punched him, but that it was more like a shove, not a closed fist.
128.     He said he then went to the kitchen and, when he was there, Vinoshan came “charging in” and that “his body language and his facial features were all pretty dangerous”. He then said he took hold of a knife in the knife block in the kitchen and identified a photograph that had been taken of the knife. He took it out and looked at Vinoshan and said “Don’t come to assault me”. He said he could not remember pulling the knife completely out of the knife block, but rather “to give him a message.” He said that Vinoshan then quickly left the kitchen.
129.     Mr Ramalingam then told police he went out into the corridor, opened the front door and took all of Vinoshan’s clothes and threw them out, saying “You better now find your own accommodation”.
130.     Asked about the altercation, he said “there weren’t any blows really exchanged...” because the area was small and that the shoving was “[d]efinitely not strong... I would say weak”. He described the matter as “a family dispute”.
The defence witness
(k)      Shankar Ramalingam
131.     Mr Ramalingam gave evidence and was cross-examined.
He described the disagreement he had been having with his son for some time before 8 July 2008. It was an argument about which university preference would be best for Vinoshan. He said that the disagreement culminated on 8 July 2008 because the previous day had been the final day Vinoshan could have accepted a place at Griffith University, the university that Mr Ramalingam had preferred for him. Vinoshan had chosen not to accept this place and instead wanted to stay in Canberra to attend Australian National University (ANU).
On 7 July 2008, realising his son was not going to accept the Griffith University place, Mr Ramalingam told Vinoshan that he must find a place to move out to by the following day.
He said that on 8 July 2008, at approximately 10pm, Vinoshan told him he had arranged to go and view a unit that he had seen on the internet.
Mr Ramalingam said that he approached Vinoshan at the front door and confronted him as to why he had not yet left to view the apartment. He told his son to “stop scowling at me”. He recalled that at this time, his wife was close by his son because she was helping him to get ready to go and look at the unit. He said that his son became “aggressive and physical” when confronted in the doorway.
He said that Vinoshan pushed Mr Ramalingam with his shoulder, and “eyeballed” him. His son started to thrust his chest forward and raised his chin. Mr Ramalingam then stated that he thrusted back and both men began “pushing each other and shoving each other”.
He then said that his son threw a punch towards him, which he blocked and simultaneously punched his son with his right hand. He said that his son’s left hand connected with his nose, whilst the accused was unsure whether he had connected with his son in return.
Despite this, he described his hit as a “slap”, which made Vinoshan’s cheek “a bit red”. He described Vinoshan’s hit as a “full-blooded punch”, which caused the Mr Ramalingam to fall down.
He was unsure where his wife was throughout this exchange, but, soon after, his wife moved between them and he said he then took himself to the kitchen because the situation was getting aggressive within the confined space of the front foyer.
He stated that when he went into the kitchen he noticed Vinoshan “charging into the kitchen”. He described Vinoshan as a “bulls [sic] that have seen a red flag”. He said that he moved near to the knife block and touched a knife with his left hand, causing his son to stop. He said that the blade of the knife was still inside the knife block, partially pulled out.
Mr Ramalingam was shown the photograph of the knife block and confirmed that it accurately showed how far the knife was partially removed from the knife block.
He then said that his wife entered the kitchen and told Vinoshan to leave the house. At this point he felt “quite relieved” because his wife had persuaded their son to leave.
Mr Ramalingam then said that he went to Vinoshan’s bedroom, collected a pile of clothes and other possessions, then took them to the front door and threw them out to the front garden.
When asked if he had an explanation for why a witness had said that, through a front window, they observed him holding a knife, he said he was surprised at that claim and thought they may have mistaken it for one of the items that he was carrying from his son’s bedroom.
He also stated that his son was bigger and stronger physically than him, though he agreed that he weighed about five kilograms more than Vinoshan.
In cross-examination, Mr Ramalingam described his son as usually polite and softly spoken and not normally aggressive. He also stated that after he had pulled the knife partially out of the knife block in the kitchen, his son appeared startled and less aggressive.
He agreed that he and his wife had differing opinions as to where their son should attend university. He also said he believed that a conversation between his son and his wife was part of the reason behind his son changing his mind and wanting to go to ANU.
He said that it was the way his son was looking at him that had irritated the accused, rather than anything specific that he had been saying throughout the evening. He said this demeanour had made him angry and annoyed.
He also acknowledged that during his interview with police, he had said that someone was making a mountain out of molehill, that he did not think this was a serious matter. He said that while his wife was not angry with him at the time, she was unhappy with him.
He stated that he did not ask his son to fight him. He agreed that he had hit his son, but it was one slap and did not involve a punch. He could not remember whether the curtain had fallen down during this altercation.
He denied that he had pulled the knife all the way out of the knife block and held it up and approached his son and that then his son left the house.
152.     He stated that he was angry but not enraged on the evening 8 July 2008.
Contentions
153.     The issue in the proceedings was simply that there were two competing versions of the events of the evening of 8 July 2008 and the question for the Court was whether that put forward by the prosecution could be accepted beyond reasonable doubt.
154.     Mrs N Case (as Ms N Werner now is known), for the prosecution, submitted that of all the accounts of the events, that of Mrs Shankar was the clearest and despite lengthy and skilful cross-examination, her evidence was not undermined. It was clear, she submitted, that she was focussed on protecting her son and that this led her to put herself in danger by interposing herself between Mr Ramalingam, her husband, and her son.
155.     She submitted that the evidence of Vinoshan was also a clear account on which I could rely. He gave evidence of the clearly distressed state of his mother as a result of the incident. He was absolutely certain that his father had hit him first.
156.     The memory of the daughter, Amrita Shankar, was not as clear but there were some details that she did remember clearly. She remembered the curtain falling down and the knife in the hand of her father.
157.     Mrs Case submitted that all three of these witnesses gave clear consistent evidence of the threat Mr Ramalingam made with the knife. All expressed fear at the risk it posed. She referred to Mrs Shankar’s evidence that Vinoshan had said to her, “... he’s bringing the knife towards me”. She also referred to the distressed demeanour of these three members of the family given by the Camerons and Mr Donohoe.
158.     She submitted that the evidence of Mr Cameron that he had seen Mr Ramalingam hit Mrs Shankar with a “backhander” and that his evidence was clear and quite unshaken in cross-examination. This was corroboration of the evidence of Amrita Shankar, who also saw Mr Ramalingam hit Mrs Shankar with what she described as “a slap to the face”, consistent with the evidence of Mr Donohoe and Mr Cameron. Neither was shaken in cross-examination.
159.     Mrs Case accepted that Mrs Shankar had no recollection of being hit by Mr Ramalingam. She submitted that given the emotional state she was in, and the focus on protecting her son, it was conceivable that she would not remember it.
160.     She also submitted that Mr Ramalingam was not a reliable witness. She said that he had varied his version of events on a number of occasions which undermined his creditworthiness. The examples she gave were that:
(1)       he had said in evidence-in-chief that his wife was angry, but under cross-examination had said she was not angry but unhappy;
(2)       he had said under cross-examination that he had never hit his son but after being pressed, admitted that he had done so; and
(3)       he had said in evidence that his son was using drugs, but did not mention that in his interview with the police.
161.     Mrs Case submitted that all the witnesses attested to Mr Ramalingam’s angry and aggressive demeanour which was quite intense. The police, as well as the Camerons and Mr Donohoe, attested to the very distressed state of Mrs Shankar and her two children.
162.     She submitted that the Camerons and Mr Donohoe, were clearly doing their best to give truthful evidence without embellishment and were quite ready to admit when they did not know an answer to a question. She also submitted that the minor differences between their evidence was demonstrative of truth and inconsistent with collusion. They all largely corroborated each other.
163.     Ms B Boss, for Mr Ramalingam, submitted that it was necessary to see the context of the events of the evening. All agreed that there was disharmony over the choice Vinoshan had made as to the University he was to attend, which was not the one his father wanted him to attend. This led to Mrs Shankar siding with her son, perhaps, she submitted, not wanting him to leave Canberra and to stay nearby, near her. This, she submitted made Mrs Shankar somewhat of a partisan in the circumstances and not an objective witness and that she had a common interest with her son, Vinoshan.
164.     She submitted that count 1 could not be made out because it really amounted to a scuffle and it would be almost impossible to know who hit whom first. She submitted that I would accept Mr Ramalingam’s evidence about how the altercation started because his explanation had a “ring of truth about it”. She acknowledged that Mr Ramalingam was agitated and angry but that this was consistent with his reaction to Vinoshan having punched him. She pointed out that Mr Ramalingam’s evidence was consistent with the version of the facts he gave in the police interview.
165.     Ms Boss submitted that Mr Donohoe is likely to have been mistaken about the knife; that it could have been some item belonging to his son which he was throwing out the front door. She also said that it was difficult to align the evidence of Mr Donohoe and Mr Cameron about the knife, for one saw it and the other did not, though they both appeared to be at the same spot.
166.     She referred, too, to the fact that the knife was found by police in the knife block in the kitchen as corroborative of Mr Ramalingam’s evidence. She queried how this was consistent with the sequence of events on the evening. She then submitted that anything done with the knife was done in self-defence.
167.     She submitted that the second inconsistency referred to by Mrs Case was not truly inconsistent. She said that what Mr Ramalingam was saying was that he did not hit Vinoshan first.
168.     Ms Boss also relied on the fact that while Mr Ramalingam showed injuries, none of the others showed any injuries. The only injury on Mrs Shankar was her bleeding lips and it was submitted that she said this came from the curtain falling down.
169.     She also noted that Vinoshan’s evidence, consistently with that of Mr Ramalingam, was that his punch actually knocked his father down. She submitted that this was inconsistent with the evidence of Mrs Shankar.
170.     Ms Boss referred to Mrs Cameron’s evidence that Mr Ramalingam had said to her and her husband and Mr Donohoe that Vinoshan had hit him. Vinoshan had said in her presence that he did but “[i]t was for [Vinoshan’s] own protection”.
171.     She also submitted that when Mrs Shankar came between Mr Ramalingam and Vinoshan, any blow struck by Mr Ramalingam would have been accidental and not directed to her but hitting her when he tried to hit his son. Thus, she submitted, I would find that he intended to hit his son but caught his wife.
172.     She further submitted that the evidence for an additional assault on Mrs Shankar was limited because some of the evidence of it was consistent with count 2 also. She also referred to the possibility that what was seen was a push and not a hit. Any hit he landed on Mrs Shankar while she interposed herself between Mr Ramalingam and their son was, she submitted, accidental.
The Law
173. Assault is an offence under s 26 of the Crimes Act. Though assault is technically the deliberate engendering in another person of fear that unlawful force is about to be inflicted on him or her, it has, at common law, been assimilated with the offence of battery which is the actual intended infliction of unlawful force on another without his or her consent: Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 (at 444).
174.     The ingredients or elements of the offence:
(1)        the infliction of force or threat of the infliction of force on another to put them in fear;
(2)        an intention to do those acts or being reckless as to whether they will inflict force or engender fear;
(3)        the other person does not consent; and
(4)        the force is unlawful.
175.     So far as the fact that part of the incident was a fight, I note that where two people fight, other than in properly conducted sports, intending to inflict force on the other, it is not defence to a charge of assault that the other consented to the fight. It is said that whether a fight occurs in private or in public, it is not in the public interest that people should try to cause or cause each other harm for no good reason. See Attorney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057.
Consideration
176.     In opening, Mrs Case made the allegations against Mr Ramalingam quite clear. They were:
Count 1:         the striking of Vinoshan Shankar to his face when the argument had begun;
Count 2:         the striking of Mrs Ranjina Shankar to her face when she came between her husband and her son during that altercation;
Count 3:         the threatening of Vinoshan Shankar by Mr Ramalingam with the kitchen knife;
Count 4:         the striking of Mrs Shankar when later she returned inside and was seen to be struck by Mr Ramalingam.
177.     As Ms Boss submitted, the context was clear. Mr Ramalingam wanted his son to attend Griffith University on the Gold Coast and his son, Vinoshan, wanted to go to ANU and stay in Canberra. Mr Ramalingam’s wife, Mrs Ranjina Shankar, sided with her son on this argument.
178.     The dispute came to a head on 8 July 2008. Physical contact, a fight, occurred and the police were called.
179.     The determination of whether the counts in the indictment have been made out largely depends on the credibility of the witnesses. The police were not witnesses to any of the actual events but Mr and Mrs Cameron and Mr Donohoe were. They have no personal involvement with the accused or the complainants. I found them to be witnesses of truth, making careful statements and accepting that they did not see everything. I formed the view that they were not embellishing their evidence. I was also satisfied that they had a reasonable view of the events they recounted. It was unarguable that the curtains across the window beside the door of Mr Ramalingam’s house had fallen down early in the course of the altercation. That Mr Ramalingam does not remember it does not cast doubt on this, particularly as he was at pains to say how small the area was where the fight occurred, noting it quite likely that the curtain did fall down.
180.     I accept, too, that I should scrutinise the evidence of Vinoshan and Mrs Shankar with care. It was not suggested that they had colluded in their evidence but it is clear that they both felt that Mr Ramalingam was unfair or wrong to require Vinoshan to attend Griffith University against his wishes and did not want him excluded from his home in the way he was.
181.     I formed the view, however, that they were doing their best to give accurate evidence, while, of course, struggling with what must have been a distressing and confusing series of events.
182.     I also formed the view that Amrita Shankar, daughter of Mr Ramalingam and Mrs Shankar, was an honest witness. She readily acknowledged that she had forgotten or did not know some of the events that occurred. She did not seek to exaggerate or speculate, but was clear and apparently credible when recounting the events she could remember.
183.     Mr Ramalingam did not have to give evidence but chose to do so. I did not get the impression that he was lying or trying to dissemble. I did, however, consider that he was minimising his participation and his responsibility for actions on that evening. I accept that Mr Ramalingam was angry and very, perhaps, extremely aggressive on the night. There were some inconsistencies in his evidence and while that caused me to treat his evidence with circumspection, these were not such as to require me to reject it inevitably.
184.     Taking that into account, I note both Mr Cameron and Mr Donohoe saw Mr Ramalingam hit Mrs Shankar with what was described as a “backhander”. They adhered to their evidence under cross-examination. This must have been at some later stage in the altercation because they had heard loud voices before they saw that incident, though Mr Donohoe saw the curtain fall down from the window next to the front door. This was, however, when Vinoshan was already outside.
185.     Amrita also saw her father slap her mother. She said that it was not during the fight but after it. Mr Donohoe says that at the stage he saw the slap, both Amrita and Mrs Shankar were inside but it appears Vinoshan was outside. I note that Mrs Shankar’s evidence was unclear. She did say that the “hit came to me because I prevented not to touch my son, so that came to me” but that seems more likely to refer to the time when she intervened between her husband and her son. She did say, however, that this was when the curtain fell down. The sequence of events she recounted was not entirely consistent with that of Mr Donohoe but that does not mean they did not occur. This is not uncommon when events occur dramatically and quickly and witnesses’ perceptions and memories differ.
186.     I note that Mrs Shankar did not give evidence of the particular slap that is the subject of Count 4, but I accept that she was quite shocked and concerned. She did have a bleeding lip which is consistent with the kind of hit described by Mr Donohoe and Mr Cameron. Ms Boss submitted that Mrs Shankar said that the bleeding lip was caused by the curtain falling down. That is not quite the evidence. Initially, Mrs Shankar said:
[MRS CASE]:            And when this was happening, that you could feel the hits on you?
[R SHANKAR]:         Yes. I – I was feeling and I think I – I – in my lips, I had – I was bleeding. Lips. And I think my knuckles was also like – like, I got the pain in my knuckles, because I was trying to stop.
[MRS CASE]:            So you just moved your hands then, was that what you were doing with your hands?
[R SHANKAR]:         Yes. Because I was trying to stop.
[MRS CASE]:            So you were putting them up in front of your body?
[R SHANKAR]:         Yes.
187.     Later, she said:
[HIS HONOUR]:        No, he hitting you?
[R SHANKAR]:         Yes, he was – he was – he did to my son, but because I was in the middle that that ... (indistinct) ... it’s what’s coming to me and I had – yes, in the lips there was some bleeding.
[MRS CASE]:            You said your lips were bleeding?
[R SHANKAR]:         Yes.
[MRS CASE]:            That was after one of the hits from your husband connected with your face?
[R SHANKAR]:         I’m not sure that it’s my husband or whether it’s due to the curtain falling. But I don’t know how that lip, that bleeding was there, but I can remember that he was going to hit my son, and because I was in the middle the shots came to me.
188.     This is not inconsistent with injuries to her as earlier described, just less certain, though her recollection as to when it occurred is problematic.
189.     It is, of course, unusual for a conscious complainant not to give direct evidence of an assault, but I am satisfied from the evidence I heard that Count 4 has been made out beyond reasonable doubt.
190.     Similarly, I approach Count 3 from the perspective that the evidence of a reliable witness, Mr Donohoe, is strongly supportive of it.
191.     Ms Boss suggested that the evidence of it is unreliable because while Mr Donohoe saw the knife, Mr Cameron did not and, she submitted, the two really were looking from the same spot. That, however, is not quite the evidence. Mr Donohoe appears to have started looking somewhat before Mr Cameron, whose evidence was that Mr Donohoe “went around the front of the bushes where, obviously, he had a view and he sort of – then I went down there a short time later”.
192.     Each of Mrs Shankar and her son and daughter gave direct evidence that Mr Ramalingam took the knife right out of the knife block. They were all clear in their evidence and the cross-examination on this point did not raise in my mind any doubt about the issue.
193.     Ms Boss initially suggested that Amrita saw Vinoshan in the kitchen. That, however, is not the evidence. She said on three occasions, once in evidence-in-chief and twice in cross-examination, that she did not know where her brother was. She did, however, say that she was “pretty sure” that it was not the case that her brother was angry and followed Mr Ramalingam into the kitchen when Mr Ramalingam took the knife partially out of the knife block to get her brother to back-off.
194.     Having carefully considered the demeanour of the witnesses of which I was clearly reminded as I read the whole of the transcript and my contemporaneous notes, and having evaluated the evidence, I am satisfied beyond reasonable doubt that Mr Ramalingam threatened Vinoshan with the knife, putting him in fear of immediate harm. Accordingly, Count 3 is made out.
195.     While Mr Ramalingam denied hitting his wife, he seems to accept that when he and Vinoshan were fighting, she came between them. Both Mrs Shankar and Vinoshan gave evidence that, at that time, Mr Ramalingam hit her. Amrita did not see that. It seems to me, however, almost inevitable that with a fight of the kind described by all three participants with Mrs Shankar between them, that she is likely to have been hit by at least Mr Ramalingam.
196.     I accept the submission of Ms Boss that if she had moved between them as it were “mid blow” his hitting of her would likely to have been accidental. Any further blows, however, would, in my view, amount to an assault. That they were intended for Vinoshan does not mean that if they connected with Mrs Shankar they would not be an assault, even though Mr Ramalingam did not intend to assault her. See R v Bacash [1981] VR 923 (at 934); R v Latimer (1886) 17 QBD 359 (at 361). In any event, I am satisfied that, in the circumstances, it would have been reckless of Mr Ramalingam to have continued to fight without an appreciable risk of assault to Mrs Shankar.
197.     For these reasons, I am satisfied beyond reasonable doubt that Count 2 on the indictment is made out.
198.     The issue in relation to Count 1 is whether Mr Ramalingam first hit his son in what was clearly accepted by all the family to have been a physical fight between Mr Ramalingam and his son, with Mrs Shankar intervening.
199.     The evidence here came from Vinoshan, Mrs Shankar and Mr Ramalingam. I discount the evidence of Mrs Shankar. In her statement to police she told them that she did not know who hit first. She also did not seem to recall that when Vinoshan hit Mr Ramalingam, he fell to the floor. I do not reject her evidence on that account but I do not find that I can accept it on this point without reservation.
200.     Vinoshan gave clear, concise and direct evidence. His evidence was that Mr Ramalingam came up to him and asked him if he wanted to fight. He was not cross-examined about that. Mrs Shankar also gave evidence that Mr Ramalingam asked Vinoshan to fight. She, also, was not cross-examined about that, though it was raised by Mrs Shankar in the cross-examination.
201.     It has to be said that it was not put to Mr Ramalingam in cross-examination either that he had said it.
202.     Nevertheless, it seems to me that I can find beyond reasonable doubt that it was said and I do, particularly given the level of anger and aggression displayed by Mr Ramalingam that night and having regard to the evidence of Vinoshan and the support to it provided by Mrs Shankar, notwithstanding my reservations.
203.     That is then supportive of the proposition that Mr Ramalingam first slapped Vinoshan. It makes Vinoshan’s version of events coherent and credible. It seems, too, to be consistent with the subsequent behaviour of both, where Mr Ramalingam went on to get a knife and threaten his son and then to slap his wife and then to throw all of his son’s clothes out the door. On the other hand, Vinoshan left the house and was seen to be crying and very distressed.
204.     In my view, having carefully scrutinised all the evidence, having taken into account the demeanour of the witnesses and having considered my assessments of them and their reliability, I am satisfied beyond reasonable doubt that Mr Ramalingam slapped Vinoshan first in the face on 8 July 2008.
Conclusion
205.     I will make findings in accordance with these reasons.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 25 May 2011
Counsel for the Crown:  Mrs N Case (nee Werner)
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:   Dr B Boss
Solicitor for the defendant:  Craig Lynch and Associates
Date of hearing:  28, 29 and 30 September 2009
Date of judgment:  25 May 2011