R v Shanmugam - [2020] NSWDC 482

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Shanmugam [2020] NSWDC 482
Hearing dates: 17 August 2020, 18 August 2020, 19 August 2020, 20 August 2020.
Date of orders: 27 August 2020
Decision date: 27 August 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Verdict of guilty to all counts.

Catchwords:
CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - conflict of evidence - reasons for accepting witnesses – reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt
CRIMINAL PROCEDURE - Trial - Judge alone - Sexual offence proceedings - fundamental principles explained

Legislation Cited:
Crimes Act 1900
Criminal ProcedureAct 1986

Cases Cited:
De Silva v The Queen [2019] HCA 48
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
LiberatovThe Queen [1985] HCA 66; (1985) 159 CLR 507
R v Murray (1987) 11 NSWLR 12

Category: Principal judgment
Parties: Mithun Kumar Shanmugam (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Hart (for the accused)
Mr D Noll (for Director of Public Prosecutions)
Solicitors:
A.R.Yates & Co Solicitors (for the accused)

File Number(s): 2019/00018999
Publication restriction: The name of the complainant is not to be published, nor is any other information or material that could lead to the identification of that complainant. Accordingly, in this judgment the Complainant is referred to by a pseudonym and each of the witnesses is referred to by a pseudonym which will not be their real initials: s578A of the Crimes Act 1900.

Judgment

Introduction

On 17 August 2020 Mithun “Matt” Kumar Shanmugam, the accused, was indicted and said he was not guilty of five serious offences; two counts of unlawfully sexual touching (s61K(a) Crimes Act 1900); two of sexual intercourse without consent knowing a person was not consenting (s61I Crimes Act 1900) and one attempt sexual intercourse without consent knowing a person was not consenting (ss 61I & 344A(1) Crimes Act 1900).
The accused had elected for trial by judge alone. That application was opposed by the Director of Public Prosecutions (DPP). On 10 July 2020 I ordered that the accused be tried by judge alone: s132 Criminal Procedure Act 1986: see separate reasons.
As the trial was conducted without a jury I have a duty, not to just return verdicts but also to expose clearly and, if possible succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdicts reached.

Directions

Onus

The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Shanmugam

Details

AGLC: R v Shanmugam [2020] NSWDC 482
Case: [2020] NSWDC 482
Decision Date: 27 August 2020

CaseChat Overview and Summary

The case of R v Shanmugam involved a trial conducted before a judge alone in the relevant court. The defendant, Shanmugam, was charged with various counts related to sexual offences. The nature of the dispute centred around the credibility and reliability of the testimonies provided by the witnesses, particularly in relation to the acceptance or rejection of the accused's own evidence. The court was required to determine the fundamental principles applicable to sexual offence proceedings when a judge sits without a jury and to provide reasons for the judge's acceptance or rejection of the witnesses' testimonies, including the accused's own evidence.

The legal issues that the court had to address included whether the trial judge provided adequate reasons for accepting or rejecting the evidence of the witnesses, and whether each element of the offence was proved beyond reasonable doubt. The court had to scrutinise the trial judge's assessment of the witnesses' credibility and the coherence and plausibility of their accounts. Furthermore, the court was required to ensure that the judge's reasons for rejecting the accused's evidence were sound and that the evidence presented by the prosecution was sufficient to establish guilt beyond reasonable doubt.

In reaching its decision, the court carefully examined the trial judge's reasons for accepting or rejecting the witnesses' testimonies. The court found that the judge had adequately explained the fundamental principles applicable to sexual offence proceedings and had provided sufficient reasons for accepting the prosecution witnesses' accounts while rejecting the accused's evidence. The court was satisfied that each element of the offence was proved beyond reasonable doubt based on the evidence presented. Consequently, the verdict of guilty on all counts was upheld.

The final orders of the court were to confirm the verdict of guilty on all counts against the defendant. The court found that the trial judge had correctly applied the principles of criminal procedure in a sexual offence trial conducted before a judge alone and had provided sufficient reasons for the acceptance and rejection of the evidence presented.

Orders

Orders of the court

Verdict of guilty to all counts.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Shanmugam [2020] NSWDC 482
Hearing dates:	17 August 2020, 18 August 2020, 19 August 2020, 20 August 2020.
Date of orders:	27 August 2020
Decision date:	27 August 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Verdict of guilty to all counts.
Catchwords:	CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - conflict of evidence - reasons for accepting witnesses – reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt CRIMINAL PROCEDURE - Trial - Judge alone - Sexual offence proceedings - fundamental principles explained
Legislation Cited:	Crimes Act 1900 Criminal ProcedureAct 1986
Cases Cited:	De Silva v The Queen [2019] HCA 48 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 LiberatovThe Queen [1985] HCA 66; (1985) 159 CLR 507 R v Murray (1987) 11 NSWLR 12
Category:	Principal judgment
Parties:	Mithun Kumar Shanmugam (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr B Hart (for the accused) Mr D Noll (for Director of Public Prosecutions) Solicitors: A.R.Yates & Co Solicitors (for the accused)
File Number(s):	2019/00018999
Publication restriction:	The name of the complainant is not to be published, nor is any other information or material that could lead to the identification of that complainant. Accordingly, in this judgment the Complainant is referred to by a pseudonym and each of the witnesses is referred to by a pseudonym which will not be their real initials: s578A of the Crimes Act 1900.