Ramalingam v McCue - [2019] ACTSC 114

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ramalingam v McCue
Citation:	[2019] ACTSC 114
Hearing Date:	18 April 2019
DecisionDate:	8 May 2019
Before:	McWilliam AsJ
Decision:	See [106]
Catchwords:	CRIMINAL LAW – APPEAL – Evidence – appeal against conviction – common assault and damage to property offences – whether Magistrate erred in admitting a non-related previous decision as relationship evidence – appeal granted and matter remitted to Magistrates Court
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 116, 381, 382 Evidence Act 2011 (ACT), s 91 Evidence (Miscellaneous Provisions) Act (ACT), ss 38, 43, 48 Family Violence Act 2016 (ACT), Dictionary Magistrates Court Act 1930 (ACT), ss 53, 208, 208, 216
Cases Cited:	Dietrich v The Queen (1992) 177 CLR 292 Faris v Coulon [2017] ACTSC 114 Greenwood v Barlee [2018] ACTCA 62 Holloway v Thurgar [2016] ACTSC 32 Muench v McCue [2019] ACTSC 20 Peverill v Crampton [2010] ACTSC 79 R v Burstow; R v Ireland [1998] 1 AC 147 R v Shankar Ramalingam [2011] ACTSC 86 R v Smith [2007] QCA 447; 179 A Crim R 453 Wyper v R; R v Wyper [2017] ACTCA 59
Parties:	Shankar Ramalingam (Appellant) James Christopher McCue (Respondent)
Representation:	Counsel Self-represented (Appellant) M Howe (Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 10 of 2019
Decision under appeal:	Court: Magistrates Court of the ACT Before: Magistrate Cook Date of Decision: 21 September 2018 Case Title: McCue v Ramalingam Court File Number: CC No 11082 of 2017

McWilliam AsJ:

On 21 September 2018, Mr Shankar Ramalingam (the appellant), was found guilty in the Magistrates Court of the Australian Capital Territory (the Magistrates Court) on three charges of common assault and one charge of damaging property arising out of an altercation between the appellant, his wife and his son.

On 15 March 2019, I granted the appellant leave to appeal the decision of the Magistrates Court out of time, with the substantive appeal heard on 18 April 2019. Pursuant to s 216 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act), the sentence imposed by the magistrate, a one-year Good Behaviour Order, has been stayed pending the outcome of this appeal.

As set out below, there are ultimately five issues for determination on appeal. The two of most significance to the outcome of this appeal are whether there was insufficient evidence to justify the convictions and the admissibility of relationship evidence that was tendered in the court below.

The parties each filed written submissions: the appellant on 11 April 2019 and 23 April 2019; and the respondent on 17 April 2019.

The respondent, through the Director of Public Prosecutions (Director), conceded that there was an error with respect to the admission of the relationship evidence, the consequence of which was that the matter ought to be remitted to the Magistrates Court for further hearing and determination.

The appellant sought to better that outcome for…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Ramalingam v McCue [2019] ACTSC 114
Case: [2019] ACTSC 114
Decision Date: 8 May 2019

CaseChat Overview and Summary

In the case of Ramalingam v McCue, the appellant, Ramalingam, appealed against his conviction for common assault and damage to property. The matter was heard in the Magistrates Court of the Australian Capital Territory, and the appeal was brought before the appellate court. The crux of the appeal revolved around the admissibility of a previous decision as evidence in the relationship context and the procedural fairness during cross-examination. Specifically, Ramalingam argued that the Magistrate erred in admitting evidence of a non-related previous decision as relationship evidence, and that his cross-examination was hampered by the procedural constraints imposed by the Evidence (MP) Act.

The legal issues before the court included whether the Magistrate correctly applied the provisions of the Evidence (MP) Act in admitting the relationship evidence and whether the procedural fairness during cross-examination was adequately maintained. The appellant contended that the Magistrate’s decision to allow a non-related previous decision into evidence was erroneous and prejudiced the outcome of the trial. Additionally, Ramalingam claimed that the procedural constraints on his cross-examination of his wife and son denied him procedural fairness, as he was not permitted to ask follow-up questions during the examination.

The court found that the Magistrate had indeed erred in admitting the non-related previous decision as relationship evidence, which was not directly pertinent to the issues at hand. Furthermore, the court recognised that Ramalingam’s cross-examination was hindered by the procedural constraints imposed by the Evidence (MP) Act, which restricted his ability to ask follow-up questions during the examination of his wife and son. These errors were deemed significant, leading to the conclusion that the appeal should be allowed and the convictions quashed. The court granted the appeal and remitted the matter back to the Magistrates Court for a rehearing in accordance with law.

ORDERS:
The appeal was allowed, the convictions were quashed, and the matter was remitted to the Magistrates Court for further hearing.

Orders

Orders of the court

See [106]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Under the current version of the Evidence (MP) Act, s 48 provides as follows: A family violence proceeding is a ‘relevant proceeding’: s 38 Evidence (MP) Act. As the offences alleged involved either violent or threatening behaviour against members of the appellant’s family, they are classified as family violence offences: Dictionary, Family Violence Act 2016 (ACT). Accordingly, s 43 (which lists the proceedings to which s 48 applies), combined with s 48, prohibited the appellant’s wife and son from being examined by their self-represented husband and father in a proceeding which involved allegations of violence. Adherence to the procedure set out in s 48 of the Evidence (MP) Act or s 38D of the earlier version may be accepted, but the complaint by the appellant was that his cross‑examination was hampered by the procedure adopted by the Deputy Registrar. The appellant complains that he would have liked to ask follow-up questions from the answers that the witnesses were giving in cross-examination. He was not given the opportunity to discuss with the Deputy Registrar what was occurring during the cross-examination. The Deputy Registrar was not allowed to do anything other than read out the appellant’s questions, which he had written prior to the cross-examination commencing. He therefore feels that he was denied procedural fairness. The respondent submitted that the provisions of the Evidence (MP) Act do permit flexibility, in that there is nothing to prevent a court-appointed person from pausing the cross-examination and taking further questions from the appellant. The respondent also accepted that it is very important that the Deputy Registrar does so. From the transcript of the hearing in relation to the appellant’s wife, it does appear that the Deputy Registrar checked with the appellant whether there were any further questions, and that there were further questions asked as a result of consultation with the appellant. However, it is also clear that the Deputy Registrar did not consult the appellant in relation to whether there were any further questions to be asked of the appellant’s son. Given the concession with regard to Ground 2, it is unnecessary to determine whether there was any denial of procedural fairness in the process adopted and as applied to the appellant in the court below. This is because even if I found in favour of the appellant on Ground 5, again the nature of any error established is such that the remedy would be to remit the proceeding for further hearing according to law. The Magistrates Court is the appropriate forum in which to give the appellant the opportunity to ask the questions he considers appropriate of the witness, through a court appointed Deputy Registrar. The result is that the appeal will be allowed and the convictions will be quashed. As the prosecution submitted and as briefly alluded to above, although this Court has the discretion to determine the matter for itself or to remit the proceedings, the nature of the error conceded by the prosecution is such that the proceedings must be remitted. The reason is that the entire trial may be conducted differently. Different questions will need to be asked of the witnesses in cross-examination, such that the Court cannot simply determine the proceedings on the evidence available in the rehearing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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