Ramanayake v The Queen; Ramanayake v Ramanayake

[2016] NSWDC 141

District Court

New South Wales

Medium Neutral Citation:

Ramanayake v R; Ramanayake v Ramanayake [2016] NSWDC 141

Hearing dates:

8 February 2016

Date of orders:

08 February 2016

Decision date:

08 February 2016

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Appeal allowed in part

 

Conviction recorded and the sentence passed by Williams LCM sitting in the Local Court at Newtown on 21 May 2015 for assault occasioning actual bodily harm (sequence 2) set aside

 Otherwise, appeal dismissed

Catchwords:

CRIME – Appeal against convictions and sentences passed – Husband and wife of 18 years, Sri Lankan immigrants with 3 children – Assault occasioning actual bodily harm and common assault – Varying versions of events given by complaint concerning assault occasioning actual bodily harm – Offence not proven beyond reasonable doubt – Appeal allowed – Common assault caused by appellant grabbing complaint’s throat – Conduct not reasonably necessary for the common intercourse of life – Offence proven beyond reasonable doubt – Conviction and sentence appeal dismissed

  CRIME – Appeal against final apprehended domestic violence order – Court not satisfied the complainant does in fact fear the appellant on a continuing basis, however complaint the victim of previous personal violence offences committed by appellant – No reason to set ADVO aside – Appeal dismissed

Legislation Cited:

Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Category:

Principal judgment

Parties:

Harshini Dinali Ramanayake (Appellant)
Chithranjan Ramanayake (Respondent)
Direct of Public Prosecutions (NSW) (Respondent)

Representation:

Mr S De Silva (Appellant)
Solicitor for the Direct of Public Prosecutions (NSW) (Respondents)

File Number(s):

2015/23345; 2015/22730

Publication restriction:

Names of children anonymised

 Decision under appeal 

Court or tribunal:

Newtown Local Court

Date of Decision:

21 May 2015

Before:

Williams LCM

File Number(s):

2015/23345; 2015/22730

Judgment

1. HIS HONOUR: This is an appeal against convictions recorded by Magistrate Williams sitting in the Newtown Local Court on 21 May 2015. On the same day his Honour also made a final apprehended domestic violence order and there is an appeal against the making of that order.

2. The appellant and his wife have been married for some 18 years. The appellant and his wife come from Sri Lanka. They immigrated to Australia in November 2004. They have three children. The facts sheet completed by the police on 25 January 2015 provides me with the names and ages of the children at that time. Since one year has passed since that document was prepared I feel confident to advance the ages of the children of the couple by one year to those shown in the facts sheet. The children are “R”, who is now 18 years old, “V”, a son who is now 16 year old and “N”, a daughter who is now seven years old. Since coming to Australia the family has lived together and still do. The appellant is the sole income earner in the family and has been at all material times. The appellant’s wife Harshini, the complainant in the Court below, is well educated but has not found employment in Australia since the end of 2005. After the couple came to Australia Harshini had a part-time job in the education field for one year but has not been employed since. According to statements made by the appellant, when interviewed by the police on 25 January 2015, his wife was very well educated, having studied in England and also studied in Scotland under her father who, according to the appellant, was a Professor of Medicine. The appellant himself believed that it was unfortunate that his wife was not able to get “a proper job” in Australia.

3. The appellant was charged with two offences. The first offence in time was given the number 2, being the second sequence offence. The offence charged was that on 18 September 2014 at Marrickville, the appellant did assault Harshini Ramanayake thereby occasioning actual bodily harm to her. The sequence 1 offence was of common assault on 27 October 2014 at Marrickville between 8pm and 8.30pm, and again the victim of the alleged assault was Mrs Harshini Ramanayake. After the sequence 1 offence is alleged to have occurred, the complainant went to the Marrickville Police Station and spoke to police but made no formal complaint.    She returned to the Marrickville Police Station on 23 January 2015 and made a statement on that date.

4. That led to the appellant’s being interviewed by the police on 25 January 2015, two days later. The interview commenced at the ungodly hour of 1.58am. The appellant was interviewed by Constable Matthew Tran of the Marrickville police who gave oral evidence in the Local Court on 15 May 2015. Present at the interview were Constable Nesar Kakar and Constable Amy Paterson. The two last members of the constabulary are referred to on p 4 of the transcript of evidence of 15 May 2015 at line 11 but their surnames have been misspelt.

5. The first thing to note is what was put to the appellant by the police in that interview, which must represent what the complainant told the police on 23 January 2015. The allegation contained in question 42 was that at about 7pm on 18 September 2014 the appellant had an argument with his wife, that she attempted to leave the apartment, that he held her hand, took her back to the bedroom and then “punched her”. The appellant denied that proposition outright. In answer to question 42 and again in answer to question 44, he denied any punching at all.

6. On 19 September 2014 the complainant went to visit Dr Quang Duc Ngo, a general practitioner at 248 Illawarra Road, Marrickville. Dr Ngo was 55 years old at the time and had been practising as a general practitioner for 28 years. Tendered in the Local Court was an expert certificate pursuant to the Evidence Act 1995 s 177. The certificate is not a particularly satisfactory document. That records that the doctor saw Mrs Ramanayake at 11am on 19 September 2014 at his surgery. The next paragraph of the report is this:

“Based wholly or substantially on the above knowledge, I am of the opinion that she is suffering from domestic violence.”

“Domestic violence” is hardly a medical diagnosis. It is a conclusion drawn from other matter which the doctor does not specify in that paragraph. The following paragraph is this:

“She gave me a history of being physically shaken by her husband during argument at home and a history of unhappy marriage with her husband being in control financially.”

When it is alleged that the appellant “physically shook” his wife is not stated. The nature of the argument is also not stated. There is a history of a “unhappy marriage” but for how long that may have been in a relationship that had endured for 18 years at the time is not at all stated. The last phrase of the sentence indicates that the reason for the unhappiness in the marriage and perhaps therefore the argument may have been an argument about finance. There is no dispute that the appellant had been the sole breadwinner in the family for the best part of ten years at the time. The doctor’s report goes on to note a complaint of pain in the left ribs, worse when the left arm was elevated, presumably from the side. By how far the elevation may have been is not at all clear. Furthermore it is not clear where the doctor refers to anterior elevation or lateral elevation. The doctor found no bruising or any mark on the left side of the chest but noted a complaint of tenderness with palpation over the left lower rib area. A complainant of tenderness is a subjective complainant, there is nothing in the doctor’s report which substantiates any objective injury, that is, there is no objective evidence of any injury. How many of the left lower ribs were sore, the doctor does not state. The doctor goes on to state in the last paragraph of his report that he prescribed simple “analgesic” for a soft tissue injury and he gave the appellant advice about supportive services for those suffering from “domestic violence”.

7. The problems with the report clearly are that there is no history of when the incident may have occurred, what exactly was the nature of the dispute and how it came to be that the complainant was “physically shaken” by the appellant.

8. I do know from the evidence given by Constable Tran that the complainant made a further statement to the police on 7 May 2015. In answer to a question put by the cross-examiner Constable Tran said this:

“She’s since told me that the defendant pushed her...instead of punching her[,] in the first offence, causing her to fall into a cot and sustaining the injuries to her left chest area.”

The Constable was asked whether the victim wished to withdraw the charges that she made against her husband but the question was rejected mainly because anything of that nature that may have been said would have been said to somebody else.

9. In-chief Mrs Harshini Ramanayake gave this evidence:

“Q. If I can take you to about 7pm on 18 September 2014, can you tell the Court what happened?

A. There was an argument between my, myself and my husband and he just grabbed with his right hand and then there was a cot next to the bed and I went and I flipped and fell over and I got like I hit myself on the cot and as a result there was - I felt a bit of pain but it wasn’t anything serious.”

The complainant went on to say that at the time she did not have a job and was feeling depressed and that she was anaemic and confused. She said the appellant took her to their bedroom by holding her hand. She said it was not a hard grip but he led her to the bedroom and then she tripped over and hit the cot which was next to the bed.

10. Despite that version of what happened on 18 September 2014 the Prosecutor, Sergeant Tomasetti, returned to the event but the course of action which he pursued was not the subject of any objection. This evidence was given:

“Q. On 7 May. Do you recall what you told the police on that day?

A. Yes, I told him that, during the argument, like, my partner didn’t hit me as I had stated earlier. It, it was now - what I said to them was that I tripped over and I hit the cot and that was why I got the pain.

Q. How did you say that you tripped over?

A. Because he pushed me and then I tripped over and as a result I hit the cot.

Q. Where did he push you?

A. Inside the bedroom.

Q. On your body where did he push you?

A. Just below my chest.

Q. Do you recall what hand he used to push you?

A. The right hand.

Q. What happened to your body when he pushed you?

A. There also we talked pain after I felt a bit of pain.

Q. How long did you feel that pain?

A. Not all long.”

Later the complainant denied that there was any visual injury to her and she went on to say that there was a slight push and that she did not feel anything at the moment of the push. She said that the time she had a “bit of fear” of her husband.

11. True it is that these were “domestic violence proceedings”. However the Crown still bore the onus of proof. The complainant was an essential Crown witness. The Court was required to scrutinise her evidence with care before arriving at the conclusion that the complainant’s evidence substantiated a criminal offence beyond reasonable doubt.

12. For the offence alleged on 18 September 2014 there are a number of versions. The first version is the appellant’s physically shaking her, a description given to Dr Ngo on 19 September but it may not have been referrable to an event on the preceding day. The next version is a punch which is denied by both the appellant and the complainant; the appellant in his ERISP, the complainant in her sworn evidence. The next version is of a trip and fall which is the version that the complainant gave in evidence-in-chief at one point and then after what could only be described as cross-examination by the prosecuting sergeant, a version that she tripped and fell after she had been pushed by the appellant just below the chest on the left-hand side.

13. In these circumstances as a tribunal of fact, I could not be satisfied beyond reasonable doubt that there was any assault. It appears that the learned magistrate took the view that an assault was committed by the appellant’s pushing against the complainant’s chest which somehow caused the fall into or onto the cot which may have led to the injury to the chest, although on another view the Magistrate may have thought that the pushing caused the injury to the ribcage area. The soft tissue injury described by Dr Ngo which would mean not injuries to the ribs themselves but to overlying or underlying muscle, fat or skin tissue. However the doctor’s opinion about elevation of the arm causing symptoms seems to suggest a muscular problem more than a problem to matters such as the skin or fat.

14. However a push does not lead to tripping. Tripping is independent of pushing. Tripping is where one puts one’s foot in the wrong place and somehow the foot becomes caught and impedes normal walking or running or the like causing a fall. One can be pushed and fall over or pushed over but the idea of a push leading to a trip represents a concatenation of two different physical mechanisms for falling. If there were a pushing and subsequently a trip then who knows where the actual bodily harm was suffered, in the pushing which on the description given by the complainant was minor, or after falling onto the cot which was more likely to cause some soft tissue damage to the lower rib cage. In those circumstances it has not been proved beyond reasonable doubt that there was any assault occasioning actual bodily harm on or about 18 September 2014.

15. The event of 27 October is another question. In her evidence-in-chief the complainant said this:

“Q. When you first attended the police station, if I can take you to 27 October last year, can you tell the court what happened on that day?

A. Yeah, there was an argument on that day.

Q. What was the argument about at that time?

A. It was because I, I used to go for some - sometimes I used to go for walks in the night time and ..

Q. Why would that be?

A. That’s just for exercise, I used to go for walks and ..

Q. Why would that cause an argument?

A. Because he was worried about my safety going out in the night by myself. He had concerns for my safety so he was arguing and I, I was trying to you know, go. I didn’t want to listen to him. So that’s what the argument was about.

Q. What happened during this argument?

A. He - just he grabbed me by the throat but it was very light, I didn’t feel any pressure or any pain and it wasn’t anything serious.

Q. How did he grab you by the throat? What hand did he use?

A. He used his left hand, he just lightly held my throat but I wasn’t any - I didn’t feel any pain or it, it wasn’t hard at all, the grip.

Q. When he grabbed your throat how did that make you feel?

A. At that moment I was a little bit scared but I think he did it in a good intention because he didn’t want me going out in the night by myself. He had concerns for my safety, so that’s why he did it.

Q. How long did he hold onto your throat?

A. Just two seconds.”

Later the complainant said that when she was grabbed by the throat in the second incident they were in the main bedroom of the matrimonial home.

16. Grabbing by the throat was, in essence, the allegation that was put to the appellant. At question 61 in the electronically recorded interview, this was the question and the answer:

“Q. You’ve then grabbed her throat for about two seconds, squeezing it till she began to choke?

A. Absolutely not, I, I have never, never, never come across an incident like that.”

In answer to the next question the appellant said that there was: “No throat squeezing or anything like that.”

The appellant obviously knew that after this event is alleged to have occurred that his wife went to the Marrickville Police Station because he admitted going there himself and asking whether any complaint had been made against him and was told that no such complaint had been made. It was suggested to the appellant by police, presumably on instructions from his wife, that the reason that she wished to go out at night was not for exercise but rather in order to leave the house to be free of the appellant and his threatening, violent behaviour towards her, a fact which the appellant denied. This was the evidence”

“Q323 Harshini states that she actually goes walking at night because, (1), to get away from you ...

A. Mm-hmm, mm-hmm.

Q324 To get away from verbal abuse, and physical abuse

A. That’s completely wrong and I deny that.”

17. This event was the subject of an immediate attendance by the complainant at the Marrickville Police Station, attendance of which the appellant was aware and, although the complainant made no complaint of any formal nature at that time, she returned to the police station on 23 January 2015 and made a formal complaint about it. There is no inconsistency in the complainant’s reporting the nature of this event because what was put to the appellant on 25 January 2015 is very similar to what the complainant said in evidence on 15 May 2015, the only difference being the lack of any reference by the complainant to her throat being squeezed to the point that she found it difficult to breathe.

18. When one reads all the paperwork which I have on this appeal and one considers the course of events which can clearly be discerned from the paperwork it is clear that in January 2015 the appellant and his wife were estranged. Subsequently there appeared to have been reconciliation, a coming together, goodwill and what appears in my view to be an attempt by the complainant herself to minimise the extent of the unsavoury interaction between herself and her husband.

19. Mr De Silva for the appellant, who did not appear in the Court below, argues that that which occurred between the appellant and the complainant on 27 October 2014 was activity which was reasonably necessary for the common intercourse of life. Therefore this physical touching of the complainant by the appellant was not done with any hostile intent which, although not an essential element of a charge under s 61 of the Crimes Act 1900, is something which must be considered in ascertaining whether there was any common assault committed on 27 October 2015. I might be persuaded of that if the appellant’s only activity was to hold his wife’s hand, or hold her by the wrist, to tell her that she is acting foolishly by going out late at night, for whatever reason, because of risks that were attendant upon a lady walking alone at night in inner suburban areas of Sydney, which can sometimes be the scene of crime. However such a holding of the person of a complainant is explicable in human terms to draw their attention to the gravity of the situation of which the complainant was being warned.

20. However such a gesture is not performed by taking hold of a person’s throat. In my view such an action is completely unnecessary for any reason whatever, save perhaps by a medical practitioner for proper medical attention. The human throat is a very vulnerable area of the body and grasping it is an inherently frightening proposition for the person whose throat is grabbed, and, in my view, any grabbing of the throat almost always indicates a hostile, or inimical, activity by the person performing the act. In the circumstances I accept that the offence of common assault was made out.

21. Mr De Silva then addressed me on the basis that if the only offence made out was the offence contrary to s 61 of the Crimes Act1900, whether in the circumstances the bond which was imposed by the Local Court as a penalty, namely a s 9 bond for 12 months with supervision by Community Corrections, was an appropriate penalty, or whether, in the circumstances, the s 9 bond should be replaced with a bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. The appellant went before the Local Court and comes before this Court as a man of prior good character. He has a responsible job in the banking industry earning a salary sufficient to support himself, his wife, and their three children. He has no criminal history whatever. No doubt his criminal history in his native country would have been checked at the time he sought to migrate to Australia. I accept that he has no criminal history in Sri Lanka and was regarded as a man of good character in that country.

17. However crimes of violence are much less likely to be excused than many other forms of crime. The crime committed was one which was hostile towards his wife, and would be seen as being hostile towards any person. The appellant did not plead guilty but pleaded not guilty. If he had, he could have pleaded guilty to the offence charged on 27 October 2014 but not guilty to the offence charged on 18 September 2014. However he elected to plead not guilty to both. That indicates a lack of proper remorse and proper contrition. The sort of contrition that courts wish to see is one that shows victim empathy. By having the appellant give her evidence about the event of 27 October 2014 the appellant did not show that victim empathy. This is not, in my view, an appropriate case for exercising the Court’s discretion under s 10.

18. The maximum penalty for common assault is imprisonment for two years and/or a fine of 50 penalty units. If dealt with on indictment common assault is punishable by two years’ imprisonment. The penalty for assault occasioning actual bodily harm if dealt with in the Local Court is imprisonment for two years and/or a fine of 50 penalty units, but if dealt with on indictment imprisonment for a period of five years. Clearly assault occasioning actual bodily harm is a more serious offence. Although the magistrate imposed a s 9 bond in respect of that assault as well, he also imposed a fine of $750. In the circumstances I am not persuaded that the penalty imposed for the common assault was excessive, and I intend therefore to dismiss the appeal against the conviction and sentence recorded for the offence contrary to s 61 of the Crimes Act 1900.

19. The remaining issue concerns the making of the final apprehended domestic violence order. The evidence indicates reconciliation, but s 16(2) of the Crimes (Domestic and Personal Violence) Act 2007 clearly provides that the Court still make an AVO in circumstances where the Court is not satisfied the complainant does in fact fear the appellant on a continuing basis, but where there has been relevant conduct in the past. In the circumstances I see no reasons to set aside the ADVO.

20. For those reasons I allow the appeal in part. I set aside the conviction recorded and the sentence passed by the Local Court at Newtown on 21 May 2015 for the crime of assault occasioning actual bodily harm, an offence under s 59(1) of the Crimes Act 1900, being sequence 2. Otherwise the appeal is dismissed.

21. MANSOUR: The Court pleases.

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Decision last updated: 18 May 2018