Yenuga v Attorney General of New South Wales

[2023] NSWSC 107

Supreme Court

New South Wales

Medium Neutral Citation:

Yenuga v Attorney General of New South Wales [2023] NSWSC 107

Hearing dates:

On the papers

Decision date:

23 February 2023

Jurisdiction:

Common Law

Before:

Button J

Decision:

Application refused

Catchwords:

CRIME – appeal and review – application to Supreme Court under Part 7 – intimidation and common assault – three convictions in the Local Court – confirmed on appeal to the District Court – focus by applicant upon asserted lack of facility of young victim in particular language said to have been used by applicant in commission of offences – material in recorded interview of applicant to contrary effect – application refused

Legislation Cited:

Crimes Act 1900 (NSW) ss 61, 61AA

Crimes (Appeal and Review) Act 2001 (NSW) s 79

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Evidence Act 1995 (NSW) SS 78, 144

Cases Cited:

Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Shepherd v The Queen (1990) 170 CLR 573)

United States v Skeet 665 F 2d 983 (9th Cir. 1982)

Yenuga v Director of Public Prosecutions (NSW) [2021] NSWCA 293

Category:

Principal judgment

Parties:

Sreenivasa Yenuga (Applicant)
Attorney-General of New South Wales (Respondent)

Representation:

Counsel:
Sreenivasa Yenuga (Self-represented)
M Dalla-Pozza (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/233492

Publication restriction:

Pseudonym adopted in accordance with substantive proceedings and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

Introduction

1. By way of a submission dated 1 August 2022, Mr Sreenivasa Mukherjee Yenuga (“the applicant”) has sought orders pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Act”). The application pertains to three convictions entered against him on appeal in the District Court of New South Wales at Newcastle on 8 April 2021 by Judge Girdham SC.

2. At the conclusion of his written application, the applicant seeks either an enquiry into his convictions, or referral to the Court of Criminal Appeal.

3. I have not been provided with the transcripts of the proceedings in the District Court, and in the Local Court, from which there had been an appeal. Nor do I have the entirety of the exhibits. Even so, I believe that I have sufficient material to resolve the application.

4. The Attorney General has made submissions against the application, by way of counsel briefed by the Crown Solicitor’s Office.

5. Contrary to the submission of the Attorney General, I believe that I should determine the application substantively, pursuant to s 79(2) of the Act, rather than peremptorily refusing to consider it or otherwise dealing with it, pursuant to s 79(3).

6. Having said that, the statutory test for referral found in the former sub-section not having been established, in that I do not experience “a doubt or question” as to the guilt of the applicant, the application must be dismissed.

Background

7. The applicant was found guilty and convicted in the Local Court of three offences, to which I shall refer by their sequence numbers.

8. The first was stalking or intimidating with intent to cause fear of physical harm, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The victim was his 10-year-old daughter. She has been referred to by a pseudonym at all stages, and I shall continue that practice, although I shall use the new pseudonym “Deborah” for ease of comprehension.

9. The second offence was brought pursuant to the same section. The victim was the former wife of the applicant, to whom I shall newly refer as “Wendy”.

10. The third offence was common assault, contrary to s 61 of the Crimes Act 1900 (NSW). Again, the victim was Wendy.

11. The acts of the applicant underpinning sequence 1 (of which Deborah was the victim) were: the applicant saying to Deborah and Wendy words to the effect that, if they were living in a country other than Australia, they would already have been killed by the applicant; the applicant grabbing a laptop from the hands of his daughter, moving in such a way as to suggest that he may damage it, and swinging the item in a threatening manner towards his daughter; and the applicant saying words to the effect that he would slit the throat of Deborah, before going into the kitchen where utensils including knives were kept.

12. The acts underpinning sequence 2 of which Wendy was the victim were those set out above.

13. As for sequence 3, the facts underpinning it were that, after the applicant had entered the kitchen, he raised his hand as if to hit Wendy.

14. In a nutshell, the prosecution case was that, on the evening of 10 August 2020, the applicant returned to the family home after work, and knocked on the front door. He had to wait quite some time to be let in. His wife and his daughter were at home at the time. Eventually, he let himself in with a spare key.

15. Wendy and Deborah were at home, watching television. Deborah was using a laptop computer. Deborah also had the television remote control. That item had been missing on the previous day, which had prevented the applicant from being able to watch television the night before.

16. An argument developed, part of which was the suspicion on the part of the applicant that his daughter had deliberately hidden the device on the preceding evening. At some stage, the applicant snatched the laptop away from Deborah.

17. I proceed on the basis set out in the written submissions of the Attorney General, and not contradicted in the written submissions in reply of the applicant, that all of the above was not in dispute.

18. The following prosecution assertions were, however, disputed. Wendy gave evidence that the applicant abused her in an Indian language, in terms that can be translated into English as “bitch who prostitutes”. Both wife and child gave evidence that, during the argument, the applicant said in the Indian language that they were the sort of persons who consume canine faeces.

19. The position of the applicant was that he had used words to those effects, but indirectly and contingently, not as direct indicative statements about his wife and daughter.

20. The Crown case was also that he had spoken of homicide of his wife and child if the family had not been located in Australia. The applicant denied saying any such thing.

21. As for the laptop, the Crown case, based on the evidence of mother and child, was that it was manipulated by the applicant in an intimidating way. The applicant, as I said, admitted to snatching the laptop, but denied any further physical action regarding it.

22. Wendy and Deborah spoke of the applicant having threatened to slit the throat of his daughter. He staunchly denied using those words.

23. Finally, the prosecution case was that the applicant went into the kitchen, in the vicinity of where the kitchen knives were stored. He also raised his hand to his wife. She described it as being with a clenched fist, but Deborah spoke of an open palm. To the contrary, the applicant denied going to the kitchen, and raising his hand at all.

24. An important part of the application is the facility, if any, of Deborah in the Indian language in question. The proposition is that her facility was limited, thereby calling into question her ability to understand and recount the things that the applicant had allegedly said in that language.

25. The learned magistrate found the applicant guilty of all three offences, and convicted him of each. Because of the way the application is framed, there is no need to discuss the sentences imposed. Furthermore, because the extant convictions under consideration are those entered after an unsuccessful appeal in the District Court, I do not need to discuss the reasons for the findings of guilt of the magistrate.

26. As I have said, an appeal against conviction was lodged and pursued in the District Court. In those proceedings, the applicant was represented. At one stage, his lawyer conceded that, if the evidence of Wendy and Deborah were accepted, it could constitute the offences alleged as a matter of law, in the sense of there being evidence of all elements of the three offences.

27. In reasons for judgment given on 8 April 2021, her Honour confirmed the convictions and dismissed the appeals.

28. In doing so, her Honour concisely recounted the applicable legal principles with complete correctness. Thereafter the undisputed facts were set out in the judgment. They included that, in a recorded interview with police, the applicant said that he had been angry about the remote control having been unavailable the evening before. He was also “pissed off” about the failure to open the door, and finding Wendy and Deborah unconcernedly watching television after he entered.

29. As for the interaction thereafter, he agreed that he yelled at his daughter, but only once. In fact, he had said “whoever hid my remote control is a bitch”, rather than directly calling Deborah that. He denied the threat of cutting or slitting the throat of Deborah, though he agreed he did snatch the laptop, because she was “not talking to me”.

30. He also denied raising his hand towards his wife, though he agreed that the two of them were yelling at each other. He denied entering the kitchen at all, let alone with any intention connected to knives. He agreed that, although he had indeed spoken of a person who eats dog faeces, it had been a reference to whomever it was who may have taken remote control, not a direct reference to Deborah.

31. He said that in truth, it was his family who were bullying him, rather than he intentionally intimidating or assaulting them, including by way of failing to open the front door.

32. In cross-examination, regarding the proposition that wife daughter and son had all departed the living room for a bedroom at the end of the interaction, he gave evidence that he had assumed that that was simply because they wished to sleep.

33. In fact, it was he who had been mistreated by wife and daughter.

34. He was indeed angry when he received no reply from those who were watching television, once he confronted them.

35. He had indeed raised his voice, and become angry. His tone when speaking the Indian language was “a little aggressive, a little bit loud”. He was angry and annoyed. He did call his wife the “equivalent of a prostitute”. He agreed that he snatched the laptop away from Deborah.

36. His belief expressed in cross-examination was that, in truth, Deborah had been incapable of understanding the things she alleged he had said in the Indian language, because of her lack of facility in it.

37. Thereafter, her Honour recounted aspects of the Crown case said to support what the two witnesses had said.

38. First, a 000 call was made by Deborah from the home within 30 minutes of the applicant arriving at that location.

39. Secondly, there was a level of detail in each account.

40. Thirdly, there was a general measure of consistency combined with some inconsistencies, entirely as one would expect in a natural, truthful versions of events from two prosecution witnesses.

41. It had been accepted by counsel for the applicant that many of the asserted inconsistency between mother and daughter were minor ones.

42. Ultimately, her Honour found that any inconsistencies were natural; that the evidence of the applicant was to be rejected; that in the witness box he had sought to distance himself from truthful inculpatory things that he had said in his recorded interview; and that the evidence of the two witnesses was truthful and reliable.

43. Subsequently, the applicant sought to have her Honour state a case. That application was declined. Because it is extraneous to the task that I must undertake, I shall not describe it further.

44. Later again, the applicant sought judicial review of that decision, and of other matters: see Yenuga v Director of Public Prosecutions (NSW) [2021] NSWCA 293. That was also unsuccessful; again, it does not require elaboration.

45. Finally, the applicant unsuccessfully sought special leave from that decision to appeal to the High Court of Australia. Yet again, that was unsuccessful; yet again, because my task is to focus on the evidence, the submissions about it, and my reaction to it, what the High Court had to say in dismissing the application need not be traversed.

Material in support of application

46. As I have said, I do not have a complete copy of all the material placed before her Honour. What I have been provided with is the following: the applicant’s written submissions (dated 1 August 2022); the Attorney General’s written submissions (dated 28 September 2022); the applicant’s submissions in reply (dated 10 October 2022); the judgment of Judge Girdham dismissing the applicant’s appeal against conviction at the District Court (Yenuga v R (Unreported, 8 April 2021); and a second judgment of Judge Girdham refusing to state a case to the Court of Criminal Appeal (Yenuga v R (Unreported, 3 June 2021).

Submissions of the applicant

47. The original written submissions of the applicant extend over 21 pages. They are accompanied by a six-page tabular annexure that deals with the evidence of the facility or otherwise of Deborah in the Indian language in question.

48. In answer to the written submissions of the Attorney General, a nine-page reply of 10 October 2022 was filed, along with some attachments, including judicial decisions from California and the United Kingdom.

49. The submissions are discursive, repetitive, not always easy to understand, and often legally ill-conceived; of course, I do not say that personally critically of an unrepresented applicant. I think the best way to permit understanding of them is to set out the 15 “grounds” that appear in the original application, briefly summarise the written submissions that appear below each of them, and finally sketch what has been said by the applicant in reply.

50. “Low and high conundrum and the absurdity of the District Court of NSW finding”: Deborah testified that she had low knowledge of the Telugu language, a fact that her mother confirmed. Yet, Deborah also testified that she understood the entire conversation between the applicant and Deborah’s mother. The applicant’s main argument here was that, if Deborah had a high level of understanding of Telugu, it does not make sense that Deborah and her mother would repeatedly note that Deborah had a “lesser” knowledge of the language.

51. “Statistical relationship”: The applicant noted that a “low knowledge” of Telugu language should consequentially result in a “lower understanding” of the language when spoken. Any decision contrary to this principle would thus be “irrational and unreasonable”. The applicant argued that the Local Court and District Court disregarded the above principle. They looked only to Deborah’s understanding of Telugu, ignoring the “thorny” evidence of her lack of knowledge regarding the language.

52. “Legal limits of credibility and rule of inconsistencies”: In the midst of extracts from a number of judgements, this part of the application returned to the question of the facility of the daughter in the language, and submitted that the inconsistencies in the evidence of the two prosecution witnesses were significant, thereby damaging the prosecution case, not assisting it.

53. “Uncontested exculpatory evidence leaves reasonable doubt”: Deborah’s “low knowledge” of Telugu coupled with her “high understanding” indicated that the witness was “trained of the content of the evidence beforehand”. The applicant argued that the evidence ought to have been questioned by the Court in the same way that evidence adduced in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 had been: “their Honour’s analysis proceeded by asking, in relation to each piece of evidence that was inconsistent with A’s account, whether it was nonetheless realistically possible that that account was true” (at [41]).

54. “The discretion exercised to choose facts favourable to prosecution is irrational”: The applicant argued that the “application of the rule of credibility of witnesses” was “redundant in this case. It was stated that credibility of any one witness is purely a “belief”, as opposed to a “fact”. The finding of credibility could not replace the “incoherence and inconsistencies” in the stories of witnesses; “credibility finding does not give choice to pick one fact and reject the other”.

55. “Common knowledge of the Courts”: Any decision about Deborah’s understanding of Telugu should not have been made by the Courts, but by an expert. It was argued that Telugu language constituted “special knowledge” and was therefore outside of the Court’s common knowledge as governed by the “strict words of 44 [scilicet s 144]” of the Evidence Act 1995 (NSW).

56. “Admitting expert opinion in the disguise of lay opinion of the witnesses is abuse of discretion”: The applicant argued that Deborah’s mother’s testimony regarding the child’s knowledge and understanding of Telugu was “essentially expert testimony…improperly admitted under the guise of lay opinions” (quoting United States v Skeet 665 F 2d 983 (9th Cir. 1982)). It was submitted that expert opinion was necessary to determine Deborah’s foreign language skills.

57. “Blurring the differences between specific and general results breaches constitutional integrity and proof beyond reasonable standard”: This part of the application focused on the need on the part of the prosecution to prove the necessary mental element for intimidation. My understanding of the submission is that, on the evidence, specific intent could simply not be proven beyond reasonable doubt.

58. “Knowledge and recklessness”: The applicant argued that, if his intention was in truth to intimidate, he would have used English, in which Deborah was fluent, and not Telugu, of which Deborah only understood at most 80%.

59. It was noted that at least “20% of uncertainty [would] have been present in the mind of the applicant” as to whether the Telugu language could be used to intimidate Deborah; “[i]t [was] ironic to say that the applicant was convicted for intentionally intimidating the complainants by intentionally choosing an incompatible [language]”.

60. The applicant also stated that “the fault element of recklessness” could similarly not be proven, as there was “justification for the applicant”; that is, the argument that gave rise to the offence was due to the child hiding the TV remote control from the applicant.

61. “No inner causal nexus in the evidence of the complainants”: In a nutshell, the submission here was that the evidence was so unpersuasive that no tribunal of fact should have been persuaded of the prosecution allegations on the balance of probabilities, let alone beyond reasonable doubt.

62. “Conjectures ought to have been excluded from the evidence”: The applicant argued that both the Local Court and District Court treated “conjectures” by the witnesses as “facts”. For example, from Wendy “I felt like if I don’t scream he would hurt, like, he’d hurt with the laptop”, and, “…he would’ve definitely killed us that day if it had not been in this country”. It was submitted that there was a pattern of stating an offending act and then giving speculation in the stories of each witness. The applicant’s position was that all speculation should have been excluded.

63. “Reasonable doubt”: The prosecution’s case was in truth about the “subjective intention of the complainant”, not the “subjective intention of the applicant”. The applicant submitted that the Local and District Courts relied excessively on credibility evidence without excluding “reasonable possibilities”. This, it was argued, resulted in the legal burden being shifted onto the applicant.

64. “Adverse credibility finding on the basis of anger”: The applicant argued that the adverse credibility finding against himself was based entirely on his unwillingness to accept the prosecution’s subjective view of his anger at the time of the offence. It was submitted that anger on his part was not a fact in issue capable of proving guilt beyond reasonable doubt.

47. “Violation of Principles of natural justice”: This was a complaint about the adequacy of the reasons provided in support of the verdicts of guilty, both at first instance and on appeal.

48. “Double jeopardy”: The applicant argued that he should not have been convicted under two separate pieces of legislation.

49. The concluding submission in the first document was that, due to the stigma attached to domestic violence and the emotion that exists about the topic, the criminal justice system had failed to analyse the evidence rationally.

50. In a document filed on 11 October 2022, in the nature of a reply, the applicant made the following submissions.

1. The “totality of evidence” was not considered by the lower courts, nor were the right processes (for one, the principle regarding drawing inferences from primary facts discussed in Shepherd v The Queen (1990) 170 CLR 573) engaged to prove the case beyond reasonable doubt.

2. The Attorney General’s submission that the case had been “fully dealt with” was not a valid ground for refusal, as s 79 of the Act stipulates that the Supreme Court must be satisfied that no “special facts or circumstances that justify the taking of further action” are present. The applicant contended that “special circumstances” was broad enough to extend to “mitigating circumstances” or “part of the evidence in the case”.

3. Failures on the part of the lower courts to connect all evidence, assess the sufficiency and probative value of that evidence, as well as the many inconsistencies surrounding the factual matrix of the case (for example, the applicant’s apparent choice to use “Telugu language to intimidate a non-Telugu speaking child”, and the “language barrier of the child complaint that should have vitiated the sanctity of the entire evidence”, and wrongful classification of the complainant’s “imaginations” as “perceptions”, demonstrated major flaws in the fact-finding process.

4. It was said that, in written submissions resisting what the original application had had to say about proof of intent, the Attorney General had attempted to make out “alternative theories of guilt”.

5. The lower courts appeared to discount readily all evidence brought by the applicant and reject any “thorny” evidence contrary to the prosecution’s case without analysis, in order to secure a conviction.

6. The document concludes with an allegation of negligence against the legal representative for the applicant, along with a submission that the scope of the Act should not be wrongly circumscribed, and a repetition of the relief sought.

Determination

69. Turning to my determination, a number of discrete submissions can immediately be put to one side, as follows.

70. In the District Court, the applicant was represented by counsel, who made submissions in support of the appeal. I do not accept that there was any denial of natural justice.

71. In similar vein, the concession by counsel that the offences could be made out on the evidence, if it were accepted (a proposition that was of course resisted), was a concession of law not fact, and was apposite.

72. Relatedly, in my respectful opinion, the reasons provided by her Honour are perfectly adequate.

73. Decisions of foreign jurisdictions do not assist in my task of evaluation of evidence, and have not been referred to by me.

74. The concept of indispensable intermediate facts that may exist within a circumstantial case has no application here.

75. As for asserted double jeopardy, since the decision of the High Court in Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57, it has been abundantly clear that one act can constitute two offences.

76. The defence of lawful correction cannot sensibly be relied upon here, not least because it only applies when the application of physical force to the child in question is alleged: see Crimes Act 1900 (NSW) s 61AA.

77. There was no need for expert evidence about the facility of Deborah in the language in question. In my opinion, that is a matter about which laypersons are entitled to give evidence, either as direct evidence of something that they have observed or experienced; or, perhaps, as lay opinion evidence: see, if needs be, s 78 of the Evidence Act.

78. In similar vein, this was not a case in which the statutory form of judicial notice was relied upon by the prosecution. It was a matter of the District Court judge sitting as the tribunal of fact on appeal and assessing the evidence placed before her Honour.

79. As for the mental element of intimidation, there is nothing in the reasons of her Honour to suggest any error in that regard.

80. That disposes of the most salient minor complaints of the applicant. Neither individually, nor in combination with each other, nor in combination with his major point, do any of them cause me to have the necessary state of mind to be found in s 79 of the Act.

81. Turning to the major complaint, as I have shown, a powerfully recurrent and repetitive theme in the application is the question of the facility of Deborah to understand words allegedly used by the applicant in the Indian language.

82. But the contents of his own tabular annexure to his submissions about that topic are, I think, important.

83. The applicant himself recounts that, in his recorded interview with police, he had said that his daughter understands “eighty percent of, ah Indian language”. Later, he replied in the affirmative to a question about whether she could “understand most of it”.

84. Although other parts of the recorded interview are less inculpatory in that regard, and, as the document of the applicant shows, in his evidence he moved away from his original position, those words of the applicant himself in his interview are significant to my determination. Far from being a factor that damages the Crown case, the words of the applicant himself about the topic strongly support, I think, the proposition that the child could indeed have been in a position to understand offensive things in the Indian language, if the applicant had said them.

85. In other words, bearing in mind the words of the applicant himself to police at an early stage, recounted by him in his submission to me in his annexure, I do not experience any doubt or question based upon this particular aspect of the facility in the particular language of Deborah.

86. More generally, as I have shown, the applicant conceded much of the emotional context of the Crown case in a way that supported it: he was upset about the failure of the family to answer the door after he had come home from work; he was upset about the missing remote control from the evening before; there was indeed an argument in which harsh language was used, including by himself; and he had used much of the harsh language of which the two prosecution witnesses gave evidence, albeit his version – which I approach with circumspection – was that, despite his anger, he had used it contingently or indirectly, for some reason.

87. Separately, each witness had given a video recorded statement quite soon, it seems, after the events complained of. That prompt delineation of what the applicant was alleged to have said and done is also significant.

88. So is, I think, the fact emphasised by her Honour: within 30 minutes of the applicant attending at his home, one of the victims had been sufficiently concerned about what was occurring there to seek help from the authorities on an emergency basis.

89. Finally, of course proof of criminal allegations beyond reasonable doubt is not a matter of simplistically “adding up” the number of witnesses on this side or that side of the Bar table. Even so, the fact that each prosecution witness generally corroborated the other, and did so in a way that featured natural inconsistencies, is important. This was not a “word against word” criminal prosecution based upon the evidence of a single witness, contradicted by the applicant on oath.

Conclusion

90. Reflecting upon all of the material and submissions that have been placed before me by both parties, I do not experience a doubt or question about any one of these three convictions, on any basis. For that reason, it is incumbent upon me to dismiss the application.

Order

91. I make the following order:

1. The application of Mr Sreenivasa Yenuga of 1 August 2022 is dismissed.

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Decision last updated: 01 March 2023