Kumar v Love

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Crowe AJ
• Judgment Date: 30 August 2019
• Date: 30 August 2019
• Docket Number: File Number: SCA 56 of 2018

[2019] ACTSC 238

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Crowe AJ

File Number: SCA 56 of 2018

Santosh Kumar

(Appellant)

and

Constable Kane Love

(Respondent)

Representation:

Counsel

J Moffett (Appellant)

V Conliffe (Respondent)

Cases Cited:

ED v The Queen [2019] ACTCA 10

Goodwin v Williams [2018] ACTSC 279

Johnson v Western Australia [2018] WASCA 164; 186 A Crim R 531

Liberato v The Queen (1985) 159 CLR 507

Peverill v Crampton [2010] ACTSC 79

Legislation Cited:

Magistrates Court Act 1930 (ACT) s 208

CRIMINAL LAW — APPEAL — Appeal against convictions —whether the Magistrate's decision was unsafe and unsatisfactory

Decision:

See [49]

Crowe AJ

1 On 31 October 2018, Mr Santosh Kumar ( the appellant), was found guilty in the Magistrates Court of the Australian Capital Territory ( the Magistrates Court) on two charges of common assault arising out of an altercation on 18 January 2017 between the appellant and his wife, Ms Anju Devi.

2 Sentencing of the appellant did not proceed due to the filing of a Notice of Appeal on 26 November 2018. The only ground of appeal specified in the notice was that Special Magistrate Hunter's ( the Magistrate) findings of guilt were unsafe and unsatisfactory.

3 The appeal is brought pursuant to sub-s 208(1)(b) of the Magistrates Court Act 1930 (ACT) and the applicable principles are set out in Peverill v Crampton [2010] ACTSC 79 at [24] per Refshauge J as follows:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seems to be as follows:

1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising discretion on a wrong principle or in a way that is clearly wrong.

2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

5. The appellate court is not restricted to making decisions which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.…

4 In relation to the challenge based on the assertion that the Magistrate's judgment was unsafe or unsatisfactory, the approach to be taken by the appellate court was relevantly summarised by the Court of Appeal in ED v The Queen [2019] ACTCA 10 at [43] per Murrell CJ, Mossop and Bromwich JJm, in the following terms:

…

(b) The appeal court is to make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, but in doing so it must give full weight to the primacy of the jury and their “advantage” in “seeing and hearing” the witnesses: M v The Queen (1994) 181 CLR 487 ( M v The Queen) at 492–494; MFA v The Queen [2002] HCA 53; 213 CLR 606 (MFA) at [59]; SKA v The Queen [2011] HCA 13; 243 CLR 400 (SKA) at [22]–[24]; Baden-Clay at [66]; Dickson v R [2017] NSWCCA 78; 94 NSWLR 476 at [84]–[85]; BI at [15].

(c) On an appeal against conviction on the ground that a verdict was unreasonable, the ultimate question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 494–495. The question is “whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt”: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]; M v The Queen at 492–494; Kaddour v R [2019] NSWCCA 90 ( Kaddour) at [128].

5 These principles are applicable to a challenge to the decision of a Magistrate (see Goodwin v Williams [2018] ACTSC 279 at [136]–[140] per Penfold J).

Hearing in the court below

6 The prosecution related to the following charges (see [1] of the Magistrate's reasons ( Reasons for decision)):

• ( 1) CC2017/4849 – the appellant slapped Anju Devi across face between 1/1/14 and 31/1/14 – because she would not cook for him;

• ( 2) CC2017/4843 – the appellant slapped Anju Devi across face on 15/11/14 – because she persisted with wanting to speak to her brother who had been involved in motor cycle accident and was in hospital;

• ( 3) CC2017/1685 – the appellant struck his child Prachi Prajapati back of shoulder because she was crying;

• ( 4) CC2017/1186 – the appellant pushed Anju Devi's forehead backwards striking the wall behind 18/1/2017;

• ( 5) CC2017/1187 – the appellant grabbed Anju Devi's hair and twisted her head and hit her face on wall 18/1/2017.

7 These charges were regarded as falling into the category of family violence. The appellant pleaded not guilty to each.

8 Oral evidence was given by Ms Devi, Mr Morgan Small (a Senior Officer with Australian Border Force), Sanjeev Kumar (Ms Devi's brother), Sohalia Samani (a female friend of Ms Devi) and Constable Kane Love (the informant). The appellant did not testify in his case.

9 Additionally, a video of Ms Devi's family violence evidence-in-chief interview with police which took place on 19 January 2017 was before the court (Exhibit “P1”), as was a video of the appellant's record of interview which was conducted on the evening of the same day (Exhibit “P5”). I note for the purposes of clarity that there were two exhibits marked “P5” on the lower court file. The other “P5” (the second “P5”) consisted of a copy of a medical certificate dated 20 January 2019 and copies of clinical notes relating to Ms Devi's attendance to the doctor on that date.

10 A number of other documents, including statements of witnesses, were admitted into evidence. I have identified those which appear to be relevant to the issues in this appeal in what follows.

11 The prosecution alleged that there were four separate incidents, with the first three charges listed at [6] above relating to separate incidents, and the last two relating to a single incident that took place on 18 January 2017.

12 The first incident was said to have occurred on a day in January 2014 when an argument over Ms Devi refusing to cook culminated in the appellant striking her across the face.

13 The second incident was said to have occurred on 15 November 2014 when Ms Devi was seeking to speak to her brother over the telephone. Ms Devi's brother had just been involved in an accident and was in hospital. It was alleged that the appellant would not allow her to speak to her brother for more than a couple of minutes and when Ms Devi persisted in seeking to speak to him the appellant slapped her across the face.

14 The third incident related to an occasion when the appellant and Ms Devi were sleeping in their bedroom at home. Their child, Prachi, who was then two and half years of age, was said to have been crying. The appellant was alleged to have grabbed Prachi's arm and struck her on the back of her shoulder.

15 The final two charges related to events which took place on 18 January 2017 at the family home, which Ms Devi and the appellant shared with the appellant's father. On that day two officers from the Department of Immigration called at the front door to speak to Ms Devi's father-in-law. She advised them that he was not home. They asked whether Melinda, his wife, was there. Ms Devi told them that there was no Melinda living there and that her father-in-law had a wife in India. Later that day the appellant confronted Ms Devi. He was angry. He insisted that she retract what she had told the Immigration officials about Melinda. Ms Devi refused. The appellant was said to have become angrier and to have pushed her into a wall. He was alleged to have grabbed her by the hair and pushed her forehead into a wall.

16 The appellant denied all of the alleged assaults. In his record of interview he said that although he and Ms Devi had argued on 18 January 2017, the only time he touched her was to tickle her just before he left for work around 5:30 PM. He said that at one point Ms Devi had pulled her own hair, although he could not say whether she had bumped her head on the wall.

17 The defence case before the Magistrate was that, having just obtained her Australian citizenship, Ms Devi had fabricated the assaults with the intent of bringing the marriage to an end.

The Magistrate's decision

18 Her Honour accepted Ms Devi's account of what happened on 18 January 2017. She said at [208] of her Reasons for decision:

I am satisfied beyond a reasonable doubt of the following in relation to the 2 assaults said to have been committed on 18 ^th January 2017:

• a. Ms Devi gave information to Mr Small which could have had a significant impact on the review of Mr Dhari's citizenship rejection;

• b. Ms Devi did not recant that information;

• c. Ms Devi complained to her brother about the controlling behaviour of the defendant in relation to family and social contact and physical abuse;

• d. The bruising to her forehead complained of after the alleged assault on 18 ^th;

• e. The complaint of a sore scalp from her hair being pulled on the 18 ^th;

• f. The complaint of her marriage troubles to Sohalia on the 18 ^th;

• g. That she had a secret SIM card given by her brother so she could make covert contact with...