Ramalingam v McCue

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: McWilliam AsJ
• Judgment Date: 08 May 2019
• Docket Number: File Number: SCA 10 of 2019
• Date: 08 May 2019

[2019] ACTSC 114

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

McWilliam AsJ

File Number: SCA 10 of 2019

Shankar Ramalingam

(Appellant)

and

James Christopher McCue

(Respondent)

Representation:

Counsel

Self-represented (Appellant)

M Howe (Respondent)

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

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

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

Decision:

See [106]

McWilliam AsJ

1 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.

2 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.

3 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.

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

5 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.

6 The appellant sought to better that outcome for himself by arguing for a complete acquittal of all charges on appeal, on the basis that there was simply insufficient evidence to justify the convictions entered.

7 In order to understand the detail of the grounds of appeal, some knowledge of what transpired in the court below is of assistance.

Hearing in the court below

8 The hearing in the court below took place over three separate days, with the substantive hearing taking place on 26 March 2018, closing submissions delivered on 15 June 2018 and the decision of the Magistrates Court handed down on 21 September 2018. There was a further hearing on 15 November 2018, at which the magistrate confirmed that the sentence was stayed pending the outcome of the appeal.

9 The following six charges were pressed at the hearing:

• ( 1) CC17/11082 — a common assault occasioned on the appellant's wife;

• ( 2) CC17/11084 — damaging property (not exceeding $5000);

• ( 3) CC17/13342 — common assault occasioned on the appellant's son (inside the house);

• ( 4) CC17/13343 — common assault occasioned on the appellant's son (outside the house);

• ( 5) CC17/13346 — possessing an offensive weapon with intent; and

• ( 6) CC17/11087 — possessing a knife without reasonable excuse in a public place.

10 The three alleged common assault charges were said to be contraventions of s 26 of the Crimes Act 1900 (ACT) ( the Crimes Act), with each charge carrying a maximum penalty of up to two years' imprisonment.

11 The damage to property not exceeding $5000 was in alleged contravention of s 116(3) of the Crimes Act, the maximum penalty for which is a fine of up to 50 penalty units, or imprisonment for two years, or both.

12 The charge of possessing an offensive weapon with intent was in alleged contravention of s 381 of the Crimes Act, which carries a maximum penalty of a fine of $2000, imprisonment for one year, or both.

13 The charge of possessing a knife without reasonable excuse in a public place was in alleged contravention of s 382(1) of the Crimes Act, which carries a maximum penalty of 10 penalty units, or imprisonment for six months, or both.

14 The appellant pleaded not guilty to all six charges.

The prosecution's case

15 The prosecution's case in the court below was as follows:

• (1) That on 7 October 2017, the appellant and the appellant's wife got into a verbal argument in their family home. The appellant's wife alleged that the appellant kicked her in the thigh and threw a bowl of curry towards her, hitting the wall behind where she was standing (CC17/11082).

• (2) Not long after that altercation, the appellant took possession of a knife from the kitchen bench and exclaimed to his wife that if their son returned to the house, he would “kill him”. Using the knife, the appellant then stabbed the nearby leather lounge, causing a 4cm cut in the upholstery (CC17/11084).

• (3) Sometime after, the appellant's son returned home after receiving a text message from his mum (the appellant's wife) referring to his father and stating in part “ I will come and jump into your car. He has gone crazy. Do not come inside”. Upon returning to the house, the appellant's son sat with his mother in his bedroom. The appellant then, once again holding a knife, opened the curtain partition to his son's bedroom, and brandished the knife in front of the son and wife exclaiming to the son, “I'm going to kill you” (CC17/13342).

• (4) The son and wife then left the bedroom and the house, and went outside onto the driveway. The appellant then also left the house, and while his son and wife were in the driveway he brandished the knife at them, telling his son “I'm going to kill you” (CC17/13343).

• (5) The appellant's son and wife then got into their car, with the appellant continuing to gesture at them with the knife through the window. The appellant followed them down the street as they drove off (CC17/ 13344 and CC17/11087).

Evidence in the court below

16 At the hearing a number of witnesses were called to give evidence. These included: the appellant's wife, the appellant's son, Senior Constable James McCue (the respondent) and Constable Nicholas Xuereb (one of the other officers who attended the scene with the respondent).

17 The charges were characterised as falling into the category of family violence. As the appellant was self-represented at the hearing, he was assisted by a Deputy Registrar to cross-examine the two complainants (the appellant's son and wife) at the hearing.

18 A number of other statements and documents were tendered as evidence at the hearing, including:

• (1) Statements from Detective Sergeant Peter Mellor and Sergeant Christopher Ball.

• (2) The judgment of R v Shankar Ramalingam [2011] ACTSC 86 ( R v Ramalingam), a wholly separate case involving the appellant.

• (3) An evidence-in-chief police interview and the transcript of the interview between police and the appellant's wife.

• (4) An evidence-in-chief police interview and the transcript of the interview between police and the appellant's son.

• (5) A number of photographs of the scene.

• (6) An emergency services phone call transcript.

• (7) Service and viewing forms for evidence-in-chief interviews.

Findings in the court below

19 The detail of the Magistrate's findings will be discussed in the context of each ground of appeal below. The appellant was found guilty of the three common assault charges and the damage to property charge. He was found not guilty with respect to possessing a knife with intent and possessing a knife without reasonable excuse in a public place.

20 As stated, the appellant was sentenced to a Good Behaviour Order for a period of one year.

The present appeal

21 The notice of appeal filed by the appellant on 20 March 2019 contained seven grounds. During the hearing before this Court, and through discussions with the appellant who was again self-represented, the appellant reduced the number of grounds of appeal to five.

22 The grounds pressed and the appellant's arguments may be summarised as follows:

• (1) Insufficient evidence to justify the four convictions ( Ground 1). The appellant argues that the magistrate should not have made the findings of guilt as the evidence put before the court below did not meet the criminal standard of proof, that standard being “beyond reasonable doubt”. The appellant pointed to potential inconsistencies in the evidence. He expressed particular concerns at the hearing in relation to the alleged conflicting accounts of the incident involving the throwing of a bowl of curry (CC17/ 11082), and the assault that took place outside the house on the appellant's son (CC17/13343).

• (2) Allowing inadmissible evidence ( Ground 2). The appellant argues that the relationship evidence adduced by the prosecution of a 2008 incident involving the appellant, his wife and son should not have been admitted as evidence. In particular, he argued that the earlier decision of R v Ramalingam, which related to the events in 2008, should not have been tendered...