The Queen v Shankar Ramalingam

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 25 May 2011
• Docket Number: No. SCC 354 of 2008
• Date: 25 May 2011

[2011] ACTSC 86

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCC 354 of 2008

The Queen

and

Shankar Ramalingam

Counsel for the Crown: Mrs N Case (nee Werner)

Counsel for the defendant: Dr B Boss

Fleming v The Queen (1998) 197 CLR 250

R v DM [2010] ACTSC 137

R v Mulcahy [2010] ACTSC 98

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

Attorney-General's Reference (No 6 of 1980) [1981] 2 All ER 1057

R v Bacash [1981] VR 923

R v Latimer (1886) 17 QBD 359

Crimes Act 1900 (ACT), s 26

Evidence (Miscellaneous Provisions) Act 1991 (ACT), Pt 4, ss 43, 46

Supreme Court Act 1933 (ACT), s 68C

CRIMINAL LAW — trial by judge alone — common assault — accused found guilty.

CRIMINAL LAW — particular offences — offences against the person — common assault — involvement in a fight — whether an assault.

CRIMINAL LAW — particular offences — offences against the person — common assault — whether accidental or not — whether as part of a fight implies consent.

ORDER

THE COURT FINDS THAT:

• 1. On the first count on the indictment, the accused is guilty.

• 2. On the second count on the indictment, the accused is guilty.

• 3. On the third count on the indictment, the accused is guilty.

• 4. On the fourth count on the indictment, the accused is guilty.

1 The accused, Shankar Ramalingam, faces four charges which arise from the events at his home with his family on 8 July 2008.

2 The indictment, which sets out the charges, pleaded the following counts:

FIRST COUNT: … THAT, on 8 July 2008 at Canberra in the Australian Capital Territory, he assaulted Vinoshan Shankar.

SECOND COUNT: … THAT, on 8 July 2008, … he assaulted Ranjina Shankar.

THIRD COUNT: … THAT, on 8 July 2008, … he assaulted Vinoshan Shankar.

FOURTH COUNT: … THAT, on 8 July 2008, … he assaulted Ranjina Shankar.

3 These are proceedings for offences under s 26 of the Crimes Act 1900 (ACT) (the Crimes Act). As such, they are violent offences for the purposes of Pt 4 of the Evidence ( Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). Under s 43 (within Div 4.3) of the latter Act, the evidence of a complainant must be given by audiovisual link from another place than the courtroom unless the court otherwise orders. I was not asked to make such an order in respect of any complainant and they did give evidence in this way.

Trial by Judge Alone

4 Before the court first allocated a date for the trial of Mr Ramalingam, he made an election for trial by judge alone.

5 Under s 68C of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), a judge, who, without a jury, tries proceedings for the prosecution of a person on indictment, may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.

6 The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.

7 Section 68C of the Supreme Court Act also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.

8 There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.

9 As the judge of fact in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

10 The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he or she did not commit the offences charged.

11 If the accused does adduce any evidence which is consistent with his or her innocence, he or she does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.

12 The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his or her guilt.

13 The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant offence charged has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him or her guilty.

14 If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he or she remains presumed innocent and I must find a verdict of not guilty.

15 If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.

16 In determining whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence, I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.

17 I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experiences and wisdom in assessing the evidence.

18 The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.

19 I also note that, as this was a violent offence, s 43 of the Miscellaneous Provisions Act, required that the complainants give evidence by audiovisual link from a place other than the courtroom as they did. Under s 46 of that Act, I am required to warn the jury that it should not draw any inference adverse to the accused in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.

Evidence

20 At the trial, the two complainants gave evidence. I also had evidence from Ms Amrita Shankar, the accused's daughter, and from neighbours, Mr Gordon Cameron and Ms Kersten Cameron and their guest that evening, Mr Paul Donohoe. A number of police officers gave evidence, Constables Rebecca Baynes, Rebecca Hodgkin, Luke Collyer and Sharon Lindley and Sergeant Craig McPherson.

21 I also admitted into trial as evidence the following exhibits:

A	photo of a storage block of knives;
B	photo of knife;
C	photo of Vinoshan Shankar's right cheek from 8/7/09;
D	photo of Vinoshan Shankar's left cheek from 8/7/09;
E	photo of interior of front door and window of 66 Carnegie Crescent, Narrabundah ACT;
F	photo of Ranjina Shankar;
G	knife;
H	transcript and tape recordings of AFP interview with accused from 8/7/09;
1	photo of accused from 8/7/09;
2	photo of 66 Carnegie Cr, Narrabundah ACT, as marked by Gordon Cameron.

The witnesses

The prosecution witnesses

(a) Vinoshan Shankar

22 Mr Vinoshan Shankar is the son of the accused and one of the complainants. He gave evidence of the time leading up to the events which unfolded on 8 July 2008. He remembered having some discussions with his father, Shankar Ramalingam, regarding university choices and a disagreement over which university would be appropriate for him to attend.

23 He said that this disagreement had lasted for a few days and became more heated on 8 July 2008. He said he was standing approximately one metre from the front door of the family home in Carnegie Crescent, Griffith, about to leave, when his father asked him whether he wanted to fight. His father then slapped him.

24 He described the slap as a back-handed slap across the cheek. He then hit his father back and his mother stepped in between them, being ‘caught in the middle’.

25 Vinoshan then told the court that he hit his father, causing him to tumble to the ground. He said that his father then went back inside the house to the kitchen area.

26 Vinoshan remembered some form of contact between his father and his mother, but he was a little unsure of the details; he thought it could have been an elbow to the cheek.

27 He described himself as feeling ‘very angry’ at the time. He described his mother as being ‘[d]istraught. Absolutely devastated.’ He described his father's emotional state as ‘very, very angry’ and ‘explosive’.

28 Vinoshan recalled leaving the house moments later, because his father had returned from the kitchen with a knife. He demonstrated the way his...