MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Robert Watt v KC

Citation: [2019] ACTMC 3

Hearing Dates: 18-19 June 2018, 19-20 November 2018

Decision Date: 13 February 2019

Before: Special Magistrate Hunter OAM

Decision: See 136-165

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment –Common assault – Assault occasioning actual bodily harm – Family violence – Prasad direction – prima facie case - witnesses.

Cases Cited: May v O’Sullivan [1955] HCA 38

The Queen v Prasad (1979) 23 SASR 161

Parties: Robert Watt (Informant)

KC (Defendant)

Representation: Ms V Conliffe (Informant)

Mr H Jorgensen (Defendant)

Solicitors

ACT Director of Public Prosecutions (Informant)

Legal Aid ACT (Defendant)

File Number(s): CC16/12822-12825

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SPECIAL MAGISTRATE HUNTER OAM:

The Proceedings

1. The defendant has been charged with four charges.

a) CC 16/12822 – assault occasioning actual bodily harm – 6 December 2016

b) CC 16/12823 – common assault – 6 December 2016

c) CC 16/12824 – common assault – 6 December 2016

d) CC 16/12825 – common assault – 3 December 2016

2. This matter came before me after having been listed and partially heard before another

Magistrate. I heard evidence in relation to this matter over 4 days on 18 and 19 June

and 19 and 20 November 2018. The Evidence in Chief (EIC) was played before a

different Magistrate on 16 September 2017. The complainant witness MC was also

cross-examined on that day and transcript was ordered for his evidence. The matter

was remanded for further hearing to 7 March 2018.

3. After hearing evidence in this matter, on 7 March 2018 the hearing was aborted as the

magistrate had to recuse herself from hearing any further evidence. The matter was

listed before me. The evidence was before me in the form of Evidence in Chief

interviews and also the recording and transcript of the proceedings before the learned

Magistrate. These were marked as exhibits. I have listened to all of the evidence in

chief interviews as well as the recordings of the proceedings before the learned

Magistrate.

4. I heard evidence from the following witnesses:

a) MC Via EIC and recorded proceedings with transcript of proceedings from

6/9/17;

b) Terry McHardie in Court before me;

c) EM via EIC;

d) UW via EIC and recorded proceedings with transcript of proceedings;

e) TI in Court before me;

f) HI in Court before me;

g) TC via EIC and recorded proceedings with transcript of proceedings;

h) UC in court before me;

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i) Constable Robert Watt;

j) Constable Alan Doung.

5. The charges arise out of two incidents, one on 3 December and the other on 6

December 2016. The allegations are that the defendant, who is the father of the

complainant in this matter, assaulted the complainant, MC, his son on these two

occasions.

6. The family consist of KC, TC and MC and UC. TC was 12 and MC was 14 at the time

of the incident. They are the children of KC and UC

The Crown opening

7. The Crown case opened and submitted that the first incident occurred on 3 December

2016 when MC was arguing with his sister TC in the living room. The defendant

entered and said to MC, “do you want to fight?”, and MC said “probably not”. The

defendant then made contact with MC’s head by using a book. This is the subject of

charge 2016/ 12825 - assault.

8. It was submitted that the next incident occurred on 6 December 2016. In the evening

of that day MC was arguing again with his sister TC. The defendant entered and asked

what the problem was. TC said “it’s been dealt with”. The defendant disagreed with her

because MC was there causing trouble. The defendant said “if MC wants a fight he’ll

get one”. MC replied “maybe”.

9. The defendant then punched MC in the head using his left hand. The impact of the

punch hit the right side of MC’s face. This is the alleged circumstance in relation to

charge 16/12833.

10. MC then punched his father the defendant back, he then ran into his mother’s

bedroom with the defendant following him. MC’s mother attempted to stop the

defendant and the defendant pushed her away, he then gouged at MC’s eyes and

left a scratch on his face that is subject of charge 2016/12822.

11. It is alleged MC then went outside and got a cricket bat and waved it around. KC

and UC approached him. MC and the defendant swore at each other. UC said to

MC “go take a shower”. This had previously worked to calm him down. When MC

walked toward the bathroom he walked past his father and his father shoulder

barged him.

12. The defendant then punched MC and took him to the ground; that is a subject of

charge 2016/12824. MC then went to the bathroom and saw he had a scratch on

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his face. The next day he made a complaint to his friend and then the school

principal.

MC

13. In his evidence MC stated that on 6 December 2016 he was fighting with his sister

about a mobile phone when his father came in to see what the problem was. MC’s

sister said it had already been dealt with but his father disagreed.

14. MC said that his father told him if he wants a fight he’ll get one. MC said “maybe”,

at that point the defendant came up to him and punched him in the head. MC said

that he then punched him on the arm and then ran into his mother’s room to tell her

what happened.

15. MC said his mother tried to stop the defendant from hitting him, he and the

defendant both punched each other and then the defendant gouged his eye

causing a scratch near his eye. It was at that point that MC pushed the defendant

and kicked him and punched him in the head.

16. MC also said that at that point when they were grappling with each other, his T-

shirt was torn and he got a scratch on his chest.

17. MC said that he went outside to calm down and he heard his mother say “just

leave him out there, who cares”. MC said he grabbed his cricket bat because he

feared that his father was going to punch him or something of that kind. MC

described that he used the bat swinging it back and forth and at that point he and

his father began swearing at each other.

18. MC said his mother came out and suggested to him that he have a shower and

told his father to stay away from him. MC said that his father said if he puts the

cricket bat away I’ll stay away from him. MC said he then gave his mother the

cricket bat and walked inside toward the living room at that point his father

shoulder barged him to the chest. MC said that he and his father then started

punching each other. At that point his father took him to the ground trying to get a

hold of him. MC said that he then punched his father.

19. MC said that at that point he went into the shower and locked the doors. He did so

because he thought his father might come into the bathroom. The next day he

went to school and told his friends N and M, N, U, K and E.

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20. MC said there was an incident where he spat on his father’s car window and he

was told by a teacher to go to the principal’s office. MC was asked why he spat at

his father’s car and he told them what happened the night before.

21. The principal mandatorily reported the incident to police and MC was spoken to by

police that day. Police conducted an evidence in chief interview with MC.

22. In his evidence in chief, MC said that an incident had occurred the weekend before

the incident on 6 December 2016. MC said that he was arguing with his sister TC

because she was using his iPod and he wanted to use her iPad, there was an

argument. His sister started screaming and his father came in. MC explained at

that time he was making sounds which he uses to cool himself down when he is

angry and his father inferred or thought he was making those sounds towards him.

MC said his father said “you want to fight” and he said “probably not”. He said his

father hit him in the head with a book. MC said approximately 10 minutes later he

told his father “fuck you”. MC said he then decided to leave the home to see if he

could stay at a friend’s place.

23. MC said that his mother called him on his phone asking why he had run away. MC

said he told his mother it was because his father had hit him in the head with a

book. His mother told him that his father had told her that it was MC who had hit

his father with the book, threatened him with a wine bottle, stuck his finger up and

said “fuck you”. MC said he denied that and said he only said “fuck you” but agreed

he did move his wine bottle.

24. MC then said he went to his friend NI’s place and spoke with NI’s mother. MC said

that she asked him what had happened and he told her that his father had hit him

in the head with a book and started to cry little. NI’s mother said “you can come in

and speak with the twins on my phone”.

25. MC said that he did meet up with the twins and told them what had happened and

showed them pictures on his phone. MC said he asked the boys’ father, HI, if he

could stay at their place. Mr HI said that he needed permission so Mr HI rang MC’s

mother who agreed that MC could stay at the boys’ house.

26. In his examination in chief and cross-examination MC gives a version of events

with more particularity but essentially in the same terms as his evidence in chief

interview.

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27. In cross examination MC agreed that he had been angry with his sister on 3

December 2016, and agreed he shouted at her and told her to “F’ off”. He also

agreed that when his father arrived he was still angry with his sister. It was

suggested that his father had a book in his hand and put it, not aggressively but

gently, on his head to stop him from getting out of the chair. MC denied that

happened.

28. MC agreed that on the first incident on 3 December he did ‘flip the bird’ at his sister

and he said he did so because she had done it to him. MC did not agree that his

father had told him not to do so. It was also suggested that it was he who said “you

want to fight”; he denied that.

29. In relation to the incident on 6 December, it was suggested to MC that his mother

asked him “why do you want to fight your father?” MC said that did not happen. It

was also suggested that when he went into his mother’s bedroom she was lying on

the bed he jumped on her and stood over her. MC also denied that.

30. MC agreed that he pushed his father to the ground but said he then left the

bedroom. He also agreed that when his father was on the ground he punched him,

pushed him and kicked him, and it was at that time his mother pushed MC away

and he then left.

31. MC said that the eye gouging happened in the bedroom and that it happened in

the presence of his mother. MC agreed that his mother separated them when he

started punching his father. It was suggested to him that when she tried to grab

him in the process of intervening she may have nicked his cheek, MC denied that

and said she never did that.

32. In relation to that suggestion, MC said that she put her hand softly on his shoulder

he moved his body and she moved her arm for him to go behind her.

33. MC said that TC was in her bedroom which is opposite his mother’s bedroom. It

was suggested to MC that it was he who started throwing punches at his father

without his father having done anything to him. That was denied. TC said that his

father had pushed his mother when she tried to stop his father from attacking him.

It was at that point that his father gouged him in the eye.

34. MC denied swinging the cricket bat around when he was in the house with it. He

also denied saying that he was going to kill his father, and said that he had said he

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hated him. MC denied that TC was also pleading with him to put the bat down and

denied that TC was there at the time.

35. MC agreed that his mother had asked his father to move to another room at that

time and then asked MC to have a shower. It was suggested to MC that in fact his

father never shoulder barged him at all, and what happened was MC elbowed his

father in the chest and they both fell to the ground.

36. MC agreed that he is taller than his father was at the time of this incident and that

when he fell to the ground he punched and kicked his father two or three times.

EM

37. EM participated in an evidence in chief interview which was exhibited before me.

EM indicated that he heard MC say that he and his father had a fight and they

threw punches at each other. The next day when MC’s father arrived at the school

MC spat on his car and the police got involved. EM said that the conversation he

overheard occurred at the front of the school near the car park.

UW

38. UW participated in an evidence in chief interview with police that was tendered

before me as exhibit P6. UW also appeared in court to give evidence via video link.

I have a transcript of that evidence before me exhibited as P7.

39. UW stated that MC was his best friend. He said MC told him that his father had hit

him and that his father was a bad wine drinker. MC had told him that his father had

got the shits one time and beat him to a point where MC became scared and did

not feel safe to go home so he then went to some mates’ place. He also made

other comments about his view of the family dynamic.

40. It was his view that these types of incidents occurred over a period of a year, that

MC got beat up only once or twice but it was mainly verbal arguments. UW said

that he observed MC at school with bruises on his arms and at the point of tears

and he asked him whether he had been hit and MC said “no my dad beat me up”

and that’s all he said.

41. In cross-examination UW said he could not recall when he saw the bruises on the

arm.

Terrie McHardle

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42. Ms McHardle is a teacher at Caroline Chisholm School and was the acting deputy

principal in December 2016. Ms McHardle said that MC was a student in year eight

at the school and was 14 years of age.

43. Ms McHardle said that on 7 December 2016 at approximately 9.00am a car

entered at the front of the school, there were boys in front of it, they shouted at the

car and MC spat at the car. MC directed abuse at the car and she saw the

defendant get out of the vehicle.

44. She identified other boys being there as MI, NI and some others. She told the boys

to go to class. Ms McHardle said she observed that MC was agitated and he was

sent to the class coordinator Ms Shannon Cameron for a contact class. Ms

McHardle said she observed MC to be agitated and angry and in a state of

indecision. He appeared not to want to follow her instructions.

45. Ms McHardle said she asked him what was wrong, in her opinion he was reluctant

to answer her questions but she sensed there had been an altercation with his

father or family which caused him some distress. He then went to Ms Cameron

and later McHardle spoke to MC in Ms Cameron’s office.

46. MC spoke to her about what happened in the car park. MC had told her that he

was angry with his dad and that his father had hit him. MC said that his father

pulled his shirt, scratched him on the collarbone and the eye. Ms McHardle said

she observed a mark or scratch, a thin red line about 5 cm in length on his

collarbone and she said she saw redness and a mark near his eye. MC had said to

her that his father had caused the mark to his eye, and therefore Ms McHardle was

required to report this incident as she is a mandatory reporter.

47. Ms McHardle said that she took notes of what MC had told her and made an online

report to CYPS. Ms McHardle described MC as being emotional, agitated, excited,

angry and then calm.

48. In cross-examination Ms McHardle said she had known MC for approximately

three years. In relation to her memory of the event she said she had no

independent recollection and relied on her notes.

49. She said at the time of the incident at school she was telling the students to go

inside, there was approximately five of them. Ms McHardle said when she saw MC

spit at the car she was proximally 10 to 15 meters away. Ms McHardle said she

doesn’t know the defendant.

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50. Ms McHardle said the police arrived and she told them that she observed a light

scratch to MC’s face underneath the left eye and to the side and a light scratch to

his chest. Ms McHardle agreed that she wrote as MC spoke and agreed he gave a

rambling narrative, jumping back and forth, but she wrote what he said verbatim as

best she could.

TI

51. TI is a community care worker and is the mother of MI and NI who are twins. Her

twins were friends with MC.

52. TI said that she does recall a time when MC attended her house and was upset

her children were not home and he asked if you could wait for them. TI said she

would call them to see if they were on their way home. TI said MC was quite upset.

TI described it as he started crying a little and when she asked him if he was

alright, he said that he did not want to go into it with her. TI had no recollection of

MC telling her why he was upset.

53. In cross-examination TI agreed that MC had been to her home several times

during that year. TI agreed that she had spoken to Officer Duong on several

occasions and that she has no recollection of the events other than she told him

that MC came over upset and then her children came home and that was all she

could recall.

HI

54. HI indicated that he had two sons, NI and MI, who are 14 at the time of this

incident, and they were friends with MC. HI recalls police coming to see him, but

they did not give him sufficient information at the time and he does not know why

they were there other than there was some issue in relation to MC.

55. HI does recall that in December 2016 MC stayed at his house with the boys. HI

recalls that MI and NI, his twin sons, together with MC asked whether MC could

sleep over the night. HI said MC had said that he had a fight with his dad, he said

he would speak to UC to ask her permission and she gave it. HI said that it was a

normal conversation. HI also said that he did not observe anything other than

normal behaviour in relation to MC and there was nothing out of character.

TC

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56. TC gave her evidence by way of an evidence in chief interview which was played,

and also some evidence given in court on 19 June 2018. I heard that evidence by

listening to the evidence in chief interview and reading the transcript.

57. In her interview in chief TC said that in relation to the incident on 6 December

2016, she and her brother MC were arguing, her father came in and MC kept

pushing his buttons and annoying him to get a reaction. She said she heard MC

say under his breath “you want to fight me” and said that her father then said “no”

and that he is trying to deal with the issue. Her father then told MC to stop what he

was doing, and told him off and MC then threw punches at him. TC said that her

father tried to shut him off but he kept doing it and then ran off to another room. TC

explained that MC was hitting her father around the neck and upper chest area.

58. TC indicated that this fight occurred because MC had taken her phone and that

was what the argument was about. TC said that her mother at that time was in the

bedroom.

59. TC indicated that MC is taller than her father and bigger than both her mother and

father. TC said that MC was swearing at his father calling him a “dick”, “a fucking

bitch” and “a cunt”. TC said that MC went into his mother’s bedroom and kept

swearing. MC was shoving and punching her father in the bedroom as he was

telling her mother what had happened.

60. TC indicated that she eventually went to her bedroom which is across from her

mother’s room and saw what was happening there. TC said she saw her brother

MC push her father to the ground and punch and shove him. TC had moved so

that she could see what was happening.

61. TC said that at one point MC went outside to where a cricket bat is kept. He got

hold of the bat and was swinging it and saying “I’m going to fucking kill him”. This

was directed toward her father. TC said that she told MC to put the bat down. TC

described him as swinging it as if it was a toy.

62. TC said that her mother came and told MC to put the bat down. TC said MC went

outside to the front yard and that was when her mum kept telling him to have a

shower. His father also told him to have a shower but MC refused and kept

swinging the bat. TC said that her mother took the cricket bat from him and put it in

her car.

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63. MC was still swearing at his father but went inside. TC indicated that later MC had

said to her that he was proud of himself pushing her father and was a bit cocky

about it. She said she was angry about that.

64. TC gave a description of a conversation she had with MC on the Wednesday night

where he said to her “guess what dad might be going to jail” and he was smiling

about it and appeared happy.

65. TC said that that made her feel sad, and that now MC appears to do what he

wants and go where he wants like he’s the boss.

66. TC was shown a statement that she had made and was asked questions about it in

relation to the eye gouging. TC said that MC had told her that that’s what her father

had tried to do but she said that she did not see that happen and only saw her

father trying to shove MC off.

67. In her evidence before the court TC was cross-examined by the prosecutor as well

as defence counsel. TC said that she had a conversation with her mother and

brother and she remembered her brother talking about how his father had tried to

gouge his eyes. TC said her mother said to him “I don’t remember that” or “I don’t

think that happened” or something like that.

68. TC was asked why she thought it was important to put that in her statement and

she said effectively that because MC had told her that her father might go to jail

she thought when people are investigating the matter she wanted to clarify that the

eye gouging as described by MC did not occur.

69. In relation to her statement about the eye gouging and the intention aspect she

said she wanted to explain that MC’s perspective of the incident was different and

it was different because he was wrong.

70. In relation to her composing two drafts of the letter she said she did so because of

mistakes in punctuation and spelling and she wished to redo the letter to correct

her mistakes.

71. In relation to the bat incident it was her view that it was important to put it in about

the bat because MC was getting more violent after the fight.

72. TC said that she was unsure whether her mother and she discussed anything

further about her version of events. TC denied anyone placing pressure on her to

give a different version of events. TC denied talking to her older brother OC before

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her interview and denied anyone speaking to her or telling her to stick to a

particular version.

73. TC denied that it was her father that said “do you want to fight me”, she said it was

MC who said it and she heard him say it. TC said she was not sure whether her

father heard it, but she certainly heard it.

74. TC said that after the incident in the lounge room she followed both MC and her

father, and was in her bedroom standing near the door looking into her mother’s

bedroom. TC said she could see everything that was happening in her mother’s

bedroom.

75. TC said that she walked in her bedroom facing in to her bedroom, turned around

near the door and looked through in her mother’s room. She said that she heard

them shouting, she saw that both MC and her father getting closer to each other

and she thought this was on the bed, she then said she saw and heard shouting

and then her brother got off the bed and shoved her father or pushed him and they

started to fight more. TC then said she saw her brother go into living room number

two. TC said she followed him and she was near the kitchen counter.

76. TC said she saw MC and her father continue to shout and fight in the living room.

She said that MC pushed her father to the ground. MC then went outside and got a

cricket bat. When MC was outside she was watching him swing the cricket bat. TC

thought that she told MC to put the cricket bat down and then her mother came

and took the cricket bat from MC, went outside and placed it in her car. TC said

that she heard her mother tell MC to “get back inside and to have a shower” or

something of that nature.

77. TC said that she did see the whole of the incident in the bedroom. In cross

examination TC agreed that the reason she had prepared the letter or statement

was because her mother had asked for it and she understood it was going to be

given to the police. TC agreed that she was not allowed and did not have any

contact with her father at this point. TC said that it was a true and honest statement

of what happened that night although she did miss some parts about how her

brother and father had fought. TC indicated she did tell police about that in her

interview in chief.

78. In relation to her evidence in chief interview, particularly questions 77 and 78, TC

said that her father was trying to deal with the argument that she was having

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between MC and herself. She also agreed that she said that her father had told

MC to stop what he was doing and that MC kept throwing punches at her father

and this happened in the living room, and it was from there that MC went into her

mother’s bedroom.

UC

79. UC gave evidence before me on 20 June 2018. An interpreter was sworn to assist

her in interpreting from English into Khmer and from Khmer into English.

80. UC gave evidence that her daughter’s name is TC and at the time of giving

evidence she was 12 years of age. UC gave evidence that her son’s name is MC

and he was at the time of the incident 14 years of age. They were living together

with her husband KC, the defendant, at the time of the incident. UC said that she

had been married to her husband for 20 years.

81. UC gave evidence in relation to the incident of 6 December 2016. UC said that on

the evening of 6 December she was in her bedroom on her mobile phone. She was

laying on her bed and her door was open.

82. At that time she heard an incident between her husband and son where she said

her husband was giving moral advice to her son. That included admonishing him

for putting a rude finger to his sister. She described her husband’s voice as normal

at that point. UC said she heard her son say in a raised voice “did you want to fight

with me”.1 UC indicated that it was not very loud but louder than a whisper. UC said

she had said from her room “why did you want to fight with your father”.2

83. UC said her husband and her son came into her room, both coming in at

approximately the same time. UC said her husband took a seat at the end of the

bed and her son jumped on the bed near her legs and turned to face his father.

They did not speak to her at that point and she did not speak to them. UC indicated

that when they came in she did say to her son “why you want to fight with your own

family about this”. At that point instead of answering her question MC pushed his

father from the bed and KC fell to the ground.

84. UC said that her son used his right hand to push his father in the chest and KC fell

to the ground. UC indicated that he used his forearm and upper arm to do so.

1 Transcript of Proceedings 20 June 2018, page 9.2 Transcript of Proceedings 20 June 2018, page 10.

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85. UC said that her husband said in a low voice “MC that mean boy wanted to fight

me”. When MC pushed his father to the ground UC said she jumped up from the

bed.

86. UC said that when MC had pushed her husband off the bed she jumped up and

grabbed MC around the back from the waist and pulled him away from her

husband and then placed herself in between them. UC drew a diagram indicating

where the items in her bedroom including her bed and furniture. UC indicated that

her bed is up against a wall touching two walls in a corner, UC put in red where

she saw her husband fall to the ground from the bed.

87. UC said that after MC had pushed her husband to the ground he punched him in

the chest repeatedly. KC did not respond to MC by punching him. UC said she was

frightened because this was the first time she had seen anything like this.

88. When her husband fell to the floor MC jumped from the bed and started punching

him which is why she jumped up and tried to pull her son off her husband. She

then tried to assist her husband by lifting him up, at that time MC was behind her.

At that point MC walked out of the room. She said she tried to give him some

resuscitation because he was very pale and she observed that his nose was

bleeding. UC said she told her husband to go to the bathroom.

89. UC said she followed MC to the front door. She did so because she was

concerned that he may continue to assault her husband. She said MC was

mumbling in a low voice “I’m going to kill dad”. UC said that MC walked out of the

house and grabbed a cricket bat and walked back into the house and commenced

swinging the bat. UC said she told him to drop the bat.

90. UC said at that time her daughter TC was sitting in the lounge room observing

what was happening. UC said that her daughter also told MC to drop the bat. At

that point her husband came into the lounge room as well but stayed behind her.

91. UC said that she told her husband to go to another room. It was at this point that

UC took the bat away from her son and put it in her car. When she returned to the

house MC was still standing by the entrance door and TC was still on the couch. It

was at that point that she told MC to go and have a shower because it would

normally calm down his mood. UC said that MC did go and have a shower.

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92. In relation to the incident on 3 December 2016, UC denied that she had a phone

call or conversation with MC. It was her recollection that on 3 December the family

were together.

93. UC said that she did not recall having a telephone conversation with MC about a

book and the wine bottle that weekend.

94. UC’s evidence continued on 19 November 2018.

95. It was at this point that the prosecutor sought leave to cross examine UC pursuant

to section 38 of the Evidence Act. I granted leave for the prosecutor to cross

examine UC.

96. The Prosecutor questioned UC in relation to a further statement she had given to

police. The prosecutor essentially alleged that there was a collusion between all of

them in relation to what was said in the statement. UC denied this. UC said there

were some inconsistencies in the statement but because of the need to have the

statement to police quickly she was unable to fix them essentially and it was a

misunderstanding.

97. UC denied that the document was designed to get the charges against her

husband dropped.

98. The prosecutor suggested that UC had made up the circumstances of what had

occurred to suit her husband’s case of being innocent. The prosecutor put the

prosecution case to UC but she denied that it was her husband who was the

aggressor.

99. In relation to the shoulder barge UC said that that did not happen, in fact nothing

happened after she grabbed the bat and told MC to have a shower.

100. In relation to the book incident UC denied that she ever spoke to MC on the phone

about that and he never told her that his father had hit him with a book.

101. UC was asked whether she spoke to her husband when she had taken TC to the

police station and they were both at the police station. She said that she did not

speak to him and he did not speak to her.

102. In relation to why she did not call an ambulance given that she had said her

husband had gone purple, UC said that she knew he would be okay and denied

that it was because she thought if she had called an ambulance, the police may

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have been called. She also denied that the defendant was the aggressor and not

MC.

103. In cross examination UC agreed that she heard raised voices whilst she was in her

bedroom, she heard her son’s voice and she said “why do you want to fight your

father”. She identified photographs taken by her of her home and a view between TC’s

bedroom and her bedroom and these are exhibited as P17. The photographs also

identified her husband’s arm in the photo as well.

104. UC agreed that when she was lying on her bed, MC came into the room as did KC. At

the time her door was open and remained open. UC agreed that MC jumped over her

feet and stood on the bed, KC sat down at the end of the bed. UC said to MC [say]

“why you want to fight your father”. UC said that was a second time she had said that

to MC. UC said that her husband had said to her “MC wants to fight me”.

105. UC agreed that MC at one point was face-to-face with her husband and he pushed her

husband in the chest using his forearm. In evidence she said that he used his right arm

but had told police in her statement it was his left arm, she said she was panicked and

did not recall correctly when she gave a statement to the police officer. She is clear

that it was his right arm because they were facing each other.

106. UC agreed that she had given evidence that when the defendant fell to the ground she

got up quickly and went to grab MC and pulled MC off his father. It was her view that

the act of grabbing MC may have made contact and left a mark on him. UC said she

may also have accidentally scratched his face and that was possible. UC agreed that

she had said to police that she may have scratched him on the chest as well.

107. UC said that looking at the photos and also in her evidence said that there was a clear

line of sight between TC’s room and her room and the photographs show that view.

UC said the photographs were taken from TC’s room.

108. UC agreed that MC punched his father in the chest 2 to 3 times before she pulled him

off. In relation to his face UC said her husband was pale and his face purple on the

cheeks and below the eyes. UC said that when MC left the room, she observed her

husband’s nose was bleeding and sent him to the bathroom to clean his face.

109. She then observed MC go out the front door and she followed him, she heard him

mumbling to himself about killing his dad. UC said she then stood beside the door and

watched her son grab the cricket bat and return to the house. This occurred within a

blink of an eye in her view and when he came in he was swinging the bat side to side.

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UC indicated that she ordered him to drop the bat, she then snatched it from him and

threw it into her car and locked the car.

110. When she went back into the house she told MC to take a shower, MC went to the

bathroom for that shower.

111. At no time did the defendant pass by MC or shoulder barge him. UC was in the

presence of both of them at all times and did not see that occur. UC denied that

happened.

112. In cross-examination UC said that after MC had taken a shower everything calmed

down. UC observed that her husband had a scratch to his chest and a bruise and

slight scratch on his nostril.

113. UC agreed that she had a conversation with Constable Watts and told him that her son

was angry of late and fighting with his sister, that MC started the fight with his sister,

KC had tried to break it up and MC attacked KC. UC said she attempted to defend KC

by removing MC from on top of him. She agreed she said she may have accidently

scratched MC when he was on top of KC.

114. UC said that she had a conversation with Constable Watts and told him what

happened between MC and his father.

115. In relation to the questions asked about the document in relation to bail, UC agreed

that she did attend a later date for her witness statement and it is possible that she has

confused that with the document she submitted.

116. UC agreed that she provided a statement which is now exhibited as Exhibit 15 and 16

and that she had the opportunity to correct any issues. UC said that Constable Watts

asked her to tell the story and he typed the document.

117. That was the end of the Crown case.

118. An application was made in relation to whether the Prosecution had a prima facie

case.

119. Having considered the evidence and the authorities, I find that there is a prima facie

case to answer. I am satisfied, having considered the test in May v O’Sullivan [1955]

HCA 38 which is, that on the evidence as it stands the defendant could lawfully be

convicted of the offence or offences charged. I accept that that is the test to be

applied. I applied that test and found that upon the evidence as it stands the

defendant could lawfully be convicted upon all charges, which is why I ruled that there

was a prima facie case.

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120. Defence counsel then asked that I direct myself in the same terms as that in The

Queen v Prasad (1979) 23 SASR 161. I sought written submissions in relation to that

application and received submissions by both the defence and prosecution.

Defence submissions

121. The defendant submits that I should direct myself according to the seminal case of The

Queen v Prasad where Chief Justice King said:

I have no doubt that a tribunal, which is the judge of both law and fact, may dismiss the charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

122. Defence counsel refers to the inconsistencies in relation to MC’s evidence which has

arisen between the evidence in chief interview and the evidence in court.

123. Defence counsel also refers to TC who also gave evidence via evidence in chief

interview and was also cross-examined at length about the incident of 6 December

2016. The defence counsel submitted that she did not resile from the evidence she

gave in her evidence in chief.

124. UC gave evidence and was subject to cross examination. Her evidence was given via

an interpreter although she does have some knowledge of English. It was accepted

that there were some inconsistencies in the evidence but that regardless of those

inconsistencies they do not detract from the truthfulness of her evidence.

125. It is clear that the only people at the premises at the relevant time were MC, TC, UC

and the defendant.

126. Defence counsel submitted that the inconsistencies between the version of the

complainant MC, TC and UC are so flawed as to be properly dealt with in relation to

the Prasad test.

127. I must say the Defence Council submissions were rather brief with little fleshed out

detail, however I do not cavil with the essence of the argument.

Prosecution submissions

128. The prosecutor submitted that the Prasad direction is only warranted where:

The evidence is so lacking in weight and reliability that no reasonable tribunal could safely convicted on it.

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129. The prosecutor submitted that the threshold had not been crossed and I should not

give myself a direction pursuant to The Queen v Prasad.

130. The prosecutor submitted that the inconsistencies pointed out by the defence counsel

were in fact not inconsistencies, and others were merely providing additional detail

about the complaint in direct response to a question. The prosecutor submitted that

these inconsistencies are insignificant and should not undermine the credibility of the

witness.

131. The prosecutor submitted that the complainant’s evidence is consistent with the

evidence given in the evidence in chief interview and the evidence given in court.

Further, his credibility is supported by the immediate and consistent complaint that he

made to others. Therefore the evidence cannot be so lacking in credibility that no

reasonable tribunal could convicted based upon the evidence.

132. Further, the submission made by the defence counsel that the differing versions

between UC, TC and MC being the subject to a Prasad direction are misconceived

and contrary to first principles.

133. The prosecutor submitted that the court should make careful analysis of the evidence

given by each of the witnesses assessing their credibility, and that will form their view

about which evidence should be accepted and which evidence should be rejected.

134. The prosecutor (correctly) submitted that a court is entitled to accept the witnesses

evidence in whole or in part and may reject the witness’s evidence in whole or in part.

135. The prosecutor submitted that the mere existence of multiple versions within the

prosecution case does not meet the test for Prasad and the defendant has not pointed

to any matters of substance to support a finding by the court that the evidence of the

complainant is so lacking in weight and reliability that no reasonable tribunal could

safely convicted on it.

DECISION

The Authorities

136. It is clear from the authorities that a Prasad direction can be given despite there being

a finding of a prima facie case against an accused.3 The High Court in May v

O’Sullivan said in the headnote:

…The burden of proving guilt beyond reasonable doubt rests on the prosecution from first to last. A finding that a prima facie case has been made out is a finding of law that on the evidence as it stands the defendant could lawfully be convicted of the offence charged. Whether he ought to be convicted depends upon the

3 May V O'Sullivan [1955] 92 CLR at 654.

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tribunal being satisfied beyond reasonable doubt on the whole of the evidence before it that the defendant is guilty. This question of fact must be decided, whether or not the defendant has given evidence, upon the basis that the prosecution throughout carries the onus of proving guilt beyond reasonable doubt, even though in some cases it may be legitimate to have regard to the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear.

137. In this case it is not a matter where the defendant should give evidence in order to

satisfy the prosecution case as described above. The prosecution has the burden of

proving the elements of the offence beyond reasonable doubt. I remind myself the

defendant does not have to do anything. I also remind myself that is a general

proposition and there are exceptions to it. However this is not one of those cases.

138. Upon the evidence before me I must be satisfied beyond a reasonable doubt as to

each element of the offence. In this particular case the evidence of the complainant

MC is markedly different from the evidence given by his sister TC and his mother UC.

139. The differences are that MC the complainant gave evidence that his father struck him,

gouging his eye, grabbed him and shoulder barged him. It would appear on his

evidence that his father was the aggressor at all material times.

140. The evidence of TC and UC was that it was the complainant MC who was the

aggressor at all times. That it was MC who punched and pushed the defendant and

caused an injury to him (bloody nose).

141. I must reconcile these differences because they go directly to whether the defendant is

guilty of the offences charged.

142. I also note that the charges relate to 2 separate incidents. One on 3 December 2016

and one on 6 December 2016. There was no submissions in relation to the incident on

3 December 2016.

143. I did not have the benefit of seeing MC or TC give evidence and had to rely on the

recorded interview given by both and the recorded proceedings and transcript of the

evidence given by both.

144. I have reviewed the recordings of evidence of both MC and TC very carefully. It is

always difficult in these situations to determine how the witnesses present. However,

having listened to the evidence of what happened I make the following observations;

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145. The Prosecution suggested to TC that her evidence was tainted by collusion or

pressure from her family and that she was giving evidence to support her father’s

version because she was worried about him going to jail.

146. I found TC’s evidence to be truthful and compelling. My impression after listening to

her evidence was, that despite very careful and protracted cross examination by a

skilful prosecutor she did not resile from what she had said in her evidence in chief

interview or her evidence before the court as to the important facts. I found that she

conceded where she should have and was resolute when questioned about what she

actually saw. Her evidence is corroborated by her mother UC. I also found that her

evidence is consistent with someone who had indeed witnessed the incident as she

described. In my view her evidence was consistent, cogent and it did not appear to be

from being pressured.

147. I am satisfied that she was in her bedroom and able to see most if not all of what

occurred in her mother’s bedroom. Her evidence is consistent with her mothers in that

regard.

148. I am satisfied that she saw what she said she saw of the incident on 6 December

2016. I note that MC in his evidence said TC was not in the lounge room at all during

that part of the incident. MC’s evidence is difficult to reconcile on this point.

149. I find that TC was there when MC collected the bat and her evidence about what

happened is consistent in most part with MC and UC. UC said she heard TC tell MC

to drop the bat. That is consistent with what TC said she said. TC was also able to

describe how the bat was swung which was consistent with MC and UC’s evidence.

150. I also heard the evidence of UC. I note and give myself a warning that I should treat

the evidence of UC as any other, despite the assistance of an interpreter. Having said

that, the task was made more difficult because UC and the interpreter did engage in

conversations about the evidence, however, ultimately after warning the interpreter as

to her role the evidence flowed more smoothly.

151. I drew an inference that the prosecutor’s line of questions suggested that UC’s

evidence is tainted because her main reason to give the version she did was to protect

her husband the defendant. There was some confusion about a letter in relation to bail

and her statement to police, ultimately nothing turned on that issue. I also drew the

same inference that TC’s evidence was similarly tainted for the same reason.

152. MC’s evidence is not dissimilar to that of the other witnesses as to the fact there was

an incident on 6 December 2016. The differences are that MC said it was his father

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who was the aggressor, who said ‘do you want to fight’ and who punched him and then

in the bedroom eye gouged him. It was at that point MC says he then punched and

kicked his father and pushed him to the ground.

153. MC says he went outside and grabbed the bat, came inside, was swinging it and when

his mother asked him to stop he gave the bat to her. Both TC and UC say it was UC

who grabbed the bat, taking it from MC, took it outside and placed it in the car.

154. MC says his father shoulder barged him when he came inside to have a shower,

neither TC or UC say that occurred, and in fact suggest that nothing like that happened

at all.

155. MC denied that TC was there but her evidence was compelling, given her evidence

was consistent with both MC and UC’s evidence when she said she pleaded with him

to put the bat down. That was clearly not invented or learned.

156. MC denies that his mother told him to calm down. MC says he was eye gouged by his

father, despite his mother and father in the bedroom saying that did not occur. There is

one small light scratch near his eye. The suggestion is that it may have been sustained

accidently in the melee, which is consistent with UC’s evidence.

157. I am now tasked with considering which evidence I accept and which, if any, I should

reject. As I have indicated I accept TC’s evidence as reliable and truthful. It is

consistent with other evidence. I also have no good reason to reject the evidence of

UC, particularly where it is corroborated by other evidence.

158. MC’s evidence is clearly at odds with his sister and mother. That is not uncommon in

these types of matters. However I must be satisfied that on the evidence before me the

elements of the offence have been proved beyond a reasonable doubt.

159. Clearly in relation to the offences of 6 December 2016 those elements are the unlawful

application of force upon MC by the defendant without MC’s consent, and in relation to

the assault occasioning actual bodily harm, an injury resulted from the assault.

160. The versions of MC, TC and UC are not easily reconciled. As I have said I have no

real reason to doubt either TC or UC’s evidence. The evidence given by MC is

inconsistent with their evidence. If I accept their evidence as the truth of what

happened on 6 December I am left with a reasonable doubt as to what happened that

evening in the family home. If I was in doubt as to whether MC was the aggressor and

did punch the defendant in the way described by TC and UC I cannot be satisfied that

the elements of the offences are made out. There is clearly an inference which I can

draw that there is a reasonable hypothesis consistent with innocence, that being that it

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was MC who was the aggressor and punched his father. It is also reasonably open to

infer that his father was trying to protect himself and may have accidently scratched

MC, or that UC accidently scratched MC in the melee.

161. I cannot be satisfied that it was the defendant who attacked his son in the way

described by the prosecutor on 6 December 2016.

162. I have been invited by defence counsel to direct myself in accordance with R v Prasad:

“Prasad direction”: R v Prasad (1979) 2 A Crim R 45.

It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may exercise the right then or at any later stage of the proceedings. Archbold Criminal Pleadings and Practice (39th edition 1976) P332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in the law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between the trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt the tribunal, which is the judge of both law and fact, may dismiss the charge at any time after the close of the case for the prosecution, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts. It cannot, consistently with principal, exist in a judge whose functions does not include adjudication upon the facts.

163. In R v Pahuja (1987) 49 SASR 191 Cox J said at 218;

Any Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction – usually some serious weakness in the Crown case that has emerged during its presentation. This is in effect a direction to the jury that they can acquit at any time without hearing any more evidence or the addresses the test is if the tribunal of fact is satisfied that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.4

164. I give myself a Prasad direction in relation to the following charges 2016/12822,

12823, 12824 and those charged are dismissed.

4 Ross on Crime (5th edition), 16.2900.

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165. There was no evidence before me in relation to the incident on 3 December 2016 (the

book) 2016/12825 other than the evidence of MC. I do not direct myself in relation to

that charge and I determine that there is a case to answer.

I certify that the preceding eighty [165] numbered

paragraphs are a true copy of the Reasons for

Decision of Her Honour Special Magistrate Hunter

OAM.

Associate: E Knaggs

Date: 13 February 2019

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