Baraket v The Queen

[2001] HCATrans 364

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B72 of 2000

B e t w e e n -

RIAD BARAKET

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 12.59 PM

Copyright in the High Court of Australia

MR R. BARAKET appeared in person.

MS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, we have read the written submissions, so we know quite a bit about the case.  This is your chance to put orally anything that you feel you should emphasise or that you have not been able to put in your written submissions.  Do you understand?

MR BARAKET:   I understand, your Honour.

KIRBY J:   Yes, very well.  You tell us what you want to say.

MR BARAKET:   Very well, thank you.  Your Honour, the prosecution reference to the stains found on the complainant’s blouse in regard to being faeces, the prosecution want you to believe that the complainant was assaulted with a finger to her anus, yet all the DNA tests that were done on my person and specially on my nail clippings showed negative.

Your Honour, stains such as these could have come in so many other different ways to be on her shirt, or her blouse, if she stated she had a blouse.  Your Honour, if any traces were found of faeces, perhaps they should have been found on her underwear which the complainant herself testified that they were pushed to the side.  They were not taken off.  So, if there were any kind of stains that points the finger at me, it should have been on her underwear, not on the shirt.

KIRBY J:   It is a white blouse.

MR BARAKET:   It is a white blouse, your Honour.

KIRBY J:   And it would be unusual to have faeces on a white blouse.

MR BARAKET:   It would be unusual to have faeces, your Honour, anywhere else for that matter.  You would think if any of those stains should have been available, should have been on the underwear, not anywhere else, or they should have been on my person if I was the person that done the assault on her anus.  However, that is one of the DNA tests that was done on the nail clippings and again and again the tests showed negative.  There was no evidence of any faeces present on the fingernails.

They also wanted to believe that the complainant has grabbed my testicle in defence of herself.  Your Honour, when you are defending yourself against a rape, naturally you will grab as hard as it is possible, yet when I was being checked by Dr Jacobs and Detective McClelland, the arresting officer, they could not find any marks or any swelling of my testicles and, again, the position that the complainant was allegedly in a certain position where there is no way she could reach my testicles from that position.  If a hand is holding her head down and a knee holding her back down, your Honour, I just cannot see even an aerobic instructor could even reach that far back and grab somebody’s testicles.  Detective McClelland was asked the same question in court, whether he seen any marks or any swelling to the testicle and his answer was no.

In the event of a vagina being penetrated from behind, I ask you, your Honour, how can a person having this thing done to them not be able to tell whether that person was wearing a condom or whether that person ejaculated or not.  I mean, that surely would ‑ ‑ ‑

KIRBY J:   She said that she asked you to wear a condom and I am not sure that she actually asserted that you wore a condom, but it presumably would be consistent with the DNA tests that you had not ejaculated.  At least, that would be open to the court of trial to conclude that.

MR BARAKET:   But, your Honour, the conclusion of the District Court then ‑ ‑ ‑

KIRBY J:   DNA tests are not perfect.  They can sometimes be extremely important, of course, as the Court of Appeal of Queensland has recently demonstrated in a case, but they are not perfect in every case.

MR BARAKET:   Your Honour, the only time prosecution or the police speaks about perfection of the DNA testing nowadays is when they have a positive reading, yet when they have a negative reading, it is just inconsequential.  It is not that important no longer.  Your Honour, they tell us ‑ ‑ ‑

KIRBY J:   It is not inconsequential and at the trial you laid a lot of emphasis on the fact that there was no DNA evidence on spermatozoa or on other DNA material, so you ran that point.

MR BARAKET:   Your Honour, all the DNA and the forensic tests that they were done on the complainant’s person and on me and forensic tests that were done on the restaurant itself, the floor, the wall, everything absolutely does not corroborate any of the complainant’s accusation, your Honour.  No skin marks from the knees or the forehead or the elbows that she has supposed to have suffered, no bloods of any ‑ ‑ ‑

KIRBY J:   But she did see a doctor soon afterwards and ‑ ‑ ‑

MR BARAKET:   Your Honour, I am not saying about the injuries.  Her injuries, your Honour, do not forget that she was supposedly drunk, supposedly stoned as well and she was riding a pushbike early morning or let us say in her version of event, she was riding the pushbike somewhere around 3 o’clock in the morning, drunk, stoned.

KIRBY J:   But that is itself rather telling, is it not, that she goes and sees her friend and then goes to see the police and then sees quickly afterwards the doctor.  So, all of this is not the usual conduct of a waitress in the middle of the morning.

MR BARAKET:   Your Honour, the three waitresses that were in the court – and they were asked one particular question by my counsel and again by me during the hearing was, “Do you remember that I asked one of you girls to relieve the complainant’s shift tomorrow morning because I feel I have to ask her to leave because she served only two tables?”  Let us just say she was not good enough waitress.  That was the reason.  I asked the three waitresses and the three of them agreed that I did ask them that.  That was around 8, 8.30 in that evening, Friday evening.  The complainant went inside to the kitchen to check on her roster, because I did not get the chance to tell her that I no longer need her services, she went into the kitchen, she checked the roster.  Her name was not there, your Honour, because I already blacked it out and I gave Natasha Tobin the shift for the second day in the morning at 10 o’clock.

KIRBY J:   Yes, but this does not establish what happened later in the evening.  This merely establishes what happened earlier.

MR BARAKET:   Your Honour, it establishes revenge, upset and her motive, what she already got out of the court for the so‑called compensation.  In her own words too in court, your Honour, she was really worried about how is she going to pay all the fines to the police and all related to shoplifting and drugs.  Nothing else, your Honour.  She said it.  The only way she could get out of her dilemma is by either getting a full‑time job, which she can never keep, not as a waitress, and the only way she could do it is by blaming somebody.  Your Honour, I even have a report ‑ ‑ ‑

KIRBY J:   Well, you put these matters before the jury.  This was how you ran your case and the jury accepted the complainant’s testimony and they were properly instructed by the judge that the matter had to be proved against you beyond reasonable doubt.  The jury accepted her and disbelieved you.

MR BARAKET:   Your Honour, benefit of the doubt.  We have - all DNA and forensic tests clears me.  We have three waitresses that clear me.  We have a security guard that checks every single door ‑ ‑ ‑

KIRBY J:   Well, they cannot clear you as to what happened in their absence later in the evening.  I understand that you say that they provide some form of motive but it seems a pretty paltry motive that she was not on the roster to go and complain to you about this very serious charge just happening to have faeces on her white blouse.

MR BARAKET:   Your Honour, how that faeces got on her blouse, that I do not know and in a way I do not care, your Honour.

KIRBY J:   It is pretty telling evidence, I am afraid, Mr Baraket.

MR BARAKET:   Your Honour, if it is on the evidence – you see a smudge on a book.  That does not point the finger at anybody, your Honour.  There was none of my DNA on it and none of that faeces DNA was on me either.  How can – that means I did not even touch that blouse.  I did not even touch that faeces.  There was nothing to prove that it was me that put the faeces on that blouse.  She was wearing the blouse.  I was not wearing the blouse.  Your Honour, if I did insert my finger in her anus and I pushed her underwear to the side, the faeces would have been on her underwear, not on her shirt.  How she got it there I do not know, your Honour, but we were talking ‑ ‑ ‑

KIRBY J:   It is just that you will understand how a jury might think about it, that she goes to the police.  She says how the offence occurred and the offence occurred not just with vaginal entry but with digital entry to the anus and, lo and behold, there happens to be faeces on a white blouse, which is not something one would normally find.  This is early in the morning.  She is going to see the police.  It is a very strong case objectively on the evidence.

MR BARAKET:   Your Honour, when she went to see the police – I am sorry to interrupt – when she went to see the police she was not wearing that white top.  She was wearing what you could see in the pictures they took of her, a T‑shirt, a Harley Davidson T‑shirt or something like that.  Her shirt was thrown on the floor.

KIRBY J:   Yes, but you agree that the white blouse was the one she was wearing that night?

MR BARAKET:   Your Honour, it could not be the same blouse that she was wearing that night because Miss Tobin in her statement in Southport stated that the complainant spilt some pink liquid, one of the soft drinks, on her blouse and they tried to give her a hand by washing it off with some soda water, yet when the DNA comes in regard to the tests done on the white blouse, there was only blood mark under her armpit and faeces on the right‑hand bottom side of it.  But there was no mention about soda water or that pink stain that was left there that the girls could not clean it.  It could not be the same blouse she wore that night and, your Honour, she was not wearing a blouse.  I keep on telling that to everybody.  She was wearing a jacket, a jacket, colour, long sleeve, long to here, open in the middle with six, seven, eight, 10 buttons, whatever it is that it had.  It was like a jacket.  It was not a blouse.  A blouse, your Honour, is something you slip on.

KIRBY J:   Well, she said it was the blouse that she was wearing and that apparently was believed.  At least, it was open to the jury to believe it.

MR BARAKET:   Well, your Honour, she said I raped her and that was believed too.  You see, your Honour, we were talking about the benefit of the doubt.  Like I was saying, the DNAs, the forensic, faeces or no faeces, that is beside it, all of that showed none of my DNA was on it and none of that DNA was on me and then we have three waitresses vouch for my character.  We have a security guard and we have a baker that arrives at 12.30 in the morning every single day, 12.30 on the dot.  He states that there was no lights, no music, no shouting, nobody around, everything like normal.  How could – he is there every day.  If there is something different, he would have noticed, your Honour.

KIRBY J:   But there was a witness who said that she heard screaming.

MR BARAKET:   Okay.  The witness next door to Ms Vessey said she heard screaming, yet she did not report it to the police till Tuesday.  That is when she went to the shopping centre ‑ ‑ ‑

KIRBY J:   Well, often citizens do not want to dob in their neighbours because they are screaming, but when it subsequently becomes relevant they give evidence.

MR BARAKET:   No, your Honour.  She was asked the same question then in the hearing, “Why didn’t you call the police?” and Ms Vessey’s exact words were, “I did call them once and they never showed up.  I did not want to bother”.  On that same night she was under the influence of a sleeping tablet.  She is not sure of the brand.  She is an older woman.  She needs glasses.  She wakes up in the middle of the night, whether be it because of screaming or otherwise.  She walks over, as far as her statement, she looks through the toilet/bathroom without her glasses, without consulting a clock or anything and she says, “It felt like between one and three”.  I ask you, your Honour, now you are straight awake, what time does it feel?  How can you really tell the time by, “Yeah, it feels like one to three o’clock”.  That is unheard of, your Honour.  Under the influence, older, late at night.  I am sorry.  You cannot put too much credit to that kind of a statement.  You cannot say it feel like ‑ ‑ ‑

KIRBY J:   Well, it is a way of explaining what she felt was the approximate time.  Old people often wake up and go back to sleep.

MR BARAKET:   But, I am sorry, you cannot tell the time by feeling.  I am sorry, it just does not work.  The honourable judge, Mr Muir, also stated that the complainant stayed behind after the other waitresses, behind, with either of the waitresses.  Miss Davenport had just left before 1 am.  Your Honour, all we seem to be taking is the complainant’s testimony.  We are disregarding everybody else’s testimony.  Miss Davenport states that she left ten to maybe quarter past 12, meaning she was not there just before one and she was not there when the baker arrived at 12.30.  Nobody was there when the baker arrived at 12.30, yet the judge decide that the complainant’s statement is the fact.

Your Honour, the…..factor in just about every one of the witnesses’ statements was declared wrong.  Only one statement with its timing was correct and that is the complainant.  How could that be?  What did all the three waitresses have to gain?  What did the security guard have to gain by lying about the time he arrived in the shopping centre and checked the doors?  What did the baker gain by lying that he arrived at 12.30 and there was nobody around, no lights and no music?

Your Honour, you cannot take one statement and disregard five.  I am sorry, one of them might be a liar.  Two might be liars, but five of them?  I am sorry, that does not work.  Judge Muir also stated ‑ ‑ ‑

KIRBY J:   You gave no evidence in the trial.  Is that correct?  That, of course, is your right, but ‑ ‑ ‑

MR BARAKET:   Your Honour, that is correct.

KIRBY J:   You do not have to explain it.  You are entitled to give no evidence but that is the fact, is it not?

MR BARAKET:   That is the fact.

KIRBY J:   Yes, very well.  Well, that is all right.

MR BARAKET:   Your Honour, I wanted to give evidence.

KIRBY J:   You are entitled to put the Crown to the proof and that is what you did. But, in practical terms, often in these cases we see that if a person does not give evidence, then the jury have only really one side to go on.  They are told that it has to be proved beyond reasonable doubt.  You are very articulate before us, but you did not articulate before the jury.

MR BARAKET:   Your Honour, now I am a little bit more knowledgeable about how to talk, how to write things.  At the beginning, I was dependent on my counsel who, by the way, he was incompetent and I asked him so many times to put me on the stand.  “No”, he says, “I do not have to prove your innocence”.

KIRBY J:   Well, that is a different matter.  That is not before us.  We do not have that.  Now, you only have a few minutes.

MR BARAKET:   But I am just saying, your Honour, that is the reason.

KIRBY J:   What do you want to say about Mr Sheriff and Ms Camble?

MR BARAKET:   Mr Sheriff, he was the Crown witness, yet we were not allowed to proceed in questioning and cross‑examination for the simple reason that ‑ ‑ ‑

KIRBY J:   But that was in relation to something that it was alleged that the father of the complainant had said to him.  Is that not right?

MR BARAKET:   The father of the complainant arrived and he wanted to make a deal with me.

KIRBY J:   Yes, but was that done in the presence of the complainant?

MR BARAKET:   No, it was done in the presence ‑ ‑ ‑

KIRBY J:   Well, why would you let a witness say what somebody else has said?  She may have known nothing whatsoever about this.

MR BARAKET:   Your Honour, she did not.  That is the reason we could not question Mr Sheriff.  His exact words were, “She’s told me to tell you that she doesn’t want to take it any further than it already is.  Can we do something about it?  Do we have to leave it to the courts to discuss it?”  I said, “What do you mean?” and, in a way, I am glad he said it that day because the three waitresses were standing right there next to me and believed me ever since then that I am hundred per cent about telling them the truth.  He asked me for a certain sum of money and I told him to go to hell.  I was not going to be extorted.  I thought there was some justice.  I know the system, as everybody says, little bit weak but I have always thought that there was some justice left in this country.

Your Honour, you cannot take the word of a drug‑addicted female and I do – I spoke to a lot of people and one of them is Dr Stretton, her psychologist, who states to the fact that the complainant had a habit of 20 to 30 cones a day.  Your Honour, that is a lot of marihuana.

KIRBY J:   Yes, I think all that was put before the jury, but even ‑ ‑ ‑

MR BARAKET:   No, your Honour, it was not put, because most of it was ‑ ‑ ‑

KIRBY J:   Well, if it was not put before the jury, we cannot take it into account.  We are dealing with the trial as it was conducted, you giving no evidence and she giving her statement and producing the blouse.

MR BARAKET:   Your Honour, the complainant accused her grandfather for sexually abusing her.  That was not allowed to be brought into the trial.

KIRBY J:   Well, I should think not.  It is irrelevant.

MR BARAKET:   For a girl trying to get the attention of her family ‑ ‑ ‑

KIRBY J:   People who smoke marihuana and who have been sexually abused are still citizens and they are entitled to come before the court and give their evidence.  Anyway, I think you have covered all of the grounds that were in your written document and we have read it very carefully and we understand it.  Thank you very much, Mr Baraket, your time has expired.  Ms Clare, the Court does not need your assistance.

MS CLARE:   Thank you.

KIRBY J:   This was a very strong prosecution case.  The complainant complained of rape and associated offences.  She did so virtually immediately to the police, making her complaint within hours of the occurrence and in the early hours of the morning.  A neighbour of the place where the offences were said to have occurred told police that she had heard screams at a time consistent with the offences happening.

The offences included digital penetration of the complainant’s anus.  Faeces were found on her white blouse consistent with this complaint.  Evidence of a medical examination undertaken soon after the complaint was also consistent with the complainant’s evidence.

The applicant raises four grounds.  None of them warrants the grant of special leave.  The first is that the DNA tests failed to disclose evidence of his spermatozoa in the complainant or her faeces on his fingernails.  This fact could be explained by any defects in the DNA test or the passage of time.  The second is the admission into evidence of the complainant’s testimony, although she had admitted to consuming marijuana prior to giving evidence.  This was not a basis for excluding her evidence and the trial judge gave correct instructions to the jury on this point.  The third is the refusal of the trial judge to admit the evidence of Mr Sheriff and Ms Camble.  However, this testimony apparently related to something allegedly said by the complainant’s father.  The complainant was not present during the conversation.  She did not adopt what, if anything, was said.  The evidence was correctly excluded.  The fourth relates to the summing up.  No objection was taken at the trial.  No material misdirection is made out.  The applicant gave no evidence at his trial.  His conviction was unsurprising.

The applicant complains about the lack of facilities for legal advice in prison for him and people like him.  In this case, any such defect would not have been material.  We will dispense with the rule relating to time for bringing the application but refuse special leave.

AT 1.23 PM THE MATTER WAS CONCLUDED