Director of Public Prosecutions v Nafady

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 19-02515

DIRECTOR OF PUBLIC PROSECUTIONS

ADEL NAFADY

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF TRIAL:	24 August; 7 and 17 September; 15, 20, 21, 22, 28 and 29 October 2020
DATE OF JUDGMENT:	11 November 2020
CASE MAY BE CITED AS:	DPP v Nafady
MEDIUM NEUTRAL CITATION:	[2020] VCC 1774

REASONS FOR JUDGMENT
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Subject: Catchwords:

LegislationCited: Crimes Act 1958; Criminal Procedure Act 2009; Jury Directions Act 2015; Evidence Act 2008; COVID-19 (Emergency Measures) Act 2020

Cases Cited: Browne v Dunn (1893) 6 R 67; Liberato v R (1985) 159 CLR

507; Murray v R (2002) 211 CLR 193; De Silva v R (2019) 375
ALR 1; DPP v Tiba [2020] VSC 717; R v Jacobs (A Pseudonym) [2019] VSCA 285; DPP v Jacobs (a pseudonym) (Unreported, County Court of Victoria, Judge Lyon, 17 September 2020); DPP v Jacobs (A Pseudonym) [2020] VSCA 266
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper Ms S. Clancy	Office of Public Prosecutions
For the Accused	Mr D. Dann SC Ms G. Connelly	Emma Turnbull Lawyers

Introduction

The accused Adel Nafady is charged that on 24 / 25 April 2015 he raped Rita Salib1, by intentionally sexually penetrating her by introducing his penis into her vagina without her consent, while being aware that she was not consenting or might not be consenting, or while not giving any thought to whether she was not consenting or might not be consenting, contrary to s 38(1) Crimes Act 1958.2

The accused has pleaded not guilty.

Trial by Judge Alone

This case is being tried by me as judge-alone. The accused’s application to be tried by judge-alone pursuant to s.420D Criminal Procedure Act 2009 (CPA) was granted on 8 August 2020.

In hearing this matter I may make any decision that could have been made by a jury. My decision will have for all purposes the same effect as a jury verdict.

Section 4A Jury Directions Act 2015 (JDA) applies in this case.3

Section 4A provides that the Court's reasoning with respect to any matter in which Parts 4, 5, 6 and 7 apply must be consistent with how a jury would be directed in accordance with the JDA. Further, I must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.

I must apply all directions of law to myself that would have been given to a jury in this case.

In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.

1 A pseudonym.

2 Specifically, contrary to s.38(1) Crimes Act 1958 as amended by the Crimes Amendment (Rape) Act 2007 and in operation between 1 January 2008 – 30 June 2015.

3 Pursuant to s.420ZF CPA introduced by the enactment of the COVID-19 (Emergency Measures) Act 2020

The Issue at Trial

The Prosecution Opening

The Crown opening alleged that Mr Nafady raped Ms Salib at the point that he introduced his penis into her vagina in a second act of penetration on the night of 24/25 April 2015.

The Crown outlined that Ms Salib did not consent to the introduction of his penis into her vagina; that she clearly communicated the fact that she did not consent by her words in the moments before and the moment of introduction, saying ‘stop/I don’t want to do this’. Mr Nafady then inserted his penis into her as she struggled and screamed at him to get off. Mr Nafady said ‘just let me finish’ and kept her wrists pinned next to her head on the bed.

After Mr Nafady stopped, they stood beside the bed. Mr Nafady tried to grab Ms Salib’s arm so she pushed him. Mr Nafady then struck her shoulders, pushing her to the ground. Mr Nafady asked Ms Salib to stay, saying ‘I’m sorry. Calm down. You’re overreacting. Nothing happened’.

Ms Salib gathered her belongings as Mr Nafady continued to tell her she was overreacting. She told him ‘I told you to stop and you didn’t’, to which he responded “I stopped. I didn’t finish”. Ms Salib threatened to scream if Mr Nafady did not let her leave the apartment.

After leaving, Ms Salib sent a text to her house mate Nathan Thompson4. He replied the next day, at which point she told him she had been in a bit of trouble but was fine now.

On 27 April Ms Salib told a colleague Mr Nafady has tried to assault her.

On 2 May Mr Nafady sent Ms Salib a message. Overall, 56 messages were sent between the two.

On 31 May then Detective Senior Constable Jones (now Sergeant Jones) contacted Ms Salib by telephone and, by reference to a questionnaire, told Ms Salib she was conducting an investigation into Adel Nafady. DSC Jones told Ms Salib information from Mr Nafady’s telephone suggested Ms Salib had been in contact with him.

Ms Salib indicated she had been in contact with Mr Nafady but could not talk about it, and could not report what happened due to her religion. Ms Salib said she had a bad experience with Mr Nafady who had ‘forced himself’ on her.

Ms Salib said she was scared to report the incident. DSC Jones told Ms Salib that Mr Nafady was in custody for similar things, and told Ms Salib that she (Ms Salib) was safe.

On 31 May, after the conversation with DSC Jones, Ms Salib disclosed the offending to Angela Williams5.
Ms Salib later made a statement to police.

On 17 May and 21 May police executed search warrants on Nafady’s apartment, where they seized a bottle of Captain Morgan rum and the accused’s mobile phone respectively.

The Defence Reply

The elements of rape could not be proved beyond reasonable doubt because the complainant and the accused initially engaged in a consensual act of sexual penetration (the second penetration). During that act of penetration, the complainant had a sudden and dramatic change of mind and the accused

withdrew his penis from her vagina. Essentially, this was not a case of rape by the introduction of the accused’s penis into the complainant’s vagina as the Crown alleged, but a case of the accused withdrawing his penis once the complainant changed her mind after a sustained period of consensual penetration.

The defence outlined that the principal dispute at trial would focus on Ms Salib’s conduct and words communicated to the accused immediately before and at the time of the second penetration.

The defence agreed that intimacy resumed after an initial act of penis/vagina penetration (the first penetration) had stopped. The issues in dispute as to the allegation of rape were:

i. during the intimacy, Ms Salib assisted the accused in guiding his penis into her vagina to commence the second penetration;

ii. Ms Salib did not say ‘stop / I don’t want to go any further’;

iii.Ms Salib did not struggle as the accused commenced to penetrate her vagina with his penis;

iv.the accused did not pin Ms Salib’s wrists by her head;

v. the accused did not say ‘just let me finish’;

vi.the accused did not ejaculate;

vii.the accused did not hit Ms Salib after she got out of the bed, but tried to push her away.

The defence contended that the text messages sent by Mr Nafady to Ms Salib on 2 May 2015 set out the truth of what occurred on 25 April.

The defence referred to the conversation between DSC Jones and Ms Salib on
31 May 2015 and raised the contention that the informant’s words of reassurance to Ms Salib influenced her, and that Ms Salib in fact gave false evidence in her recorded evidence in chief.

General Directions of Law

I now refer to the general directions given in a criminal trial which I must apply.

Evidence Given Remotely

The evidence of Rita Salib was in part pre-recorded and in part evidence given before me. In each case, Ms Salib’s evidence was given from a remote location.

The evidence of witnesses Thompson and Williams were pre-recorded.

The evidence of Sergeant Jones and Mr Nafady were each given from remote locations, due to the court’s social distancing requirements during the currency of the covid-19 pandemic lockdown.

I remind myself that the evidence of the witnesses must be given no greater or lesser weight for the fact that it was recorded/provided remotely. I draw no inference adverse to the accused for the fact that the complainant gave evidence from a remote location.

Presumption of Innocence

In all criminal trials an accused person is presumed innocent of the charge unless and until they are determined to be guilty.

Burden and Standard of Proof

The prosecution bears the burden of proving the case against the accused. No accused person must prove their innocence. The prosecution always bears the burden of proving the accused’s guilt.

The accused may be found guilty of a charge only if the prosecution has proved its case beyond reasonable doubt; the highest standard known to our law. Proof to any lesser extent must result in a verdict of not guilty.

Decide Solely on the Evidence

I must decide the case only on the evidence led in this trial. I must not have regard to any media reporting or social media, or conduct research about the parties or witnesses. The transcripts are to be used as an aid and not as a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.

The evidence adduced in this case is the evidence of each of the witnesses and the exhibits.

As the Judge of the facts and law, I must find the facts and draw 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.

I may only return a verdict of guilty if I am satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and I must acquit him.

I must determine the credibility and reliability of each witness called and I may accept all, some or none of a witness' evidence. I must base my verdict only on evidence I find to be credible and reliable.

Delayed Complaint

In the course of the evidence of Ms Salib I had regard to s.52 JDA. At this time, I note that there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.

Complaint Evidence

I may use complaint evidence adduced at trial in two ways:

i. first, as proof of the truth of facts asserted in the complaint; and

ii. secondly, to assess the credibility of the complainant by showing that her account of the events in question has been consistent.

It is necessary to be mindful that in the instances where a witness other than the complainant gave evidence of the complaint, the complainant was in fact the source of that evidence.

Distress

It is submitted that there is evidence that Ms Salib was distressed at the time she left Mr Nafady’s apartment in the early hours of 25 April 2015, and then again when she spoke to DSC Jones on 31 May 2015.

Evidence of the complainant’s distress shortly after an alleged sexual offence may be admitted as circumstantial evidence that independently supports the complainant’s evidence, and may be used as circumstantial evidence where it is reasonably open for me to infer that there was a causal connection between the alleged offending and the distress.

Distress evidence may also form part of the narrative when evidence is led of a previous complaint. Such evidence may support the matter described in the complaint, because it is a common human experience that the recounting of a stressful experience can be accompanied by outward indications of distress.

I bear in mind that signs of distress may result from any one of a number of possible causes; it may have been caused by the commission of the offence of rape as asserted, or by some other factor.

Prior Inconsistent Statements

It was submitted that Ms Salib made prior inconsistent statements. If I accept the statements were made, then a prior inconsistent statement can be used in two ways:
i. First, I may use the contents of the statement as evidence in the case; and

ii. Secondly, if I find that Ms Salib’s statement is inconsistent with her account in court, I may use the statement when assessing her credibility and reliability.

If I find that Ms Salib made a previous statement which is inconsistent with her evidence in court before me, I will have two different accounts from the same witness. It is a matter for me to determine which account, if any, to believe.

Differences in Complainant’s Account

It was submitted that there have been differences (that is, variations / inconsistencies) demonstrated in what Ms Salib has said on different occasions.

I may use a difference in Ms Salib’s account when assessing her credibility and reliability. When assessing the evidence, I must be mindful that experience shows that:

i. People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time;

ii. Trauma may affect different people differently, including by affecting how they recall events;

iii.It is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times, to different people or in different contexts; and

iv.Both truthful and untruthful accounts of a sexual offence may contain differences.

Motive to Lie

It was submitted that Ms Salib has a motive to give false evidence.

If I accept that Ms Salib has or might have a motive to lie, then I must consider whether that affected the evidence she gave.

If I reject the idea of a motive to lie, then I will ignore the submission when I consider the credibility and reliability of her evidence.
The accused does not have to prove that Ms Salib had a reason for giving false evidence.

Use of Text Messages

The defence submitted that the 56 text messages of 2 May 2015 between the complainant and the accused tendered in evidence formed an exception to the hearsay rule and could be admitted as evidence of the truth of the facts asserted in those messages. The Crown did not argue to the contrary.

Both Rita Salib and Adel Nafady gave evidence and were cross examined at trial about those text messages.

The messages were sent about a week after the circumstances giving rise to the allegation. It was not suggested the events were not still fresh in the minds of both Ms Salib and Mr Nafady.

Having regard to all of the relevant matters, including those set out at s.66(2A) Evidence Act 2008, I consider that the text messages form an exception to the hearsay rule and should be admitted as part of the narrative of both the complainant and the accused respectively in their evidence of the occurrence of the events on the night of 24/25 April 2015.

The Accused as a Witness / Liberato

The accused gave evidence at trial. He was not obliged to give evidence but chose to do so. He thereby exposed himself to cross examination. The accused’s evidence must be considered along with the other evidence in the case. The accused has not assumed any burden of proof by giving evidence and presenting a case; that burden always remains with the prosecution.

In this case, there is a clear conflict between the evidence of Ms Salib and Mr Nafady’s evidence.

There are four broad conclusions I may reach about Mr Nafady’s evidence:

i. If I think it is true, then I will find him not guilty;

ii. If I am not sure whether Mr Nafady’s evidence is true, but think it might be, then I will have a reasonable doubt about the prosecution’s case, and again, I will find the accused not guilty;

iii.Similarly, if I merely prefer the evidence of Ms Salib to Mr Nafady’s evidence, then I must find Mr Nafady not guilty. It is not sufficient to merely find the prosecution case to be preferable to the defence case. In other words, it is not a question of simply balancing one case against the other. The prosecution must establish Mr Nafady’s guilt beyond reasonable doubt; and

iv.Finally, if I reject Mr Nafady’s evidence, that does not mean I must find him guilty. Instead, if I reject his evidence, I must put it aside and ask whether the prosecution has proved Mr Nafady’s guilt beyond reasonable doubt, on the basis of the evidence I do accept.

Limited good character

The parties agree that Adel Nafady is a person of limited good character; that is the accused man has no prior convictions for sexual offending.

Evidence of limited good character may be used in two respects. First, I may use Mr Nafady’s limited good character when assessing the credibility of Mr Nafady’s evidence and his denials of the prosecution case.

Second, I may use it when determining the likelihood that Mr Nafady committed the offence charged.

Of course, a person who has previously been of good character can commit a crime for the first time.

Evidence of other misconduct

During the course of the trial I heard evidence that on 31 May 2015, DSC Jones

told Ms Salib that Mr Nafady was ‘in custody for similar things’. Further, it is apparent that Mr Nafady is still in custody.

The evidence of the conversation between DSC Jones and Ms Salib was elicited in cross-examination for the purpose of determining/exploring whether Ms Salib had a demonstrable motive to lie.

I must not exhibit any sympathy or prejudice in the course of my fact-finding. I must not use the evidence for any other purpose.

Browne v Dunn

At several points during the evidence in chief of Adel Nafady, it became apparent that matters were raised that had not been put in cross-examination to Rita Salib. These issues would, prima facie, breach the rule in Browne v Dunn.

From the outset of pre-trial argument, Mr Dann SC raised several times the likelihood that the accused would give sworn evidence in this trial and that there were a number of matters that he (Mr Dann) ought properly put to Ms Salib in further cross-examination.6

In pre-trial argument before me the Crown objected to further cross-examination of Ms Salib. Although I allowed further cross-examination, I limited the issues upon which that cross-examination could be conducted.7
In the circumstances, I do not intend to use the breach of the rule to either adversely affect the weight to be given to Mr Nafady’s evidence in the assessment of his credibility/reliability or to infer recent invention.

Elements of Rape

The prosecution must prove the following 4 elements beyond reasonable doubt.

One - the accused sexually penetrated the complainant in the way alleged.

6 This is a retrial of the one remaining charge from the original trial. Mr Nafady’s conviction on that charge was overturned by the Court of Appeal in R v Jacobs (A Pseudonym) [2019] VSCA 285. Different defence counsel appeared at the first trial of this matter, and Mr Nafady did not give evidence at that first trial.

7 DPP v Jacobs (a pseudonym) (Unreported, County Court of Victoria, Judge Lyon, 17 September 2020); DPP v

Jacobs (A Pseudonym) [2020] VSCA 266.

Two - the accused did this intentionally.
Three - the complainant did not consent to the sexual penetration.
Four - the accused had one of the following three states of mind about the complainant’s consent -

i.The accused was aware that the complainant was not consenting, or
ii.The accused was aware that the complainant might not be consenting, or
iii.The accused was not giving any thought to whether the complainant was not or might not be consenting.

EVIDENCE

The Prosecution Case

1. Rita Salib

Examination in Chief

Rita Salib was born in Egypt in October 1985. She moved with her family to New Zealand when she was nine years of age and then moved to Australia in 2012.
In April 2015, Ms Salib was 29 years of age. She lived in Windsor and was using a dating app called Plenty of Fish. She met the accused Adel Nafady when he messaged her on the app. He stated he was Muslim. They chatted using this app, then exchanged telephone numbers and had further conversations through WhatsApp.

Ms Salib invited Mr Nafady to a trivia night with her friends on 21 April 2015. They first met at Wonderland on Chapel St for a drink, then continued onto the trivia night. At the end of this night, Ms Salib decided not to see Mr Nafady again.

Mr Nafady messaged Ms Salib the next day asking to meet again. They met for coffee, during which time Mr Nafady told Ms Salib he wanted to ‘get serious’ with her. They caught the same tram home and Mr Nafady walked Ms Salib home.

Ms Salib heard from Mr Nafady again, as they had made some plans to meet on Friday. She stated she had other plans, and Mr Nafady got a little upset.

On Friday 24 April, Ms Salib met her work colleague for drinks in the city between 5:30pm and 9:30 pm. She stated that she consumed “about five drinks, I had five drinks”. She was not drunk but just happy.

Mr Nafady and Ms Salib texted, arranging to meet at a bar on Chapel St. They eventually met on the tram before heading to a bar in Chapel Street for a drink. They had one drink at that bar.

Ms Salib was tired and said she wanted to leave. Mr Nafady suggested getting alcohol and going to his place as it would be more private, but she told him she would prefer to go to her house.

Ms Salib stopped at her house, where she took a bottle of rum, before they went back to Mr Nafady’s apartment.

At Mr Nafady’s apartment they drank rum and coke. They had two, maybe three drinks. Ms Salib did not remember the exact number of drinks. They talked and had a few cigarettes.

Ms Salib started to get quite tired. They watched a tv show while on his single bed. Ms Salib began to fall asleep and Mr Nafady said they didn’t have to do anything, they could just go to sleep.

Ms Salib and Mr Nafady began to kiss. He touched her breasts over her clothes. She was fully dressed. Mr Nafady slid her dress down to kiss her breasts, but as he put his hand up her dress she asked him to slow down. He told her ‘it’s fine, it’s nice, go with it’. Ms Salib repeatedly told Mr Nafady to ‘take it slow’.

Mr Nafady undressed Ms Salib, taking off her bra and underpants. He inserted his penis into her vagina; she told him to stop, and he withdrew.

They later commenced kissing again. When Mr Nafady got on top of Ms Salib, she told him “I don’t want to do this”. Ms Salib said it assertively. Mr Nafady then

inserted his penis into her vagina [the second penetration]. Ms Salib was on her back. She said to stop and she tried to push him off her. Ms Salib yelled at him ‘get off me’. She tried to push him with whatever force she could, using her body force. Her hands were up by her head and the accused was on top holding her hands. Mr Nafady said ‘just let me finish’. His demeanour seemed very aggressive at that time. Ms Salib replied ‘Are you fucking crazy? What’s wrong with you?’.

Ms Salib was trying to push the accused off with her legs and kept saying ‘get off me’.

The accused eventually removed his penis from her vagina. He let go of her wrists and she pushed him off and got up. She was standing. Mr Nafady tried to grab her so Ms Salib pushed him. Ms Salib then felt a push or a shove and she fell to the floor.

Ms Salib was on the floor trying to grab her clothes. Mr Nafady was trying to stop her from grabbing them.

Mr Nafady variously said ‘You’re overreacting, calm down. Nothing happened. Just don’t leave’.

Ms Salib gathered her belongings as Mr Nafady continued to tell her she was overreacting. She told him ‘I told you to stop and you didn’t’, to which he responded “I stopped. I didn’t finish”. Ms Salib threatened to scream as loud as she could if Mr Nafady did not let her go. Mr Nafady said ‘you’re overreacting, don’t leave’.

Ms Salib was able to dress and left the apartment. She stated ‘it was roughly a little bit past 2 o’clock in the morning’.

After leaving, Ms Salib sent a text to Nathan Thompson. He replied later on the day of 25 April, at which point she told him she had been in a bit of trouble but was fine now.
Ms Salib was asked to identify the text message exchange between Mr Nafady and her on 2 May 2015. Those 56 messages are marked as part of Exhibit A and are reproduced as Schedule 1 to this judgment.

On 31 May 2015 DSC Jones contacted Ms Salib.

After that Ms Salib contacted a friend of hers in Tasmania, Angela Williams by Facebook messenger. That exchange of messages is reproduced as Schedule 2 to this judgment.

Cross Examination

Ms Salib agreed she enjoyed a freer or different lifestyle in the share house in Prahran in comparison to living with her mother. If she compartmentalised her life, it was because she is a private person, not because she is Muslim.

Being Egyptian was an important part of Ms Salib’s make up.

Ms Salib agreed that after meeting Mr Nafady and going to the trivia night, she found him somewhat attractive; attractive enough to pursue something with him. She agreed that physically he appealed to an extent, culturally he appealed, and it was appealing that he had professional aspirations.

Mr Nafady told Ms Salib that he lived by himself.

After Ms Salib’s first date with Mr Nafady her housemate, Nathan Thompson, told her that she was probably being a bit hard on Mr Nafady, so Ms Salib decided to give him a second chance.

At drinks with her colleague on 24 April 2015, Ms Salib had precisely five vodka lime and soda drinks in the space of three hours. She had a bottle of vodka in her bag but she does not recall topping up her drinks.

Once she had met up with Mr Nafady after leaving her colleague, Ms Salib had an espresso martini at bar Amici.

When they returned to her house, Ms Salib went inside to see if her housemates were about. Everyone was asleep. She grabbed a bottle of Captain Morgan rum containing half a litre of rum. She had bottle of vodka in her bag and some coconut water.

The pair returned to Mr Nafady’s apartment. They commenced to drink. They were at the flat for a number of hours; she was sitting in a chair and Mr Nafady was sitting on the bed. Ms Salib could not recall exactly how long they talked for and could not recall the content of the conversation. They were drinking, talking and smoking cigarettes. Ms Salib could not recall how many drinks she had in that time or how much of the rum or vodka was consumed.

Ms Salib felt tired and moved from the chair to the bed to watch a program on Mr Nafady’s laptop.

In her evidence, Ms Salib stated that Mr Nafady removed her clothes. A passage of transcript from the Magistrates Court was read to Ms Salib where she had previously agreed that she took some of her clothes off and he (Mr Nafady) took some of his clothes off.

Either way, she was happy for this to happen and understood it was a prelude to physical intimacy. The pair exchanged passionate kisses. Mr Nafady kissed Ms Salib’s breasts and she was happy for this to happen.

Mr Nafady penetrated Ms Salib’s vagina with his penis. Ms Salib could not recall how long the penetration lasted but she said something and Mr Nafady stopped and withdrew his penis.

Very shortly after that, intimacy resumed. Ms Salib was comfortable and relaxed and an active equal willing participant.

The bed was quite narrow. Ms Salib was aware of what was happening during the second episode, and did not recall drifting off or the alcohol having an effect on her.

Ms Salib agreed that she had said “I asked you to stop” and that Mr Nafady said “I didn’t finish”. She did not recall whether he ejaculated.

Ms Salib agreed that she told the police he said “I stopped. I stopped. I didn’t finish”. This was omitted from her evidence in chief.

Ms Salib could not say how long the accused’s penis was in her vagina after she said ‘stop’ during the second episode.

Ms Salib disagreed that she ‘snapped to’ during the second occasion. She said no and was trying to push him off her

It was suggested in cross-examination Ms Salib said those things minutes after Mr Nafady had already commenced having sex. Ms Salib responded “I don’t know how long it was until I said that or how long it was while he was penetrating me. As I mentioned, I don’t know as to the time this went on for”.

In text messages Mr Nafady stated he expected an apology and said ‘I’d been fucking you for 10 minutes’. Ms Salib stated that those text messages were his view of it. She was trying to get him off her for a long time, but she didn’t know the timeframe.

Intimacy had resumed again shortly after the end of the first penetration. It was absolutely unequivocally consensual from Ms Salib’s point of view.

Ms Salib could not say how long he was inside her during the second penetration or how long after she told him to stop or get off that it was that he stayed inside her. She did not guide the accused’s penis into her vagina.

Ms Salib disputed the accuracy of the translation from Arabic into English of text message 791.8
When she got off the bed Ms Salib was emotional. Mr Nafady said “calm down, you’re overreacting… Please stay. I’m sorry. Calm down”.

In text messages of 2 May 2015 Ms Salib accused Mr Nafady of hitting her so hard, she fell on the floor. At the committal she said she wasn’t injured and didn’t see any bruising. Ms Salib was taken to her evidence at committal, and agreed that at trial she had changed from using the word “hit”, and instead she used the word “shove”. Ms Salib felt a strike; she remembered a charge at her and then falling to the ground. Ms Salib was emotional at this stage. Mr Nafady said “calm down”. Ms Salib told Angela Williams that “I tried to leave and he hit me”. Ms Salib says it was a charge against her, as to whether it was a strike or a push or a shove, she could not differentiate. She did not believe her characterisation has changed.

During the second occasion, Ms Salib’s wrists were held tightly above her head. They had no redness, bruising or scratching, and no photos were taken.

In the text exchange, Ms Salib identified that, as Muslims, both she and the accused had sinned for engaging in extramarital sex.

8 I conclude later in this judgment that I cannot determine whether the translation is accurate or not: see [139] and [187].

Ms Salib left Mr Nafady’s around 2:15am. She texted her housemate around 3:15am.

After the second episode on the bed, Ms Salib could not exclude, or could not recall, Mr Nafady asking her what was wrong. His gestures were coming at her, and his words were saying “just calm down”.

Ms Salib did not go to Mr Nafady’s apartment with the objective of physical intimacy, but it did not take her by surprise that they engaged in physical sexual intimacy. It was her decision to move from the chair to the bed, and Mr Nafady was on the bed when she did that. They cuddled as they watched the television program and things escalated from there.

Ms Salib disagreed that she ‘snapped to’ because she was worried word might get out amongst the Egyptian Muslim community.

Re-examination

Ms Salib identifies as a modern Muslim.

Ms Salib did not intend to go on a second date after the trivia night, but after the discussion with Nathan Thompson decided to give the accused a second go.

Ms Salib previously said at the Magistrates Court that the accused took off her clothes with her consent at that time.

The text message from Mr Nafady stated “I’d been fucking you for 10 minutes”.

When Ms Salib said “I tried to get him off me for a very long time”, that meant from the moment he penetrated her on the second occasion.

The text to Nathan Thompson was sent as Ms Salib was walking home on High Street.

Further Cross-Examination

In the limited further cross examination on 21 October 2020, Ms Salib agreed that she had not actually screamed during the first or second penetration. After the second penetration, Ms Salib stated that she had threatened to scream if Mr Nafady did not let her leave his apartment.

Ms Salib agreed that in text 781 she wrote ‘… I don’t know how you can mistake me screaming to stop for please fuck me’.

Ms Salib agreed the text messages of 2 May 2015 referred to the second penetration and not the first penetration.

A series of text messages were put to Ms Salib in which Mr Nafady stated that she (Ms Salib) had changed her mind about consent after a prolonged act of sexual penetration; some 10 minutes. Variously, in those text messages, Mr Nafady stated that Ms Salib ‘got naked and asked to have sex’ and during the act of penetration ‘woke up and got angry’. He also states that penetration would not have commenced from the beginning without her consent (text 791); although I note there is a dispute as to the Arabic translation between the prosecution and defence which is incapable of being resolved by me.

Ms Salib was shown her responding text messages and it was suggested that she did not respond directly to the content of those messages; that is, she did not refute that she initially consented to the sexual penetration and that it had proceeded for a prolonged period before she changed her mind ‘in the middle’ . Rather, Ms Salib stated variously by texts that she ‘didn’t want to talk about it / wanted to forget it / it was the worst night of her life’.

Ms Salib agreed that on 31 May 2015 DSC Jones told her that Mr Nafady was in gaol for sexually assaulting other women. She agreed that she only gave a statement to police after she was given this information. Ms Salib denied that

she had made a false allegation of rape. Rather, Ms Salib said she came forward because she ‘did not want him to do it to any more other women’. Ms Salib said she was not forced to come forward. It was her decision.

The cross examination finished with the main dispute again put: that is, Ms Salib responded to Mr Nafady’s texts about changing her mind after a period of consensual sexual penetration and did not make a complaint about penetration without consent from the outset. The complaint to police was a complaint about introducing his penis into her vagina without her consent from the outset.

Ms Salib reiterated she did not guide his penis into her vagina, and he did not ‘fuck her’ for 10 minutes prior to her saying ‘stop’.

Re-examination

In re-examination Ms Salib referred to text 782 ‘when you started to get further I clearly told you to stop’; she said in cross examination she had told him she never wanted him to insert his penis.
Ms Salib was asked ‘how long had the penetration been going when you said that [stop]?’. She responded ‘I can’t recall. To me it felt like - I don’t know the time. I can’t answer that question’.

2. Nathan Thompson

Examination in Chief

Nathan Thompson was Ms Salib’s housemate at the time of the alleged offending. He attended the trivia night on 21 April 2015 where Ms Salib brought Mr Nafady along. After getting home this night, Mr Thompson told Ms Salib to ‘give people a chance’, not to be too dismissive.

On the evening of 24 April and into 25 April 2015 Mr Thompson was at a wedding in Daylesford. Upon waking up on 25 April he recalls having a text

message from Ms Salib. Mr Thompson did not see Ms Salib until two or three days later when he returned from Daylesford.

Cross-examination

Mr Thompson had not previously known Ms Salib would be bringing anyone to the trivia night, and assumed at the time Mr Nafady was her friend. After this night, Mr Thompson told Ms Salib she dismissed people too quickly for minor matters.

Ms Salib sent the first message to Mr Thompson at 3:16am, but he did not see it until the next morning. He did not speak to Ms Salib about what had happened, as referred to in those text messages where Ms Salib indicated she had been ‘in a bit of trouble’ but was now ok, until about a month later. Ms Salib did not go into further specifics of the incident with him.

3. Angela Williams

Examination in Chief

Angela Williams was a friend and work colleague of Ms Salib’s at the time of the alleged offending. Ms Williams described her relationship with Ms Salib in 2015 as being ‘like sisters. Very close’.

Ms Williams received messages from Ms Salib on 31 May 2015 whilst she was at home in Tasmania. [The exchange of text messages was read out.]

Cross-examination

Ms Williams had spent two years in Melbourne with Ms Salib, and had remained friends after moving to Tasmania, approximately 3 years earlier.

It was put to Ms Williams that Ms Salib was someone who kept her family and social lives separate, including her use of dating apps, to which Ms Williams agreed. Ms Williams also agreed that Ms Salib was endeavouring to live a ‘modern western life’ notwithstanding her Egyptian background.

4. Sergeant Jones

Examination in Chief

Sergeant Jones was stationed at the Moorabbin Sexual Offences Unit in May 2015, and was a detective at the time. Sergeant Jones called Ms Salib on 31 May 2015 as part of an ongoing investigation. At the time of the call she had a proforma questionnaire to use, which had a predetermined script for her to use at the beginning of the conversation.

Sergeant Jones asked Ms Salib if she had had contact with Mr Nafady, at which point Ms Salib became quite distressed, and said she couldn’t talk about it. Ms Salib’s voice was cracking, and she sounded generally distressed. Sergeant Jones asked Ms Salib to elaborate, and Ms Salib told her she couldn’t report it because of her religion, before disclosing that she had had a bad experience with Mr Nafady and he had forced himself on her. Sergeant Jones did not ask any further questions regarding Ms Salib’s religion, but confirmed that Ms Salib was at her mother’s house at the time.

Based on Ms Salib’s reaction and what she had said, Sergeant Jones was satisfied there was something further and she would need to get a statement. Ms Salib continued to indicate she was too scared to report the matter, which Sergeant Jones took to mean Ms Salib was scared of Mr Nafady. Sergeant Jones told Ms Salib that Mr Nafady was currently in custody, indicating she did this to show Ms Salib she was safe. Sergeant Jones said words to the effect that Mr Nafady was in custody ‘for similar things’ and Ms Salib didn’t need to be fearful. Sergeant Jones does not remember anything further being said on this matter, and made no further notes on the questionnaire in relation to this.

Sergeant Jones then arranged a time to meet with Ms Salib, which she did on 2 June 2015 at Ms Salib’s house in Windsor. A statement was taken from Ms Salib on this day.

Cross-examination

Sergeant Jones confirmed Ms Salib had initially been reluctant to report the matter, indicating she was unable to talk about it at the time. She eventually went on to take two statements from Ms Salib, on 2 June and 8 June 2015.

In the first statement, Ms Salib indicated she was not sure if she was ready to continue with the matter yet. Ms Salib had referred to her mother being sick as part of the reason for this. Ms Salib’s second statement referred to discussions she had with Mr Thompson and Ms Williams after the alleged incident, and indicates she was reluctant to come forward due to the effect the matter would have on her family and friends, her workmates and her life. Neither statement referred to Ms Salib being afraid of Mr Nafady.

In relation to the phone call on 31 May 2015 Sergeant Jones agreed Ms Salib had said that she had a bad experience with Mr Nafady and he forced himself on her; no further details of the experience were provided during the phone call. Sergeant Jones indicated she took Ms Salib to be saying Mr Nafady ‘had forced himself on her’ to mean a sexual assault had occurred, and this was why she used the words ‘likely sexual assault’ in her notes. Sergeant Jones was asked about the use of the word ‘likely’, to which she responded she was uncertain at the time the exact type of sexual assault that had occurred and needed to explore that further.

Sergeant Jones encouraged Ms Salib during the phone conversation to meet with her to discuss what had occurred. Ms Salib initially said she could not report what had occurred because of her religion, however she agreed to meet Sergeant Jones to discuss what had happened. Sergeant Jones did not tell Ms Salib she had to provide a statement, or that she needed to do anything in particular.

Sergeant Jones agreed she told Ms Salib that Mr Nafady was in gaol for similar things. Sergeant Jones was taken to the text messages to Ms Williams, where Ms Salib indicated he was in gaol for sexual assault. Sergeant Jones did not say ‘sexual assault’ to Ms Salib, re-iterating she only told Ms Salib that Mr Nafady was in gaol ‘for similar things’, and nothing further on the topic was said

by her. Sergeant Jones told Ms Salib this in order to make her feel safe, as she repeatedly referred to being scared, as well as to make her feel like she wasn’t alone in being a victim of Mr Nafady. Sergeant Jones was careful not to go further in the wording she used regarding Mr Nafady being in gaol at the time.

The questionnaire represents the extent of the Informant’s notes on the matter.

It was suggested to Sergeant Jones that she conveyed to Ms Salib that the accused was in gaol for similar things in order to convey that he was a bad man. It was also put that Sergeant Jones gave a false explanation when she told the court she had tried to make Ms Salib feel safe. Sergeant Jones rejected these suggestions.

Sergeant Jones was not given the name of the work colleague Ms Salib indicated she had spoken to on 27 April 2015, and as such she was not able to take a statement from that person. Ms Salib had told Sergeant Jones she could not provide the details of this colleague as she did not want the colleague involved.

The Defence Case

Adel Nafady

Examination in Chief

Adel Nafady was born in Saudi Arabia. He came to Australia on 28 February 2015. In April 2015 Mr Nafady lived on his own in Raleigh Street Windsor.

Mr Nafady had a profile on the dating app Plenty of Fish. He came across a profile from Ms Salib on the same site, but is not entirely sure who initiated contact. The pair spoke on Plenty of Fish for a few days and then moved to WhatsApp and SMS.

The pair first met in a bar called Wonderland in Windsor, and then went to a trivia night. After they attended the night they went their separate ways. Ms Salib left with her friends and Mr Nafady went home alone.

They continued to communicate using SMS, WhatsApp and telephone. The next meeting between them was on Thursday, a couple of days later. Ms Salib finished work somewhere in the city and they went to a café in Degraves Street, and then they went on to a bar. They caught the tram home together and Mr Nafady kissed her on the cheek.

The pair had previously arranged to meet the following day, being Friday. By text, Ms Salib stated she had arranged to meet a work colleague. Mr Nafady and Ms Salib continued to text. She was happy to meet with him after she had finished with her friend. They met on the tram from the city. Mr Nafady got on the tram at St Kilda Road and they headed to Chapel Street. They stayed at a bar, Amici, for roughly 1 hour.

At Amici, Mr Nafady had one espresso martini and Ms Salib had two espresso martinis.

The bar was about to close so they caught a taxi to Ms Salib’s place. She checked on her flatmates and they were asleep. She did not want to disturb them. She came out with a bottle of alcohol and they went to Mr Nafady’s place. There was no argument about staying at Ms Salib’s place

At Mr Nafady’s, Ms Salib sat in a red chair and he sat on the bed. She poured one drink after another. Mr Nafady drank only Coca-Cola. Ms Salib had about two rums and a couple of vodkas as well.

The pair sat as they were for the best part of an hour and at some stage she joined him on the bed. They watched a television program on the computer. There was no kissing or cuddling before that. The episode of the program took about 40 minutes. They cuddled during that episode.

Ms Salib indicated she was getting sleepy and Mr Nafady offered for her to stay. She agreed. Mr Nafady made no promises about what he would or wouldn’t do.

Ms Salib was happy to stay. She lay down and they started getting a little intimate – kissing, hugging and touching. She took her clothes off and he took his clothes off. He kissed her breasts and she touched his body. She guided his penis into her vagina.

Ms Salib indicated she did not want to continue at that time. She said ‘not yet’. Mr Nafady withdrew his penis. Ms Salib remained in bed with Mr Nafady.

After something in the order of about a minute they resumed being intimate. There was kissing, touching one another and foreplay. There was no conversation to the effect that Ms Salib would stay but that she just wanted to sleep.

After kissing her breasts and mutual touching, Mr Nafady was on top of Ms Salib and she indicated verbally and guided his penis into her vagina. She indicated for him to penetrate her. They continued to have penetrative intercourse for about 10 minutes. She suddenly snapped. She asked for him to stop. She pushed him off her. Mr Nafady stood up and she started to yell at him.

Mr Nafady was asked about Ms Salib’s evidence; i.e. that Mr Nafady was on top and about to penetrate her when she said words to the effect ‘stop. I don’t want to do this.’ Mr Nafady stated in evidence that Ms Salib did ‘quite the opposite of that’. She indicated for him to penetrate her and she guided his penis into her vagina.

This was unprotected sex. There was no discussion whatsoever about the use of protection.

Ms Salib started yelling saying ‘I want to leave now. I want to go home now’. Mr Nafady tried to calm her. She punched him in the chest. He pushed her away and she fell to the floor. He repeatedly asked her what was going on and she

said ‘I asked you to stop and you didn’t’. Mr Nafady replied ‘what are you talking about, Rita? I stopped, Rita, I stopped’.

Mr Nafady was asked about Ms Salib’s evidence; i.e. that when he was penetrating her, Ms Salib told him to stop, and Mr Nafady said to her ‘let me finish, let me finish’; to which Ms Salib replied ‘are you fucking crazy?’. In his evidence, Mr Nafady stated that this was not true and it never took place.

Mr Nafady offered to call Ms Salib a taxi but she refused. He gave up and let her leave.

Mr Nafady did not hit Ms Salib. He pushed her away when she was punching him in the chest.

Mr Nafady did not contact Ms Salib until 2 May. He thought he would give her some time.

Mr Nafady was shown the 56 text messages of 2 May 2015. Mr Nafady gave his version of the translation from Arabic into English contained in text 791. As I have previously stated, it is impossible for me to resolve the issue of the translation difference between the parties.

In his evidence, Mr Nafady stated that he was telling the truth when he described in text messages that the second episode of penetration ‘went for 10 minutes’, ‘she was enjoying it’ and ‘things suddenly changed’.

Mr Nafady did not ejaculate during the second penetration.

Cross-examination

Mr Nafady met Ms Salib on the evening of 24 April. They met on a tram and went to Amici on Chapel St. Whilst there he had an espresso martini, and Ms Salib had two espresso martinis. After about an hour Ms Salib suggested that

they head back to her place to continue the night, saying she had alcohol at her house. Ms Salib did not say that she was tired and wanted to go home.

Mr Nafady and Ms Salib got a taxi. Mr Nafady did not suggest going to his house instead. Upon arriving at her house, Ms Salib went inside to get alcohol, and when she came out she told Mr Nafady her housemates were asleep and she didn’t want to disturb them, and so suggested they go to his place instead. It was put to Mr Nafady that there was an argument in the cab about going to his house, which he denied, indicating it was Ms Salib’s suggestion to go to his place. The taxi driver was not irritated.

Ms Salib took some rum from her house to Mr Nafady’s apartment.

At Mr Nafady’s house Ms Salib sat on the chair whilst he was on the bed. She had four drinks (at least) at the apartment, while he drank Coca-Cola, and they chatted and smoked.

Ms Salib moved into bed with Mr Nafady and together they watched the Blacklist. Ms Salib said she wanted to go home as she was tired, and he told her she could sleep there. Mr Nafady did not say that they didn’t have to do anything.

Ms Salib was laying against the wall on the bed, and Mr Nafady was laying beside her. They began kissing and Mr Nafady touched and kissed her breasts over her clothes, then slid down her dress to kiss her bare breasts. Mr Nafady could not recall putting his hand up Ms Salib’s dress at this point, but states she did not ask him to slow down at this time, and he did not tell her to relax and go with it.

Ms Salib then undressed herself. Mr Nafady was questioned on whether she allowed him to undress her, but maintained that she undressed herself. Mr Nafady also took his clothes off.

There was some intimacy and then Ms Salib guided Mr Nafady’s penis into her vagina. Ms Salib was lying on her back, with Mr Nafady on top. It was put to Mr Nafady that at this point Ms Salib told him to stop. Mr Nafady indicated she said

‘not yet’. He understood this to mean at this point in time she was not sufficiently aroused, and he removed his penis without ejaculating.

Ms Salib did not cover herself with sheets, indicate she wanted to sleep or turn to the wall. Rather, intimacy between Ms Salib and Mr Nafady resumed immediately. They kissed and touched one another, and Mr Nafady commenced touching her breasts again. Mr Nafady agreed that at this point Ms Salib had put a stop to the first episode.

Mr Nafady got on top of Ms Salib. It was put to Mr Nafady that Ms Salib asked him to stop at this point, saying she did not want to do this. Mr Nafady said ‘she indicated verbally for me to penetrate her and she guided my penis into her vagina’. Mr Nafady denied the assertion that he knew Ms Salib did not want to have sex with him, reiterating she guided his penis into her vagina.

After 10 minutes Ms Salib told Mr Nafady to stop and pushed at him. It was put to Mr Nafady the request to stop was closer to or immediately after he penetrated her, which he denied. Mr Nafady maintained that Ms Salib was very clear in her indication that she wanted to have sex, and then sometime after changed her mind.

It was again put to Mr Nafady that he knew Ms Salib did not want him to penetrate her, that she yelled at him to get off, tried to push him off with her body, and he held her hands down. Mr Nafady denied all of these propositions.

Mr Nafady denied that he said ‘just let me finish’ and denied Ms Salib said ‘are you fucking crazy?’. She told him to stop about 10 minutes after they commenced, pushed him off, and immediately got out of bed. When he initially penetrated her, she was an equal and willing participant, and he denied she yelled at him ‘get off me’.

Immediately after Ms Salib said ‘stop’ and pushed him off her, Mr Nafady withdrew and got up.

Mr Nafady withdrew as soon as she told him to stop and pushed him off. Ms Salib stood up and he tried to pat her on the shoulder to calm her down. She

punched him on the chest a few times and he pushed her, at which point she fell to the floor. Mr Nafady denied preventing Ms Salib from grabbing her clothes, indicating he was trying to calm her down before she left, to reason with her.

Mr Nafady may have told Ms Salib she was overreacting, but was saying things along the lines of ‘calm down, let’s talk this through, what happened’. He denied saying ‘nothing happened’; confirming that he asked Ms Salib ‘what happened’ as he was unsure why she got so upset and walked out so suddenly.

Mr Nafady said to Ms Salib ‘don’t leave’ as he did not want her to leave in the state she was in. He offered to call her a cab and she refused. Ms Salib said ‘I told you to stop and you didn’t’, and he responded ‘I did stop, how can you say I didn’t’. Mr Nafady denied saying ‘I didn’t finish’.

Ms Salib was angry and upset, but did not threaten to scream if he did not let her leave. She repeatedly demanded to leave and he let her go. This was close to 3am.

On 2 May Mr Nafady sent a text to Ms Salib seeking an apology. She responded saying it was the worst night of her life and asking him never to text her again. Mr Nafady messaged her on that day because he cared about her and was trying to save the relationship. Mr Nafady was confused about what happened on the night and needed answers, as it was evident to him there was some misunderstanding as she perceived one thing when ‘what actually happened is totally different’.

It was put to Mr Nafady that the messages were intended to sow seeds of doubt in Ms Salib’s mind, when he knew there had not been 10 minutes of consensual sexual penetration during the second episode. Mr Nafady denied this. Mr Nafady agreed that during the messages Ms Salib was avoiding his enquiries, indicating she did not want to talk about it, but he persisted, telling her she was exaggerating and it was a misunderstanding.

Mr Nafady said there was 10 minutes of consensual penetration, and he was trying to get Ms Salib to acknowledge the truth of what happened on that night. He maintained that what he said in the messages was what happened.

It was put to Mr Nafady that he was annoyed he had not ejaculated during the first episode, and wished to ‘finish’, and as such, forced himself on Ms Salib. Mr Nafady denied this.

Re-examination

There was no re-examination.

Crown Closing Address

The Crown submitted that Ms Salib was a ‘credible, reliable and… consistent witness’ who gave clear evidence that she did not consent to penetration. Later in text messages, she described the evening as the worst night of her life and asked Mr Nafady not to text her again.

The principal submission made by the Crown was by way of a review of the evidence in chief of the complainant Ms Salib. Ms Harper on behalf of the Crown emphasised the Crown’s submission that Mr Nafady knew Ms Salib was not consenting as she protested before he penetrated her, and continued to say ‘stop, I don’t want to do this. Get off me’, so that he must have been aware with those words that she was not consenting, or at the very least might not have been consenting. When she got off the bed, he tried to grab her. She pushed him away before feeling a push or a shove which caused her to fall to the floor.

The Crown addressed Mr Nafady’s evidence, in which he stated they engaged in 10 minutes of consensual penetration before Ms Salib changed her mind and communicated to him to stop. The Crown referred to Ms Salib’s evidence that this must have been 10 minutes of intimacy in total, rather than 10 minutes of penetration.

The Crown submitted that the text messages sent by Mr Nafady on 2 May 2015 were self-serving.

When Ms Salib spoke to DSC Jones, she told DSC Jones that ‘he had forced himself on her’. Ms Salib was distressed. DSC Jones reassured her by saying the accused man was in custody for similar things and that Ms Salib was safe. This information did not provide a motive to lie – Ms Salib had already provided a spontaneous disclosure to the police. DSC Jones did not provide enough information for Ms Salib to make up such a detailed version of events.

Mr Nafady initiated and persisted with the second penetration in his desire to ejaculate. He did not ejaculate during the first penetration. During the second penetration he said to Ms Salib ‘let me finish’. That was his objective.

It was submitted that Ms Salib gave consistent evidence, and the only available verdict is one of guilty.

Defence Closing Address

Mr Dann SC submitted that the only way to find the accused guilty would be to find beyond reasonable doubt that Ms Salib was a ‘witness of truth and reliability’. He submitted this is not possible.

The defence pointed to the following factors which it submitted Ms Salib could not recall in the course of giving her evidence:

i.if Mr Nafady ejaculated on either the first or second penetration. The Crown case for motive focused upon a purported desire to ejaculate and the words ‘let me finish’. Yet the Crown had to rely upon Mr Nafady’s evidence that he did not ejaculate on the first occasion because Ms Salib did not know;

ii.the duration of the second penetration. Mr Nafady stated in text messages that the penetration lasted for 10 minutes. Ms Salib did not directly respond or refute these texts;

iii.Details of Ms Salib going into her house before going to Mr Nafady’s, then any of the conversation at Mr Nafady’s apartment, how long she was there, and whether there was intimacy before she went to sit on the bed with Mr Nafady - this was a significant progression of the

relationship in a short space of time (i.e a few days) and the first sexual intimacy between them;

iv.Issues of her alcohol consumption – Ms Salib was unable to recall how many drinks she had at the accused’s apartment. In her evidence in chief she stated ‘two – three drinks, I don’t remember’, and in cross- examination could not remember how many she had consumed. The question of how much alcohol she had consumed over the course of the night becomes important in considering the reliability of a witness. (Mr Nafady gave evidence that he consumed only one espresso martini at Amici and only drank Coca-Cola back at his apartment);

v.What Ms Salib was drinking; having taken a bottle of rum and bottle of vodka to Mr Nafady’s flat;

vi.The removal of her clothes. Ms Salib gave inconsistent evidence on whether she removed her clothes or Mr Nafady removed them with her consent. This was the first time they had been naked in each other’s presence;

vii.what she said to end the first episode of penetration. It was not simply a ‘meaningless false start’. Yet despite maintaining she did not know what she said, in cross-examination she ruled out that she said ‘not yet’; and

viii.Whether she fell to the floor because of a hit or a shove. Ms Salib said ‘hit’ in her text messages to the accused and to Ms Williams, but changed her characterisation after the committal. This was a measure, Mr Dann submitted, of the witness dressing aspects of vagueness of memory with words of certainty.

Mr Dann submitted there were aspects about which Ms Salib was dishonest. For example:

i.in text messages, she stated that she was not drunk on the evening and had only had ‘two drinks’. This overlooked the five drinks with her

friend early in the evening, two at Amici and two to three (perhaps four) at Mr Nafady’s flat; and

ii.in her evidence, Ms Salib deliberately underplayed the duration of the second penetration. Whilst Mr Nafady texted that he ‘fucked her for 10 minutes’ before she changed her mind, Ms Salib never actually repudiated that. Then in cross-examination she stated that he did not penetrate her for 10 minutes, and that Mr Nafady did not mean penetration, he meant intimacy.

Mr Dann submitted these were patently dishonest answers.

Mr Dann submitted that Ms Salib’s evidence was consistent with the defence case; that is, she asked Mr Nafady to stop after penetration had already occurred, not before. Mr Dann referred to passages of evidence (2020 trial TS 85 and 74) where it was submitted the answers support the defence submission that the communication to stop came after the penetration had commenced.

It was submitted that the text messages exchanged on 2 May 2015 could not be used by the prosecution to support the conclusion that Mr Nafady was guilty of this offence as framed by the Crown case.

The defence submitted the text evidence is too vague to provide evidence of the rape as alleged.

It was further submitted that the information provided by Sergeant Jones provided a motive for Ms Salib to lie.

The evidence of distress (at least the distress exhibited on the night of 24/25 April) was submitted to be real but equivocal in respect to providing evidence of the offence charged.

On the other hand, the evidence given by Mr Nafady was credible, clear and unchallenged, in that the Crown did not point to a single lie or inconsistency.

Ultimately, the proper verdict is not guilty.

ANALYSIS

The Main Issue for Determination

The issue for determination focuses on the third and fourth elements of the charge set out at [73] above. The first two elements are admitted.

Put another way, it is trite to state that the prosecution must prove each element of the charge beyond reasonable doubt. In this case I must ask:

i. am I satisfied beyond reasonable doubt that the Crown, on the evidence in the manner in which the case is framed, has proved beyond reasonable doubt that Ms Salib did not consent to the introduction of Mr Nafady’s penis into her vagina at the outset of the second penetration?; and

ii. if so, am I satisfied beyond reasonable doubt that the accused was aware Ms Salib was not consenting or might not be consenting, or he gave no thought to either of those at the time he introduced his penis into her vagina?

Realistically, the issue as to the accused’s state of mind is probably narrower. If I am satisfied beyond reasonable doubt that Ms Salib was not consenting, and stated ‘stop, I don’t want to do this’ and struggled against penetration, then realistically the Crown case on the state of mind contends for element 4(i).

Returning to the overview of the main issue, the dispute may be further refined:

i. the prosecution case for guilt is that at the time of the second penetration Mr Nafady was on top of Ms Salib and introduced his penis into her vagina. Ms Salib, who had consented to some sexual intimacy up to then, stated assertively ‘stop, I don’t want to do this’ and struggled against the penetration; and

ii. The defence case is that Ms Salib indicated her consent to penetration, guided Mr Nafady’s penis into her vagina, and that the penetration continued for about 10 minutes before Ms Salib suddenly changed her

mind, communicated her change of mind, and Mr Nafady withdrew his penis immediately.

For having stated the dispute in this way, I remind myself that the accused does not have to prove anything; the burden remains on the Crown to prove beyond reasonable doubt each element of the charge brought against the accused. This remains so even where, as here, the accused gave sworn evidence. I have already set out the principles as to the onus and burden of proof and the principles set out in Liberato v R (1985) 159 CLR 507; Murray v R (2002) 211 CLR 193 [23], [57] and [132]; and De Silva v R (2019) 375 ALR 1, [12].

It is convenient to now consider the Crown case.

Evidence of Rita Salib

In order to be satisfied beyond reasonable doubt of the elements of the charge, I must, in the first instance, be satisfied that the elements are proved through the evidence of the complainant and that her evidence is both credible and reliable.

I proceed on the basis, before I make that assessment as to the credibility and reliability of her evidence, that her narrative is sufficient to prove the four elements of the charge of rape. Put another way, the defence did not make any submission to the effect that the complainant’s evidence, if believed, was incapable of proving all elements of the offence.

In these circumstances, the assessment of the credibility and reliability of the complainant’s evidence is an important first step in my determination.

Alcohol consumption

Ms Salib stated that she had five vodka and mixed drinks with a friend after work on 24 April 2015 between approximately 5:30 PM – 9:30 PM. After that time she met the accused and she stated she had one espresso martini at Amici in Chapel Street. Ms Salib states that when they returned to the accused’s apartment, she consumed a further two to three spirit drinks. She later stated in her evidence that she could not recall how many drinks that she had.

On her account, Ms Salib consumed not less than eight spirit drinks over a number of hours from 5:30pm on 24 April into the early hours of 25 April.

In his evidence, the accused stated that Ms Salib consumed two espresso martinis at Amici and about four spirits and mixed drinks at his flat. If this account is accurate, then the complainant consumed a range of between eight to eleven spirit drinks on this evening.

I must be careful not to build assumptions into this estimate. I do not know the strength of the drinks consumed, the precise time over which they were consumed, or have any evidence as to the complainant’s tolerance to alcohol.

It is reasonable to observe however that it is not an insignificant amount of alcohol consumed and I can consider this evidence in conjunction with other aspects of the evidence.

First, Ms Salib could not recall any of the conversation she had with the accused at his flat before intimacy commenced. Nor could she recall if any intimate contact was initiated before she moved from the chair to the bed. Whilst neither of these factors are particularly significant, I note that things had moved quickly and significantly over the week between the complainant and the accused – a man who only days earlier she was not going to see again, until she decided to give him a second chance. This was their first intimate time together.

Next, there is the issue of dress removal. Ms Salib gave conflicting accounts between text 782, her evidence at committal, and her evidence at trial about who removed her dress. Again, this is not a large point because in any event she stated the initiation of naked intimacy was consensual.

The point here is, her evidence on this aspect was inconsistent. On the one hand she agreed that she removed some or all of her clothing; on the other hand she stated it was the accused who removed her clothing.

These factors of having no recollection and of inconsistency may be explicable, at least in part by alcohol consumption.

Moreover, it is apparent that in text messages, Ms Salib defended herself against Mr Nafady’s accusation that she was drunk by saying ‘I had two drinks’ (text 773).

In the context of the whole night, this text was misleading. In the context of her time with the accused that night, it was also untrue. If Ms Salib was referring only to the time she was in Mr Nafady’s flat, it is also likely to be wrong on her own evidence.

I conclude that Ms Salib was either underplaying her alcohol consumption on the night or her recollection of her consumption on that night is unreliable.

Hit / Push / Shove

In texts 775 and 773 sent on 2 May 2015, Ms Salib texted the accused about the incident, saying ’don’t you remember hitting me?’, and when the accused denied hitting her, ‘you hit me so hard I fell to the floor’.

On 31 May 2015 the complainant texted Angela Williams stating ‘I tried to leave and he hit me’.

In cross-examination (2017 trial TS 274, 275) it was highlighted that Ms Salib had changed her characterisation of the action from a hit to a shove.

Whether or not Ms Salib made a deliberate choice, I conclude that the change of characterisation by her of Mr Nafady’s conduct cannot simply be dismissed. It does have the effect of bringing the accounts of the complainant and the accused together on this aspect

Such a change cannot simply be ignored. After repeatedly characterising the action as a hit, Ms Salib agreed at committal she suffered no injuries, no photos were taken and there was no redness, bruising or the like.

I cannot conclude this change was made for the cynical purpose of making her evidence more believable. Nevertheless, it is a change from a repeated perception that the complainant held in 2015 that she was hit by the accused man.

In this way, it represents a change in her narrative of the circumstances surrounding the event. This is an aspect that I must take into account in assessing the credibility of her narrative and her reliability as a witness.

I do not intend to separately address the issue of the use of prior inconsistent statements further. I have already addressed the issue of taking off Ms Salib’s clothes and the hit / shove issue.

Penetration for 10 minutes

In texts sent on 2 May 2015, the accused stated variously:

i. 791: “…I fucked you for like 10 minutes until suddenly you got up and started shouting”;

ii. 788: “You were perfect for the first 10 minutes and enjoying it and all of a sudden you went crazy…”;

iii.783: “… how come you asked me to fuck you and for the first 10 minutes you were perfectly fine and enjoying and suddenly everything went wrong…”; and

iv.780: “… You asked me to stop after fucking you for 10 minutes!!”

In her text replies, Ms Salib did not directly refute or challenge these assertions but rather responded:

i. 790: “I know how. There’s no point explaining it to you you’re not going to see it”;

ii. 789: “Anyway. I’m trying to forget not relive it”;

iii.782: “I never asked you to do that. That’s where we have different views. You took off my dress. I let you which was my fault but then when you started to get further I clearly told you to stop and you didn’t”; and

iv.781: “You held me down while I was trying to push you off me! You truly don’t remember that? I don’t know how you can mistake me screaming to stop for please fuck me.”

In addition to these text responses, it can be inferred from all of the circumstances and from aspects of evidence given that this event was extremely distressing for the complainant.

I do not consider that the complainant’s failure to expressly refute the assertion of penetration for 10 minutes can somehow be used as an admission that the event inevitably occurred as Mr Nafady asserted. I do however set this out as the background to the next consideration. In order to consider this, it is necessary to set out some of the evidence given at trial.

When did the complainant say ‘Stop’?

In a passage of cross-examination at (2017 trial TS 263 / 264) Ms Salib gave the following answers:

Now again, just in relation to the second episode you were asked by Mr Chadwick yesterday, how long was his penis in your vagina for after you said stop, and you couldn't say. Correct?---No.
No. You describe on both occasions being assertive when you say or indicate that you are uncomfortable with being penetrated?---Yes.
Is that right? Have you, before yesterday, used that term when describing how you communicated?---I don't recall the words I used to describe it, the exact words I used.
Whether you have ever before yesterday described yourself as assertive on either occasion?---Again, I don't recall the words I used in particular, the exact words.
Yesterday you described a push or a shove after the second episode. Correct?---By whom? By Mr Nafady to you?---Yes.
So what happened, let me suggest to you, is that you snapped to during sex on the second occasion?---No. Well - well, snapped to at what point, or - - -
Snapped to with Mr Nafady inside you?---No, I was - I said no. I didn't snap to. I said no. I said, "Stop", and I clearly tried to get him off me by trying to push him off me, so I didn't just snap. I was trying to push him off me.
What I'm suggesting to you is you said those things minutes after he had commenced having sex with you on that occasion?---I don't know how long it was until I said that or how long it was while he was penetrating me. As I mentioned, I don't know as to the time this went on for.
You do recall the text messages read out by Mr Chadwick yesterday on 2 May 2015 when Mr Nafady made contact with you and tells you that he expected an apology?---Yes.
And in that context he says to you on a number of occasions that, and I'm paraphrasing here, "I'd been fucking you for ten minutes"?---He said that, yes.

He said that in his text message to you, didn't he?---He said that, yes.
You concede, don't you, that he may have on that second occasion been penetrating you for a little while before you indicated to him that you wanted him to stop?---No, that's his view of it, or that's what he said, he was fucking me for ten minutes and I clearly said, I tried to get him off me for a very long time. I don't know if that was for ten minutes. I don't know that timeframe here.

Then in the further cross examination conducted before me, when referring to text message 782 and the phrase ‘started to get further’ (2020 trial TS 46/47):

So what you’re referring to there is after he started to penetrate you in the second episode, you – there came a point where you clearly told him to stop and he didn’t stop. Is that what you’re intending to set out there?--- Yes

Then I refer to a longer passage (2020 trial TS 74 and 75):

MR DANN: When you made your statement after your conversations with Ms Jones, which were held on the – by phone and then when she came to your house, what you then alleged in respect to episode two is that this man had introduced his penis into your vagina in circumstances where you were trying to stop him doing that at all for episode two. That's what the complaint became. Do you agree with that?---Yes.
And what I'm suggesting to you that's not the complaint that you had on the night after this second episode. Your complaint on the night after this second episode was when he'd been penetrating you in the second episode and you said stop he didn't stop straightaway. There was time when he kept going. That was your complaint on the night. Do you see the difference?---Well, when I told him, 'I let you, which was my fault, but then when you started to get further I clearly told you to stop and you didn't'.
Yes?---So I told him that I never wanted him to insert his penis. That's what I was suggesting to him then. So I didn't say - - -
But these text messages – yes. What I'm suggesting to you is these text messages tell a very different story. What they're - - -?---I didn't explain to him the entire - - -

Next (2020 trial TS 80):

… Ms Salib, what I want to put you is that the second episode of sexual penetration did in fact commence in circumstances where you are consenting to that sexual penetration. What do you say to that?--- I don’t agree

The next two answers are of some significance in my opinion. First(2020 trial TS 81/82):

I suggest to you that just as he set out in the text message, then what took place was a period of consensual sexual penetration for a period of up to and around 10 minutes, before you suddenly changed your whole demeanour and attitude to the sex that had been occurring. What do you say about that?---What I say to that is, he says, 'You asked me to stop after fucking you for 10 minutes.' His definition of the word 'fucking you’ does not mean penetration. He would be referring to the kissing of the breasts and all that. He was not penetrating me for 10 minutes prior to me saying stop.
Right, so, you think when he uses that term – in those terms, in the text message, you think he's talking about kissing your breasts, do you? When he uses the term, 'Fucking you for 10 minutes,' you think he's talking about kissing your breasts for 10 minutes, do you?---He's talking about the interaction between us.
Well, I'm suggesting to you that's just a ridiculous answer. You know and you knew at the time, in those text messages, exactly what he was talking about. He was talking about a period of sexual penetration that's going for up to 10 minutes or around 10 minutes when you suddenly, suddenly change and go crazy. That's what happened, is it not?-
--That is not what happened.

Second, in re-examination the complainant was asked (2020 trial TS 85):

How long had penetration been going when you said that [stop]?--- I can’t recall. To me it felt like – I don’t know the time. I can’t answer to that question.

I am alive to the fact that cross-examination can be a stressful experience for a witness; especially for a complainant in an allegation of sexual offending. I take account of the fact that Ms Salib gave evidence at trial two years after, and then in excess of five years after, the initial incident occurred.

I also take into account the fact that a complainant will not answer questions in evidence with the pinpoint precision of a lawyer or to the standard expected of an expert witness.

Finally, I take account of the numerous times Ms Salib stated that she did not consent from the outset of the penetration.

Nevertheless, when I take these answers into account, as part of the whole of the evidence, I conclude that her answers, particularly at TS 46 and 85, did not provide an entirely unassailable narrative of non-consensual penetration from the outset of that second penetration.

The answers must, however, be seen in light of the compounding effect of the analysis that I am undertaking. Then, that compounding effect must be considered in light of the task I must ultimately undertake, which is a determination of whether I am satisfied of the elements on a charge of rape where the Prosecution carries the burden of proving that charge beyond reasonable doubt.

On their own, the answers are not determinative of the issue, but must be seen as part of that compounding assessment of the complainant’s credibility and reliability.

Evidence of Distress

The parties agree that the complainant’s distress on 25 April 2015 was genuine.

I also conclude that her distress was genuine and that Ms Salib again exhibited some distress when she was contacted by the informant on 31 May 2015.

Her distress is also apparent from text messages Ms Salib sent on 2 May 2015: text 809 ‘that was the worst night of my life’; text 808 ‘please don’t text me again’; text 804 ‘… that was the scariest night of my life and a wake-up call’. These text messages also reference trying to forget the evening. These messages demonstrate that Ms Salib looked back on the event as a truly terrible experience.

Evidence of distress is circumstantial evidence and is simply one piece in the overall matrix of evidence.

Given the matters that I have considered so far in this analysis going to the credibility and reliability of the complainant’s evidence, I consider that I may readily conclude that her distress was genuine without inevitably concluding that it was genuine because I am satisfied beyond reasonable doubt of the elements of rape.

In my view, this evidence of distress in this case should not be used to infer the truth of the complainant’s narrative.

Complaint evidence Delay

In earlier directions, I set out that the experience of the courts and of experts is that a delay in complaint should not necessarily, of itself, be used to adversely assess the credibility of the complaint. That is, there may be valid reasons for the delay, or for not initially complaining at all. I am mindful of that as I proceed to consider this aspect of the evidence.

Complaint

Ms Salib made the following complaints:

i. On 25 April 2015, around 3:15am, Ms Salib sent a text to her housemate, Nathan Thompson. The message asked if Mr Thompson was awake. He received this message the next morning and responded asking if she was ok. Ms Salib indicated she has been in a bit of trouble, but was ok now. Ms Salib and Mr Thompson did not discuss specifics of the incident further;

ii. On 27 May 2015 Ms Salib spoke to an unnamed colleague from her workplace, the same person she had been drinking with on Friday night. The colleague asked how the date went, and Ms Salib indicated that “he’d tried to – that he’d assaulted (her)” but did not elaborate further. Ms Salib agreed that she did not use the word rape in this complaint;

iii.On 31 May 2015 Ms Salib sent messages to her friend, Angela Williams. These messages indicated that a while ago something ‘effed up’ had happened with a man she was seeing, that when she went back to his house for a drink he ‘started getting a bit frisky’, and when she (Ms Salib) told him to stop, he didn’t. Ms Salib also told Ms Williams that when she tried to leave the man hit her. Ms Salib indicated she had not called the police at the time the incident occurred a month earlier and had been trying to move on from the incident; and

iv.On 31 May 2015 DSC Jones called Ms Salib and asked whether she had had contact with Mr Nafady. Ms Salib was reluctant to discuss the matter, indicating she was unable to report the matter because of her religion. Ms Salib went on to disclose that she had a bad experience with Mr Nafady where he had forced himself on her. Sergeant Jones describes Ms Salib sounding distressed.

Whilst I may use the evidence of complaint as truth of the words asserted in the complaint, I do not consider that using the words of the complaints to Mr Thompson, the work colleague or to Ms Williams provides evidence supporting the charge of rape in this case.

The very general nature of the words used to Thompson and the work colleague
- ‘trouble’, then ‘tried to assault / assault’ do not imply a sexual assault of any nature, let alone rape.

The use of the term ‘effed up’ and ‘frisky’; telling ‘him to stop and he didn’t’ may indicate something of a sexual nature when put together but, again, does not necessarily indicate sexual penetration.

The evidence of Sergeant Jones needs a little further analysis. Sergeant Jones stated that the complainant told her that the accused ‘forced himself upon her’. Sergeant Jones noted the complainant’s distress when she said this.

In my view, the content of this complaint had some probative value as part of the general evidentiary matrix. It indicates non-consensual sexual activity. I also take account of the distress exhibited at the time the complaint was made. Distress and the act of complaint do add positively to the complainant’s credibility.

Overall, however, I am unable to give the complaint significant weight in the assessment of evidence in this case. The words only really serve as a very generalised subsequent affirmation of the complainant’s version, but lack any real particularity. In this respect, I note that in her evidence Sergeant Jones concluded that Ms Salib was referring to some sort of sexual activity but could not determine the nature of that activity.

As I have been at pains to point out, the difference between the parties, and the issue here, is not the fact of sexual penetration (which is admitted), or the fact that the complainant became very distressed (which is also admitted). The issue is whether I am satisfied beyond reasonable doubt of the complainant’s version of events in her sworn evidence; or whether on the evidence as a whole, taking into account the accused’s sworn evidence, I have a reasonable doubt.

Keeping that in mind, I do not consider that this complaint evidence has a significant role to play in my assessment – either as truth of the facts asserted by the complaint or for its effect on the complainant’s credibility as a witness.

Evidence of Adel Nafady

As I have already stated, Mr Nafady was under no obligation to give evidence. If he had not done so, I could draw no adverse inference against him. By giving evidence he did not assume any onus or obligation to prove anything at all. The onus remains on the Crown at all times.

Again, as I have already stated, in assessing the accused’s evidence the issue is not necessarily whether I accept the truthfulness and reliability of that evidence. If I was to accept his evidence as truthful and reliable, he would automatically be entitled to an acquittal. That is not the essential test. The real question for determination is whether, taking into account all the evidence at trial, including the evidence given by Mr Nafady, I am satisfied beyond reasonable doubt of his guilt. Perhaps a more preferable way of putting it is to ask whether the prosecution has negatived the account given by the accused as being a reasonable possibility in all the circumstances, or whether the evidence at trial, including the evidence given by the accused, raises a reasonable doubt about his guilt.9
In his sworn evidence, Mr Nafady stated that the second act of penetration was initiated after the recommencement of sexual intimacy (or foreplay). He stated that Ms Salib indicated her desire for him to penetrate her, that she guided his penis into her vagina, and that consensual penetration continued for a period

9 I have relied largely on the formulation used by Kaye JA in DPP v Tiba [2020] VSC 717, [108], [109].

of time, some 10 minutes, before Ms Salib indicated she did not consent to penetration. He stated that when Ms Salib communicated her lack of consent, he withdrew his penis. Ms Salib became very upset. Mr Nafady spoke to her in an effort to calm her, she punched his chest and he pushed her away.

Mr Nafady subjected himself to cross examination. I make the observation that his evidence was not undermined by that cross examination:

i. Alcohol: Mr Nafady was not challenged when he stated that Ms Salib consumed two espresso martinis at Amici, and at least four spirit mixed drinks at his apartment. It was suggested that he drank alcohol at the apartment but he denied it and was not challenged further;

ii. Penetration: Mr Nafady was challenged in cross-examination in that the complainant’s evidence was put to him seriatim: that she did not consent and communicated that as he lay on top of her before penetration; she continued to tell him to stop; that he held her wrists by her head; and that he said to her ‘let me finish’. Mr Nafady denied each aspect of the complainant’s evidence alleging rape that was put to him. Mr Nafady restated his own evidence and version of events for a second time;

iii.Push: Mr Nafady stated he pushed Ms Salib away and agreed that she fell to the floor. Given Ms Salib’s evidence, there was no basis upon which to take this any further; and

iv.Text messages: it was suggested that Mr Nafady texted Ms Salib on 2 May 2015 stating ‘I expected an apology from you’ in order to sow ‘seeds of doubt ’in her mind and create the impression that what occurred in the flat was a misunderstanding. Mr Nafady denied this suggestion in cross- examination and stated that he was not sure until some time into their exchanges what Ms Salib was saying had occurred.

Overall, the cross-examination of the accused did not expose a single lie told by him, an inconsistency or departure in his evidence. It was not suggested that he made any admission or implied admission to the offending or to any inculpatory aspect of the offending.

The principles set out in Liberato emphasise the heavy burden borne by the Crown. The first 3 of the possible 4 conclusions to be drawn from the assessment of the accused’s evidence lead to the acquittal of the accused. Even the fourth path, after the rejection of an accused’s evidence, does not lead to an automatic assumption of guilt.

As I have already made abundantly clear, the accused’s evidence in this trial stands in direct conflict to the complainant’s evidence and to the prosecution case. The accused’s evidence cannot be reconciled as in any way supporting the prosecution case.

It is also trite to observe that the prosecution case relies entirely on the complainant’s evidence and account. The various witness accounts of complaint evidence emanated from what they were told by the complainant. If there was anything independent, it was Sergeant Jones’ assessment of Ms Salib’s distress on 31 May 2015. There is no other evidence in the Crown case.

CONCLUSION

Taking into account all of the matters I have discussed, I am not satisfied beyond reasonable doubt that the prosecution has negatived the explanation given by the accused as being reasonably possible in the circumstances. Based on the evidence, there remains a reasonable possibility which I cannot exclude that the accused did not penetrate the complainant from the outset of the second act of penetration whilst being aware that the complainant did not consent, or might not be consenting, or without giving any thought as to whether she was not or might not be consenting to the penetration.

Accordingly, I am not satisfied beyond reasonable doubt that the four elements of the charge of rape have been proved. It follows that I find the accused not guilty on the charge of rape. I therefore direct a verdict of not guilty be entered on the charge.

SCHEDULE 1

#	Party	Date	Time	Folder	Status	Message
1166	From: +614XXXXX XX	21/04/2015	21/04/2015	lnbox	Read	Yeah I'm home too
Melbs! Rita	22:00:04(UTC+10)
1152	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	I'm still on the way. I thought we agreed on 8.30
Melbs! Rita	20:16:13(UTC+10)
1151	To: +614XXXXX XX Melbs! Rita	22/04/2015	22/04/2015 20:16:45(UTC+1O)	Sent	Sent	Yes i know .. i was just checking
1150	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	Ok. Where exactly are we meeting?
Melbs! Rita	20:17:03(UTC+10)
1149	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	In front of the station
Melbs! Rita	20:17:18(UTC+10)
1148	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	Sorry I'm about 7 mins away
Melbs! Rita	20:30:08(UTC+10)
1147	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	No worries take your time . Are you on the train ? And where
Melbs! Rita	20:30:36(UTC+10)	are you cominq from?
1146	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	No I'm in the city. My appointment was in docklands. I am
Melbs! Rita	20:31:12(UTC+10)	going to drop my stuff off at the gym so I don't have to walk
around with it.
1145	From: +614XXXXX XX Melbs! Rita	22/04/2015	22/04/2015 20:31:24(UTC+1O)	lnbox	Read	They're open till 11 so I will come back and get it on my way home
1144	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	What? If you told me that i was in docklands too
Melbs! Rita	20:31:36(UTC+10)
1143	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	Loi you didn't ask. You suggested flinders so I said ok
Melbs! Rita	20:32:19(UTC+10)
1142	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	Is the gym in flinders?
Melbs! Rita	20:32:33(UTC+10)
1141	From +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	Flinders street and Elizabeth
Melbs! Rita	20:32:52(UTC+10)
1140	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	Ok i can meet you in front of walkers donuts
Melbs! Rita	20:33:43(UTC+10)
1139	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	Or wool worth
Melbs! Rita	20:34:12(UTC+10)
1138	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	Sorry coles central
Melbs! Rita	20:35:07(UTC+10)
1137	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	Ok. Walkers donuts is good. I'll be there in 5
1137	Melbs! Rita	20:35:21(UTC+10)

1136	From: +614XXXXX XX	22/04/2015	22/04/2015	lnbox	Read	did you manage to get home ok?
Melbs! Rita	23:47:59(UTC+10)
1135	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	Yup
Melbs! Rita	23:56:04(UTC+10)
1134	To: +614XXXXX XX	22/04/2015	22/04/2015	Sent	Sent	I walked to chapel and took the tram from there
Melbs! Rita	23:56:22(UTC+10)
1091	To: +614XXXXX XX	23/04/2015	23/04/2015	Sent	Sent	Rita where are you?
Melbs! Rita	17:49:46(UTC+10)
812	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	I was expecting an apology from you after last time we met. I
Melbs! Rita	08:20:19(UTC+10)	don't really understand what in earth happened. You were
very confusing and I don't know which part was real .. The
very romantic and amazing part or when you became so
angry all of a sudden.
811	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	An apology from me??
Melbs! Rita	08:22:28(UTC+10)
810	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	Are you serious?
Melbs! Rita	08:22:30(UTC+10)
809	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	That was the worst night of my life.
Melbs! Rita	08:22:53(UTC+10)
808	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	Please don't text me again.
Melbs! Rita	08:23:16(UTC+10)
807	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:24:56(UTC+1 O)	Sent	Sent	Rita what the hell are you talking about ! Oxem bellah I swear to God you got naked and asked me to have sex ! And suddenly you woke up and got so angry ! It doesn't make any sense ! Plus i dont wanna loose you . I care about you
805	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	I can't just consider it a one night's stand! Everything
Melbs' Rita	08:27:58(UTC+10)	happened because we have feelings towards each other !
Im sure you're not the one night's stand type and i would
never have sex with a random girl. I need you in my life
804	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	Mate7Iefsh kedb Don't lie. I don't know if you're full of shit or
Melbs! Rita	08:31:06(UTC+10)	in your head you truely believe that's what happened. That
wasn't a one night stand for me. That was the scariest night
of my life and a wake up call.

803	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	Walahy maba7Ief kedb ! I swear I'm not lying Unless you
Melbs! Rita	08:32:33(UTC+10)	were extremely drunk w ma7asetesh b nafsek you did not
feel anything !! Ana msh 7a7Ief kedb wa5sar rabena 3shan
aksabek ! Oxem bellah howa da el 7asal I will not swear to
God and commit a sin in an attempt to keep you with me, I
swear to God that this is what happened and i can't believe
you cant even remember!!
802	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	I remember everything that happened too well. As much as I
Melbs! Rita	08:33:45(UTC+10)	am trying to forget every moment of that awful night.
801	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	If remembering the night that way helps you sleep at night
Melbs! Rita	08:34:41(UTC+10)	fine. But I never want to see you again and this is the last
text message I am sendino. Goodbye
800	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	I care about you more than you can ever imagine. And if
Melbs! Rita	08:35:22(UTC+10)	you really knew me you would never see me this way.
Oxem.bellah enty msh fakra 7aga ! W deny w ma a3bod
enty talabty meny w fag2a et7awelty ! Masa2alt3sh nafsek
how you got naked ?! Wala de kaman 3amaltaha 8asb
3anek lol ! I swear to God you can't remember anything , I
swear by my religion that you asked me and suddenly you
changed! Didn't you ask yourself how you got naked? Or are
you claiming that I did this as well!
799	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	Rita bataly zolm 3shan walahy enty zalmany. Rita please
Melbs! Rita	08:39:10(UTC+10)	stop being unjust, I swear this is unfair. You need to
reconsider everything. If i was mistaken i wouldnt have ever
had this conversation now. You can run but you can't hide.
And you know deep inside that I dont deserve what you're
doing right now
798	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	Whatever happened we were both sinning anyway. I don't
Melbs! Rita	08:42:20(UTC+10)	want more zenoob sins of being zalmah unjust. I will say
God only knows what happened that night. May he be the
one to judge us. So consider it that I hold no bad feelings
towards you.
797	To: +614XXXXX X	2/05/2015	02/05/2015	Sent	Sent	It's a shame en bent balady tbe3ny keda It's a shame that
Melbs! Rita	08:42:39(UTC+10)	my fellow countrymen/women treat me like that while
dozens of useless people are very faithful

796	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:44:16(UTC+10)	Sent	Sent	Ya Oh Rita why don't you get it ₁ I will not let go like you did. You mean alot to me wana msh 7akon nadl ma3 aktar ?ad yestahel eny akon gambo I will not be a bastartd with the person who deserves my assi stance and support
795	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:47:02(UTC+10)	Sent	Sent	You have no idea what this relation means to me. It means the world, i was extremely lost untill i meet you
794	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:50:41(UTC+10)	lnbox	Read	Adel. I am going to try so hard to forget what happened and let God be the judge of our actions. But to go back to how things were before hand is impossible for me.
793	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:51:10(UTC+10)	lnbox	Read	Maybe one day we can be friends. But not now. I'm sorry but I can't
792	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:51:21(UTC+10)	lnbox	Read	Enjoy your time with your dad here and take care.
791	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:56:44(UTC+10)	Sent	Sent	Try hard to forget what ! It was your mistake ! If i knew that when.you get drunk you dont really know what your doing i wouldn't have had sex with you. And if it was against your will how come I fucked you for like 10 minutes untill suddenly you got up.and started shouting ! Doesnt make any senseeee ! If you didnt want from the beginning makontesh da5alteh gowaky mel awel w ba3d ama ne3mel da fag2a tet?awely. I would not have inserted it in to you from the beginning, and during all this you suddenly changed Ask your self ya Rita how ?
790	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:57:43(UTC+1O)	lnbox	Read	I know how. There's no point explaining it to you you're not gonna see it
789	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:57:57(UTC+10)	lnbox	Read	Anyway. I'm trying to forget not relive it.
788	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:58:17(UTC+10)	Sent	Sent	You were perfect for the first 10 minutes and enjoying and all of a sudden you went crazy. Explain it please i need to understand what went wrong
787	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 08:58:28(UTC+10)	Sent	Sent	All I am asking is an explanation
786	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 09:06:29(UTC+10)	Sent	Sent	Answer me. It's my least right .
_784	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 12:47:26(UTC+1O)	lnbox	Read	There's no point discussing this. We have different views on it

783	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:03:30(UTC+10)	Sent	Sent	I just need to get something clear thats all.. how come you asked me to fuck you and for the first 10 minutes you were perfectly fine and enjoying and suddenly everything went wronq. Just explain this part
782	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:05:15(UTC+10)	lnbox	Read	I never asked you to do that. That's where we have different views. You took off my dress. I let you which was my fault but then when you started to get further I clearly told you to stop and you didn't
781	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:06:39(UTC+10)	lnbox	Read	You held me down while I was trying to push you off me! You truly don't remember that? I don't know how you can mistake me screaming to stop for please fuck me
780	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:11:24(UTC+10)	Sent	Sent	Yes you asked me to stop after fycking you for 10.minutes !! Dant you get it .! You didnt stop me from the beginning and that i find wierd. Because since we started something why should we stop in the middle of it. The only explaination is that you were very sleepy and drunk and didnt feel at the begining and suddenly you became consious. I swear to god thats what happenef
779	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:11:26(UTC+10)	Sent	Sent	happened
778	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:16:53(UTC+10)	lnbox	Read	I really don't want to talk about this anymore.
777	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:17:14(UTC+1 O)	Sent	Sent	Rita consider that day never happened and that it was a big misunderstanding and lets go back to normal. I miss you and i dont want us to stay away
776	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:17:24(UTC+10)	lnbox	Read	I'm just trying to forget and this is not helping
775	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:17:36(UTC+10)	lnbox	Read	It's not just that. You don't remember hitting me??
774	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:18:12(UTC+10)	Sent	Sent	I didnt hit you. I was pushing you to sit down. I didnt want you to leave at this state
773	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:18:41(UTC+10)	lnbox	Read	You hit me so hard I fell on the floor. Or you don't remember that either? I was not as drunk or sleepy as you think I was. I had two drinks. I managed to get out and walk home so I couldn't have been that sleeov

772	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:24:27(UTC+10)	Sent	Sent	It wasnt hitting ya Rita i was pushing you . You cant defrentiate between hitting and pushing. Believe me hitting is totally different
771	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:26:11(UTC+10)	Sent	Sent	Anyway arguing wont change anything. In sorry for any inconvenience and lets get back to normal please
770	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 13:29:15(UTC+10)	lnbox	Read	I'm sorry. I can't go back. Like I said. Maybe one day we can be friends.
769	To: +61406227843 Melbs! Rita	2/05/2015	02/05/2015 14:10:40(UTC+10)	Sent	Sent	No i can't settle for that. I need you around. Please don't over react . It was a misunderstandinq
768	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:18:15(UTC+10)	lnbox	Read	I'm sorry I can't.
767	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:20:27(UTC+10)	Sent	Sent	Why not ya Rita. Why is a misunderstanding doing all that between us? If I dont care about you I wont try to fix this misunderstandinq.
766	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:23:57(UTC+10)	lnbox	Read	That was the worst night of my life. I was crying for two days after. I can try and say it was a misunderstanding but I can't just pretend it never happened and go back to normal
765	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:26:11(UTC+10)	Sent	Sent	You are exagorating. You make it seem so bad while its not
764	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:26:55(UTC+10)	lnbox	Read	Maybe it wasn't that bad for you. But it was that bad for me
763	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:26:59(UTC+10)	Sent	Sent	Its a misunderstanding...
762	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:27:48(UTC+10)	Sent	Sent	Rita it was bad for me too. Because i was very happy untill what happened . So give us a chance to make things right
761	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:30:18(UTC+10)	lnbox	Read	So I can't forget how I felt. And that's why I can't go back. I'm sorry but I don't feel safe around you anymore.
760	To: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:31:36(UTC+10)	Sent	Sent	Rita that's nonsense. I care about you more than anything else. Just let it go plz
759	From: +614XXXXX XX Melbs! Rita	2/05/2015	02/05/2015 14:50:27(UTC+10)	lnbox	Read	I'm sorry. I can't change how I feel. We don't need to make this bigger than it needs to be. Malnash naseeb l'ts not our fate it's that simple.

758	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	Malnash naseb 3shan so2 tafahom ? Its not our fate
Melbs! Rita	14:58:46(UTC+10)	because of a missunderstanding? Rita I'll always keep
holding on even if you neglect me becoz that's ne whenl
really care about someone. Just calm down for a while and
we will meet up eventually and hopefully clear everything .I
know you're upset but people don't just let go men awel
moshkela tewagehom from the first problem we face. Ya
Rita sam7eny lw daye2tek awy kda bs lazem teb2y 3arfa
Listen, if I have upset you that much, you should know that I
never meant to. I promise I will make it up for u and things
will be much in the future
757	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	I know you care for me too but your fear is taking control and
Melbs! Rita	14:59:31(UTC+10)	it's just an illusion. Just give us a chance to set things right
756	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent I	Everyone deserves a second chance. I'm not an angel, and
Melbs! Rita	15:00:35(UTC+10)	you're not either. We are humen beinqs			Sent I
755	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	That is true. No one is perfect. But like the saying hurt me
Melbs! Rita	15:37:28{UTC+10)	once shame on you hurt me twice shame on me. I don't
allow myself to repeat any mistake. It's just how I am
750	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	That's not gonna happen and i never meant to hurt you
Melbs! Rita	20:27:40(UTC+10)	anyway so it doesn't even count. So please Rita forget it
and let's qo back to normal.
749	From: +614XXXXX XX	2/05/2015	02/05/2015	lnbox	Read	Let's give it time and see if it fixes things. Enjoy the rest of
Melbs! Rita	21:12:15(UTC+1 0)	your weekend
748	To: +614XXXXX XX	2/05/2015	02/05/2015	Sent	Sent	You too:)
Melbs! Rita	22:03:56(UTC+10)

SCHEDULE 2

[2020] VCC 1774

11 November 2020