Kaleli v The Queen

[2021] NSWDC 826

District Court

New South Wales

Medium Neutral Citation:

Kaleli v R [2021] NSWDC 826

Hearing dates:

24 March 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

I find Mr Kaleli not guilty of the offence of wilful and obscene exposure in a public place, and set aside the conviction. The conviction appeal is upheld.

Catchwords:

CRIME — appeal and review — appeal from Local Court to District Court — by person convicted against conviction – wilful and obscene exposure in a public place – intentional exposure – proof beyond reasonable doubt

Legislation Cited:

Crimes (Appeal and Review) Act 2001, s 11, s 18, s 20

Summary Offences Act 1988, s 5

Cases Cited:

Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244

Category:

Sentence

Parties:

Hasan Kaleli (appellant)
Regina (respondent)

Representation:

Solicitors:
Astoria Lawyers (appellant)
Director of Public Prosecutions (NSW) (respondent)

File Number(s):

2019/00406451

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

10 September 2020

Before:

Magistrate J Carney

File Number(s):

2019/00406451

Judgment

Introduction

1. Hasan Kaleli was convicted of an offence under s 5 of the Summary Offences Act 1988 for having in a public place, namely a public car park, wilfully and obscenely exposed his penis. He appeals against the conviction.

The appeal

2. The appeal against conviction in the Local Court is available under s 11 of the Crimes (Appeal and Review) Act 2001. This Court may determine the appeal against conviction by setting aside the conviction or dismissing the appeal. ^[1]

   1. See s 20 of the Crimes (Appeal and Review) Act 2001.

3. An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings subject to exceptions not presently relevant. ^[2] That evidence comprises the transcript in the Local Court proceedings and some exhibits in that court. The question to be determined is whether this Court is satisfied beyond reasonable doubt of the guilt of Mr Kaleli on the evidence in the appeal. I have to form my own view of the facts, taking into account the advantage enjoyed by the magistrate who saw and heard the witnesses in the court below. ^[3] I am entitled to consider the reasons of the magistrate, including on issues of credibility of witnesses.

   2. See s 18 of the Crimes (Appeal and Review) Act 2001.

   3. See Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244.

4. There was no application for, or any decision allowing, recordings to be played before me, or the calling of witnesses to give evidence, or any fresh evidence.

Undisputed background

5. The complainant, Suzanne Cambouris, and the appellant, Mr Kaleli, gave evidence. Much of the matters about which they gave evidence was undisputed.

6. Mr Kaleli came to the bedding shop at about 5.40pm on 16 October 2019 to complete a delivery. Ms Cambouris was the only person in the store, and instructed Mr Kaleli that she would meet him at the delivery cage at the back of the store, accessed from the car park.

7. Before this meeting, Mr Kaleli and Ms Cambouris had never met, although it was not disputed, as Mr Kaleli testified, that on two other occasions, he had made deliveries to the store.

8. Although sometimes referred to in the evidence as a bed, the delivery comprised a boxed adjustable base for a queen-sized bed. Mr Kaleli used a trolley to bring the box containing the base to the delivery cage. Mr Kaleli pushed it into the delivery cage with some guiding assistance from Ms Cambouris. There was a conversation about the damage to the box containing the base. During this time, Ms Cambouris looked at the pants of Mr Kaleli - “Of course I did, yes”. ^[4] The Crown accepts that Mr Kaleli’s penis was not exposed at this point. ^[5]

   4. Exhibit 1, p 38; Tcpt, p16(22).

   5. Crown submissions, dated 19 March 2021, footnote 21.

9. After the cage was locked, both Ms Cambouris and Mr Kaleli walked away. Mr Kaleli was pushing his trolley. Ms Cambouris asked, “Where is the delivery docket?” and Mr Kaleli said, “I forgot it in the truck” and “I parked it on the rooftop”.

10. The rooftop was up a ramp about 90 centimetres in height. ^[6] Ms Cambouris said, “Why didn’t you park it on the loading dock” and Mr Kaleli said:

“I been here before two times, I did delivery here two times…if I park my truck at the loading dock it was very difficult for me to push a heavy bed, because…I am going to go from the ramp up…when I park my truck on the roof top it is much easier with the going down. It’s more easier for me.” ^[7]

He said it was harder to push a bed delivery up the ramp than down.

6. Exhibit 1, p 19.

7. Exhibit 1, p 52; Tcpt, p 30(39-43).

11. Ms Cambouris and Mr Kaleli ceased walking to the rooftop before reaching the ramp when Ms Cambouris said, “No it’s getting late I need to get home”, as she says, or “It’s getting late, don’t worry about the receipt”, on Mr Kaleli’s account.

12. Mr Kaleli had in his pocket a mobile phone which contained an app allowing a person to sign for a delivery, sometimes called in the evidence a PDA or Personal Digital Assistant. I shall refer to it as the mobile device. When Ms Cambouris referred to it “getting late” in respect of the retrieval of the delivery docket, and the progress of Ms Cambouris and Mr Kaleli towards the truck ceased, Mr Kaleli turned to face Ms Cambouris, took out the mobile device from his pocket, ^[8] and held it up for her to sign. At that moment, the alleged offence occurred.

    8. Exhibit 1, p 41; Tcpt, p 19(46).

13. Ms Cambouris then signed the mobile device, returned to the shop to collect her bag and called her boss’ wife. Mr Kaleli pushed his trolley up the ramp and departed.

The incident

14. Ms Cambouris gave evidence that when Mr Kaleli held the mobile device up for her to sign, “That’s when I noticed that his fly was fully open and I saw his penis”. She said he was wearing “a zippered pair of pants that was open like that”. ^[9] The judgment of the magistrate suggests that she may, at that time, have indicated that the “area was fully exposed in almost like an ‘O’ or oval as she put her two fingers together”. ^[10] Ms Cambouris said the “area was fully open” and that “the button was on”, presumably meaning his trousers above the zippered fly were buttoned up.

    9. Exhibit 1, p 32; Tcpt, p 10(35).

    10. Exhibit 1, p 76; Tcpt, p 9(48-49).

15. Ms Cambouris gave the following testimony in chief:

“Q. Was he wearing underwear?

A. No, happened to be put underneath his penis.

Q. So he was wearing it but it wasn’t covering is what you’re saying?

A. That’s right.” ^[11]

11. Exhibit 1, p 33; Tcpt, p 11(1-6).

16. Ms Cambouris denied that Mr Kaleli did or said anything whilst she was signing, but “just had a grin on his face”. ^[12]

    12. Exhibit 1, p 33; Tcpt, p 11(50).

17. Ms Cambouris agreed that the orange or orange and black shirt that Mr Kaleli was wearing was “outside his pants, not tucked in”, that “he looked scruffy at the time” and that “he looked like he had a busy day”.

18. Ms Cambouris accepted that she saw nothing unusual about Mr Kaleli’s hand movements as they walked away from the delivery cage, he was pushing a trolley and was in front of Ms Cambouris.

19. Ms Cambouris said that she saw part of the penis and that the zipper was “fully open”. The transcript records that she said the penis was outside the pants, although the magistrate’s decision indicates she said, “it was fully open I saw his penis inside his pants”. ^[13] She said the underwear “was tucked underneath” and that she could not remember the colour of the underwear.

    13. Exhibit 1, p 73; Tcpt, p 6(40-41).

20. Mr Kaleli gave evidence that he wore his shirt outside his pants with a photograph indicating it covered most of his fly. Ms Cambouris, when shown the photograph and asked whether Mr Kaleli wore a similar shirt on the day in question, said, “I don’t think so, no...that’s not what I remember”.

21. Mr Kaleli gave evidence that he found out about the allegation the next day, when his manager called and told him, speaking of the lady at the bedding store:

“‘Hasan, she is saying that you exposed yourself’ he said to me, my manager on the phone. And I said to him, ‘What is expose means Luke? I don't – I never heard this word in my life like what is expose means?’ He said to me, ‘You show your penis to her.’ And I was like shock, shock, shock, I couldn't, I couldn't believe, I was shock. I said, ‘What, what do you say, I show my penis to her?’ He said to me, ‘This is what she told us. She rang us and she told us and she is going to go to police and we told her, Hasan is working with us three years, he is one of the best of our drivers, he's never done something like that.’ The manager told me he told her.” ^[14]

14. Exhibit 1, p 53; Tcpt, p 31(36-44).

22. Mr Kaleli said that at the time of the signature, he was holding the mobile device with one hand, not both. The following exchange occurred in cross‑examination:

“Q. I am going to put some propositions to you, you can agree or disagree. I am going to put it to you that when you were holding the PDA for the complainant to sign, and you were holding it with both hands.

A. I was holding with one hand.

Q. I am going to put it to you that while you were holding it your zipper on your pants was undone.

A. I didn't know. I didn't know it was undone.

Q. You didn't know that your--

A. I didn't know it wasn't, you know like I didn't it wasn't.

Q. Well hang on, is it your evidence that you don't know if it was or wasn't open, or is it your evidence that it was one of those two things?

A. Okay--

HER HONOUR

Q. No just answer the question.

A. My zipper that I be aware it wasn't undone.

PROSECUTOR

Q. But just earlier you said you didn't know if it was open or closed.

A. No, I am saying it wasn't open that I be aware of It wasn't open I aware of.

Q. I'll stop you there. You do agree that not 30 seconds ago you gave evidence that you didn't know whether it was open or closed? You agree? That you said that just now?

A. I just said that--

Q. I'll stop you, thank you, that's answered my question. I am going to suggest to you that you did know that it was open.

A. No.

Q. Sorry I'll just clarify that question. But first I am going to put to you, the zipper was in fact open.

A. It wasn't open that I know of. It wasn't open, I know of.

Q. So I am going to put it to you that the zipper was in fact open and that your penis was exposed.

A. No.

Q. I am going to put it to you that the reason why you said that you didn't know if it was open or closed during your evidence today is because you have fabricated this evidence, and it was in fact open.

A. It wasn't open.” ^[15]

15. Exhibit 1, pp 64-65; Tcpt, pp 42(43)-43(34).

23. The magistrate accepted Ms Cambouris’ evidence, including that Ms Cambouris made an immediate complaint to her boss’ wife. ^[16] The magistrate found that Ms Cambouris did not say before the incident and that it would be curious to say, “don’t worry about the receipt”. ^[17] The magistrate also found that Mr Kaleli had an opportunity to rearrange his clothing whilst he pushed his trolley towards the ramp, and that Mr Kaleli was grinning as he held the mobile device for signing. The magistrate thought that this was a “good piece of direct evidence” of Mr Kaleli’s intention deliberately to expose himself.

    16. Exhibit 1, p 72; Tcpt, p 5(19).

    17. Exhibit 1, p 73; Tcpt, p 6(27).

24. As the Crown case seeks to establish the guilt of Mr Kaleli with a case largely based on a single witness, I must give myself a Murray direction to exercise caution, that I need to find Ms Cambouris an honest and accurate witness before I can find Mr Kaleli guilty beyond reasonable doubt. So I must review the evidence of Ms Cambouris carefully before convicting upon it. In doing so, it is possible to find matters that may give rise to questions: if the car park was “dark”, as Ms Cambouris described, can her observations be accepted to be accurate; and why was she able to assert that Mr Kaleli was wearing underpants “put underneath” or “tucked underneath” his penis, yet she was unable to identify their colour.

25. Further, it might be doubted that it would be unusual for Ms Cambouris to abandon the entitlement to a receipt or delivery docket, as the magistrate found. On Ms Cambouris’ account, the purpose of her walking with or behind Mr Kaleli was to get a delivery docket and that course was abandoned at her insistence.

26. Nevertheless, by her recent complaint, by the acceptance of her evidence by the magistrate and by its general consistency, I am persuaded beyond reasonable doubt that Ms Cambouris believed she saw Mr Kaleli’s penis as his zipper was down and his fly open. There is no suggestion that Ms Cambouris did not believe this nor any basis for such a suggestion. Nor do I accept there to be any reasonable possibility that she was mistaken. Although her observation may have been brief, it was shocking to her and I am persuaded beyond reasonable doubt that she saw what she described in evidence. Whether every detail she recounted is accurate might be challenged, but the central part of her evidence, that she saw Mr Kaleli’s penis through the open zipper, I accept to the criminal standard.

27. Relevant to this finding was Mr Kaleli’s evidence, which was somewhat ambiguous as to whether his fly was definitely closed or that it was not open to his knowledge.

28. It was not disputed that the exposure of Mr Kaleli’s penis in this way was an obscene exposure of his person contrary to the statutory provision. The issue remaining was whether the obscene exposure was wilful.

29. As indicated, the magistrate attributed particular importance to Ms Cambouris’ observation that Mr Kaleli had a grin as she signed the mobile device that he took from his pocket.

30. The prosecutor also relied upon this evidence as well as her evidence that his penis was “outside” his pants, a matter to which the magistrate did not attach importance, as well as that Mr Kaleli’s underpants were tucked underneath his penis. In addition, the magistrate found, and the prosecutor relied upon, the opportunity which Mr Kaleli was said to have available as he walked towards the ramp in front of Ms Cambouris.

31. As to the grin, in the circumstances, it may seem particularly sinister and probative, but there is another reasonable possibility for it. It might be thought to be usual, common, or to be expected, that the final act towards a customer after a transaction has been completed is to smile, to acknowledge the completion of a successful arrangement. Mr Kaleli denied a smile, but his memory of a perhaps somewhat involuntary action at the conclusion of his delivery, his last for the day, might not be especially memorable, especially as, if he were innocent, it would hold no significance until at least the next day when he became aware of the allegation.

32. As a smile to conclude the delivery transaction constitutes another reasonable explanation for the smile, consistent with innocence, I am not inclined to give the existence of a smile much weight. I do not attach to it the particular importance that the magistrate did. Whilst the absence of a smile might in some circumstances have been of some value against the element of wilful exposure, its presence at the conclusion of this delivery transaction seems to me to be less than compelling evidence of wilfulness.

33. As to the question of opportunity, I accept the possibility that Mr Kaleli may have been able to rearrange his clothing and person if he pushed the trolley one-handed away from the cage, but possible opportunity does not diminish aspects of its impracticality. The pushing of the trolley would more easily be managed with two hands rather than one; and on both accounts, he was heading towards the up ramp to his truck, which might increase the difficulty of one-handed control of the trolley.

34. Mr Kaleli’s progress was only stopped by the actions of Ms Cambouris in stating that it was late, thereby revoking the need for a receipt or delivery docket. So Mr Kaleli had no prior knowledge that he was to stop where he did. Perhaps he could have undone his fly to expose his penis early in his journey from the delivery cage in preparation for a foreseen encounter later at the truck, but that also does not seem especially likely.

35. These matters do not remove opportunity, but they raise questions of likelihood.

36. I referred earlier to the evidence of Mr Kaleli’s penis being “outside” his pants with his underpants underneath. As to the evidence of Mr Kaleli’s penis being “outside” his pants, two questions arise.

37. First, as mentioned earlier, why is the magistrate recorded as stating that the evidence was, rather, “I saw his penis inside the pants”. ^[18] That could be an error in transcription, either of Ms Cambouris’ testimony or of the magistrate’s judgment, or perhaps more likely an error of recollection by the magistrate.

    18. Exhibit 1, p 73; Tcpt, p 6(41).

38. But the second, perhaps more important, question is what is actually conveyed by this evidence. It was not further explored. Ms Cambouris made her observations front on, not from the side, so it might not be compelling evidence of the extent of the protrusion of Mr Kaleli’s penis if that was what was meant by the term “outside”. There is no suggestion in any material that Mr Kaleli’s penis was to any extent erect, whether part of Mr Kaleli’s penis extended from his person beyond the limits of the zipper seems more a function of the possible tightness of the pants Mr Kaleli was wearing and the nature or dimensions of his anatomy rather than evidence of wilfulness. Perhaps a greater degree of protrusion may seem more likely to have been noticed by him, which supports an assertion of wilfulness, but that may be lessened by the evidence that exposure was momentary rather than prolonged.

39. Finally, the evidence of Ms Cambouris about Mr Kaleli’s underpants also raises questions. It was not submitted that the whole of his underwear was tucked behind his penis since he was asserted to be wearing them. Ms Cambouris at the outset responded negatively to the question, “was he wearing underwear”. But her response might, when read with the next answer (to an inappropriate leading question) convey that he was not wearing the underwear properly so that his penis was not covered by the underwear.

40. The prosecutor submitted that the top of Mr Kaleli’s underwear was behind his penis. If established, this would seem to be strong evidence of wilfulness since it might hardly go unnoticed by Mr Kaleli. That is one view open on the evidence, although there was no direct testimony of it. Not only was there no evidence of the colour of his underwear, but the type was unexplored.

41. It might, as the prosecutor submitted, be inappropriate to speculate whether Mr Kaleli was wearing “Y fronts” or “jocks”, but there remains the circumstances that the type of underwear might determine whether Mr Kaleli’s penis could be exposed by accident or only purposefully. In my view, the evidence did not exclude the former possibility.

42. If Mr Kaleli’s exposure was accidental, it might be asked, how did it happen to occur? At least one possibility is that with the heavy moving of beds, or his using the bathroom during the day, his accidentally open fly may have been unnoticed, largely covered by his lengthy shirt. It only was noticed by Ms Cambouris after Mr Kaleli extracted his mobile device from his pocket, an action which might require him to lift his shirt to access his pocket and might operate to open up the area visible by an already unzipped fly. That he did this - extracting his mobile device from his pocket - immediately before the exposure would explain why Ms Cambouris did not view it earlier. This possibility is consistent with innocence and I do not regard it as having been excluded by the evidence.

23. In reaching this decision, I take into account that Mr Kaleli, now 42 years of age, has no criminal history indicating this type of offence. He was fined for a dishonesty offence, a matter that would not lead me to adopt generally a finding of good character in assessing his evidence, an approach different from that of the magistrate.

24. The two consequences of a finding of good character are that it would be a matter to be taken into account on the question of his guilt of him having committed the offence, such as by reasoning that he is unlikely to have committed the offence. It would also be a matter that can be taken into account in supporting his credibility that his evidence is more likely truthful.

25. In view of Mr Kaleli’s dishonesty conviction, I would not give particular weight to the latter characteristic, but the absence of any history of a sexual offence of any nature leaves some support for the former, that Mr Kaleli had never committed any offence of this nature, that he is of good character, at least in respect of this type of an offence, and that this Court should look carefully at his evidence before finding the wilful offence alleged.

26. The absence of any inculpatory words or actions from Mr Kaleli connected with the offence, apart from the matters mentioned, was also taken into account.

27. In all the circumstances, I am not persuaded that the evidence proves beyond reasonable doubt that Mr Kaleli wilfully exposed himself.

Conclusion

48. Accordingly, I find Mr Kaleli not guilty of the offence of wilful and obscene exposure in a public place, and set aside the conviction. The conviction appeal is upheld.

**********

Endnotes

Decision last updated: 26 October 2022