Khan (a pseudonym) v Director of Public Prosecutions
[2020] VCC 2118
•29 January 2020
| IN THE COUNTY COURT OF VICTORIA AT Geelong CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| YASIR KHAN (a pseudonym) | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 28 January 2020 | |
DATE OF DECISION: | 29 January 2020 | |
CASE MAY BE CITED AS: | Khan (a pseudonym) v DPP | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2118 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Conviction and sentence appeal from the Magistrates’ Court of Victoria - sexual assault – beyond reasonable doubt
Legislation Cited: Crimes Act 1958 (Vic)
Judgment: Charges 1, 2, 4, and 5 dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Desmond | Doogue + George Criminal Lawyers |
| For the Respondent | Mr G Hevey | Office of Public Prosecutions |
HER HONOUR:
1 I remind those listening to, or reading, these remarks that the law prohibits the publication of any details likely to lead to the identification of the victim of a sexual offence.[1] I will not identify them.
[1]Judicial Proceedings Reports Act 1958 (Vic) s 4(1A).
2 There are two complainants in this case, who I refer to as ‘Complainant A’ and ‘Complainant B’.
3 Yasir Khan,[2] you have been charged with four counts of sexual assault. It is alleged that on 6 November 2017 you touched complainant A on her bottom without her consent. That conduct is the subject of charge 1. Charges 2, 4, and 5 relate to allegations that on three occasions on 6 November 2017, you touched complainant B on her bottom without her consent.
[2]To ensure that there is no possible identification of a victim of sexual offending, these remarks have
been anonymised by the adoption of a pseudonym in place of the name of the offender.
Evidence
4 The prosecution called evidence from the two complainants, four lay witnesses, and the informant. The defence made a no-case submission, which was dismissed. The accused then gave evidence and was cross-examined. I do not propose to set out the evidence of each witness. I briefly summarise the evidence of the complainants and of the accused.
5 Complainant A said that on 6 November 2017, at around 1 pm the accused came to the library where she was working and asked for a tour of the library. She took him on a tour at around 1 pm. She could not recall giving him a pen or paper. She took him up the stairs to the collections. He followed her up the stairs. She felt he was too close to her. They then went to the collection at level 3, where the bookshelves were about 1.1 metres apart. She pointed out how the numbers ran on the shelves. Charge 1 concerns what followed. As she pointed out the numbers, she felt something touch her skirt around her left buttock. He was behind her at the time. She turned and looked down but saw nothing in his hand.
6 She said that she wound up the tour of that section, then moved quickly to the service desk on level 2. She did not know the name of the accused, but got his name from another staff member.
7 In cross-examination, she agreed that in her statement made on the same day, she stated that she knew that Complainant B had spoken to the accused earlier in the same day. She could not recall if she gave him pen or paper when he came to the desk at 1 pm but when showed CCTV footage agreed that it appeared to show her giving him a pen. She said that the touching of her skirt was very light, like a brush, and that she did not see his hand touch her skirt. She agreed she told police she thought he may have accidentally brushed up against her. She agreed she previously gave evidence in the Magistrates’ Court that she was not sure if the touching was intentional or inadvertent.
8 She said that she reported the incident to her supervisor and was told to create an incident report. She agreed that she later spoke to Complainant B about the behaviour but said she could not recall whether she told her specifically that the accused touched her, or just spoke more generally. When Complainant B’s statement to the effect that Complainant A told her that she had experienced creepy behaviour from the accused was put to her, Complainant A agreed that she could have used those words.
9 In his evidence, the accused said that when he met her at the desk for the tour of the library, Complainant A gave him a pen and some paper. When he went behind her up the stairs, he was 1 or 2 steps behind her. He said she was quite friendly. When they were at the bookshelves, he was not aware of touching her skirt, but said it was possible that he did.
10 In cross-examination, the accused said that while at the bookshelves with Complainant A they were moving between the shelves; he denied touching her skirt. In re-examination he said that there were other people in the library at the time.
11 Charges 2, 4, and 5 concern allegations of touching Complainant B on the same day as the alleged conduct the subject of charge 1.
Charge 2: the projector incident
12 Complainant B worked once every few weeks in IT support at the same library as Complainant A. The accused approached Complainant B at around 11 am on the 6 November 2017 and asked for some help with his computer. She looked at it and installed some software on it. The download was taking time, so she suggested he return after lunch. He returned at 1.45 pm and said he was working in a study room on the floor below, but was having trouble connecting one of the computers in that room to the projector. She said that the system was cabled, and she went into the room. He was at the table. She went to the panel on the wall which contained the projector controls, and switched it on. By then he was behind her as though he was watching her and the panel control buttons. She felt a brush or very light touch on the left side of her buttock. She was not sure what touched her. It was very light. She did not think it was intentional. She moved to one side away from him, and said nothing. In cross-examination, she agreed that she did not see his hand touch her but insisted that it was a light but definite touch with his hand.
13 She said that the accused moved away, and started complaining about being itchy. He put his hands down his tracksuit pants. She was looking towards him then turned away. She saw his underwear. She could not see what his hand was doing. In cross-examination, it was put to her that in her statement she stated that he had pulled his trackpants down and was exposing his underwear. Complainant B replied that there were in fact two occasions that day when he pulled his tracksuit pants down, but agreed that only one of those occasions was referred to in her statement.
14 The accused said that he wanted to watch his lectures via the projector and when Complainant B came into the study room she told him that usually the panel with the projectors’ control are on the wall. He looked for it and found it and told her. She went to the wall. He followed her to look over her shoulder. It was awkward doing so because of the tripod legs holding up the green curtain rails. The panel was behind the curtain. They were standing between the 2 lamps. He denied knowingly touching her in a sexual way. He said he wears glasses and was trying to see what she was showing him at the panel, that they were talking while close to one another. He said he had no intention of touching her.
15 In cross-examination, the accused said that he did not have his glasses with him that day, and so he needed to get up close because his eyesight was not great and because he wanted to see how she was fixing or turning on the projector from the panel. He denied that he already knew how to fix the projector, and said that the IT assistant, had not yet been down to fix it. He agreed that he was standing close to complainant but denied touching her at all, let alone on the buttock.
16 In re-examination, he denied that he ever pulled his tracksuit down, or put his hand down the front of his pants in front of Complainant B at that time. He agreed that if he said something to Complainant B at the time, it was nothing of significance to him.
Charge 4: the mouse incident
17 Complainant B said after what had just occurred, she moved back to the desk and noticed there was no mouse connected to the computer. She left the room to go upstairs to get a mouse and then took it back to the study room. She said that the accused was still in the room. She leaned over the table to plug the mouse in and felt his hand touch her bottom. When she stood up, she saw that his pants were down to the top of his thighs, and she could see his underpants. She wanted to get away, and went back to the desk on the second floor and kept working.
18 In cross-examination, Complainant B said that she did not see the accused touch her but just felt it. She agreed that after this incident Complainant A had mentioned to her that she believed that the accused had touched her. Complainant B agreed that in her statement she wrote that Complainant B “told her he was creepy downstairs” but did not mention that she was told by Complainant A that the accused had touched her. Complainant B agreed that this disparity was present. She denied the proposition that it was possible that she felt some brushing when the accused was up close to her, but only after her conversation with Complainant A she convinced herself that it was inappropriate touching.
19 The accused said in his evidence that when Complainant B noticed that he was near the computer when she returned with the mouse and that when she was plugging it in he did not knowingly touch her on the buttocks. He said that when Complainant B came into the study room he was already at or near the computer there, and she approached him. He denied touching her on the buttocks.
20 In cross-examination he conceded that it was possible that he scratched himself on that day, because he had shingles, and had lesions both at the front and back of his stomach below the ribcage, as well as on his knees. He said that he only would do so through the outside of his tracksuit pants. He denied ever putting his hand down his tracksuit pants, nor ever intentionally showing her his underpants.
Charge 5: the security guard incident.
21 Complainant B stated that some time after the alleged touching the subject of charge 4, (and after a male IT technician had gone down to the study room to try to fix the pink screen, which he completed around 2.40 pm) the accused came back to the desk at 4.30 pm saying that the projector system was off.
22 By then, she knew from Complainant A of the interaction she had had with the accused, and Complainant B did not want to go back to the study room. She arranged for 2 security personnel to attend. They did not enter the room with her, but came in a few minutes later. Before they entered the room, she went into the study room, and the accused was sitting at the table. She told him to press the projector button on the wall. She went to the wall to do it. He stood behind her so that she could show him how to do it. He touched her again on the bottom with his hand. Then the security guards came and asked if everything was alright. She moved to one side and the accused move away.
23 The accused said that before the alleged incident he did some studying, went outside for a bit; but that when he got back to the study room the computer was not working. He went upstairs to try to contact the IT technician who had been there earlier in the day and was directed by a male librarian to Complainant B, who said that she could help him and would be down to the study room shortly. When she came in, he was sitting at the desk using his laptop. He said that he was not aware that he touched her on the behind but said he might have done because they were both close together and he was behind her, with his legs around the tripod legs. He denied saying anything sexual to her. He denied scratching himself on any occasion for the purpose of sexual gratification. He said that in the weeks prior to the incident he had been suffering from shingles as a result of stress relating to his studies, and had lesions around his midriff from front to back, as well as on his knees. These lesions were extremely painful and itchy.
24 In cross-examination, the accused said that on the third occasion that Complainant B came downstairs into the study room, she said she would show him how to turn on the projector. This is why he stood close to her. He denied touching her on the buttock and said that if he did so it was accidental and not for the purpose of sexual gratification. He said it was possible that his body touched hers. He said that he told police about his shingles in his record of interview. He said that when police invited him to show them where he might have sustained an insect bite on his legs, he was not prepared to pull down his pants, but would have been happy to lift his shirt to expose the lesions on his front.
25 The prosecution submitted that the complainants’ evidence should be accepted in its entirety and that the accused ought to be convicted on each charge. In relation to the charge concerning Complainant A, it was submitted that the conclusion that a sexual touching had occurred was fortified by the complaint made immediately to her supervisor and the filling out of an incident report.
26 In relation to the remaining charges concerning Complainant B, it was submitted that her evidence should be accepted; and that there was intentional touching of a sexual nature on 3 occasions, albeit light, and that the accused obtained some sexual gratification from light touching.
Elements
27 To make out each charge of sexual assault, the prosecution must prove four elements beyond reasonable doubt:
(a) You intentionally touched the complainant;
(b) The touching was sexual;
(c) The complainant did not consent to the touching; and
(d) You did not reasonably believe that the complainant consented to the touching.[3]
[3]Crimes Act 1958 (Vic) s 40(1), as amended by Crimes Amendment (Sexual Offences and Other Matters) Act2014 (Vic).
28 In the absence of coincidence or tendency notices, I have carefully considered each charge separately in the light of the evidence relevant to it.
29 I turn to Charge 1, in the light of the complainant’s own evidence, coupled with the sworn evidence of the accused, I am unable to exclude the possibility of inadvertent touching and am not satisfied beyond reasonable doubt that he intentionally touched her on the buttock, nor that any touching which might have occurred was of a sexual nature. For these reasons, this charge is dismissed.
30 I turn to the three charges which allege conduct in respect of Complainant B.
Charge 2 – the projector incident.
31 In the light of complainant B’s evidence that the accused was entitled to look over her shoulder to see what she was doing, and the denial by the accused of any touching, I cannot exclude the I cannot exclude the possibility that any touching which occurred was inadvertent and may have involved a body part of the accused other than the hand. I therefore dismiss charge 2.
Charge 4 – the mouse incident.
32 In relation to this charge, I consider that complainant B put herself close to the accused when plugging in the mouse, and did not see what touched her. Again, any contact could equally have been the product of inadvertence. There was no evidence of any sexual remarks that would assist in finding that there was a sexual connotation or flavour to any contact, if it occurred. For these reasons, I dismiss charge 4.
Charge 5 – the security guard incident.
33 The sworn evidence of the accused was to the effect that he had a reason to watch Complainant B when she went to the panel, so that he could find out how to turn on the computer. For this reason he followed her as she moved to the lamp area near the curtain. He allowed for the possibility that he might have been close enough behind her to touch her, but insisted that he was not aware of doing so. He denied saying anything sexual to her.
34 In relation to Complainant B’s evidence of the scratching and any view she might have had of his underwear, given the inconsistencies adverted to by Mr Desmond, and the sworn evidence of the accused concerning his shingles, I am unable to be satisfied that the scratching, if it occurred, occurred in the manner claimed by the complainant, nor that it produced a deliberate revelation of his underwear, nor that it involved any deliberate lowering of his trousers for the purpose of sexual gratification, nor that it involved him putting his hands down the front of his pants.
35 In all the circumstances, having regard to the state of the evidence I am not satisfied beyond reasonable doubt that there was any deliberate touching of Complainant B’s buttock by the accused, which was sexual in nature. For these reasons, I dismiss charge 5.
Conclusion
Each of the charges is dismissed.
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