Khan v The The Queen - [2022] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khan v R [2022] NSWCCA 157
Hearing dates: 21 February 2022
Date of orders: 15 July 2022
Decision date: 15 July 2022
Before: Price J at [1];
N Adams J at [9];
Ierace J at [189].
Decision:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal.
(3) Quash the convictions of the applicant.
(4) Enter verdicts of acquittal.

Catchwords:
CRIME – appeals – appeal against conviction – sexual offences committed on six-year-old boy in neighbour’s house – defects in complainant’s identification (or recognition) evidence of perpetrator – certain recollections contradicted by other evidence – risk of suggestion and displacement – where witnesses changed evidence after communicating with each other – jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator – appeal allowed – convictions quashed – acquittal

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
Criminal Appeals Act 1912 (NSW), s 5(1)(b)

Cases Cited:
Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17
Domican v The Queen (1992) 173 CLR 55; [1992] HCA 13
Kassab(a pseudonym) v R [2021] NSWCCA 46
KeesLangelaar v R [2016] NSWCCA 143
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Penfold v R [2016] NSWCCA 101
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Blick [2000] NSWCCA 61; 111 A Crim R 326
Sita v R [2022] NSWCCA 90
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
VP v R [2021] NSWCCA 11
Wood v R [2012] NSWCCA 21

Category: Principal judgment
Parties: Kalime Khan (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
E Balodis (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions NSW (Crown)

File Number(s): 2019/00316270
Publication restriction:
Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987, publication of the name of, or any matter which could identify the victim is prohibited.
Pursuant to section 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

16 February 2021

Before:

Norrish QC DCJ

File Number(s):

2019/00316270

HEADNOTE

[This headnote is not to be read as part of the judgment.]

On 16 February 2021, a jury of twelve returned majority verdicts of guilty in relation to the applicant on two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). The applicant was later sentenced to an aggregate term of 3 years and 2 months’ imprisonment (18 months non-parole period). On appeal against his conviction, the applicant raised a single ground, namely, that the verdicts were unreasonable and could not be supported by the evidence. Specifically, the applicant challenged the quality of the complainant’s evidence of identification (or recognition) of the applicant as the perpetrator.

The complainant and his family are of Rohingya origin and arrived in Australia to live in May 2013. The offences were alleged to have occurred between November 2013 and January 2014 in a bedroom of the house next door. The applicant was residing in the house during this time. On one occasion, the complainant walked into the backyard of the neighbouring property to play with the children who lived there. The perpetrator pulled him into a bedroom and is alleged to have touched the complainant’s penis and inserted his penis into the complainant’s anus (the applicant was charged with one count of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act, but the jury convicted on an alternative charge under s 61M(2)). The first time the complainant told anyone about the assault was in June 2019 when he confided in his sister. His identification (or recognition) of the applicant as the perpetrator was central to the Crown case. The trial judge directed the jury that “special caution” was required in the consideration of such evidence.

In support of his sole ground of appeal of unreasonable verdict, the applicant raised several arguments addressing the difficulties in the identification of the perpetrator by the complainant, including: his evidence that the perpetrator was a friend of his cousin Aziz and present on certain outings, where Aziz denied knowing the applicant; a photographic identification made by the complainant of the applicant was potentially compromised by the circumstances in which it occurred; some family witnesses discussed their evidence; and the physical description of the perpetrator by the complainant was not supported by other evidence at trial as to the applicant’s appearance at the relevant time. The Crown submitted that the complainant’s evidence nominating the applicant as the perpetrator was “sufficiently accurate” to sustain the convictions.

Held (per N Adams J, Price and Ierace JJ agreeing), granting leave to appeal and allowing the appeal:

It was well open to the jury to find that the complainant had been indecently assaulted: [161]-[162] (N Adams J).
It was not open to the jury to convict the applicant. Viewed cumulatively, the numerous problems with the identification (or recognition) of the applicant as the perpetrator are such that, on an independent assessment of the evidence at trial, the jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator. The applicant’s convictions should be quashed and verdicts of acquittal entered: [6]-[7] (Price J); [163], [187] (N Adams J); [190] (Ierace J).

Judgment

PRICE J: I have had the considerable advantage of reading the judgment in draft of N Adams J. However, it is incumbent upon me to make my own independent assessment of the sufficiency and quality of the evidence. The question is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1 and 3.
Unlike this Court, the jury had the opportunity of seeing and hearing the pre-recorded evidence of the complainant for about a day and a half. In Pell v The Queen, [1] the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations concerning that advantage at [38]-[39]:

“38 It should be understood that when the joint reasons in M v The Queen spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
39 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (Footnotes omitted.)
1. [2020] HCA 12; 268 CLR 123.

The High Court went on to say:

“43 At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing “the unreasonableness ground” was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
“whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
“But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.” (Footnote omitted; emphasis in original.)

45 As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.” (Footnotes omitted.)

The central issue in the trial was the complainant’s identification of the applicant as the perpetrator of the offences. The jury was carefully instructed by the trial Judge that “special caution” was necessary before accepting identification evidence. In this Court, the Crown contended that this was a case of recognition evidence rather than identification, as the complainant had some prior familiarity with the applicant. Be that as it may, the need for special caution remains and is not to be disregarded.
The Crown submits that the complainant’s evidence nominating the applicant as the person who had offended against him, was “sufficiently accurate” to justify the conviction on which it was based. However, as N Adams J points out at [163] below, there are numerous problems with the identification of the applicant as the perpetrator which her Honour comprehensively details at [164]-[182].
The advantage of the jury in seeing and hearing the complainant’s evidence does not overcome those difficulties. I am satisfied that the jury acting rationally ought to have entertained a reasonable doubt that the applicant was the perpetrator.
Having independently assessed the evidence, I agree with N Adams J that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. I would also allow the appeal.
I agree with N Adams J’s reasons and the orders that her Honour proposes.
N ADAMS J: On 16 February 2021, a jury of twelve returned majority verdicts of guilty in relation to the applicant, Kalime Khan, on two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). On 21 April 2021, the applicant was sentenced by Judge Norrish QC to an aggregate term of 3 years and 2 months’ imprisonment with a non-parole period of 18 months commencing on 14 April 2021.
On 23 April 2021, the applicant filed a Notice of Intention to Appeal to this Court against his convictions under s 5(1)(b) of the Criminal Appeals Act 1912 (NSW). That day Judge Norrish QC released him on appeals bail pending the resolution of this appeal. He remains on bail.
The sole ground of appeal is that the verdicts are unreasonable and cannot be supported by the evidence. The applicant does not challenge the complainant’s allegation that he was indecently assaulted when he was six years old. The sole issue in dispute is whether the perpetrator was the applicant.
A ground of appeal contending that a verdict or verdicts are unreasonable requires a grant of leave as it involves a question of fact or of mixed law and fact: Kees Langelaar v R [2016] NSWCCA 143 at [46]. The grant of leave was not opposed by the Crown in this matter.
In addition to the complainant, his parents, sister and cousin were also called as witnesses in the Crown case. They were all identified by initials in the submissions in this Court to protect the anonymity of the complainant. I propose instead to refer to the complainant simply as “the complainant” and to his father as “the complainant’s father”. I propose to refer to the complainant’s sister as “Alina” and his mother as “the complainant’s mother” or “Sarah”; these are pseudonyms. I do not propose to anonymise the complainant’s cousin, but I shall refer to him solely by his first name, Aziz.

Overview of Crown case

The complainant was born on 15 March 2007. He and his family are Rohingya. They arrived in Australia to live in May 2013. In 2019, when he was 13 years old, the complainant confided in his sister that when he was six years old he was sexually assaulted by a next-door neighbour to their then home in Dennis Street, Lakemba (on a date between 1 November 2013 and 31 January 2014).
The complainant’s evidence was that when he was six years old he would visit the house next door to play with the children who lived there. The Harace family lived next door. They were also Rohingya. The perpetrator lived next door with the family. On one occasion around the Christmas/New Year period of 2013/2014, the complainant walked into the backyard of the neighbouring house via a side footpath to play with the children. The perpetrator was standing at the door at the side of the house. The perpetrator pulled him into a bedroom he occupied at the house and gave him a mobile telephone to play with. The complainant described that there was only one bed in the room. The perpetrator removed the complainant’s clothing and touched the complainant’s penis (count 1). The perpetrator did not speak. The complainant alleged that the perpetrator then put him on his lap with his back to the perpetrator’s chest, and then the perpetrator inserted his penis into the complainant’s anus. Although the applicant was charged with one count of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act (count 2) based on this evidence, the jury found him not guilty of that count and instead convicted him on the alternative count of aggravated indecent assault (count 3).
The complainant said that the perpetrator threatened him saying he would kill him if he told anyone. The perpetrator opened the door to let the complainant out then slammed the door after him. The complainant hid his underwear and pants under his house as they were wet. The clothing was not recovered.
The first time the complainant had ever met or spoken with the perpetrator was when the complainant’s older cousin, Aziz, came to visit from Queensland and stayed with the complainant’s family at the Dennis Street property in late 2013. The perpetrator wanted to join the complainant and his cousin on outings. The complainant told police that the perpetrator was friends with Aziz and Aziz’ friends. The “group”, including the perpetrator, used to go into the city and they would take the complainant with them. The complainant recalled that he went into the city with Aziz and the perpetrator three times before the assaults and never afterwards. The complainant confirmed that the friend of Aziz was called “Shahrukh Khan” (also spelt Shah Rukh Khan and Sharukhan). They would also go to eat at Aziz sister’s house which was either near Liverpool or Liverpool Road.
Shahrukh Khan is the name of a popular Bollywood film star. There was evidence at trial that more than one person in the Rohingya community in Sydney may have had that nickname.
On 30 December 2013, the complainant and Aziz made an outing to the store “Target” in Bankstown and were captured standing together in a photograph. That photograph was a central exhibit at trial as it formed part of the complainant’s “identification” of the perpetrator. It was tendered and became exhibit C.
The complainant’s evidence was unclear as to who else was present on the outing to Target when exhibit C was taken, other than himself and his cousin Aziz (who are the two people depicted in the photograph). In his first JIRT interview, he suggested that the person who took exhibit C was the perpetrator or the perpetrator’s friend. He described two different group configurations at that outing. In one version, there were four people, being the perpetrator (Shah Rukh Khan) and another person (the perpetrator’s friend) in addition to the complainant and Aziz. In another version, there were three people present and the complainant was unsure whether it was the perpetrator or his friend who was there (in addition to he and Aziz). In cross-examination at trial, the complainant resiled from the evidence that the perpetrator was present at the shopping centre at all that day.
The complainant alleged that the assaults occurred two days after exhibit C was taken. He never went on an outing with the perpetrator again. The complainant moved house in 2014 and twice again before he complained to his sister of the assaults in about June 2019 when he was 13 years old.
It was common ground that the applicant had been given the nickname Shahrukh Khan and that he lived next door to the complainant for about four to five months in 2013/2014.
By the time that he told his sister Alina about the sexual assaults, the complainant had seen the applicant, his former next-door neighbour, on a number of occasions. In 2016 and 2017, the applicant was a member of the community soccer team that the complainant’s father managed. The complainant would see the applicant during this time. The applicant acted “nice” and sometimes stared at the complainant. However, they never spoke, and have not spoken since the time of the assaults.
The complainant confided in Alina in about June 2019. He described the perpetrator as being someone who lived next door. He did not know his name. In his version of events, he described the perpetrator as having the nickname “Shahrukh Khan”. He knew this because that is what Aziz used to call him. Alina’s version was that the complainant did not know the neighbour’s name when he first reported the assaults to her, but she remembered there was a man living next door at the time who played soccer who had the nickname Shahrukh Khan. On her version, she was the one who told the complainant the nickname.
About two to three weeks after the complainant confided in his sister, she asked him whether the perpetrator was in the soccer team their father managed and the complainant said “yes”. She then presented him with a photograph of that community soccer team that she had found on Facebook. That photograph became exhibit D at trial. There were two versions at trial of how the complainant came to be shown that photo. Alina’s version was that she wanted to see whether the person the complainant was talking about was the same person she was thinking of, so she looked online for an image of the person she had in her mind. She found a photo (exhibit D), showed it to the complainant, pointed to the applicant and asked, “is that him?”, to which the complainant said “yes”. The complainant’s version was that his sister showed him the photo and simply asked, “[d]o you recognise anyone on this picture?”, to which he replied “yes” and pointed to the applicant. This was the first picture identification of the applicant as the perpetrator.
The complainant also gave differing accounts as to the order of events relevant to the identification of the applicant. In his first JIRT interview, on 10 September 2019, the complainant’s evidence was that this first identification was preceded by him seeing the perpetrator walking out of a train station wearing a Real Madrid jersey some weeks earlier. Indeed, this sighting was one of the reasons he first confided in his sister. However, during cross-examination, the complainant said that the identification by reference to exhibit D happened first, and then he recognised that person from the photograph near the train station wearing the jersey.

On 8 September 2019, which was two days prior to the first JIRT interview, the complainant described seeing the perpetrator at a shop called “Urban Culture” when the complainant was out shopping with his mother. While his mother was in a changing room, the applicant walked into the store wearing a purple jacket and was accompanied by a shorter woman whom the complainant did not recognise. The complainant grabbed his mother’s mobile phone and tried to record the applicant, but the recording did not show his face. CCTV footage was subsequently obtained (exhibit G), and it was common ground that it depicted the applicant.
Given the significance of exhibit C, investigating police sought to locate Aziz to confirm who was present when the photo was taken. The officer in charge of the investigation was Detective Senior Constable Kelly Dale (hereinafter “the OIC”). The OIC emailed the complainant’s sister and mother and asked them to get Aziz’s details. Aziz and the complainant’s mother had limited command of English. Questions for Aziz were forwarded to Aziz through the complainant’s family. Before he spoke to police, Aziz first spoke to the complainant’s mother by facetime. Following that conversation, both the complainant’s mother and sister sent emails to the OIC explaining that there had been some confusion as the perpetrator, Shahrukh Khan was not present when exhibit C was taken. The emails advise that what actually happened was that the friend of Aziz (who took the photo) joked with the complainant about Shahrukh Khan taking the photo. It was following this that both the complainant, and his sister changed their evidence as to who was present when exhibit C was taken.
Aziz gave evidence at trial that he did not go on any outings with the applicant (as the complainant maintained) and did not know him. He agreed that he initially told police that another friend of his, Shabbodin Shabbodin, was present that day and took the picture. By the time he gave his evidence at trial, he had resiled from that account.

Unreasonable verdict: the test

The applicant contends that his convictions are unreasonable and cannot be supported having regard to the identification evidence of him as the perpetrator. The relevant principles for an appellate court to apply when considering whether a verdict is “unreasonable” in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way: (at 493).

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (footnotes omitted) (Emphasis added.)

The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14] French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted):

“[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

…
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.’”

I have summarised the Crown case in broad terms above, but it is necessary for me to consider it in more detail in order to determine this appeal. There was no challenge to the complainant’s assertion that he was indecently assaulted in a room in the house next door, so I propose to focus my consideration on the evidence concerned with the identity of the perpetrator, including the evidence of first complaint. Given that some of the witnesses changed their versions over time, it is necessary to extract that evidence rather than simply summarise the effect of it. Although I have extracted a considerable portion of the evidence at trial below, I consider it necessary to do so given the issues raised by the applicant on this appeal.

Evidence of the complainant

Around the beginning of June 2019, the complainant told his sister, Alina, the details of the assaults. He had recently learnt about sexual offence laws at school two weeks prior. Although he initially told police that another reason he confided in his sister at that time was because he was “triggered” by recently seeing the applicant near a train station in a Real Madrid jersey, in cross-examination, he changed the date of when he saw the applicant at the station until a date after he complained to his sister. He subsequently participated in a JIRT interview on 10 September 2019.

The first JIRT interview

The first JIRT interview was conducted by the OIC. It was played at the trial and marked MFI 7 at the Pre-Recorded Evidence Hearing. The first answers provided by the complainant as to the identity of the perpetrator are as follows:

“A54   I came here to talk about someone.
Q55   Yeah.
A55   Someone going into my personal space.
…
A57   I don’t know his name but he used to be my neighbour.
…
Q84   Where did that person live?
A   He lived right next to our house.
…
A85   I think he lived there or stayed there, I don’t know, but---
A86   --- I really…saw him there.
…
Q89   Did you say I very rarely saw him there?
A   No, no I, I used to see him a lot, like ---
…
Q91   …yeah sorry, you were, were you going to say something?
A   Oh yeah, and the first time we ever talk was when my distant cousin came from Queensland to, er, stay over our house and then we started…like, whenever, when my distant cousin, when out he always wanted to come with us.
Q92   Yep. What’s your distant cousins name?
A   Ah, Aziz.
…
Q107   …Do you, do you remember his [the perpetrator’s] name?
A   Nuh.
…
A108   But I used to call him Shahrukh Khan or something.
…
Q111   And how did you get that name to call him?
A   Ah, since he had long hair. There used to be this Bollywood, um, Bollywood, ah, what do you call it, actor, and his name was Shahrukh Khan and he had the same hair as him so we used to call him that.
Q112   Who’s we?
A   Um, my distant cousin ---
A113   ---and we, and his friends as well.”
(Emphasis added.)

The complainant later clarified that his cousin Aziz was not a distant cousin. Thus, when he first spoke to the OIC the complainant told her that he first spoke to the perpetrator when Aziz stayed at his house and the perpetrator “always wanted to come out” with him and Aziz. The complainant did not know his name, but Aziz used to call him Shahrukh Khan and so did he. The complainant was then asked to describe Shahrukh Khan as follows:

“Q114   OK, and um, can you describe Shahrukh Khan to me?
A   Ah, he ---
…
A115   ---had long hair---
…
A116   He had like, um, I think a, a bit of a beard here.
…
A117   Yeah, that’s it. And he had a bit of wrinkles ---
…
Q125   When, when did you see him last?
A.   …two days ago… .”

The complainant recounted the details of the complaint he made to his sister a few months earlier in these terms:

“Q321   … And did you eventually tell someone what happened?
A   Yeah, my sister.
Q322   When did you tell your sister what happened?
A   When, ah, I was walking out of the train station and I saw him, it triggered me.
…
Q325   OK. So when did you tell your sister?
A   I can’t remember but it was like, a few months ago.”

The complainant told police that his sister had a picture of the perpetrator wearing a “BRC” (Burmese Rohingya Community) soccer jersey.
Significantly, the complainant told police that he had a photograph of himself and his cousin, “Aniz” (also spelled “Anis” but should be “Aziz”) saved on his iPad. He used the photograph both to identify the time of the assaults, and, initially, the identification of the perpetrator. The relevant portions of his JIRT interview are as follows:

“Q526   Um, is there anything at all that you can remember, like, around ---
A   Oh, yeah so it’s, in my iPad I have a picture of my, my, ah … my, my cousin or family friend [Aziz] coming and we were in Target getting a picture.
…
A527   I have it in my iPad but ---
…
A528   --- I can show you it.
Q529   Yeah. And, and which cousin is this?
A   Ah, Anis (sic Aziz). I was talking about Anis.
…
A530   Yeah that one ---
Q531   And this cousin is from?
A   Yeah, yeah, ah, Queensland.
Q532   OK. And when you said that you’ve got a picture of him in your iPad ---
A   Yeah me and him, like, taking a ---
…
A533   --- picture
…
A534   And I think the person who took the picture was him, the guy or his friend.
Q535.   Which guy?
A   The guy, that one ---
…
A536   ---or his friend, I forgot.
Q537   OK. And what’s his name again?
A   Oh, his, his, I, I …
Q538   The name that you know him as.
A   Oh, Shahrukh Khan
A   Shahrukh Khan Yeah
…
Q541   So you say that Shahrukh Khan ---
A   Yeah.
Q542   ---you went out with him to Target?
A   No, No, No. We used to go out with him, me and my cousin ---
…
A543   ---to like, Ff, [sic] to like, people’s hou…like, to like, his, Anis’s ---
…
A544   ---sisters house.
Q545   Aniz’s sisters house.
A   Yeah.
Q546   And where was that?
A   That was located I think in Liverpool.
…
A547   We used to go there.
…
A548   ---and we ate and we came back.
Q549   Yep, ok. And you have mentioned that there, there’s this photo---
A   Yeah.
Q550   ---of you and Anis in Target.
A   Yeah.
Q551   Yeah. And what year was that?
A   2013. It says on the---
…
A552   ---date on my Ipad.
…
A553   Like it says 2013.
Q554   OK. And what can you tell me about that photo and this, um thing that happened to you?
A   I think it was two days later that, I was pretty sure it was two days later there.
Q555   It was two days after the photo or before the photo was taken?
A   The photo was taken then two days later, yeah.
…
Q557   OK. And who was the person that was with, um ---
A   I don’t know who was taking the photo but someone was taking the photo.
Q558   OK. And you said you were there with, an, this ---
A   Anis
Q559   This other person, and, and also, ah---
A   Yeah.
Q560   ---sh, Sharukh Khan
A   Yeah.
Q561   Yeah. OK. And you don’t know the other persons name?
A   No.
Q562   No. Was it male or female?
A   On, no Shah Khan, I don’t think so he was there but it was someone else. I think it was him or someone else.
Q563   Him or someone else.
A   Yeah.
Q564   OK. But what can you remember about that photo being taken in Target that day?
A   It was me ---
…
A565   I think it was Shahrukh Khan or his friend ---
A   ---and my distant cousin.
…
A566   Ah, we were there
…
A568   ---and all I can remember is two days later ---
…
A569   ---I went to their house and ---
…
A570   ---this whole thing happened.
Q571   … And just when you’re talking about the, when this thing happened, I know you said nobody was home but was there anyone around the house at all?
A   No it was just him.
…
Q573   And what about at your home?
A   Our home, my mum, my dad.
Q574   … Anyone else you can remember?
A   Meaning in my house or his house?
Q575   Ah, your house.
A   Oh, yeah my siblings.”
(Emphasis added.)

The above answers can be summarised in this way: the complainant stated that “I think the person who took the picture was him, the guy or his friend”. He and Aziz used to go out with “the guy” known as Shahrukh Khan, who was the perpetrator, to people’s houses including Aziz’ sister’s house: “we” used to eat there and “come back.” The assaults happened two days after the photo was taken. He did not know who took the photo, but he thought the perpetrator was there with another person. He thought it was Shahrukh Khan or his friend and all he could remember is that two days later he went to “their house” and was sexually assaulted.
As stated above, the photograph, said to be taken by the perpetrator (or the perpetrator’s friend), became exhibit C at trial and I propose to refer to it as such.

The second JIRT interview

The complainant participated in a second JIRT interview on 16 June 2020. The interview was played to the jury. On this occasion, he told police that after the assault, he threw his pants and underpants into a hole under his house (Q40–A50; A214) and that his father saw him walking through the house afterwards wearing just a shirt (A220). He provided further details about the sexual assault. He also told police that the perpetrator was wearing traditional Burmese pants known as a “longyi” (Q374).

Evidence of the complainant at trial

The complainant gave additional evidence in chief. He was shown a photo of the soccer team his father was the manager of (exhibit D) and pointed out the applicant in the front row, second from the left. He was then asked when he first saw that photograph and the following exchange took place:

“A. It was a few weeks after I told my sister about the incident and, and I told her he was in the soccer team and she searched it up in like Facebook and the club and, yeah, she found this photo and then I pointed it out who it was and then, yeah.
Q. Which sister? What’s the name of your sister?
A. [Alina].
…
Q. Can you tell us when it is you saw this photograph? You said something like three weeks?
A. Yeah, after I told my sister about the incident, like what happened, like three or two weeks later she told me, ‘[i]s he in like the soccer team or anything like that?’ and I told her, ‘Yes’. She pulled up a picture and she showed me, she showed me this picture and told me, ‘Do you recognise anyone on, on this picture?’ and I told her, ‘Yes’ and I pointed to the accused.”

As will be seen below at [59]-[60] and [64], the complainant’s sister, Alina, gave a different account of this.
The complainant was then cross-examined. When he was being asked about the perpetrator undressing him the following exchange took place:

“Q. At the time it happened that he was undressing you, the man that was doing that, had he spent any time with you before that day?
A. Yes, he was my cousin’s friend and my cousin, Aziz, had other friends that knew him and we used, we used to go out to the city and Aziz used to take me with, with them. We used to go to like Aziz’ cousin’s house. We ate there.
Q. The man that did this, he was one of your cousin’s friends?
A. Yeah.
Q. When you’re talking about your cousin, was that – I can’t say it very well – Azizi (as said)?
A. Aziz.
…
Q. … When you said that you used to go to the city with Aziz and this friend, how many times did that happen?
A. Three times.
Q. Were they all before this happened with the man?
A. This – before this happened, yeah.
Q. Any times afterwards?
A. No.
Q. This friend of Aziz, was he referred to or called Sharukhan?
A. Yes.”

The complainant was then asked about when he first complained of the assault to his sister:

“Q. When you told [Alina] about what had happened, did you describe the man that did it to you as a person with long hair?
A. Yes.
Q. The name Sharukhan, is that a Bollywood actor name as well?
A. Yeah, it’s what his friend used to call him, so I just call him that as well.
Q. When you say your friends used to call him that, did Aziz call him that as well?
A. Yeah.”
(Emphasis added.)

The complainant was then shown a photo of the Bollywood actor, Shahrukh Khan. He stated that the perpetrator looked a bit like him and added, “[j]ust the hair, but longer”. The photograph was tendered and became exhibit 4.
The complainant was further questioned about his first complaint to his sister and the following answers were given:

“Q. When you first spoke to [Alina] about this man, did you give a description because at the time you didn’t know his real name?
A. No, but my sister – we’ve lived – since we used to, like, since we used to, like, go outside and walk, and I used to see him go inside the house, so my sister knew who I was talking about.
Q. All right, but at the time that you were telling your sister about it, you didn’t know his name—
A. No.
Q. ---do you agree or disagree?
A. Agree, I did not know his name.
Q. Then you have a conversation with [Alina] about this person, is that right?
A. Yes.
Q. You tell her he’s the person with long hair?
A. Yeah, and she knew who I was talking about.
…
Q. So besides his long hair, did you give any other description about him?
A. Yes, he was wearing, like, the long skirt, it’s called a Longyi, and he was wearing a shirt, I don’t know what kind of shirt, but he was wearing a shirt.
Q. Is that all of the description you gave her about this man?
A. And I told her it was the guy that we used to live next door to, and, yeah, that’s, that’s it.
Q. Didn’t it come about that she said to you the name Sharukhan?
A. No, I told her, like, I told her, I told her – I didn’t know his name, so I just called him what our cousin used to call him, and what I used to call him.
Q. Didn’t she tell you that the person that you were describing was a person named Sharukhan?
A. Person I was describing? No, she didn’t, she, she never met him before, but she has seen him.
Q. Let me put it another way. When the police were speaking to you in September 2019, they asked you some questions?
A. Yes.
Q. They asked you, even then, what his name was, ‘or do you remember his name?’ this is at question 107, and you said, ‘Nah’ when you were asked ‘Do you remember his name?’
A. I said, ‘No’.
Q. So at the time that you first spoke to the police, you didn't know his name at that time. Is that right?
A. Yes I just knew his nickname. That's it.
Q. The nickname that you knew was a name that you had been told by [Alina] Do you agree or disagree?
A. I wasn't told by [Alina] what his nickname was.
Q. Did she talk to you about somebody with that nickname living next door to you beforehand?
A. No.
…
Q. Did [Alina] tell you that she knew a person with the name of Sharukhan that used to live next door to you?
A. I can't remember but no.
Q. So you can't remember or it didn't happen?
A. No I can't remember.”
(Emphasis added.)

As will be seen below, Alina gave evidence that the complainant did not know the name of the person who lived next door with long hair when he first complained to her and it was she who told him he was called Shahrukh Khan.
The complainant was then shown a photograph (MFI 12 which became exhibit K) of a man named Shabbodin Shabbodin (“Shabbodin”). Shabbodin was a friend of Aziz. As will be seen below, Aziz initially told police that it was Shabbodin who took exhibit C. The complainant was asked the following questions.

“Q. Have you seen the person in that photograph come to the house next door to where you were living back then?
A. I can’t remember.
Q. Did he go to the shops with you and Aziz in late 2013?

A. I cannot remember.
Q. Is he the person who took the photograph of you with Aziz at the shopping
centre?
A. I can't remember.
Q. Would he have been the person who did these things to you?
A. No.”

The topic of the first complaint was returned to and the complainant was asked to confirm the following sequence of events:

“Q …. The first time you told [Alina] was after you had learnt about the laws at school; is that right or is that wrong?
A. Right.
Q. A few days later [Alina] shows you the photograph of the people in the soccer team?
A. Yes.
Q. Then you see the person from that soccer team at the train station?
A. Yeah. No, near the train station.
Q. Near the train station wearing a Real Madrid jersey?
A. Yes.
Q. Then after the train station the next time you see the person from the soccer photo is at Urban Culture in that footage we watched earlier today?
A. Yes.
Q. Then you saw the police just a few days later and did the first video with them; is that right?
A. Yes.”

Thus, the complainant told police that it was seeing the applicant at the train station which triggered him to tell his sister. He then changed his account to not seeing the applicant at the station until after he was shown exhibit D (the soccer photo of the accused) by his sister.
The complainant was then asked about what he told police in his first interview about going to the shops with Aziz, the perpetrator and a friend. He resiled from what he told police about who might have taken the photo exhibit C. He also denied that he changed his evidence after his sister told him that Aziz denied going to the shops with him that day. His answers were as follows:

“Q. When you spoke to police in that first interview on 10 September 2019 you told them about how you and your cousin, Aziz, and the man who hurt you would go out to people’s houses.
A. Yes.
Q. I’m going to ask you some questions about that.
A. Yes, we went to one and that was Aziz’s cousin’s house.
Q. Was that in Liverpool?
A. Yeah, near there, yeah.
Q. Did you go to Aziz’s sister’s house?
A. Yes.
Q. Was that in Liverpool?
A. Near Liverpool, yeah, or like near Liverpool Road. I don’t know which one, Liverpool Road or actually Liverpool but, yeah, it was one of them.
Q. You also went with Aziz and this man to the shops?
A. Yeah, Bankstown.
Q. That’s when that photograph of you and Aziz was taken?
A. Yeah, but I didn’t, I didn’t know if he was there with us that time, but, yes.
Q. … Do you remember telling your sister that you had gone to the shops that day with Aziz and the man that had done this to you; is that right or wrong?
A. I, I said I, I don’t know if he went with us or he didn’t. I don’t know that, but, but all I know is I went with Aziz’s friends to the shops that time.
Q. … When you spoke to the police in that first interview you told them about the photograph that was taken--
A. Yes.
Q. --at the shopping centre.
A. Yes.”
(Emphasis added.)

The applicant’s counsel then put to the complainant that portion of his first interview where he told police “I think the person who took the picture was him.” The following exchange then took place:

“Q. When you were speaking to the police to begin with did you believe that he was there that time?
A. I just thought - I just told them, ‘I think’. I didn’t say ‘yes’ or ‘no’ question.
Q. Did you find out later that the person accused of all of this wasn’t at the shopping centre that day?
A. I wasn’t told that, I just, I just told, I just told what I know.
Q. Didn’t [Alina] tell you that later?
A. That he wasn’t at the shops?
Q. Did [Alina] say to you later on that this person accused of doing these things to you wasn’t at the shops that day?
A. No, she didn’t tell me.
Q. You are 100% sure about that, are you?
A. Yes.”

The complainant later repeated that he was mistaken when he told police that a man named “Shahrukhan” was present when exhibit C was taken in these terms:

“Q. What I was saying to you up until that point if you could just concentrate on this for a moment, up until that point you believed that Mr Sharukhan was with you and your cousin, Aziz, at the shopping centre that day?
A. But if you look at Q, Q 562 I said, ‘Oh, no.’
Q. Yes, I'm getting there. I'm asking you up until that point.
A. No, I do not believe. I just confused with the question, then I realised and then I said it on Q 562 that, ‘Oh, no Sharukhan wasn't there and I think so he was there, but it was someone else. I think it was him or someone else.’ I said that.
Q. Keep reading down, all the way down that page from 562 down to 570.
‘Q. Him or someone else, yeah, okay, but what can you remember about the photo being taken in Target that day?
A. It was me, yep, and I think it was Sharukhan or his friend and, and my distant cousin.’
Q. I'm just going to stop you there. So the distant cousin is that Aziz or is that somebody else?
A. It's Aziz, but I, I thought he was distant but he's actually a close cousin.
Q. In terms of the people you thought were there, you thought Sharukhan was there or his friend and your distant cousin; is that right?
A. Yes. Well, Aziz, yeah.
Q. Sorry, Aziz. So instead of saying ‘distant cousin’ I should say, ‘Aziz’. Sharukhan or his friend and Aziz; is that right?
A. Yeah.
Q. Do you agree that when you spoke to the police a little bit earlier you were telling them that you believed Sharukhan was there at the shops that day; do you agree?
A. I just got confused with the questions, so I just went with it, but I realised what she said, and I told her, ‘I think it was him’ or, or, or it was Aziz, one of Aziz's or his friends. I didn't say ‘yes’ or ‘no’ question.”

Although the complainant resiled from his evidence that he thought that the perpetrator was at the shops with him when exhibit C was taken, at no stage did he ever resile from his evidence that the perpetrator was a friend of Aziz and the three of them went on outings together prior to the assault. Nor did he resile from his evidence that he knew that the perpetrator was called Shahrukhan because that is what Aziz called him.

Evidence of Alina

On 25 September 2019, Alina made a statement to police. Her evidence was pre-recorded on 27 and 29 July 2020 and later played to the jury on 5 February 2021. She was 17 years old when she gave evidence. She described a man who lived next door to them at the relevant time in these terms:

“A. He had long hair, he used to wear accessories, he was like middle, average height.
Q. Did you know his name?
A. I didn’t know his name, but his nickname was Sharukhan, so I knew him by that name.
Q. Is that spelt S-H-A-R-U-K-H-A-N?
A. Yes.
Q. Do you know what nationality he was?
A. I think, I think he was Burmese.
Q. Can you tell me about any times when you saw this person?
A. I used to only see him whenever me and my siblings and our neighbour kids were playing in the backyard, and he would, like - that’s the only time I see him watching us.
Q. Playing in which backyard?
A. Harace’s family’s backyard.
Q. How many times, during the time that you lived there for the few months, did you see this person?
A. I think I’ve seen him close twice, and then a third time sometime, I’m not sure.”

Alina was asked about the circumstances of the complainant first reporting the assault to her:

“Q. Tell us what happened then.
A. So we were - it was, like, around 6 or 7pm, late at night, it wasn’t that late, but me and [the complainant] were folding clothes and we were talking about general stuff, and then I started talking about my problems. And then [the complainant] went silent, he wanted to tell me something, but he was very quiet, he was very hesitant and looked extremely sad. So I tried, tried to tell him - I, I waited for his response, and then he told me what happened.
Q. What was the first thing he said to you when he said he wanted to tell you something, do you remember what words he used?
A. Roughly, about how - this is roughly what he said, ‘Do you, sis, do you remember that man back when we used to live in Dennis Street’ and I said, ‘Yes’ without really thinking much about it. And then he said, ‘The man with the long hair from next door raped me in his room.’ And then I didn’t - I was pretty shocked, so I asked more questions and said, ‘In what type of way, did he assault you or?’ and then he said, ‘No, sis, he raped me’ so.
Q. Did he say where it happened?
A. In his room.
Q. When he said, ‘in his room’ whose room?
A. Sharukhan’s room, next, the house next door.
Q. Did you ask any more questions of [the complainant]?
A. No, we, we were pretty silent after that.
Q. Did [the complainant] say anything about when this had happened?
A. He said he had proof of when, when, when it happened, and went to, went and grabbed his iPad and asked - and showed me a photo of when, about when it happened.
Q. During this conversation did he go and get his iPad?
A. Yes.
Q. Did he show you something on the iPad?
A. It was actually I think a few days later but it wasn't on the same day. I think so.
Q. We'll come to that in a moment. Did he say anything to you about what this person looked like?
A. Yes.
Q. What did he say?
A. His hair. In our community I only know one person with long hair.
Q. What did [the complainant] say to you about this man's hair?
A. He had long hair and he wears accessories but I still wasn't sure who he was so, so, so we continued talking and then he said something about how he was the same person as the one who broke our, one of our bike pumper and, and the only person I know with long hair who broke one when he bought it from us was him so I also confirmed it after that.
Q. Who is that person who broke the bike pump?
A. Sharakam.
Q. You've mentioned that [the complainant] said to you he had proof or something like that? What did you say?
A. Proof of when that happened.
Q. At that point then he got his iPad?
A. Yes.”
(Emphasis added.)

The witness was then shown exhibit C and the following questions were answered:

“Q. What does that show?
A. That's the photo of [the complainant] and our relatable (sic relative), Aziz and he, and [the complainant] told me that it happened after this photo was taken, a few days after this photo taken. That's what he said was the proof.
Q. Is that printout of the photograph that [the complainant] showed you on his iPad?
A. Yes.
Q. The other person in that photograph is Aziz. Is that A-Z-I-Z?
A. Yes.
Q. How do you know Aziz?
A. He, when we first came to Australia he was, he's a relatable of our family and he came from Melbourne down to Sydney to help us move, move in to our new environment and he lived with us for a few, few days, I'm not sure.
Q. Did he live with you at that house in Dennis Street?
A. Yes for a few--
Q. Sorry for how long?
A. Not that long. It was like for a few - I think a week or so. I'm not sure.
Q. You ultimately gave a copy of that photograph to the police when you were making your statement. Is that right?
A. Yes.”

The witness then repeated the description of the applicant she gave to police: “long hair, he wore accessories, and he was about average height.”. The hair was “I think below his ears or around his neck”. She was then asked about the circumstances of why she obtained the soccer photo – exhibit D:

“Q. Did you ever find any other photographs?
A. Yes as I was - as I wanted to confirm that we were thinking of the same person, I went around in Facebook and looked for his photo in Facebook and I searched the BRCA community.
Q. What does that stand for?
A. Burmese Rohingya Australian Community (as said) and there I found a photo of him in a soccer, soccer, soccer team and I showed that to [the complainant] and pointed at to the person with the long hair on the corner of the, of the photo and confirmed it was him and he said, ‘Yes’. If it was the same person I was thinking of.
(the witness was shown exhibit D)
Q. Do you recognise that photograph?
A. Yes.
Q. Is that the photograph you've just been talking about?
A. Yes.
Q. Do you recognise anybody in the photo?
A. Yes Sharakam.
….
Q. So that's the person in the front row, second from the left-hand side?
A. Yep.
Q. You say you pointed that person out - you can set the photograph down again, thank you. You pointed that person out to [the complainant]. Is that right?
A. Yes.
Q. What did you say?
A. I said, ‘Is it, is it, is it him?’ and he said, ‘Yes’.
Q. Do you remember when it was that you showed that photograph to [the complainant? And before you answer that, you've told us that [the complainant] told you about what happened one time you were in your bedroom at about six or seven at night.
A. Yep.
Q. How long after that was it that you showed this photograph to [the complainant] approximately?
A. Not sure but it wasn't long. I think I would say a few weeks later.
(Emphasis added.)

Thus, Alina’s evidence on this important issue differed to the complainant’s as to whether she suggested the applicant to him, and he agreed. She agreed that sometime after that the complainant told her that she had seen the perpetrator whilst shopping with his mother in Lakemba and tried to take a photo but could not.
Alina was asked about the identification of the perpetrator by her younger brother:

“Q. When your brother first spoke to you and told you what had happened, okay, in that conversation, he didn’t know the name of the person that did it; do you agree or disagree?
A. I agree.
Q. He was able to give you a description such as having long hair and accessories; is that right?
A. Yes.
Q. When you say, ‘accessories’ do you mean like a necklace and things like that or what do you mean?
A. A necklace or rings.
Q. When you spoke to the police and you did your first statement, the only person you knew at that stage in the Burmese community that had long hair had a nickname of Sharukhan; is that right?
A. Yes.
Q. Did you ask your brother if the person was named or nicknamed Sharukhan?
A. Can you please repeat that again?
Q. Yes. I’m sorry if I make it too difficult. Your brother doesn’t remember his name to begin with but he tells you he’s got long hair, he wears accessories; is that right so far?
A. Yes.
Q. You say words to the effect of, ‘Look, yeah, I know a bloke or the one bloke I do know that has long hair is nicknamed Sharukhan.’ Is that right or is that wrong?
A. Yes”

The witness was asked about exhibit C and parts of the statement she made to police on 25 September 2019 were put to her:

“Q. [The complainant] said to you, ‘I have proof about what date it happened?’ Do you agree or disagree?
A. Yes.
Q. That’s when he went and got his iPad and showed you the photo at the shopping centre?
A. Yes.
Q. Then [the complainant] said to you, ‘It was a few days after this photo was taken, that’s when it happened?’
A. Yes.
Q. ‘Aziz is from Melbourne and came to visit and help us as we were new in Sydney?’
A. Yes.
Q. ‘He stayed with us for a few days?’
A. Yes.
Q. ‘[The complainant] told me he had gone to the shops that day with Aziz and Sharukahn, and that Sharukan was with them?’
A. I’m not sure who was with them, with [the complainant] and Aziz. It was an assumption.
Q. Did you tell the police that [the complainant] had told you that?
A. What part, sorry?
Q. When you gave your statement to police on 25 September 2019, it’s written there that [the complainant] told you that he had gone to the shops that day with Aziz and that Sharukhan was with them?
A. No.”

The witness was shown her statement which confirmed that she had in fact told police that the complainant had told her that the perpetrator was present when exhibit C was taken. The following exchange then took place:

“Q. Later on somebody’s told you that the accused person in this trial was not at the shops that day, do you agree or disagree?
A. I’m not sure.
Q. Did Aziz tell you that the accused person wasn’t there that day at the shops?
A. No.
Q. Did your mum tell you that?
A. No.
Q. Did somebody tell you that?
A. No. I assumed he was there. But when I asked [the complainant], he said he wasn’t sure who took the photo or who was there. I assumed it was Sharukhan.
Q. You said, “I assumed,” but in your statement you say that [the complainant] told you that he had gone to the shops that day with Aziz and Sharukhan and that Sharukhan was with them?
A. But I fixed it in the second statement, cause I was not sure. After I read the first statement, because Kelly [OIC] asked me if I need to fix something.
Q. Isn’t it the case that you then went back and spoke to [the complainant] again after this statement and that’s when you told the police afterwards that [the complainant] wasn’t sure anymore if he was there, if Sharukhan was there?
A. I’m not sure.
Q. Did you have some emails with the police about this issue?
A. Yes.
Q. Did you tell the police officer that you’d spoken to [the complainant] about it again?
A. No.
Q. You never told her that you’d spoken to [the complainant] about it?
A. I’ve told her about the past, but nothing else. I mean, with [the complainant]. We did not talk about what I said.
Q. You didn’t talk about what you said? Did you tell the police officer that you’d spoken to [the complainant] again and that this part in your statement might not be right?
A. I’m not sure.
Q. Did you spoke to [the complainant] about whether or not Sharukhan was there after you did this statement?
A. I’m not sure. I, I remember I asked him once if he was really - I think I asked him twice before the statement and after the statement and he said he wasn’t sure.
Q. The first time didn’t he tell you that - because you just told me that it was true and correct at the time that [the complainant] told you that he had gone to the shops that day with Aziz and Sharukhan and that Sharukhan was with them. Did he tell you that in the first conversation with him about it?
A. Before the statement, my first statement, when we were talking about the photo he said he wasn’t, he wasn’t sure who was with him or who took the photo. But in my statement, I assumed it was him.
Q. What I’m suggesting to you is that the first time [the complainant] spoke to you about it, he told you that he’d gone to the shops that day with Aziz and Sharukhan and that’s why you told the police that in your statement, do you agree or disagree?
A. Sorry, could you repeat that again?
(the question then had to be repeated twice for the witness)
Q. What I’m saying is there’s a difference between the first conversation and the second conversation about what [the complainant] told you, okay? In the first conversation he told you that he’d gone to the shops that day with Aziz and Sharukhan, and in the second conversation, he’d said he wasn’t sure. Is that right or wrong or is that too difficult question?
A. That’s wrong. He said he’s - he doesn’t know in both conversation.
Q. When you said, ‘[the complainant] told me that he had gone to the shops that day with Aziz and Sharukhan and that Sharukhan was with them,’ that wasn’t the truth?
A. It was my assumption.
Q. You said earlier when Mr Harrison was asking you some questions that [the complainant] brought the iPad and showed you the photograph?
A. Yes.
…
Q. The connection between the iPad photograph and what happened to him was the person who took the photograph. Is that right or wrong?
A. No, wrong.
…
Q. The words in your statement, ‘[the complainant] told me that he had gone to the shops that day with Aziz and Sharukhan and that Sharukhan was with them,’ do you agree that you had the words ‘[the complainant] told me’ instead of you assuming that?
A. Yes.”

The cross-examination continued until the following day. Alina agreed that it was a few days after the complainant told her about the assault that she showed him exhibit D and pointed out the person she believed was Shahrukh Khan. The sequence of events was again clarified as follows:

“Q. So [Alina], I’m just trying to understand the order that things happened, okay? So [the complainant] tells you in the bedroom’s the first thing, is that right?
A. Yes.
Q. A few days later you show him the soccer photo (which was Exhibit D) and point out who you think he’s talking about?
A. Yes.
Q. Then after that it’s a few weeks before you tell your therapist?
A. Yes.
Q. The reason it was a few weeks later is that you and [the complainant] had spoken about whether or not to tell your parents?

A. Yes.
Q. After a few weeks, you then told your therapist what [the complainant] had said to you, is that right?
A. Yes.
Q. Then a few days later, the police ring you on the telephone?
A. Yes.
Q. Is that when you first spoke to the police officer Kelly?
A. Yes.
Q. Did you then speak to your mum and dad about what [the complainant] had told you?
A. Yes.
Q. Then you sent this photograph of the soccer team to your mum via text message?
A. Yes.”

Alina agreed that she sent the photo (exhibit D) the day before the complainant gave his first interview on 9 September 2020. She was then asked some more questions about exhibit C and repeated her (changed) evidence that the complainant did not tell her that he had gone to the shops that day with Aziz and Sharukh Khan. Paragraph 10 of her statement was read to her which, relevantly, was in these terms:

“[The complainant] told me that he had gone to the shops that day with Aziz and Sharukhan, and that Sharukhan was with them. We stopped talking about it. Since then, I have air dropped the photo from [the complainant]’s iPad to my mobile phone and during the making of this statement, I showed the photo to Detective Senior Constable Dale and saw her take a look at it.”

She was asked about the change in her evidence. She denied discussing the evidence with her mother. She agreed she provided a second statement to police on 12 June 2021 in which she changed her version of whether the complainant told her Shahrukh Khan was at the shops with the complainant and Aziz the day of exhibit C. She denied speaking to her mother or the complainant between those two statements.
She was shown a photo of Shabbodin. She did not recognise him but agreed that he had long hair. She was shown photos of other men (who apparently used to visit next door) but did not recognise any of them.

Evidence of Aziz

Aziz is the complainant’s cousin. He was photographed standing next to the complainant in exhibit C. After the complainant gave this photo to the OIC she attempted to contact Aziz through the complainant’s mother and sister. I have extracted these emails below. Before meeting with police and providing a statement, he had a video call with the complainant’s mother, during which they discussed the identity of the perpetrator.
Aziz’ evidence was that he did not know the applicant. He travelled to Sydney in 2013 and stayed with his friend Shabbodin at his house in Punchbowl for a period of eight or nine days. He had met Shabbodin when he was living in Rockhampton in 2013. He visited the complainant’s father on three or four occasions during that visit in 2013/2014.
Aziz agreed that he took the complainant shopping to the Bankstown Central Shopping Centre, during which time exhibit C was taken. He denied travelling to the shopping centre with anybody else or meeting anyone else there. He said he could not remember “exactly” who took the photograph. He did not know anyone by the name of Kalime Khan.
He agreed that he had told the police that it may have been Shabbodin who had taken the photograph exhibit C in the following way:

“Q. At some stage did you tell police that you thought it might have been Shabbodin Shabbodin?
A. INTERPRETER: Yes, I did.
Q. What's your best recollection today as to who took that photograph?
A. INTERPRETER: With the police, I told them that maybe Shabbodin because I don't have any other friend, other than him, but I'm not sure. That's what I told the police, maybe.
Q. Do you have a recollection of Mr Shabbodin being at the shopping centre on the day that photograph was taken?
A. INTERPRETER: No not.”

In cross-examination Aziz was asked whether Shabbodin took the photograph that became exhibit C. He replied:

“I’m not agree, I’m not hundred per cent sure whether Shabbodin took this photo or not.”

He denied being together with Shabbodin and the complainant together in December 2 013. He gave evidence of having contact with both the OIC and the complainant’s mother prior to giving his police statement. His cross-examination was in these terms:

“Q. Did you have a video phone call with [Sarah] where you discussed these allegations?
A. INTERPRETER: Yes, we had a conversation over video call. [Sarah] told me that I didn’t know anything about this matter, my son only know.
Q. Did she ask you some questions about the photograph that is exhibit C?
A. INTERPRETER: About this, about that, when this photograph was taken, that sort of question she asked me.
Q. Did she also ask you who had taken the photograph?
A. INTERPRETER: Maybe she asked me but I didn't remember because I didn't note it down what conversation was because those are not important for me.
Q. Did you tell [Sarah] that the person who took the photograph, which is exhibit C in front of you, had called himself Sharukhan?
A. INTERPRETER: No I don't.
Q. Did you tell [Sarah] that the person that took the photograph had spoken to [the complainant]?
A. INTERPRETER: I don't know, I do not remember.
…
Q. Did you tell [Sarah] that the person had told [ the complainant] that his name was Sharukhan?
A. INTERPRETER: I didn’t.
Q. Did you show [Sarah] on the video call a photograph of Shabbodin Shabbodin?
A. INTERPRETER: I think, I show Shabbodin.
…
EXHIBIT K AND EXHIBIT K1 SHOWN TO WITNESS
Q. Looking at exhibit K, is that the photograph you showed [Sarah] on the video call?
A. INTERPRETER: I showed the photo of Shabbodin, but I do not remember this photo or the other, I don't.
Q. When you say, ‘Or the other’ are you talking about exhibit K1?
A. INTERPRETER: I show a photo of Shabbodin, but I don't remember exactly which one.
…
Q. When you showed [Sarah] a photograph of Shabbodin, did she say, ‘That's not the Shahrukh Khan we're looking for’, or words to that effect?
A. INTERPRETER: Yes, she said.
Q. Did [Sarah] tell you that the man in the photograph did not live next door to her at Dennis Street?
A. INTERPRETER: Which photo are you referring to?
Q. The photograph that you showed her on the video call?
A. WITNESS: No.
A. INTERPRETER: No.
Q. Did [Sarah] tell you that the allegation was one of sexual type offences against her son?
A. INTERPRETER: She didn't explain me clearly, but I recall much that that sort of matter.”

The cross-examination continued:

“Q. Before you did the statement with police on 13 November 2019, did you have some email contact with Detective Kelly Dale?
A. INTERPRETER: Yes.
Q. On 23 October 2019 did you receive an email from Detective Kelly Dale asking you to send through a photo that you had of the person that was with you at the shopping centre with [the complainant] in 2013?
A. INTERPRETER: Yes.
Q. Did you then send through a photograph to Detective Kelly Dale of Shabbodin Shaboddin?
A. INTERPRETER: Yes.
Q. Do you still have exhibit K there?
A. INTERPRETER: Yes.
Q. Was that the photograph you sent to Detective Kelly Dale?
A. INTERPRETER: Yes, this and another one two, two.
…
Q. You've seen those two photographs before today? Listen to the interpreter. You've seen those two photographs before today, is that right?
A. INTERPRETER: Yes.
Q. And you sent them both to the detective back in 2019?
A. INTERPRETER: Yes.”

And further:

“Q. When you sent Detective Kelly Dale the photograph, did you also write, “His name is Shabbodin Shabbodin?
A. INTERPRETER: Yes, I wrote that.
Q. Did you tell the police officer it was Shabbodin Shaboddin?
A. INTERPRETER: No, I didn’t, but what I told the police officer on that day was, yes I have a friend name called Shabbodin Shaboddin who live in Sydney, probably he took that photograph. That’s what I told to the police officer.
Q. Did you then get another email from Detective Kelly Dale on 05 November 2019?
A. Yes.
Q. Did Detective Dale ask you some questions in that email?
A. Yes, that’s right.
Q. Was one of the questions that she asked you, ‘Who is the person in that photo that you sent me?’
A. Yes, I was asked that question.
…
Q. Did you respond to the officer like this:
A. ‘Good morning. For me best day Thursday and Friday afternoon this week. I sent you a photo. Here is my friend. His name is Shabbodin Shaboddin. First time I met him in Queensland, second time I met him in Sydney. When I first time Sydney that time I only knew him. Thanks”.

A. INTERPRETER Yeah, that’s correct.
Q. So in October 2019, did you believe the person who took the photograph of you and [the complainant], was Shabbodin Shaboddin?
A. INTERPRETER: No, I didn’t know about this, who took, but what I told that time was I don’t know exactly who took the photo; maybe Shabbodin.
Q. On 05 November 2019 did you understand that the police were looking for someone named Sharukhan?
A. INTERPRETER: After the police officer sent me an email then I realised that they are looking for Sharukhan.
Q. When you were first asked about who took the photograph of you and [the complainant] at the shopping centre, I suggest to you believed that was Shabbodin Shaboddin?
A. INTERPRETER: No, I, I don’t think, because [Sarah] has no knowledge about this because I am the one who is communicating with the police.
Q. What I’m suggesting to you is your recollection about who took the photograph of you and [the complainant] at the shopping centre in 2013 has changed after speaking (as said) or emailing the police?
A. INTERPRETER: No, till today, till now, I do not remember and I don’t know who took this, that photograph, and I know that I have a friend name Shabbodin.”

Evidence of Shabbodin Shabbodin

Shabbodin made a police statement dated 18 June 2020. He was a friend of Aziz. He denied ever meeting or knowing the applicant or having been to Mohamed Harace’s home. He denied being present when exhibit C was taken. He said this:

“I didn’t spend time going to shops, but I remember that we spent time with him in the tea shop on coffee in the Lakemba area and then I went to work.”

He knew of Mr Harace. He denied referring to himself as looking like the famous actor Shahrukh Khan. He denied taking the photograph that became exhibit C. He was cross-examined about his contact with the OIC, and the timing of his police statement. He first spoke with the OIC on the telephone on 28 May 2020. There were then emails between him and the OIC on 28 May 2020. They became exhibit 8 and are extracted below at [96]-[97].
Shabbodin later made his statement to police on 18 June 2020. He was cross-examined about the relevant chronology:

“Q. In the email to you that Kelly Dale sent you there is some references to the street Dennis Street, Lakemba. Were you told that the allegation was that the incident happened at one of the houses at Dennis Street, Lakemba?
A. INTERPRETER: Yes.
Q. Were you told about the photograph of Aziz and a child that was taken in 2013?
A. INTERPRETER: Yes.
Q. Were you aware that the child that the photograph was taken of was the child involved in the investigation?
A. INTERPRETER: Yes.
Q. Did the police also tell you that they were looking for somebody with long hair?
A. INTERPRETER: Yes.
Q. Did you suggest to police that your hair was medium length?
A. INTERPRETER: Yes.
Q. Sir, did you touch the child in that photograph on the penis?
A. INTERPRETER: No. I don't know him.”

Shabbodin denied ever making a joke with Aziz in December 2013 and January 2014 about Shahrukh Khan and he denied joking with Aziz that he looked like the actor.
In re-examination, Shabbodin denied meeting Mr Harace, having been to his house, or ever seeing or interacting with the complainant.

Emails between witnesses and the OIC

In addition to the email exchanges between the OIC and Shabbodin, further emails were tendered at the trial showing communication between the OIC and witnesses Aziz, the complainant’s mother Sarah, sister Alina and Shabbodin. Some of the emails were marked as exhibits whereas others were just read onto the record. They were in the following terms (chronologically), keeping in mind that the applicant’s first JIRT interview was on 10 September 2019.
On 25 September 2019 at 11:19 am, the OIC sent Alina an email in these terms (MFI 24):

“[Alina], please can you confirm the date of the photo taken of your brother on the IPAD for me?”

On 25 September 2019 at 11:33 am, Alina sent an email to the OIC (MFI 24):

“Yes, I confirm. The photo was taken at Bankstown Central on the 30th of December 2013 at 4.14PM.”

On 30 September 2019 at 5:18 pm, the OIC sent Alina an email in these terms (exhibit 19):

“Hello [Alina], Can you please ask [the complainant] (as he told me in his interview) about what type of jersey the guy was wearing when he saw him? He said it was a “Reamaju” or similar jersey but can you please clarify. Thank you for all your help!”

On 22 October 2019 at 9.23 am, the OIC sent Alina and her mother Sarah an email in these terms (exhibit 12):

“Hi [Sarah] and [Alina],
Can you please find out the email address or phone number (and full name) of your friend Aziz in Melbourne? I need to see if I can speak with him as part of my investigation.
Thank you very much.”

On 22 October 2019 at 9.34 pm, Alina emailed the OIC (exhibit 20):

“Hello, Kelly. I’m just confirming that there’s been a misunderstanding about who might have taken that picture on 30 December 2013.
[The complainant] isn’t sure who took the photo, while I thought it might have been taken by Kalime because I thought Aziz knew him and went shopping together with [the complainant] and that’s why Mum also thought the same as me because that’s what I told her when I was explaining the situation with this case. But turns out I was wrong. The photo was actually taken by Aziz’s friend but Aziz jokingly told [the complainant] a while ago that it was taken by Sharuk Khan probably referring to the Indian actor Sharuk Khan so that’s why there’s a misunderstanding between us. Sorry for the confusion. This information might be unnecessary but just in case. Sorry.”
(Emphasis added.)

On 22 October 2019 at 9.41 pm, the complainant’s mother Sarah emailed the OIC (exhibit 12):

“Hi Kelly
I wanted to update you about something. Aziz call me the other day and said that he had been called by the police. He asked me why but I did not give him details.
I only asked him if Shah Rukh Khan (the one who lived with Hares) took the picture we have been talking about. We spoke on video call and he showed me a photo of the man who took the picture. This was not the Shar Rukh Khan who lives with Hares.
Shah Rukh Khan is the most famous Bollywood star in the world. Aziz told me that the man who took the photo jokingly told [the complainant] that this was his name.
I did not know any of this at the time I gave you my statement.
If you need me to tell you any more about this I can speak to you again in person or over the phone but I will need an interpreter. A friend who speaks English fluently helped me write this email.”
(Emphasis added.)

There was evidence of a Facetime call between Aziz and Sarah. It is to be inferred that during that conversation he told her that he did not know the applicant and told her that the photo was taken by his friend (Shabbodin).
On 23 October 2019 at 8:27 am, the OIC emailed Alina (exhibit 20):

“Hello [Alina]
Please tell your mum, and your family that they must not speak to any other witness involved in this matter now as it is a police investigation and I have certain procedures I have to follow without witnesses contaminating evidence between others. This is very important, as I mentioned at the start of the investigation, As this has been raised as a possibility, I will need to speak with Aziz' friend but as I said, please do not discuss it with him or even your brother or mother now as you are all prosecution witnesses and it is forbidden to discuss your evidence amongst one another.
Let me know when you receive this.”

On 23 October 2019 at 3.49 pm, the OIC emailed Aziz (exhibit 10):

“Thank you, can you also send me through the photo that you have of the person that yo [sic] at the shopping centre with [the complainant] in 2013?”

On 23 October 2019 at 2:28 pm, Aziz emailed the OIC (exhibit 10) in these terms, “His name is Shabuddin”. Aziz attached a photograph of Shabbodin, which became exhibit K.
On 5 November 2019 at 8.47 am, the OIC emailed Aziz (exhibit 10):

“I am back from leave and will be in touch with you soon to make a plan for me to come and meet you to get a statement.
I have some questions first.
When is the best day of the week for you for us to meet?
See the photo attach, is that you with [the complainant]? WHO took this photo? (The parties agreed this was a reference to exhibit C (T 166.23))
Do you remember the guy that lived next door to the [complainant’s family] nick named ‘Sharukh Khan?’
Who is the person in the photo that you sent me?
Thanks, Detective Kelly Dale.
Thanks for your help!”

On 5 Nov 2019 at 9.08 am, Aziz emailed the OIC (exhibit 10):

“Good morning, for me best day Thursday n [sic] Friday afternoon this week, I sent you Photo he is my friend his name is Shabuddin Shabuddin first time I met him in Queensland second time I met him in Sydney went I first time Sydney that time I only knew him. Thanks”

On 5 November 2019 at 9:26 am, the OIC emailed Aziz (exhibit 10):

“Thanks Azizu. See this picture that I have sent you, is that you with [the complainant]? Can you remember WHO took this photo?
AND, can you remember if you know of another person that lived with the HARACE family nicknamed ‘Sharukh Khan’ (that is a different person to Shabbudin).
This will be helpful to know, before I make an appointment to see you.
Thanks”

On 5 November 2019, at 9.37 am Aziz emailed the OIC (exhibit 10):

“Actually I don’t know about Harace family n [sic] who are there, if my friend not took the picture. I no [sic] remember other people. Thanks”

On 28 May 2020 at 4.00 pm, the OIC emailed Shabbodin (exhibit 8):

“Hello again
Can you ask your friend to help translate the following:
Do you know [Aziz]?
Do you know Kalime Khan (or his nickname is Sharukh Khan)
Where did you live in 2013 and 2014?
Where do you live now?
Did you ever go to a shopping centre with Aziz and his child relative in 2013? When/Where?
Did you ever go to Aziz’z relatives house at 65 Dennis Street Lakemba?
Did you ever go to the next door neighbours house at 63 Dennis Street Lakemba?
Did you know Mohammed Harace?
I look forward to receiving a response from you.”

On 28 May 2020 at 5.04 pm, Shabbodin emailed the OIC (exhibit 8):

“I do have a friend Azizu but I don’t know his last name and I never been to his house or his relative house, we always meet up in coffee shop or some other place. 2013 Maybe I was in Rockhampton for 6 months, I used live with Azizu in Rockhampton Then I went to Sydney.”

Evidence of the complainant’s mother

Sarah gave evidence of living next door to the Harace family on Dennis Street, Lakemba. She knew the Harace family included Mr Harace’s mother-in-law, as well as wife and six children. She gave evidence of her children playing in the Harace house and garden. She gave evidence of another man staying at the Harace household between September 2013 and February 2014 and that her husband told her the man was nicknamed “Shahrukh Khan”. She said she saw him face to face twice.
In cross-examination she agreed that her daughter sent a photograph on 9 September 2019 (exhibit D, the soccer team photograph) and that she took the complainant to be interviewed by police the next day.
She said that during December 2013 and January 2014 she rarely left the house, except to take the children to the doctors or to go shopping.
She gave evidence of Aziz coming to her house with a friend, and that she prepared lunch for them. She also recalled Aziz taking the complainant on a shopping outing but did not know whether anyone else went.
She was asked about contact with Aziz and the OIC. She said she wrote an email to police (exhibit 12) and that she did not remember having a video call with Aziz prior to writing the email.

Evidence of the complainant’s father

The complainant’s father gave evidence that he knew the applicant and that he lived next door in the Harace household. He saw and spoke with the applicant “plenty of times”. He spoke Rohingyan with him. He described the applicant as having long hair. He said he knew the applicant by the name “Shahrukh Khan”. The applicant told him he got that name in immigration detention.

The summing up also contained portions of the complainant’s two JIRT interviews where he spoke of his familiarity with the perpetrator, his knowledge of the name Shahrukh Khan and gave a description of the perpetrator’s physical appearance around the time of the offending. In this respect, his Honour raised the issue “how did the description given by the complainant in the first identification compare with the appearance of the accused at the relevant time?”.
Finally, his Honour mentioned Shabbodin in the context of the complainant at one point suggesting that his assailant was the person who took the photograph which is exhibit C. To conclude his Honour said:

“You must give consideration to each and all of the matters referred to above. Any one of the circumstances identified above may possibly lead to error in identifying the accused as the offender.
What I have done is tell you about the need for special caution in coming to your decision about whether you accept the identification evidence. There is this need for special caution because of the potential unreliability of the evidence and I have told you the reason why that may be so. I want you to clearly understand this so that you can make your decision about the reliability of the evidence by taking into account all of the matters that are relevant to that task and, of course, in that regard I invite you to have regard to the matters that have been put to you in the submissions of the parties today, both the Crown and the defence.”

The verdicts

The jury retired to consider their verdict on the morning of 12 February 2021. On 15 February 2021 the jury sent a note indicating they had reached an impasse and would not be able to reach a unanimous decision. The jury sent a similar note the next day, and his Honour gave a Black direction at 3.07pm on 16 February 2021. The jury returned majority verdicts of guilty to counts 1 and 3 at 3.25pm the same day.

Ground 1: the verdict is unreasonable

The applicant’s submissions

Counsel for the applicant gave detailed submissions addressing the difficulties in the identification of the perpetrator, which, it was submitted, was significantly compromised on several bases. Those bases included: the description of the perpetrator as being a friend of Aziz, which Aziz denied; the change in evidence as to whether the perpetrator was present when exhibit C was taken; the picture identification from exhibit D; the fact that the witnesses discussed their evidence and the fact that the physical description of the perpetrator by the complainant was not supported by other evidence in the trial as to the applicant’s appearance at the time. I shall consider these matters below.
The applicant also relied upon the decisions of this Court in Penfold v R [2016] NSWCCA 101 and Wood v R [2012] NSWCCA 21 which I will also consider below.

The Crown’s submissions

In written submissions and on the hearing of the appeal in this Court, the Crown fairly acknowledged the issues with the complainant’s identification evidence but submitted that the complainant’s evidence nominating the applicant as the person who had offended against him was “sufficiently accurate” to sustain the convictions.
The starting point was that it was not suggested other than that the complainant was in fact sexually assaulted in some way, nor was there any suggestion that it happened anywhere other than the particular bedroom of the neighbouring property. It was submitted that in these circumstances it would be “curious” for somebody other than the occupant of that room in the house next door to have indecently assaulted the complainant.
Similarly, it was submitted that there is no reason why a 13-year-old boy could not accurately remember that when he was six, his next door neighbour indecently assaulted him. It was submitted that the Crown case was a “simple case”: “a man living next door to the complainant sexually abused him and the complainant was able to recognise that person in the years that followed”.
The Crown submitted that this was a case of recognition rather than identification as the complainant had some familiarity with the applicant who lived in the house next-door. Indeed, the complainant described the man who had offended against him as a resident of the neighbouring property in Dennis Street Lakemba where the complainant lived with his family in 2013. The complainant said he used to see this man “a lot”. The applicant admitted that he had lived next door to the complainant’s family in 2013 for a period of 5-8 months. He shared a room with a person who was the same age, but taller and overweight. The applicant appeared to know the complainant or at least remember who he was, and admitted to having had some contact with the children of the neighbouring house (ie the complainant’s family).
The Crown also set out other evidence which supported the conclusion that the applicant was the perpetrator. First, the complainant referred to the perpetrator by the nickname “Shahrukh Khan” which was the applicant’s nickname at the relevant time. Secondly, the complainant described the perpetrator as having “long hair”, a “bit of beard” and “a bit of wrinkles” and the complainant’s father described that the applicant had long hair at the relevant time. Thirdly, the complainant saw the applicant at community soccer matches well before any photograph of the applicant was shown to the complainant. The complainant’s father was involved in the club and the applicant played soccer about 2-3 years prior to his arrest in 2019. It was submitted that the fact that the applicant was known to the complainant increased the quality of the identification (or recognition) evidence upon which the Crown relied at trial.
The Crown addressed the complainant’s evidence about the outing to Target by submitting that its significance was “not the presence of the perpetrator … but the date because it was close in time to the assault upon the complainant”. Specifically, the complainant’s evidence was that the offences in question happened two days after this outing.
It was conceded at the hearing of this appeal that although the complainant waivered about whether the perpetrator, who he called Shahrukh Khan, was with him at the time when the photograph was taken at Target, he did not waiver on his evidence that the perpetrator went with him to Aziz’ sister’s place in Liverpool. It was submitted that that there were two ways to explain the complainant’s evidence that he used to go on outings with Aziz and the perpetrator, in circumstances where Aziz denied knowing the applicant. The first explanation is that the complainant is mistaken, and the applicant is not the perpetrator. If that was the case, then the appeal would have to be allowed. The second explanation is that the applicant is the perpetrator, but the complainant has recalled him doing something he did not do, namely, going on outings with him and Aziz.
The Crown contended for the second of these options. It was submitted that the possibility that Shaboddin or whoever else was with Aziz and the complainant, either at the Target store or visiting a cousin in Liverpool, was the perpetrator has to be weighed against the opportunity that anyone other than the applicant had to commit a sexual offence in the home of the Harace family. It was submitted that other than the applicant, there seems no other likely candidate. Although there were some questions as to the layout of the bedroom and whether the complainant had thrown away his shorts and underpants, it was not put to the complainant that he was sexually abused anywhere else other than in the house of his neighbour, in that particular bedroom.
It was submitted that it was open for the jury to conclude that the evidence of the complainant visiting Target (where exhibit C was taken) and a cousin in Liverpool with the perpetrator was not of such moment that it raised as a reasonable possibility that another person was the perpetrator rather than the applicant. It was explained as the misunderstanding by the complainant of what his perpetrator (the applicant) had also done, aside from offending against him.
The Crown also addressed the issues with the complainant’s recognition of the applicant as the perpetrator by reference to the photograph exhibit D. It was submitted first, that it was open to the jury to accept the complainant’s account of how this occurred; secondly, that even if Alina’s evidence is to be accepted, the recognition evidence is “not totally negated by her suggestion”; and thirdly, that the photograph exhibit D was not of sufficient quality to displace the complainant’s memory of the perpetrator, formed as it was not only during the commission of the offence but during the complainant’s intermittent contact with the applicant over some time.
It was submitted that it was open to the jury to conclude that the complainant’s selection of the applicant in the photograph, even if that came about through the process described by Alina, arose not through suggestion, but through genuine recognition of the perpetrator.
As for the two other occasions that the complainant apparently saw the perpetrator (ie the “Real Madrid jersey” sighting and the “Urban Culture” sighting), the Crown submitted that it was open to the jury to conclude that this was simply another instance of the complainant recognising the applicant as the man who assaulted him.
In oral submissions, the Crown submitted that the key difficulties with the complainant’s evidence arose in respect of the visits to Target and Liverpool, rather than in respect of these post-offence incidents which, on the Crown’s submission, did not pose the risk of displacement contended for by the applicant.
Finally, in relation to the applicant’s reliance on comments made by the trial judge after discharging the jury to the effect that his Honour had a reasonable doubt, the Crown submitted that it was not appropriate to take post-verdict statements into account in determining the question of unreasonable verdict. It was submitted ultimately that it was open to the jury to conclude that the perpetrator was the applicant and the complainant’s ability to know this was not undermined to such a degree as to render the applicant’s conviction unreasonable.

Consideration

Most convictions for child sexual assault offences are based almost entirely on the evidence of the child complainant, who in many cases has reached adulthood by the time of giving evidence. There will invariably be delay in reporting the matter to a friend or family member and even further delay in reporting the assaults to police. There will rarely, if ever, be any forensic evidence supporting the allegations. The accused person will often be of prior good character and previously known to the complainant. In these circumstances, an appeal to this Court on a ground that such a verdict(s) is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act invariably involves an attack on the honesty or reliability of the child complainant. In such appeals it is not uncommon for arguments to be put to the effect that the offence(s) could not have been committed because there were other people nearby. In the present appeal reliance was placed on the unlikelihood of the assaults occurring without other members of the Harace house hearing it. I have not found that submission to be of assistance for the reasons explained in Sita v R [2022] NSWCCA 90.
In Sita v R Beech-Jones J (as his Honour then was; with whom Price J and I agreed) addressed an argument that it was inherently unlikely that the offender would take the risk of sexually assaulting a child in the presence of another child and the risk of detection by other people in the house at the time of the offending. His Honour addressed that submission in this way at [55]:

“The difficulty with this submission is that it is replete with assumptions about how and why adults commit child sexual abuse. The premise of the Crown case was that the applicant was sexually attracted to children. If he was so attracted, then it does not necessarily follow that he would only satisfy that attraction without taking a risk of being detected. Such a person may enjoy taking the risk, be confident that they can avoid detection, or simply be unable to overcome their attraction to children. Like so many of these cases concerning settings such as families, schools and churches, the Crown case involved the applicant exploiting his position of trust to gain access to and abuse young children. Such a person who behaves that way may have developed a good sense as to the likelihood that at a particular time his abuse may be interrupted by another adult in the house or that a younger sibling who witnessed the assault would complain about it. As was noted by McCallum JA in VP v R [2021] NSWCCA 11 (at [79) “[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending”. In one sense, this is all speculative. However, a submission that the alleged conduct was so brazen that it was unlikely is, in itself, speculative and speculative submissions invite speculative responses. At least in this case, the potential that the applicant may have been detected when acting as alleged by count 8 does not support the submission that the verdict was unreasonable.”

Otherwise, in contending that his convictions are unreasonable, the applicant did not rely on arguments based on dubious assumptions as to how a child sexual assault victim should behave: see for example VP v R [2021] NSWCCA 11 at [103] per McCallum JA and my judgment in Kassab (a pseudonym) v R [2021] NSWCCA 46 at [253]-[257]. It was never put to the complainant in this case that he was lying or mistaken about being sexually assaulted. This appeal is unusual in that the sole basis upon which the convictions are challenged is the weaknesses in the evidence of the complainant’s identification of the perpetrator.
The complainant described the perpetrator as being someone he had seen on a number of occasions both before and after the assaults. Although, consequently, the evidence was not strictly identification evidence, that does not mean that the utmost caution was not required when the jury came to assess the evidence, as the trial judge explained in his summing up.
The applicant relied upon the decision of this Court in Penfold v R [2016] NSWCCA 101 (“Penfold”). That conviction was held to be unreasonable by the Court (R A Hulme J, with whom Bathurst CJ and Hall J agreed) having regard to problems in the evidence of the victim’s identification of the appellant as a perpetrator, this being the “critical” piece of evidence in the Crown case. The facts in Penfold were different to the present case in that it was concerned with an aggravated home invasion in which two men forced their way inside the flat of the victim while she and her friend were inside. “Chaotic” scenes ensued, including that the victim’s friend was stabbed with a machete carried by one of the men. The victim knew the first man and thought that the other looked “extremely familiar”. She participated in a photographic identification procedure with police about five months later, where she identified the appellant as the second perpetrator.
The Court in Penfold was of the view that the jury should have had a reasonable doubt as to whether the appellant was in fact the second perpetrator due to a series of problems with the victim’s identification evidence. R A Hulme J noted that one of the recognised difficulties with identification evidence is its "seductive effect": Domican v The Queen (1992) 173 CLR 55; [1992] HCA 13 at 561. His Honour went on to note that the identification evidence was potentially adversely affected by a number of matters, summarised at [57]-[61]. They included: that the incident spanned only a number of minutes “in chaotic, violent and traumatic circumstances”; that the eyewitness’s recollection of the second perpetrator varied over time and in some respects was almost certainly wrong; that there was a chance that her subsequent identification of the appellant was contaminated by a rumour she was aware of that the second perpetrator was “Gavin”; that there was a delay of three or four months between the offence and the sighting of the second perpetrator in a shopping centre; and that there was some doubt as to whether the person she saw at the shopping centre was indeed the second perpetrator – if he was not, there was a risk that this sighting had “supplanted” her original recall of the incident. It was the combined effect of these difficulties which led the Court to conclude at [62] that the jury should have had a reasonable doubt.
There are some similarities between Penfold and the present case: in both cases the person purporting to make the identification had some familiarity or contact with the person identified, both before and after the offending, such that evidence may be in the nature of recognition. Further, aspects of the identifier’s evidence in both cases were subsequently revealed to be almost definitely wrong. Also, in both cases there was a danger of suggestion, displacement or corruption in the post-offence events surrounding the identification.
The applicant also relied upon the decision in Wood v R [2012] NSWCCA 21 in which McClellan CJ at CL (with whom Latham and Rothman JJ agreed) discussed the problems which can arise with photographic identification evidence at [409]-[414]. Relevant to the present appeal, the identification evidence in that case was contaminated by discussion with another witness, by the fact that the eyewitness was shown one photograph rather than an array and that he was told of a connection that was suggestive of the applicant being the offender. McClellan CJ at CL noted the observations of Gibbs CJ in Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17 at 400 as to the fallibility of identification evidence when only one photo is shown to the eyewitness. His Honour also referred to R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at 335 where Sheller JA (James and Dowd JJ agreeing) observed the following at [29]:

“The phenomenon known as the ‘displacement effect’ was described by Stephen J in Alexander at 409:
‘Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Any subsequent identification, in court or in an identification parade, may on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.’

This type of evidence was referred to later in Stephen J's judgment at 414 as akin to ‘worthless’; see also Mason J in Alexander at 426; Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 178-179 (Latham CJ, Rich, Dixon, Evatt, McTiernan JJ); R v Carusi (1997) 92 A Crim R 52 at 55 (Hunt CJ at CL, Ireland and Newman JJ agreeing); R v Agkul [2002] VSCA 222 at [26]-[27]; [2002] 5 VR 537 ; R v Skaf [2004] NSWCCA 37 at [80]; Aslett v R [2009] NSWCCA 188 at [55]-[56]. In Skaf at [80] this Court described the displacement effect in the following terms:
‘The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person.’”

I have had regard to the principles derived from these decisions in determining this ground.
Having read the complainant’s interviews and evidence I am satisfied that it was well open to the jury to find that the complainant had been sexually assaulted. The way in which his narrative developed was consistent with a 13-year-old child attempting to explain something that happened to him not long after he first arrived in Australia when he was only six years old. During the complainant’s first JIRT interview, he was initially unable to give an account of what happened to him because he felt uncomfortable (Q&A 129, 164-167). He told the OIC that her questions “triggered” him. He wrote down the word “flashback” and agreed that the questions triggered a flashback. He was not able to talk about the flashback at that stage (Q&A 172, 176-178). The complainant later wrote the word “rape” on the same piece of paper. In the second JIRT interview when the complainant was describing the assault, he was unable to say specifically what happened and instead wrote down the words, “he put his penis inside of me”.

The complainant’s account of being sexually assaulted was cogent and does not leave me with any doubt that he was sexually assaulted. His description of the house, although inaccurate in some respects, was cogent as well.
The difficulty with the applicant’s convictions is, as he submitted, the numerous problems with the identification of the applicant as the perpetrator. When viewed cumulatively, I am satisfied it was not open to the jury to convict the applicant. Having undertaken an independent assessment of the evidence at trial, I am satisfied that the jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator. In particular, the following aspects of the evidence have led me to the conclusion that the appeal should be allowed, and the applicant’s convictions quashed.

The perpetrator was a friend of Aziz

When the complainant first spoke of the perpetrator to police, he described him as being a friend of Aziz. He told police that the first time he spoke with the perpetrator was when the perpetrator asked to go on outings with Aziz. He told police that he went on three outings to the city with the perpetrator and Aziz in the period leading up to the assaults. He was quite specific about this. He also said they went to Aziz’ sister’s place together. He did not resile from this evidence. Aziz gave unchallenged evidence that he had never met the applicant.
I have considered the Crown’s submission that that there were two ways to explain this aspect of the complainant’s evidence: either the complainant has the wrong perpetrator, or the complainant has the right perpetrator but has him doing something he did not do, namely, go on outings with him and Aziz. The Crown contended for the second of these explanations. The problem with this argument is that the complainant’s identification of the perpetrator is closely connected to him being a friend of Aziz, as is his understanding that the perpetrator was nicknamed Shahrukh Khan, as will be discussed below.

How did the complainant know the perpetrator was nicknamed Shahrukh Khan?

There was a conflict in the evidence as to how the complainant knew the perpetrator by his nickname Shahrukh Khan. He told police that he called the perpetrator that because that is what Aziz called him. Aziz gave evidence that he did not know the applicant thus it could not be the case that the complainant learned of the nickname Shahrukh Khan by hearing exchanges between the applicant and Aziz.
Further, Alina’s email to police (extracted above at [86]) stated that Aziz jokingly told the complainant that the photo (exhibit C) was taken by Shahrukh Khan whereas Sarah’s version (extracted above at [87]) was that Aziz told her that the man who took the photo jokingly told the complainant that this was his name. This is consistent with Alina and Sarah having been told by Aziz of some connection between the person who took the photo and the nickname Sharukh Khan.
To further complicate this question, Alina gave evidence that when the complainant first confided in her about the assaults, he did not know the name of the neighbour who he said was the perpetrator (the applicant) and it was she who told him that his (the applicant’s) nickname was Shahrukh Khan. The complainant denied this version in his evidence. This was another aspect of the conflict in the evidence of the complainant and his sister on a significant aspect of the identification (recognition) evidence.

Who took the photograph exhibit C?

In his initial complaint to his sister and police, the complainant stated that he could identify the perpetrator by way of a photograph taken a couple of days before the assault occurred (exhibit C). Alina’s evidence was that he told her that the perpetrator either took the photograph or was present at the time. In her statement to police, Alina expressed no doubt that this is what the complainant told her. She resiled from this part of her statement in court and described what she said as an assumption. There was nothing in her statement to suggest it was an assumption.
The complainant told police that he thought either the perpetrator or the perpetrator’s friend took exhibit C. Although he used the words “I think”, when the relevant answers in his JIRT interview (extracted above at [38]) are considered, it seems to me that the doubt was directed to whether it was the perpetrator or another person who took the photograph, not as to whether the perpetrator was there at all.
Despite both the complainant and Alina initially telling police that the perpetrator took exhibit C, both changed their evidence. I am satisfied, despite their denials, that they did so after being told by Aziz, either directly or indirectly, that the applicant was not present when exhibit C was taken.

The involvement of Shabbodin

The emails sent by Sarah and Alina to the OIC after they spoke to Aziz are informative. The explanation provided to police by these witnesses after speaking with Aziz and the complainant is that it was not the applicant but another friend of Aziz (later briefly identified by Aziz as being Shabbodin) who took the photograph exhibit C.
The emails sent by Sarah and Alina to the OIC are consistent with Aziz initially telling police that it was Shabbodin who took the photograph and then, when finding out the nature of the allegation, changing his evidence and potentially telling Shaboddin about the nature of the allegation as well. They are also consistent with Aziz showing Sarah a photo of Shaboddin and her telling him that that was not the Shahrukh Khan who they were looking for.
There were other inconsistencies between the evidence of Aziz and Shabbodin. Aziz initially told police that it was Shaboddin who had taken exhibit C. Shabbodin denies this. Aziz gave evidence that he stayed with Shaboddin when he was in Sydney during that time. Shaboddin denied this. Shabbodin also denied ever going out with Aziz and the complainant. Aziz states that he went on outings with Shabbodin.
The complainant was shown a photo of Shabbodin in court (exhibit K) and denied that he was the perpetrator. By that time, he had seen the applicant on a number of occasions and been shown the photograph of the applicant (exhibit D) in a suggestive way. In other words, by the time he was shown the photo of Shabbodin, the displacement effect may have taken hold. I do not mean to suggest that there was cogent evidence that Shaboddin was the perpetrator. Rather, the fact that Aziz changed his evidence on this point and that his evidence and that of Shaboddin was so inconsistent raises another doubt as to the reliability of the identification evidence in this case.

The first picture identification (exhibit D)

The complainant first “identified” his perpetrator from a photograph shown to him by Alina which depicted a group of people (a soccer team) including the applicant (exhibit D). Alina pointed to the applicant and asked, “is that him?”. That was the evidence of Alina; it differed to that of the complainant. If one were to accept her evidence over his, then the identification was compromised. It is to be accepted that the complainant had seen the applicant before being shown exhibit D and to that extent it was recognition evidence. But just because the complainant had seen the applicant at around the time of the offences and subsequently saw him at the soccer club does not preclude the possibility that the complainant had conflated the applicant in his mind over the intervening (six) years with someone else, perhaps Shabbodin.
Alina’s version is that when the complainant described the perpetrator, she had an idea of who it was and wanted to make sure that she was thinking of the same person that the complainant was describing. It was in that context that she found a photograph of the applicant and suggested to the complainant that he was the perpetrator.
The complainant also provided a differing chronology of events as to whether a sighting of the applicant near a train station wearing a Real Madrid jersey “triggered” him before or after he was shown the photo of the applicant by Alina, as set out above at [36] and [50]-[51].

Contamination due to family witnesses communicating

I have already addressed this difficulty above in the context of the evidence of Shabbodin and Aziz. The OIC communicated with the complainant and other witnesses by email and, consequently, there was contamination of the evidence of family witnesses as they appeared to have discussed their evidence and then changed critical parts of it.

Description of the perpetrator

The complainant first described the perpetrator as wrinkled, with a beard and long hair. Although there was some evidence that the applicant had long hair at the relevant time, there was no evidence at trial that the applicant was wrinkled or had a beard in 2013/2014. Other witnesses, such as Mr Harace, described the applicant as having medium-length hair at the time. The complainant gave evidence that the perpetrator was not wearing a necklace or any jewellery. The evidence of Alina is that the complainant told her that the person who had raped him had long hair and wore “accessories”.
Although, again, it is to be accepted that the evidence was more in the nature of recognition rather than identification, there was scant evidence at trial to link the physical description of the perpetrator with that of the applicant as at 2013/2014.

Many men visited the Harace household in 2013/2014

There was undisputed evidence that many Rohingya men used to visit the Harace household at the relevant time. Mr Harace was a prominent person in the Rohingya community. Photographs of some of the men known to visit the home were shown to the complainant, his sister and parents at trial (exhibits 7-11). The complainant could not identify any of the other men when shown these photographs in court for the first time.

Conclusion

I accept the Crown’s submission that, as a general proposition, there is no reason why a 13-year-old boy could not accurately remember that when he was six, his next door neighbour indecently assaulted him and be able to recognise that person in the years that followed. But that general proposition must be considered in the context that in this case, the complainant’s initial description of the perpetrator was that he was someone he and Aziz went on outings with, which was someone who was not the applicant. Similarly, although the complainant was able to identify the perpetrator by the nickname Shahrukh Khan, as explained above at [47], the complainant knew him by that name because that is what Aziz called him in circumstances where Aziz denied ever meeting the applicant.
I also accept the Crown’s submission that this is a case of recognition rather than identification. But the fact that the complainant had seen the applicant before and described the assaults being committed by his neighbour does not preclude the possibility of him having conflated the perpetrator (who he went on outings with), with the applicant, a man with the same nickname who he also saw around that time as he lived next door. After the offending, the complainant saw the applicant at community soccer matches but there was a delay of some years between the assaults and this contact. Although the complainant’s description of the assaults taking place in the house next door was cogent, it was tied temporally with him having been with the perpetrator on outings in the period leading up to the assaults.
Finally, I have considered the Crown’s submission that it was open for the jury to conclude that the doubt as to who took exhibit C was not such as to raise a reasonable possibility that another person was the perpetrator rather than the applicant. I am unable to accept that submission given the accumulation of problems with the evidence identifying the applicant I have considered above.
It is to be accepted that it was the jury who saw and heard the witnesses and that the trial judge gave careful directions as to the caution required when considering evidence of identification. But most of the difficulties with the identification evidence in this matter did not turn on the credibility of the complainant nor were most of them in dispute on this appeal.
For these reasons, I am satisfied that the verdicts are unreasonable. Having independently considered the evidence, I am satisfied that it was not open to the jury to convict the applicant on counts 1 and 3. I would allow the appeal.

ORDERS

Accordingly, I would propose the following orders:

Grant the applicant leave to appeal.

Allow the appeal.

Quash the convictions of the applicant.

Enter verdicts of acquittal.

IERACE J: I agree with the comprehensive judgment of N Adams J and her Honour's proposed orders, and with the additional observations of Price J.
Her Honour’s analysis of the evidence concerning the complainant's identification of the applicant as the perpetrator, in the context of the evidence as a whole, establishes that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant being the perpetrator. In my view, the jury's advantage in their observation of the pre-recorded evidence of the complainant and his sister alongside the evidence of other witnesses in person could not have displaced that concern.

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Endnote

Decision last updated: 15 July 2022

Medium Neutral Citation:	Khan v R [2022] NSWCCA 157
Hearing dates:	21 February 2022
Date of orders:	15 July 2022
Decision date:	15 July 2022
Before:	Price J at [1]; N Adams J at [9]; Ierace J at [189].
Decision:	(1) Grant the applicant leave to appeal. (2) Allow the appeal. (3) Quash the convictions of the applicant. (4) Enter verdicts of acquittal.
Catchwords:	CRIME – appeals – appeal against conviction – sexual offences committed on six-year-old boy in neighbour’s house – defects in complainant’s identification (or recognition) evidence of perpetrator – certain recollections contradicted by other evidence – risk of suggestion and displacement – where witnesses changed evidence after communicating with each other – jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator – appeal allowed – convictions quashed – acquittal
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M(2), 66A(1) Criminal Appeals Act 1912 (NSW), s 5(1)(b)
Cases Cited:	Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17 Domican v The Queen (1992) 173 CLR 55; [1992] HCA 13 Kassab(a pseudonym) v R [2021] NSWCCA 46 KeesLangelaar v R [2016] NSWCCA 143 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Penfold v R [2016] NSWCCA 101 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Blick [2000] NSWCCA 61; 111 A Crim R 326 Sita v R [2022] NSWCCA 90 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 VP v R [2021] NSWCCA 11 Wood v R [2012] NSWCCA 21
Category:	Principal judgment
Parties:	Kalime Khan (Applicant) Regina (Respondent)
Representation:	Counsel: P Coady (Applicant) E Balodis (Crown) Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions NSW (Crown)
File Number(s):	2019/00316270
Publication restriction:	Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987, publication of the name of, or any matter which could identify the victim is prohibited. Pursuant to section 578A of the Crimes Act 1900, publication of any matter which could identify the victim is prohibited.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: N/A Date of Decision: 16 February 2021 Before: Norrish QC DCJ File Number(s): 2019/00316270