R v Amir Reza Abdolali Sarbandi (No 2)
[2014] ACTSC 34
•17 March 2014
R v AMIR REZA ABDOLALI SARBANDI (NO 2)
[2014] ACTSC 34 (17 March 2014)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Election to have judge alone trial – Judge is possessed of the same obligations as the jury – Judge must take into account any warning, direction or comment that any Territory law requires to be given or made to a jury
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the Person – Sexual intercourse without consent, being reckless as to whether the complainant was consenting – Reasonable doubt exists – Not guilty verdict
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the Person – Alternative charge of an act of indecency against the complainant without her consent, knowing that she was not consenting or reckless as to whether she was consenting – Reasonable doubt exists – Not guilty verdict
CRIMINAL LAW – EVIDENCE – Directions – Direction in relation to character – Warning must be given where evidence of prior convictions are in evidence for the sole purpose of combating a suggestion of good character or to weaken or destroy the credibility of the accused – Prior convictions can only be used to discredit the accused in respect of any matter as to which the accused is in conflict with his own evidence or that of Crown witnesses
CRIMINAL LAW – EVIDENCE – Direction – Direction in relation to the admitted lies of the accused – A lie can only constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence – The lie may only be taken into account where the decider of facts is satisfied that it reveals a knowledge of the offence or some aspect of it and the lie was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence or because of a realisation of guilt and a fear of the truth – There may be reasons for the telling of a lie other than the realisation of guilt
CRIMINAL LAW – EVIDENCE – Directions – General directions – Decider of facts must bring an unbiased mind to the evidence – The verdict must be delivered according to the evidence
CRIMINAL LAW – EVIDENCE – Directions – General directions – The prosecution bears the onus of proof – The accused does not have to prove that he did not commit the offences charged – The Crown case must be proved beyond reasonable doubt before a guilty verdict can be delivered – The accused is presumed innocent until the evidence satisfies the decision maker that each and every one of the elements of the offence as charged has been made out – Where there is more than one charge, each charge must be considered separately
CRIMINAL LAW – EVIDENCE – Directions – General directions – Decider of facts must determine whether each of the witnesses is a reliable witness – Decider of facts can accept or reject part or all of the evidence of a witness – The evidence of each witness must be examined carefully in order for the decider of facts to be satisfied that he or she can rely upon the evidence
CRIMINAL LAW – EVIDENCE – Directions – General directions – The evidence of the accused on oath is to be treated in the same way as the evidence of any other witness – The evidence of the accused is no better or worse than the evidence of any other witness in the trial – The accused does not assume any onus to prove anything at the trial by virtue of giving evidence
CRIMINAL LAW – EVIDENCE – Warnings – General warnings – Complainants in sexual matters are required to give evidence via audiovisual link from a place other than the courtroom – Evidence (Miscellaneous Provisions) 1991 (ACT), s 46 requires the decider of facts to be warned that no adverse inference to the accused should be drawn from the fact that the evidence is given from a place other than the court room
Crimes Act 1900 (ACT), ss 54(1), 60, 67
Evidence (Miscellaneous Provisions) Act1991 (ACT), ss 40, 43
Supreme Court Act 1933 (ACT), s 68B
Anderson (2001) 127 A Crim R 116
BRS v The Queen (1997) 191 CLR 275
Director of Public Prosecutions v Walker (2011) 246 FLR 413
Donnini v The Queen (1972) 128 CLR 114
Edwards v The Queen (1993) 178 CLR 193
Fleming v The Queen (1998) 197 CLR 250
Liberato v The Queen (1985) 159 CLR
Matusevich v The Queen (1977) 137 CLR 633
Nguyen v The Queen (2012) 267 FLR 344
Phillips v The Queen (1985) 159 CLR 45
R v Ciantar (2006) 16 VR 26
R v DM [2010] ACTSC 137
R v Girvan (No 2) [2013] ACTSC 138
R v Shevlin [2013] ACTSC 88
The Queen v Hillier (2007) 228 CLR 618
No. SCC 11 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 17 March 2014
IN THE SUPREME COURT OF THE )
) No. SCC 11 of 2011
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
AMIR REZA ABDOLALI SARBANDI
ORDER
Judge: Refshauge J
Date: 17 March 2014
Place: Canberra
THE COURT ORDERS THAT:
Amir Reza Abdolali Sarbandi is not guilty of engaging in sexual intercourse with WJ on 8 or 9 April 2010 without her consent or being reckless to whether she was consenting.
Amir Reza Abdolali Sarbandi is not guilty of committing an act of indecency upon WJ on 8 or 9 April 2010 without her consent, knowing that she was not consenting or reckless as to whether she was consenting.
On 8 April 2010, WJ, the complainant, had an argument with her boyfriend and left his residence, going into the street, smoking a cigarette and crying.
In circumstances that are the subject of some dispute, she went into the house of Amir Sarbandi, the accused. While there, and again in circumstances of some dispute, she and Mr Sarbandi had sexual intercourse.
The next day, at the urging of a friend, WJ went to police and made a complaint that the sexual intercourse was without her consent. Mr Sarbandi was summonsed to appear in the Magistrates Court on 1 November 2010 and on 20 January 2011 was committed for trial to this Court.
On 2 March 2011, the Director of Public Prosecutions filed an indictment containing two counts, which were slightly amended on 29 August 2012, the first day of the trial. As amended, the counts in that indictment were as follows:
FIRSTTHAT on 8 April 2010 or on 9 April 2010 at Canberra in
COUNTthe Australian Capital Territory AMIR REZA ABDOLALI SARBANDI engaged in sexual intercourse with [WJ] without her consent, being reckless as to whether she was consenting.
SECONDAND FURTHER AND IN THE ALTERNATIVE THAT
COUNTon 8 April 2010 or on 9 April 2010 at Canberra in the Australian Capital Territory the aforesaid AMIR REZA ABDOLALI SARBANDI committed an act of indecency upon [WJ] without her consent, knowing that she was not consenting or reckless as to whether she was consenting.
On 19 April 2011, Mr Sarbandi elected, under s 68B of the Supreme Court Act 1933 (ACT), to be tried by judge alone.
On 24 May 2011, he pleaded not guilty to both counts on the indictment and a date was set for trial. It ultimately commenced on 29 August 2012. It was unable to be completed and was adjourned on two occasions. On 7 December 2012, I reserved my decision.
Trial by judge alone
Section 68C of the Supreme Court Act authorises a judge who tries proceedings for the prosecution of a person on indictment without a jury to make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the court in such a case must include the principles of law that I, as the judge, apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High Court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and to justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]-[9]; R v Shevlin [2013] ACTSC 88 at [10]-[20]. The Court of Appeal has required a judge to set them out in the reasons for judgment. See Nguyen v The Queen (2012) 267 FLR 344 at 354; [62]. The directions I take into account are as follows.
As the judge of the facts, as well as the judge of the law, in a trial by judge alone, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.
The accused is presumed, by law, to be innocent of each of the offences unless, and until, the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any, or all, of the elements of either of the offences charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
I must not be prejudiced against the accused because he is facing two charges. Although they are being tried together as a matter of convenience, I must consider each separately and give a verdict on each separately.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or if I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
As the evidence on which the Crown relies largely depends upon me accepting the reliability of the evidence of one witness, I must exercise caution and I must be satisfied beyond reasonable doubt that the complainant is an honest and accurate witness in the evidence she has given before I can convict the accused. That requires me to examine her evidence carefully in order to satisfy myself that I can act upon that evidence to the high standard required in a criminal trial.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.
Mr Sarbandi gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and it must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
I also note that, as this was a sexual offence, s 43 of the Evidence (Miscellaneous Provisions) Act1991 (ACT) required that WJ give evidence by audiovisual link from a place other than the courtroom, as she did. Under s 46 of that Act, I am required to warn the jury that it should not draw any inference adverse to Mr Sarbandi in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.
I give myself these directions and warnings and apply and follow the rules I have set out above.
Lies
There are further directions I must give. Mr Sarbandi admitted that he told lies to various people, including to the step-father of WJ’s boyfriend and to the police. The Crown asked me to take them into account in my assessment of the evidence.
There was no doubt that these statements were lies, in the sense that they were statements that were untrue and known by Mr Sarbandi to be untrue at the time he made them. He gave an explanation with which I shall later deal.
The correct approach for a judge of the facts to take with respect to lies has been authoritatively laid down by the High Court in Edwards v The Queen (1993) 178 CLR 193. Deane, Dawson and Gaudron JJ said (at 210-1)
Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
...
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of a realisation of guilt and a fear of the truth.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters.
(Footnotes omitted)
I shall direct myself accordingly and take these directions into account.
Character
Finally, Mr Sarbandi told me that he had been neither charged nor convicted of any criminal offences prior to 8 April 2010. Since then, however, he had been convicted of three offences:
· On 16 November 2010, he was convicted of contravening a protection order by driving at a slow speed past the residence of his mother-in-law when he was not to be within one hundred metres of her and when she was in residence;
· On 24 October 2012, he was convicted of using a carriage service in a menacing manner by telephoning a client of Mr Sarbandi’s building business and threatening him with violence for not paying a bill;
· On 24 October 2012, he was convicted of using a carriage service in a harassing manner by telephoning his father-in-law and swearing at and abusing him.
Again, the approach that should be taken has been established in the High Court. In Donnini v The Queen (1972) 128 CLR 114 at 123, Barwick CJ said
It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across a deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial judge, when evidence of prior conviction is properly before the jury for the sole purpose of combatting a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused. In my opinion, in such a case, he should tell them quite clearly that the fact of prior conviction can only be used as a means of discrediting the accused in respect of any matter as to which he is in conflict in his evidence with witnesses for the Crown, or as to exculpatory facts or claims which he makes.
Such an approach has since been approved in Matusevich v The Queen (1977) 137 CLR 633 at 636 per Gibbs J and BRS v The Queen (1997) 191 CLR 275 at 293-4 per Toohey J. See also Phillips v The Queen (1985) 159 CLR 45 at 57-8.
I shall direct myself accordingly and take these directions into account.
The evidence
(a) The complainant, WJ
The complainant, WJ, gave evidence from a remote room via closed circuit television to the court room.
Her evidence was as follows. She said that was dropped off after work on 8 April 2010 at her boyfriend’s house in Gordon, a southern suburb of Canberra. She and her boyfriend then walked to Lanyon Shops to buy some fast food for dinner, a bottle of wine and a four-pack of Smirnoff.
They returned to her boyfriend’s house and on the way WJ had some of the alcohol to drink. They ate dinner and WJ had three of the pre-mixed cans of Smirnoff. She also had two glasses of wine. She and her boyfriend then started to argue. She left the house and smoked a cigarette but came back and had some more to drink. The argument continued, however, and somewhere around midnight, she told her boyfriend that she was going home.
She left the house but sat out the front, near Mr Sarbandi’s house, and smoked a cigarette. She was pretty upset and teary at the time.
A little later, Mr Sarbandi approached her and asked her if she wanted to come inside and she agreed.
WJ followed Mr Sarbandi into the house and they sat down in a room adjacent to the kitchen area. Mr Sarbandi offered to get her, and then got for her, a glass of water.
They had some conversation. Mr Sarbandi asked her if her boyfriend had ever hit her and she said that he had not. She asked Mr Sarbandi whether he was living with anyone and he said he had a wife but she had left him. He said that he had two children and, at one point, they walked through the house and he showed her a photograph of his children.
WJ had with her a black handbag, a green shopping bag and a plastic bag with her work clothes in it.
WJ said that Mr Sarbandi offered her a glass of bourbon and coke which she accepted. She took a couple of sips of the bourbon and coke and recalls ashing her cigarette.
She later described to police the glasses from which she was drinking. She said they were “long, skinny ... [with] circles on the bottom”. This was the glass with water in it. The glasses with bourbon were shorter, plain “spirit sort of glasses”.
Later, when executing a search warrant, police were unable to find in Mr Sarbandi’s house glasses of the description that she had given them.
She said that, while she had been with Mr Sarbandi, she did not see him receive or make any telephone calls.
After taking the sips of the bourbon and coke, she has no further memory of the evening until she awoke the next morning. She found herself naked in a bedroom in the house. It was about 5:00 am and she felt “dizzy” and “disoriented”. She left the room and found her clothes laid out on a table a few metres outside the room in which she had woken up. She initially said to police that her clothes were laid out in the bedroom in which she had woken up but corrected herself in evidence before me.
She also found the green shopping bag but not her handbag or the plastic bag.
She did not recall any contact of a sexual nature with Mr Sarbandi. She did not intend to have sex with him and said she would not have consented to having sex with him.
She put on her clothes, picked up the green bag and quietly left the house. She felt that she had “stuff” over her legs.
Mr Sarbandi was asleep on a couch. He was only wearing his underwear. He had a blanket half over him.
WJ then left the house and walked to her home. She rang her boyfriend because she could not find her mobile phone. He had the phone but he did not have her handbag.
She returned to her boyfriend’s house riding her bicycle. He was in the shower so she went back to Mr Sarbandi’s house intending to collect her handbag.
She knocked on the door but he did not answer at first. She rang the bell a few times and Mr Sarbandi came to the door in his underwear. She asked if he had her bag and he said “No ... what bag?” and asked her to come inside. She walked in and looked everywhere and Mr Sarbandi said “No no no you don’t, you didn’t bring a bag, you didn’t bring a bag with you”. She said “Well I have to go you know [SJ] is in the shower ... I am not even meant to be here ... I shouldn’t be here.” Mr Sarbandi said to her “[SJ] is going to find out about this you know”.
She left and, as she did so, Mr Sarbandi tried to kiss her, not on the cheek but on the lips.
She then went back to her boyfriend’s house, got her phone and rode home. She had a shower, changed her clothes, had some breakfast and took the bus to work.
While she was at work, a man rang her workplace, saying that he had found her handbag near some drains in Gordon. She later arranged to go to his house to collect her bags. When she did so, she found everything was intact.
While she was at work, one of the other employees, who was a close friend of hers, asked her what happened and she told her. Her friend urged her to go to the police and so they both did. She was interviewed and underwent a medical examination.
The medical examination disclosed that she had tetrahydrocannabinol (THC) in her urine. She admitted that, a day or two before 8 April 2010, she had consumed some cannabis.
WJ agreed in cross-examination that there were gaps in her memory, particularly after the point when she started drinking the bourbon and coke provided to her by Mr Sarbandi.
She recalled that the argument that she and her boyfriend first had was about the food that they had earlier bought; she agreed that when she returned after first leaving his home, they had a further argument but she could not recall exactly what it was about. She agreed, however, that it was serious enough to make her upset and to leave and, when she did so, she sat in a gutter crying.
She agreed that she and Mr Sarbandi talked for about thirty to forty-five minutes between when she was first offered the glass of water and she began drinking the bourbon and coke. She agreed, too, that she had commented on how nice his house was and asked him how he paid for it, but could not recall much of the rest of the conversation.
She also agreed that, after leaving her boyfriend’s house, she had walked up the street and back again but denied that she went to anyone’s door.
She explained, too, that she was required by her father to be home by 9:00 pm and that, as she had stayed out well past that time, she had decided not to go home. She denied, however, asking Mr Sarbandi whether she could stay at his place.
She agreed that she had asked where his wife was and she was asked whether, when he said “I don’t have one”, she recalled mentioning that she had seen another woman coming to Mr Sarbandi’s house. She did not recall that. She said that she had not seen women coming to his house before. She denied saying, “I don’t want [your wife] to get mad at me”. She said that the photographs she saw of his children were framed and said she did not think she had seen them in the kitchen, as she said she did not go into the kitchen. She denied giving him a hug after Mr Sarbandi had said that he had not seen his children for a long time and denied kissing him on the left side of his chest and around his neck area. She also denied kissing him on the mouth and inviting him to have intercourse with her.
She was sure that she had been given a drink of bourbon of coke.
She accepted that she may, in fact, have had intercourse with Mr Sarbandi but did not remember it happening and she did not remember Mr Sarbandi taking her to the bedroom after intercourse.
She agreed that when she awoke in the morning and came out of the bedroom it was easy to find her clothes though she did have some difficulty in finding her way out of the house. She also agreed that, contrary to the impression clearly given in her evidence in chief, she first noticed the semen on her legs when she got home and not while she was at Mr Sarbandi’s house.
She was quite certain that she had taken her handbag into Mr Sarbandi’s house. She also denied that Mr Sarbandi was asleep in his bedroom when she left in the morning and re-affirmed that he was definitely sleeping on the couch.
Referring to the events later in the morning, when she returned to Mr Sarbandi’s house, she denied kissing him on the cheek and saying, “Thanks for last night”. She denied also saying, “Don’t tell anyone or don’t tell him” or words to that effect. She agreed, however, that she said words to the effect of “I am not even meant to be here” or “I shouldn’t be here” though she was not quite sure what she actually meant by saying that.
She agreed that, after she had her shower, when she had returned home, she put on her work pants but that she changed her top and her underwear. She said that she did not tell her boyfriend what had happened because she was scared. She was not sure what happened and was unsure what her boyfriend’s response would be.
She agreed that she was upset when she went to work and agreed that her friend, Rose Connor, pushed her to go to the police even though she did not remember what had happened.
She was shown some photographs of the interior of Mr Sarbandi’s house and identified them and the parts of the house that they showed.
In re-examination, she agreed that she had not been asked, prior to being asked in cross-examination, what the subject of the second argument with her boyfriend was.
She was also asked whether she would have consented to having sexual intercourse with Mr Sarbandi and said that she would not. She said, “I was with [my boyfriend] at the time and it is not something I would have ever thought of”.
(b) Rose Connor
WJ’s work colleague, Rose Connor, made a statement to police which was tendered without objection.
She had worked with WJ for about two years and, in that time, had become “very close” to her. In her statement, she referred to meeting WJ on Friday 16 April 2010 but, in oral evidence, corrected that. It was, she said, the day after she had dropped WJ off at her boyfriend’s house, clearly 8 April 2010.
She said that when she met WJ at work, she was “very fidgety, she was talking very fast and kept on twisting a Rubik’s Cube in her hand while [they] had coffee.”
She said that WJ told her she was upset because she did not have her bag with her. Ms Connor described WJ as “very disoriented”. At that stage, however, WJ would not tell Ms Connor what was wrong.
Ms Connor pressed her and WJ broke down, put her face in her hands, and started sobbing. She said that she thought she had been raped. Ms Connor said that WJ told her that, after she had been dropped off and she had dinner with her boyfriend and a few drinks, they had an argument. WJ told Ms Connor that her father had told her she must be home by 9:30 pm or she would be grounded and she did not know what to do. She left her boyfriend’s place and sat on the kerb in front of his house trying to work out what to do.
Ms Connor said that WJ told her that the man next door came and asked her if she was alright and offered her a glass of water. WJ told the man that she was alright but she was thirsty so she went into his house and sat on his lounge. Ms Connor said that WJ told her that the man came in with a glass of water which she drank and then he went back to the kitchen returning with two glasses of bourbon and coke and told her to have a drink. Ms Connor said that WJ told her that she had taken one or two sips of drink and that was the last thing she remembered until she woke up naked on his bed. She felt very disoriented and did not know where she was. She stood up and felt very out of it and saw her clothes all laid neatly at the end of the bed.
Ms Connor said that WJ told her she put her clothes on and left but, as she walked out, saw the man lying in the lounge room in his underpants. Ms Connor said that WJ told her that she asked him where her bag was and he told her that she did not have one. She then tried to find her way out of the house and finally left through the front door.
Ms Connor said that WJ told her she went back to her boyfriend’s place, asking him if he had seen her bag and he said he had not so she went back to where she had spent the night and knocked on the door which was not answered until she banged on the door. She asked him where her bag was and he said he did not know. WJ told Ms Connor that, as she left, the man called her and said, “You know that [your boyfriend] will find out about this?”
Ms Connor said that WJ panicked because she did not know what happened. She went home and had a shower and went to work. When Ms Connor asked WJ how she knew she had been raped, WJ told her that when she went to have a shower she still had semen around her stomach and around the top of her legs. She was afraid that people would not believe her.
Ms Connor said that she took WJ to Tuggeranong Police Station but could not get her out of the car for ages because “she was terrified and holding on to the seat”.
Ms Connor said that while they were waiting in the Police Station she received a call on her mobile phone from her boss advising that a man had rung the store and said that he found WJ’s bag.
WJ then had a conversation with a Police Officer but decided not to give a statement. They did go to the Forensic and Medical Sexual Assault Care (FAMSAC) of the Canberra Hospital and saw a doctor, where WJ was tested and provided the clothes that she had worn the night before. Later that day, Ms Connor took WJ and her boyfriend to retrieve the bag. She said that WJ told her nothing had been removed from the bag.
When Ms Connor, WJ and her boyfriend returned to the WJ’s boyfriend’s house, his stepmother met them and appeared to be very angry.
WJ’s boyfriend went to the next door house and shouted at Mr Sarbandi but his stepmother told him to come back. Mr Sarbandi came to the front door shouting, “What’s wrong, what’s the problem?” and then left.
Ms Connor said that she then drove WJ home to tell her father.
WJ later told Ms Connor that her boyfriend’s father had visited Mr Sarbandi and asked him outright what had happened. Mr Sarbandi said that WJ had come into his house for a glass of water and he let her sleep on the lounge, emphasising that she was fully clothed. It was, at that time, that WJ became upset and decided to make a statement to police which she did and also gave to police the underpants that she had been wearing on that night.
Ms Connor was briefly cross-examined. In cross-examination, she agreed that that JW was reluctant to speak with police and it had been She who had encouraged JW to speaking with police.
(c) WJ’s boyfriend, SJ
WJ’s boyfriend, to whom I shall refer as SJ, also gave a statement to police which was tendered without objection, “save for the usual caveat about second hand and third hand” hearsay.
In his statement, SJ said that he had been in a relationship with WJ since November 2008. He said that he lived in a converted garage attached to his father’s house in Gordon. He said that, on Thursday 8 April 2010, WJ came over to his house and they had dinner and drank some alcohol. He said that WJ was not drunk “as she only had a couple” and that he was not drunk either.
He said that, later in the night, WJ and he argued over something and he ended up telling her to leave at about midnight. He said that she was carrying her black coloured handbag, but does not remember whether she was carrying anything else. He said that about twenty minutes later he stood up and went outside to look for WJ. He yelled out her name in front of his father’s house and all around the street but could not find her and thought she had walked back to her father’s house. He went back inside and went to sleep.
He said that the next day he woke up around 6:30 am to get ready for work. He was in the shower when WJ came in, still dressed in the same clothes from the night before. He said that he asked her whether she had been home and she said that she had. He said that he thought she was lying because her hair was messy and he “felt that there was something wrong”. He said, however, that she gave him a kiss and left the house before he could talk to her.
He went to work but later around lunchtime received a phone call from WJ. She was upset and crying saying that she thought she had been raped during the night by the next door neighbour. He said that WJ could not talk and that Ms Connor came on the phone and that they were at the FAMSAC.
He went there and met Ms Connor while WJ was inside. He said that when he saw her later, WJ broke into tears. He said that Ms Connor then took him and WJ to retrieve WJ’s handbag and they were then driven home by Ms Connor. He said they went inside to talk to his stepmother and while they were there he saw Mr Sarbandi’s car pull into the driveway. He said he went out and confronted him, raising his voice angrily.
His stepmother came out and told him not to swear and he and his stepmother went back inside.
He said that a few minutes later Mr Sarbandi came over and knocked on the front door of his father’s house, but his stepmother told him to go away and slammed the door in his face.
In his oral evidence, SJ said that he thought, on the evening of 8 April 2010, that he and WJ had gone to dinner at a Thai or Chinese restaurant at Lanyon. He thought that WJ had drunk only a couple of glasses of red wine. He said they were at dinner in the restaurant for about an hour and a half.
He confirmed those details in cross-examination and was asked about the argument. He said he could not remember exactly what it was about, though their voices were raised a bit. He agreed that it was as a result of the argument that WJ left. He recalled that after having a cigarette she returned but he was not really sure about that.
He did not think that they had purchased fast food to take away.
He was also asked about a previous relationship he had had. He agreed that it was a pretty volatile relationship and that he and his partner would argue and shout at each other and that the police were called to his residence a couple of times.
He also admitted that sometimes he had fights with his father, meaning arguments which sometimes became heated but not physical, though sometimes there were some “pushes”.
He also admitted that, on 18 April 2010, he had threatened Mr Sarbandi with a piece of wood, a branch of a tree that was lying on the ground.
He did remember picking up a letterbox, which may have been Mr Sarbandi’s, and throwing it through the front window of Mr Sarbandi’s house on 16 May 2010. He said he then picked up a rock and threw it through the back window of Mr Sarbandi’s utility. He said he thought he was intoxicated when it happened but he was very, very angry.
He also agreed that he raised his voice angrily with Mr Sarbandi when he, WJ and Ms Connor had returned home on 9 April 2010 after being at the hospital and collecting WJ’s bag.
He agreed that he was very angry with Mr Sarbandi and called him “a rapist”. He agreed that his stepmother had told him to calm down.
In re-examination, he said that he had thrown the letterbox and the rock at Mr Sarbandi’s property because he was angry as he believed that Mr Sarbandi had raped his partner.
(d) SJ’s father, HTJ
I shall refer to the next witness, the father of WJ’s boyfriend, as HTJ. He made a statement to police on 12 May 2010, which was tendered. He agreed that there were some errors in it which, where relevant, I will note below. He also gave oral evidence. His evidence was as follows.
He said that his son lived in a garage at his home in Gordon.
He referred to the relationship between his son, SJ, and the complaint, WJ, and that they had been in a relationship for about twelve months. He was aware that WJ had just turned seventeen. He also stated that WJ initially visited his son on the weekends, but eventually was more regularly there when, as he described it, she “would sneak into [SJ’s] flat after [his] wife and [he] had gone to bed”. He noted that they “stayed at home a lot” and he “saw them drink alcohol just about every night, or saw the remnants of the alcohol in the mornings”. He expressed concern about their drinking but said, “They didn’t listen”. He thought there was not only alcohol, being spirits out of a can, but marijuana also involved.
He also gave evidence of arguments over the phone or in the flat and, following those arguments, WJ would go home.
He said in his statement that his son rang him on Sunday 28 March 2010. He acknowledged in his evidence to me that that was an incorrect date and that his son had rung him the day after the incident. There is no dispute that this occurred on the late evening of 8 April 2010 or the early morning of 9 April 2010. HTJ stated in his sworn evidence that his son rang him the day after the incident, which I take to be 9 April 2010. He said that SJ told him that WJ had been raped by Mr Sarbandi. He said he “could not get much more out of him”. His son, however, did tell him that they had informed the police.
When HTJ arrived home, his son repeated what he had told him. At the time, WJ was not with him and he told his son that the police would handle the situation.
He said that, on 18 April 2010, his son moved out because of the incident and because he was causing problems at home.
In his statement, HTJ said that, about a week later, Mr Sarbandi knocked at his door and asked to speak to him. He went to Mr Sarbandi’s house where they had a conversation out the front between the two houses. They did not go inside Mr Sarbandi’s house. Mr Sarbandi told HTJ that he wanted to tell him what had happened because of the incident between him and HTJ’s son.
HTJ said that Mr Sarbandi told him
On the night, he had just got home from the gym and seen [WJ] staggering up the road. He had not recognised her at first. He saw her knock on the next door neighbour’s house ... He was in his car and talking on the mobile phone at the same time and didn’t worry very much about it until he saw her come back as there had been no answer on the next door neighbour’s house.
He then saw her knock on his door. He was still on the phone with his friend. That’s when he recognised that it was [WJ]. He came out and she told him that she’d just had an argument with [SJ] and couldn’t go home and that she needed a place to stay.
She asked him not to tell [SJ] about this as he would get upset. She was falling all over him and couldn’t stand up, he thought she was really drunk. He took her into the spare room and sat her on the bed.
As he was leading her to the spare room, he had to hold onto her clothes by the shoulders as she was falling all over him and he was afraid to let her cuddle him in case she got the wrong idea.
After he sat her on the bed, he told her that when she was ready to go to bed to turn the light off.
That was the last he saw of there [sic] that night. The next morning, he found that the light was still on in the spare room and she was gone.
Later that morning, when he was still at home [WJ] came back to pick up some things that she had left behind which he had not noticed earlier. As she was leaving, she asked him not to tell [SJ] that she had stayed there the night.
HTJ told Mr Sarbandi that WJ had accused him of raping her. HTJ said that Mr Sarbandi could not believe that such an allegation had been made and asked him to bring SJ and WJ to have a talk so that he could tell him what happened that night. HTJ said that SJ did not like that idea.
HTJ also said that he believed Mr Sarbandi’s story. He said that WJ had not said anything to him about what happened.
HTJ was cross-examined, and confirmed that he had told the prosecution that SJ had moved out because he had become “drunk and abusive”. He agreed that SJ would “think about what had happened” and damage the walls. He confirmed also that at the time SJ was having trouble with alcohol. He was asked about SJ’s previous partner and the relationship between SJ. He agreed that it was a fairly volatile relationship. Sometimes they had very heated arguments in his flat, which was the garage to HTJ’s house, and sometimes those arguments would spill down onto the street.
HTJ also said that Mr Sarbandi had not approached him prior to SJ moving out, but the conversation he recalled occurred after he had moved out.
(e) Dr Catherine Sansum
Evidence was called by the prosecution from Dr Catherine Sansum, a staff specialist medical practitioner at The Canberra Hospital with expertise in preparing medico-legal reports. Her qualifications include a Bachelor of Medicine and a Bachelor of Surgery, a Diploma of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Certificate of Family Planning and a Masters Degree in Forensic Medicine. She was also a Fellow of the Royal Australian College of General Practitioners and a Fellow of the Royal Australasian College of Legal Medicine. She worked extensively in areas including accident and emergency, obstetrics and gynaecology, paediatrics, family planning, general practice and forensic medicine and sexual assault.
There was an objection to some of the evidence adduced from Dr Sansum and, initially, a voir dire was held.
I ultimately admitted the evidence and admitted the evidence that had been given on the voir dire.
A report of the medical examination of WJ by Dr Sansum was tendered. The examination occurred at 2:15pm on 9 April 2010. Various forensic samples were taken and a medical history was taken. The history of the alleged offence was recorded in the report as follows:
·argument with boyfriend;
·went outside, approached by neighbour;
·asked if she was “ok”. Offered glass of water at his place;
·given Bourbon/coke drink in a glass;
·few sips ® doesn’t remember anything after that;
·woke at [about] 5.30am naked on bed;
·alleged offender on couch in underwear;
·left and went home [WJ’s];
·felt dizzy and confused. Nausea and felt unwell while walking home.
Consistently with WJ’s lack of memory, WJ was unsure about the circumstances of the alleged offence but did report that, when she returned the next morning, Mr Sarbandi “threatened [WJ] that [SJ] (her boyfriend) will find out”.
She told Dr Sansum that, when showering, she had noticed “? dried ejaculate” on her abdomen and both thighs.
Dr Sansum noted under the heading “related to possible drug ingestion (as reported by patient)” the following symptoms: “amnesia, nausea, dizziness, felt lost, disoriented”.
She also noted that the alcohol consumption was reported as WJ having her last drink at 7:00 pm on 8 April 2010 being three pre-mixed cans of vodka and a half of bottle of white wine.
Dr Sansum noted a 1x1cm green bruise on the top of WJ’s left breast and a small linear abrasion at the top back of her left arm. There was a 1x1cm brown bruise on her outer left side at the bottom of her torso. It was unclear what the significance was of these bruises and it did not become clear later in the evidence. There were no abnormalities on the vaginal examination, but WJ declined an internal examination.
Dr Sansum also prepared a report in relation to toxicology.
Based on the height, weight, age and sex of WJ and the estimated quantity of alcohol drunk and the timeframe, she estimated that WJ would have had a blood alcohol concentration at midnight of between 0.075 grams per one hundred millilitres of blood to 0.18 grams per one hundred millilitres of blood. She noted it was an estimation; the actual level may have been higher; conversely, it may have been lower. In her oral evidence, she emphasised that it was an estimate with a number of variable factors, but that the usual formulae are recognised to give an estimate accurate within about ten percent, though still able to be influenced by factors such as food consumption and the amount of body fat compared to muscle.
Dr Sansum subsequently prepared a further report but, in this case, was asked to base it on a different timeframe for the consumption of alcohol. In this case, the consumption of alcohol was changed from between 5:00 pm and 7:00 pm to consuming between 6:30 pm and 11:00 pm. The amount of alcohol consumed remained unchanged but the results of her calculations showed that, at midnight, the estimated blood alcohol concentration for WJ would be between 0.069 grams per one hundred millilitres of blood to 0.16 grams per one hundred millilitres of blood.
Dr Sansum also gave evidence that she was provided with a toxicology report which showed that there was THC in WJ’s blood. She was asked to calculate the level of THC at midnight on 8 April 2010 but was unable to do so. The toxicology report, however, was consistent with WJ having consumed cannabis within a day or so prior to 8 April 2010, or on that day.
Dr Sansum was also asked about issues concerning what were described as “date rape drugs”. Dr Sansum said that the appropriate term was “[d]rugs facilitating sexual assault”.
She said that there were a number of such substances, the number used for the purpose basically limited only by one’s imagination. She reported that alcohol was the most common, but other drugs included a range of prescription medications, over-the-counter medications and illicit substances.
In relation to over-the-counter medications, she referred to those which had a “potentially sedative effect” and that these include antihistamines and some cough mixtures.
As to illicit drugs, she said that anything with a sedative potential would be within the class, thus comprising the narcotic group of drugs and benzodiazepines. She also referred to another group, gammahydroxybutyrate (GHB), an illicit drug not available over the counter or by prescription.
She confirmed that drug substances facilitating sexual assault can be administered orally; indeed, she said that, realistically, all of them could be administered orally and she had only ever come across one administered as an inhalational anaesthetic, but that was very uncommon.
She stated that many of the substances are tasteless and often clear and, particularly when combined with something with its own strong flavour, such as Coca Cola or a spirit alcohol, their presence would thus be very hard to detect. The mixture of the drug with alcohol would have an additive effect because both have sedative properties. She was asked about the effects of the substances but stated that this actually depended on the substance and the amount of substance, but that it could include a reduced level of consciousness, altering behaviour so that the person ingesting the drug may be more promiscuous or less inhibited, while some substances make the person ingesting them very sleepy, incapable of moving, and others impair memory.
She was also asked about how long such substances take to generate an effect and answered that, again, it was very variable depending upon the substance and depending upon the rate of absorption and the dose given. She said some of the shorter, quicker-acting substances can take effect within fifteen minutes although she said that some more recent evidence showed that GHB can start to take an effect within five minutes. With alcohol, it is very difficult to state when it would have an effect on somebody’s memory because of the variability of effect. The occurrence of alcohol impaired memory, she said, is also very variable and depends also on the experience of the drinker, a seasoned drinker being able to tolerate a much higher level of alcohol consumption.
She said that the length of time the effects last depended upon the substance and was anywhere from minutes to hours. Asked also about the length of time such substances take to metabolise, she confirmed that that was also very variable depending on the substance. Some of the shorter-acting benzodiazepines are cleared from the system within a matter of a few hours; GHB is often cleared within an hour and other substances can be present for days. Thus, depending upon the substance that was administered, it may or may not be expected to show up in blood or urine of a person thirteen hours after it was administered.
Dr Sansum also confirmed that impairment of memory and consciousness is a very common theme with the use of such drugs.
In cross-examination, Dr Sansum confirmed that it was very variable between person and person as to how fast alcohol would be metabolised. She added that a very seasoned drinker will metabolise alcohol a lot more quickly than a relatively inexperienced drinker, though this is not necessarily related to the metabolic rate but rather the ability to tolerate the effects of alcohol. In re-examination, she defined a “seasoned drinker” as someone who drinks perhaps three or four drinks per day over several years.
Dr Sansum further confirmed in cross-examination that no benzodiazepines nor GHB were detected in the forensic samples she had taken from WJ between thirteen to sixteen hours after the incident. She confirmed that it was entirely possible and consistent with what she had found that WJ was administered something, such as GHB, which had metabolised and also that she had not been administered anything at all.
She was asked about the drug Rohypnol and confirmed that it had a much longer half-life compared to some other Benzodiazepines. She confirmed that it was not detected though she could not totally exclude it because a very small dose might have been given and she was unaware of the levels of detection applied by the local pathology laboratory.
(f) Detective Senior Constable Thi Anh Phuong Nguyen
The informant, Detective Senior Constable Thi Anh Phuong Nguyen, gave evidence that she had spoken to WJ on 10 April 2010, when WJ wished to make a complaint about a sexual assault that she had reported on 9 April 2010.
Arrangements were made to meet WJ on 23 April 2010 and she did so, recording the interview under the provisions of the Evidence (Miscellaneous Provisions) Act.
Detective Senior Constable Nguyen gave evidence of seizing and examining the black handbag which WJ said she had lost and which was subsequently handed in. She also gave evidence of arranging for WJ’s underwear to be subject to forensic examination.
A number of witness statements were also tendered through her. These were statements to which I shall refer later.
Detective Senior Constable Nguyen referred to the collection and delivery of samples for examination to which I do not need to refer further.
She also gave evidence of executing a search warrant on Mr Sarbandi’s house on 29 April 2010. One item only was seized during the execution of the search warrant, namely a light pink coloured fitted sheet that had been on a single bed in a spare bedroom at the back of the house. No other evidence was given about that sheet.
She also described the house and produced a plan of the house which she had obtained.
During the course of the execution of the search warrant, some photographs were taken and they were exhibited.
Detective Senior Constable Nguyen referred to markings on the floor of the spare bedroom, being indentations in the carpet which indicated where another bed may have been alongside the spare bed in the room.
She also referred to a couch on which was located a doona.
A video was taken of the premises during the execution of the search warrant and that was played. I do not need to refer to it further here but, where relevant, will do so later.
During the course of the execution of the search warrant, Mr Sarbandi was asked about the allegations.
He stated that he knew SJ, who lived next door. He said that every two or three months there would be altercations there, fighting noises, females screaming, suggestive of violence issues with his girlfriends. He said that SJ had “violence issues” with his girlfriends.
He said he did meet WJ when SJ wanted to do some things to Mr Sarbandi’s car.
He referred to the incident on 8 and 9 April 2010 and said he had been to a gym at Woden. He said he was normally home by 10:30 pm. He said he was sitting in his car on the phone when he saw a woman with a Woolworths green bag in her hand walk past his car and walk into the street. She then came back again and sat down on the ground. He thought he should go and ask her what was going on, but as he was about to do so she stood up and knocked on his door. He said, “Can I help you?” and she identified herself and started crying. She said that SJ had threatened her and been hitting her and that her father would not let her come home. He said she asked whether she could come in. He let her in and showed her into a guest room.
Mr Sarbandi described her as “nearly falling down, that she was drunk”. He said he grabbed her on her shirt and showed her into the room.
He said that he then went to his room, finished the conversation on the phone and heard some movement like WJ using the bathroom and then he went to sleep.
The next day he got up and heard knocking at the door. He went to the door and saw WJ, who said that she had left something in the house. She came in and as she was leaving, apologised for “the trouble ... the hassle” and left.
He said that when he came home from work in the afternoon SJ was very angry at him and threatened him. He said that SJ’s stepmother came out and he asked to have a word with her but she suggested that it be left for now.
He later had a conversation with SJ’s father, HTJ, who told him that WJ had accused him of having sex with her. Mr Sarbandi said that he denied it to HTJ.
He said that he was later threatened by SJ. He called the police, who came and interviewed SJ who, he said, admitted that he had damaged Mr Sarbandi’s mailbox and the concrete on his driveway.
He then explained how he had spoken to HTJ and told him about how WJ had come to him asking to stay there because she could not go home and he thought there was nothing wrong with that and let her in. He said that as soon as she walked in she said something like, “Oh your house is like a palace, it is beautiful”.
He also said that he was talking on the phone to a man called Gilbert. He described to police what he was wearing at the time. He was wearing dark blue or black shorts, a t-shirt and perhaps a jumper and gym shoes. He was not clear about what WJ was wearing.
He described the bag she was carrying, a Woolworths green fabric bag which was full. He did not recall any other bag that she had with her.
He said that he could smell alcohol on her and that she looked drunk. He showed her into the spare room. He said that he had previously some friends from Sydney staying in the room prior to WJ’s occupation of it.
He added that, when WJ came back the next morning, she told him not to mention the matter to SJ, as well as apologising for the hassle.
He denied giving WJ anything to drink.
He could provide no explanation as to why there might be his semen on his bed sheets and denied sleeping in the bed in the guest room, saying it was very uncomfortable for him.
He confirmed that there had been another bed in the room, but it was broken and had been discarded. He also said that he had slept on the couch the previous night but that was the first time he had done so.
He denied having sex with WJ.
Detective Senior Constable Nguyen stated that she had obtained a DNA sample and some fingerprints from Mr Sarbandi which he provided consensually.
Mr Sarbandi was also asked by her to provide the telephone number of the man Gilbert to whom he had referred and he did so. Detective Senior Constable Nguyen subsequently obtained phone records for Mr Sarbandi’s mobile and home phones.
In relation to Mr Sarbandi’s mobile phone, the records showed four outbound phone calls between 10:02 pm and 10:03 pm, two of which were indicated as not having been answered. One of them was identified as being to Najla Alqahtani.
It also showed at 10:20pm an incoming call for approximately twenty-four minutes from Ms Alqahtani.
The records show a telephone call from “Gilbert” at 6:06 am on 9 April 2010, but no phone calls from Mr Sarbandi to him on the evening of 8 April 2010.
A recording of a telephone call between Detective Senior Constable Nguyen and Mr Sarbandi was also tendered. During the conversation, Mr Sarbandi gave to the police officer the details of the painters who had come and stayed at his house.
Mr Sarbandi said that he had, when he spoke to police earlier, “said something very silly”. He said that he “did lie a little bit in [his] interview” with the police. It appears that he had been informed that his DNA had been located in the material provided for forensic examination and he wanted to explain the situation.
He explained that he did have sexual intercourse with WJ but that it was with her consent. He further said:
I just lied because a few reasons first of all my kids recently family matter I have ...
and second she asked me not to tell anyone her boyfriend threatened me at the door that on the rapist he wants to kill me or whatever and then the other thing is my religion and I meant I confusing between here and my country I am living and I never had this trouble before I was scared of that raid you had in my house and it was shocking to me so I mean one day the judge will listen to me as well and they will find out this is the truth ...
She asked me to do that with her she did ask me and that was she she came back next day to collect her bag and if there was something forcing or anything like that or without consent it was it was completely different story.
He also appeared unsure in the telephone conversation as to whether he should have an interview and, quite properly, Detective Senior Constable Nguyen indicated that she could not advise him on that.
He also indicated that the sexual intercourse took place on the kitchen bench and not in the bedroom. He said
It happened on the kitchen bench when she was in the kitchen showing me my kids photo on the fridge and then she felt sorry for me that I haven’t seen them for such a long time and she started hugging me and she gave me a kiss under my neck because she feels sorry for me and that the same time she was drunk and then when she got so close she said to me exactly this she said to me fuck me and then I just said I just had sex with her right on the bench of the kitchen.
Detective Senior Constable Nguyen advised that she subsequently obtained statements from the two painters.
Those statements were part of the statements that were tendered through the police officer. They confirmed that, in around mid February 2010, they stayed in Mr Sarbandi’s house for about a week while they were engaged in a painting job in Canberra.
At the time, no-one else was living in the house as one of the painters said he understood that Mr Sarbandi was separated from his wife. One of the painters said that he stayed at Mr Sarbandi’s house on and off. Two of the workers would sleep in the guest bedroom.
Both said, in their statements, that they did not damage any property in the house and were not aware that they or the other painter who was with them had damaged any property in the house.
Detective Senior Constable Nguyen was cross-examined.
She was asked details of where WJ’s bag was found and she provided the details.
Later, Detective Senior Constable Nguyen was re-called without objection.
She gave evidence of the home telephone number of Mr Sarbandi and the obtaining of call charge records for that number. They were tendered and added to the statements that had been tendered without objection.
She also gave evidence that she had driven from the Southern Cross Health Club to Mr Sarbandi’s residence and it took her between 8:07 pm and 8:26 pm, nineteen minutes at that time to drive that distance. She said that, at the time, she drove at or below the speed limit under light traffic conditions.
She was further cross-examined about the route that WJ may have taken to travel to her home and agreed with the suggestion made by Mr Sarbandi’s counsel that there was a footpath or a route that includes walking along a nature strip that would achieve that. Detective Senior Constable Nguyen had not walked that whole route herself.
Detective Senior Constable Nguyen confirmed that, during the execution of the search warrant, she did not seize any glassware because none of it matched the description given by WJ of either glasses, the tall one with the circular pattern or the short tumbler style glass.
In re-examination, Detective Senior Constable Nguyen confirmed that she had inspected glasses in a glass cabinet in the premises and that none of the glasses matched the description that had been given by WJ of glasses said to have been used on the night.
Tendered statements
(a) HKJ, Stepmother of SJ
In her tendered statement, HKJ, SJ’s stepmother, stated that she was at home on 8 April 2010 when she heard SJ and WJ arguing in the garage at about 10:30 pm. She went out to the garage and saw SJ standing at the door. She thought he had been drinking and would have been over the limit to drive. He appeared very emotional and his speech was slightly slurred. He told her that WJ had been drinking as well. He said that he told her that he and WJ had had an argument and WJ had left. HKJ went to the end of the driveway onto the road looking up and down the street but could not see WJ, so she assumed she had gone home.
She stated that, at 4:00 pm on Friday 9 April 2010, SJ and WJ arrived home with an older woman, who apparently was Rose Connor, and she was told of what happened the previous night. She said:
[WJ] told me that she and [SJ] had had a fight the night before which I was already aware off [sic]. She further said that she left our house and Amir invited her inside his house for a glass of water out of concern as she had told him that she had a fight with [SJ].
She said they sat at the kitchen bench where there was stools. She was given a glass of water, before Amir offered her an alcoholic drink.
That was all she remembered until she woke up the next morning. She was naked in his bed and when she went out to leave the house Amir was lying on the couch.
She was told that WJ had already gone to the police.
As they were there, she saw Mr Sarbandi arrive home and SJ ran out shouting at him. She coaxed SJ back inside and Mr Sarbandi came over but she put him off and shut the door. She said that Mr Sarbandi appeared not to know the reason why SJ was upset.
She also referred to the conversation which her husband HTJ had with Mr Sarbandi some days later.
(b) AW
WJ’s father, AW, also made a statement which was tendered. He confirmed that WJ was seventeen years old at 8 April 2010 and that she had been going out with SJ since about February 2010.
He stated also that, at about 8:00 pm on 8 April 2010, he had spoken to WJ on her phone and she “seemed normal and did not sound like she had been drinking”.
He stated that, when she not home by 9:00 pm, he tried to call her about five times but her phone was not answered.
He said that he did not see WJ on the morning of 9 April 2010 but was certain that she was in the shower when he left home just after 7:00 am.
When he returned home that night, WJ was already home with Rose Connor, who explained that WJ had been sexually assaulted and had been taken to the hospital.
(b) David Sheville
The gentleman who found WJ’s bag, David Sheville, also provided a statement. He said he had been out for a walk at about 6:45 am at the end of the first week in April and, on his return journey, he found a black handbag next to a white plastic shopping bag under the Knoke Avenue Bridge. They were alongside the brick wall of a townhouse. He had passed the spot half an hour earlier but not noticed the bag there at that time.
After discussing the matter with his wife on the mobile phone he picked the bags up and took them home. He said the handbag was open when he found it and there was a supermarket ID badge inside the bag. He called the supermarket and spoke to the manager. Shortly after, WJ phoned him and told him that she thought it was her bag. They made arrangements to collect it and later WJ, SJ and Rose Connor came to collect the bag. He had a short conversation with SJ who told him that WJ had “got into strife last night and got raped”.
(c) Gilbert Russell
A statement was also tendered from Gilbert Russell who was a labourer who worked for Mr Sarbandi from time to time.
He denied using any of the numbers that had called Mr Sarbandi on the evening of 8 April 2010.
(d) Hassan Alqahtani
A statement was provided also by Hassan Alqahtani, the husband of Najla Alqahtani. He referred to two phones which were both registered in his name but one of which was used by his wife. His wife was currently overseas using another phone but at the time she used a phone which was the telephone number connected to Mr Sarbandi’s phone on the evening of 8 April 2010.
(e) Katie Ryan
Katie Elizabeth Ryan, a Manager at the Southern Cross Health Club also provided a statement. She confirmed that Mr Sarbandi was a member of the gym and that he had entered the gym at 7:35 pm on 8 April 2010. She said that members do not have to swipe their membership card when they leave the gym but the health club closes at 10.00pm on Thursday evenings.
(f) Katherine Billing
Registered Nurse/Midwife, Katherine Billing, gave a statement which attached a report based on contemporaneous notes from the clinical consultation with WJ on 9 April 2010 at 2:15 pm. The consultation was attended by Dr Catherine Sansum as her medical adviser.
The report corroborated the evidence of Dr Sansum.
(g) Jennifer Gay Stone
A statement of Jennifer Gay Stone, Forensic Biologist, was included in the statements, it referred to certain items that had been seized by police and which she was asked to examine. Her examination showed that a high vaginal swab taken from WJ had a sperm fraction from which a male DNA profile was obtained; it provided extremely strong support for the DNA originating from Mr Sarbandi than from another unknown, unrelated individual selected at random from the Australian Caucasian Sub-Population. A similar result was obtained from the analysis of a sperm fraction from the low vaginal swab taken from WJ and a sperm fraction of a labial swab also taken from her.
(h) Joshua O’Connor
Federal Agent, Joshua O’Connor, was the corroborator to the investigation with Detective Senior Constable Nguyen and his statement corroborating her evidence was also tendered.
Telephone Official Statements
A number of official statements from officers of telecommunication companies were tendered to which were attached various telephone records. I do not need to set out the contents of these statements themselves as the evidence relating to them was not challenged. I refer to the telephone records where relevant.
The defence case
(a) Amir Riza Abdolali Sarbandi
The accused, Mr Sarbandi, gave evidence. His evidence showed the following.
Born in Iran in 1974, he came to Australia in 1998 and, after arriving, married. He and his wife have two children but the marriage ended after a separation in July 2009. He has not seen his children and ex-wife since 24 October 2009.
As a result of an incident, to which I do not need to refer in more detail, Mr Sarbandi was, at the time of giving evidence, on medication for anti-anxiety and for pain. The medication caused him to sweat more than usual and had a somewhat depressive effect. I took that into account when considering his demeanour for the purpose of assessing his evidence.
Since arriving in Australia, he has been in the plastering business, later being granted a builder’s licence.
His evidence was that, on 8 April 2010, he had been to the gym at the Southern Cross Health Club at Woden. To the best of his recollection, he left at the very last minute which, on the basis of the evidence from Ms Ryan, would be about 10:00 pm. He may have left a few minutes before that time. He drove pretty well straight home. On the way, he had a telephone conversation with a woman he knows as Najla. At the time, he did not know she was married, but they were just friends; there was no sexual relationship with them. He denied having any romantic feelings for her. She was a dancing partner and they used to go to clubs from time to time.
When the telephone conversation finished he was still in the car in his curved driveway at the front of the house.
Before he finished the conversation he saw WJ but he did not recognise her at the time. He had met her previously at SJ’s house when SJ had asked Mr Sarbandi for a tool to do some work on his car. He had known SJ since he had moved into his Gordon residence in about 2004.
He had heard a number of arguments between SJ and his previous girlfriend but he could not recall hearing arguments between SJ and WJ. His former wife had had occasion to telephone the police because of the arguments between SJ and his previous girlfriend. On that occasion, they had seen her running down the street naked followed by a male with some kind of weapon, a stick or bat, in his hand and HTJ calling on them to stop.
When Mr Sarbandi first saw WJ on 8 April 2010, she was carrying a green fabric Woolworths shopping bag almost full. He did not notice whether she had any other bags with her.
He saw her go to a neighbour’s house and then walk back towards his house. He could not remember whether she knocked at his door first or sat down next to the bin first. She did one of those things and then the other.
He mentioned this to Najla on the phone and then said that he would call her back later and hung up.
He was reminded that, when he spoke to the police, he said that he was talking to Gilbert on the phone. He admitted that that was a lie because Najla did not want anyone to find out that she and Mr Sarbandi were friends and went out together. He said that this was her request and he had to be loyal to her. He was also concerned, he said, that the relationship might have some effect on his access to his children.
After he terminated the telephone conversation, he got out of the car and walked to WJ. He recalled she said something like “I’m [SJ’s] and my name is [WJ]”. He then recognised her and noted that she had tears in her eyes and was shivering. He could smell alcohol on her breath.
He said that she told him that she and SJ had argued. She said that her father would not allow her going home because it was after 10:00 pm and asked if he could accommodate her. He could not recall the exact words she said.
He recalled that he suggested that he might talk to SJ but she said, “No”, emphatically and appeared scared.
As a result, he opened his front door and went inside and she followed him. She expressed amazement and delight with the house and said, “Wow”. She then walked towards the kitchen, he said, and he followed her and stood next to the kitchen bench.
There were photos of his children on the fridge and he said she came to island bench in the kitchen and asked, “Is your wife home?” or whether she was sleeping or something like that. Mr Sarbandi said he replied, “No, I don’t have one” or that his wife had left him or something like that. He said that she said, “I don’t want her to get mad at me” and that she had seen a woman coming to the house. Mr Sarbandi noted that Najla had come to his house on occasions. He told WJ that any woman coming to his house was not his wife because she had left him some time ago.
WJ then saw the photographs of his children on the fridge and asked whether they were his children, to which he said, “Yes”. She asked him whether his children had gone as well and he said, “Yes, I have not seen them for such a time”. WJ then walked past the island and came to the fridge behind him and looked at the photos. He said she then came to him and gave him a hug.
He said that when she started hugging him she became “kind of emotional” and started kissing him on the upper chest area and the lower part of his neck. He said that her kisses became more sensual or sexual and he could hear her breathing. He said he was also becoming emotional and they started kissing on the lips.
He said that “[w]hen she start kissing [him] on [his] lips and she start kissing it, she – she start making it harder and harder, going very emotional. And then that’s the time she become like active and she started moving, she said, ‘Fuck me’”.
Mr Sarbandi said he could not control himself and he had become sexually aroused. He said that WJ started taking her clothes off and he started taking his clothes off as they continued kissing and rubbing and touching and then they had sexual intercourse right there on the kitchen bench. He said it happened very very quickly.
He explained that he had to help her onto the bench and she put her hand on the bench pushing herself up.
He was not absolutely certain that she was completely naked but he was sure that she took her pants and underwear off. He said that he ejaculated into her vagina and then withdrew.
He then said that she urinated. He then helped her down off the bench and guided her to the back bedroom of the house taking her to the door and let her find her own way into the bed.
He said that later he made another phone call to Najla and cleaned up the mess in the kitchen. Because some of WJ’s clothes were wet, he washed them and put them in the dryer and waited for them to dry. Because there were only two or three items, they dried quickly so he folded them up and put them on the bench or on the table in the house.
Mr Sarbandi said he had not had any alcohol and that he did not have any alcohol in his house.
He denied giving WJ a bourbon and coke. He said that he was now a member of the Baha’i faith and that both as a Muslim and a member of the Baha’i faith he was prohibited from drinking alcohol, though occasionally he did so. He said he was not aware what Bourbon was.
He said he could not remember whether he gave WJ a glass of water.
He denied that, until WJ invited him to do so, he had any intention of having sex with her.
He said that, after washing her clothes, he had another conversation with Najla and then he went to sleep in the master bedroom. He denied that he slept on the couch, despite the evidence of WJ.
Later in the morning, he heard someone knocking on the door and got up to answer the door. He saw that the door was in fact unlocked although he always locks it at night. When he opened the door he realised that the security door, which he also locks at night, was unlocked as well.
He saw WJ and noticed that she was nervous and in a rush. He said that she asked if she could come in and look for her bag and he invited her inside. He thought that she was looking for the Woolworths green bag. He waited at the door for her to search and when she came back she told him that she had not been able to find it. He asked her what bag she was talking about and she said that she was looking for her black bag. He said that she did not have any black bag with her the previous night; she only had the Woolworths bag but she assured him that she had a black bag with her. He said he did not see her with it.
He said she kissed him on the cheek and said something about thanking him for the previous night. She said, “Don’t tell anyone” or “I don’t want him to find out” and something about SJ being in the shower which was why she had come over to look for her bag.
Mr Sarbandi then went to work and, at the end of the day, returned home. When he had pulled into the drive he saw SJ coming towards him. He could see his face was “a bit red and angry”. When he opened the car door, SJ started threatening him, putting his index finger into his face and saying, “You’re a dead man. You’re a rapist”.
He said that before this he had a good relationship with SJ’s parents. Indeed, his stepmother was a teacher at his son’s school.
He confirmed that, at some stage, he discussed the matter with HTJ in which, Mr Sarbandi admits, he lied to him and did not tell him that he had had sex with WJ. He said he did not tell HTJ because WJ had told him not to tell anyone and because he had been threatened by SJ.
He also admitted that he lied to police. He said that, again, he did so because WJ had told him that she did not want anyone to know and he also felt constrained because of the lie he had told to HTJ. He also said that he was affected by the way the police approached him; he had never in his life been subject to an investigation of that kind and he initially did not understand why they had arrived. When he found out, he was worried because of his concern about access to his children and the dispute that was being heard in the Family Court. He said that every time he attended at the Family Court, his behaviour had become a very, very important issue in relation to whether he was allowed access to his children or not. He also said that, growing up in a Muslim culture, he was not accustomed to talking about sex. He would never talk about it and that was the influence that his religion and culture had on him, that sex is not something to be talked about.
He said that, prior to these allegations, he had not been charged with any allegation or criminal offences in Australia and, at the time of this incident, he had never been convicted or charged with any offences.
Recklessness means in this context either that Mr Sarbandi adverted to whether WJ was consenting but continued to engage in the sexual conduct regardless or that he was unaware whether she was consenting and, uncaring about that, continued with the sexual conduct. See Director of Public Prosecutions v Walker (2011) 246 FLR 413 at 424; [52]-[53].
Approach to the case
As the case depended very heavily on a fundamental conflict between the evidence of Mr Sarbandi and that of WJ, I was invited to give a direction of the kind identified in Liberato v The Queen (1985) 159 CLR at 515 as follows:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is common place for a judge to invite a jury to consider the question: Who is to be believed? But it is essential to ensure, by suitable direction and the answer to that question (which the jury will doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
The form of the direction has been set out by Kirby J, with whom Sheller JA and Dowd J agreed, in Anderson (2001) 127 A Crim R 116 at; [26] as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain: has the Crown, on the basis of the evidence which you do accept, prove the guilt of the accused beyond reasonable doubt?
I give myself those directions.
To a large extent, the case was a circumstantial one although, of course, the fact of sexual intercourse was admitted.
It is necessary for me as the judge of the facts, to approach the question of circumstantial evidence in the same way as a jury. The proper approach has been described by the High Court in The Queen v Hillier (2007) 228 CLR 618 at 637; [48]:
Often enough, in a circumstantial case, there will be evidence of matters which looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [[No 2] (1984) 153 CLR 521 at 535]:
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
(Footnotes omitted)
The events of the evening
In broad terms, there was not much challenge to the events of the evening. I make the following findings.
WJ was dropped off at SJ’s house at about 6:15 pm after work and they both walked to Lanyon Shops to obtain some food and alcohol.
WJ said that after purchasing their goods they returned to SJ’s house.
SJ, however, had a somewhat different account of the evening. He said that they had walked to Lanyon Shops where they had dinner at a Thai or Chinese restaurant and spent about an hour and a half there. I do not have to make a final finding of which version was correct, though it is likely that WJ’s version, given relatively contemporaneously, is more likely to be right.
WJ said that she drank white wine but SJ said that she drank red wine. Again, it may be that WJ is right in her recollection.
In any event, at some stage they returned home. WJ said that she had her first alcoholic drink on the way home, contrary to what SJ had said.
At a later stage, SJ and WJ had an argument and WJ left the house, but returned. She said that she had a couple more drinks and there was further argument. WJ said she left the house for a second time and sat in front of Mr Sarbandi’s house smoking a cigarette.
WJ said that the first argument was about the food, but that when she returned back they had a second argument. It appeared from her evidence that this was about a different topic, but she was unable to say what it was about.
After Mr Sarbandi had finished at the gym, he returned home around about 10:00 pm. He said that he drove into his driveway and sat talking on the phone to Najla. While there he saw her leaving SJ’s house.
WJ at first said that she sat out in the front of Mr Sarbandi’s house and smoked a cigarette until Mr Sarbandi approached her and asked if she wanted to come inside for a drink of water. She did admit, consistent with Mr Sarbandi’s evidence, and I find, that she walked up the street some distance.
Mr Sarbandi said that WJ knocked on the door of a neighbour’s house and then knocked on his door. In any event, he got out of the car and spoke to her and she explained that she had had an argument with SJ. He said she needed somewhere to stay as she could not return home since she had breached her father’s curfew. That seems likely in all the circumstances, though WJ said that Mr Sarbandi merely offered her a glass of water.
It is not necessary for me to resolve all these conflicts, although it seems clear that WJ and SJ had an argument which was sufficiently serious for WJ to walk out. It is, perhaps, somewhat curious that neither WJ nor SJ could remember what the argument was about, notwithstanding that it was sufficiently serious for WJ to have left, wanting to go home. That is also odd because the first argument, when WJ left and returned, she seemed to remember as being about the food that they had consumed, a relatively inconsequential matter.
Inevitably, the precise amount of alcohol that WJ said she had was not entirely clear, but it appears that she had three cans of the pre-mixed spirits, Smirnoff Vodka, together with about half a standard bottle of wine.
Insofar as there are differences between what WJ said and SJ said about the evening, I note that WJ’s account was given shortly after the events, while SJ did not give a statement until seven months later. It would appear, therefore, that WJ’s evidence is more likely to be correct.
WJ described her state of intoxication as “a little bit tipsy, not enough to not know what I was doing”. She said “she didn’t feel intoxicated” while speaking to Mr Sarbandi although she was, of course, upset at the time. This is consistent with the evidence of Dr Sansum who estimated that, at the relevant time, her blood alcohol concentration would be likely to be between 0.069 grams per one hundred millilitres of blood to 0.16 grams per one hundred millilitres of blood, not a significant degree of intoxication, especially for someone who, on her evidence, was a regular drinker.
SJ’s evidence confirmed that; he said that WJ “wasn’t drunk” that evening although she may have been, again consistently with Dr Sansum’s evidence, too affected by alcohol to have driven legally. I note, too, that AW, WJ’s father, spoke to her at 8:00 pm and did not find her drunk. I find that WJ was not drunk, she was affected by alcohol but not so affected that she could not hold a normal conversation with Mr Sarbandi for some time.
The toxicology report showed that WJ had some cannabis in her urine, but the evidence was that cannabis can remain present for some days following its consumption and WJ’s evidence was that she had consumed some cannabis some time before 8 April 2010, but not on that day. The effect of cannabis on her on that evening can, accordingly, be largely discounted.
Mr Sarbandi’s evidence was that WJ was walking in a slightly wobbly way. She was obviously upset. Given the degree to which she was upset, I am not prepared to infer that this meant that she was more affected by alcohol than I have already found.
Mr Sarbandi said that WJ had asked if she could stay at his place. WJ denied that. I find that odd. She had left SJ’s place and, clearly, in the light of the argument, was not going to return there. She was unable, or unwilling, to return home. Her evidence was that her father required her to be home by curfew time and that she could not return after that. Although a statement of his was tendered, it did not address that issue and certainly did not deny what she had said.
Accordingly, WJ had, it would appear, nowhere to go that night. She did not suggest otherwise in her evidence. Despite her denial, I cannot discount that she did, in fact, ask Mr Sarbandi whether she could stay at his place that evening.
Mr Sarbandi gave evidence about the conversation they had, some of which is confirmed by WJ. For example, she refers to a discussion about his children, though she says that the photograph was somewhere in the house other than the kitchen.
That she could have such a conversation is consistent with the level of sobriety that I have found.
WJ said she was offered a glass of water and then a Bourbon and coke. Mr Sarbandi denies that.
WJ carefully described the glasses that were used for the drinks. It is not insignificant that when the search warrant was executed by police, no such glasses were found. Glasses were found, but not of the description that WJ had given.
It is also significant that no alcohol, or other drugs facilitating sexual assault, were found during the execution of the search warrant. That is consistent with Mr Sarbandi’s assertion that at that time he was not drinking alcohol. Raised a Muslim and now of the Baha’i faith, he said that, although he lapsed because he liked alcohol, he generally tried to comply with the religious prohibitions on its consumption.
It seems to me unlikely that Mr Sarbandi would have any drugs facilitating sexual assault on the premises. He cannot have been expecting WJ or anyone else that evening. Given the subsequent events and the statements made by Mr Sarbandi, he was clearly not expecting the police to execute a search warrant, so it seems unlikely that he would have disposed of any such drugs or any alcohol before the search.
The toxicology report on the samples taken by Dr Sansum did not provide any support for the suggestion, and it was no more than a suggestion, of the prosecution that WJ must have been drugged. No evidence was led to suggest that WJ’s lack of memory was only consistent with the ingestion of such drugs and not, for instance, with her self-ingested alcohol. In the absence of any finding on the execution of the search warrant, the suggestion was entirely speculative. Other than the assertion by WJ that she could not remember anything after the ingestion of the Bourbon and coke, there is nothing at all to support what I consider to be entirely a speculative suggestion.
While there may be some suspicion, suspicion cannot fill the gap left in the evidence.
WJ’s next memory is of waking up completely naked. There is some inconsistency between that and Mr Sarbandi’s description, where he thought that she was still wearing her grey top and, presumably, therefore, her bra, when he guided her to the bedroom. He was, however, not entirely sure and, at one stage, thought that he may have washed her bra as well.
When she left the bedroom in the morning, she found her clothes. WJ initially told police that the clothes were in the room in which she had slept but then changed that in her evidence to say that they were on a table outside the room. This is consistent with what Mr Sarbandi said.
She found her green bag, but not her handbag or plastic bag. WJ said that Mr Sarbandi was asleep on the couch, but he denied that, saying that he did not sleep on the couch generally, and had done so only once when he fell asleep in front of the television. He would otherwise sleep in his own bedroom. Again, it is difficult to resolve the differences and I am not sure it is necessary.
WJ then left the house and returned home. Although she had earlier clearly implied that she felt semen on her legs while at Mr Sarbandi’s house, she later said that it was only apparent when she had her shower. It seems unlikely that if she felt semen on her legs at Mr Sarbandi’s house, she would not have had a shower before returning to SJ’s house. She later returned to SJ’s house to look for her bag.
WJ then says she went back to Mr Sarbandi’s house to look for her other bags, which she could not find. Mr Sarbandi said that she only had the one bag when she came in.
WJ said that, as she left, Mr Sarbandi tried to kiss her. Mr Sarbandi said that she did kiss him and asked him not to mention what happened the previous evening.
The timing is relevant. WJ says she awoke at 5:00 am and her evidence suggests she left shortly after that. SJ says that he awoke at 6:30 am and had a shower, when WJ returned. Mr Sarbandi says that he was awoken by WJ coming to his house. After she left, he had a telephone conversation with Gilbert Russell. That was shown on the telephone records to have been at 6:06 am. These timings are relatively consistent, though it seems that SJ must have been in the shower somewhat earlier than he thought. His evidence was not consistent with that of others, so this difference does not undermine other evidence of times.
Later, WJ went to work and spoke to her friend, Rose Connor, about what happened and was encouraged to make a complaint to the police, which she did.
Mr Sarbandi said that, when he took WJ down to the room, he had to guide her. He said to HTJ that she was “falling all over him” and he thought she was very drunk.
On this evidence, the prosecution submits that I will not be satisfied, beyond reasonable doubt, that, at the time sexual intercourse took place, WJ was consenting either because
(a) Mr Sarbandi put a substance into WJ’s drinks which resulted in her losing consciousness or memory; or
(b) WJ was intoxicated as a result of the alcohol she had consumed to the extent that she did not have the capacity to consent to sexual intercourse.
It does not seem, to me, that I can draw either of those conclusions beyond reasonable doubt. I have a reasonable doubt about whether Mr Sarbandi had alcohol at his home and whether he had any drug of the kind known as a drug facilitating sexual assault. It seems, to me, that the evidence about that is not a reliable basis on which to draw a conclusion as to the cause of WJ’s lack of memory beyond reasonable doubt, in the absence of corroborating evidence or of evidence excluding other causes.
As to whether her amnesia was caused by her level of intoxication, I have no evidence about that. Dr Sansum was not asked about whether the level of intoxication she calculated for WJ was consistent with any of the descriptions given of her behaviour or of her amnesia and, in particular, whether it would have overborne her will. Accordingly, I have a doubt about the submission that WJ was so intoxicated that she was in no position to consent to sexual intercourse. More importantly, I would need to find beyond reasonable doubt that Mr Sarbandi knew or adverted to the possibility that this was the situation.
In order to find Mr Sarbandi guilty, I would also need to reject an inference that WJ was not telling the truth. That could be, of course, deliberate or simply a faulty memory. I did not form the view that WJ was deliberately lying, though there were some significant inconsistencies in her evidence that I could not ignore.
I would also have to reject the possibility that the vagaries of memory meant that she genuinely did not remember what had happened. While I am not attracted to that possibility, I cannot discount it to the level required, namely, that it was not a reasonable doubt to be raised against the inferences that the Crown invited me to draw, particularly given the concerns I have about the basis of those inferences.
This is also consistent with WJ’s evidence in cross-examination that she and Mr Sarbandi talked for thirty to forty-five minutes. It is simply inconceivable that this would be consistent with a level of intoxication that deprived her of the capacity to consent to sexual intercourse. It seems, to me, that this is also inconsistent with an inference that Mr Sarbandi knew that the sexual intercourse was not consensual.
Assessment of WJ’s reliability
I did not form the view that WJ was deliberately lying to me, though that, of course, is a very difficult assessment to make. I have referred to inconsistencies in her evidence. For example, in her initial interview with police that was recorded and played as the evidence in-chief (see s 40S of the Evidence (Miscellaneous Provisions) Act), she said that she left SJ’s house at about midnight. That seems inconsistent with her own evidence and with the evidence of Mr Sarbandi and of the telephone records.
In that interview, she also gave a somewhat different chronology. She said that initially she went outside to have a cigarette and then returned and there was an argument about food. In her evidence in court, she said there were two arguments; the first was about food and then there was a second one. She was unable to recall what the second one was about even though that was the one which was obviously most distressing, causing her to take her bags and leave the premises and sit in the street crying.
I have already noted that there were some discrepancy between the description by SJ of what they did about dinner and drinks earlier on 8 April 2010 and WJ’s description. Given the difference in the time after the events that each was asked to remember those events, it seemed to me that it was more likely that WJ’s description was accurate, though the discrepancy between the two was something to be taken into account.
WJ did not give much description of what she did when she left SJ’s house in the initial interview, though she did not suggest that she had knocked at the neighbour’s door or at the door of Mr Sarbandi. She initially said that she simply sat on the kerb smoking a cigarette, but later said, consistently with the evidence of Mr Sarbandi, that she walked some way up the street, which he may have misinterpreted as her knocking on a neighbour’s door.
WJ expressly said that she did not feel intoxicated while sitting and talking to Mr Sarbandi.
She also denied seeing the photographs of Mr Sarbandi’s children on the refrigerator, but said that they got up and looked at photographs “across the hall – not really a hall, but we walked through the house and had a look at the photograph”. I have looked carefully at the video tape of the execution of the search warrant which showed the interior of Mr Sarbandi’s house. Certainly, one can see photographs on the refrigerator but I saw no photographs of the children elsewhere, especially where WJ said she saw them.
As I have noted above, in the police interview, WJ stated that her clothes were in the bedroom in which she slept, but she changed that to confirm that they were where they were sitting earlier on the night, the place where Mr Sarbandi said he put them. Ms Connor also said that WJ told her she spoke to Mr Sarbandi before leaving his house in the morning, but there was no mention of that in her evidence and it seems unlikely.
Also, although her diagram of the house was similar to the floor plan actually provided to the hearing, there were some significant differences, particularly in relation to the areas where WJ actually visited.
I also note that originally her evidence was that she felt semen on her legs while she was at Mr Sarbandi’s house, which seems probable. She later said that she found that out when she was in the shower at her home.
Although, while I did not consider that WJ was deliberately lying, there were such inconsistencies with her evidence that I must treat her reliability with caution.
Evaluation of the lies of Mr Sarbandi
The Crown relied heavily on what it said were numerous lies that Mr Sarbandi had told. It enumerated seven such lies. These included the lies he told to HTJ and the police when he had denied that he and WJ had sexual intercourse.
Many of them, however, could only be considered lies if I accepted the evidence of WJ. Thus, the Crown submitted that Mr Sarbandi lied when he said that WJ had knocked on his neighbour’s door. I accept that WJ denied that, but she did say that she had walked up the street and I can accept that Mr Sarbandi, in observing that, may have concluded that she knocked on the neighbour’s door even if she had not, depending on where WJ actually walked and the physical layout.
A number of the lies were not such as to evince a consciousness of guilt in accordance with the principles as I have set them out above (at [27]) in the directions I need to follow in considering them. For example, the Crown submitted that Mr Sarbandi had lied in stating that he did not sleep on the couch on the relevant evening, but in his bed. That can only be accepted if I accept WJ’s account but, in any event, it is difficult for me to see how that lie meant that the truth would implicate Mr Sarbandi in the offence.
Other errors submitted to be lies by the Crown did not seem to me to be necessarily lies. For example, Mr Sarbandi’s statement that WJ was wearing the long-sleeved top when the top given to police was different, does not seem to me to be a lie, in the absence of anything more significant, rather than the ordinary failure of memory that afflicts even honest people.
In relation to other lies also alleged, Mr Sarbandi gave explanations. He indicated that he felt that he was bound by WJ’s request not to disclose what had happened and that he was concerned about the implications for his Family Court proceedings.
It was submitted that it is hardly likely that a single, isolated sexual encounter would be prejudicial to his Family Court proceedings, but that is a submission that is likely to be understood by those with some legal training or similar experience. It was crystal clear, to me, that Mr Sarbandi was very committed to his children and was concerned about anything that might prejudice his access to them. That some of his fears may have been, to some extent, unrealistic, does not mean that they were not, to him, nevertheless real. He did refer to previous appearances where he said that his behaviour had been the subject of consideration at the court and this, of course, is not only quite likely but also very plausible. That he may not have understood the full extent of the relevance of such matters is also understandable.
I am reminded of the comments of many courts that there may be many reasons why an accused person will lie quite apart from a consciousness of guilt. For example, the Court of Appeal in Victoria said in R v Ciantar (2006) 16 VR 26 at 52; [86]
Consistently with Edwards, the judge should direct the jury that there may be many reasons for post-offence conduct apart from consciousness of guilt. For example, it may be the result of panic or fear, or a wish to escape an unjust accusation, or because of guilt of some other lesser criminal offence or moral wrongdoing falling short of criminal behaviour, or to protect some other person or to avoid consequences extraneous to the offence, and of course the judge should direct the jury on any explanations suggested by the defence.
Having carefully scrutinised the evidence of WJ, the other evidence offered and the evidence of Mr Sarbandi, including the explanations he offered, I am not satisfied that the lies he told were the result of a consciousness of guilt.
I accept, however, that the fact that Mr Sarbandi was prepared to lie does affect the reliability of his evidence.
Allied to the consciousness of guilt to be inferred from what were said to be lies told by Mr Sarbandi, was a submission that the location and finding of bags belonging to WJ on the morning of 9 April 2010 supported an inference that Mr Sarbandi did something that displayed a consciousness of guilt.
That relies, however, on a finding that Mr Sarbandi took the bags from his house and put them where Mr Sheville found them. The Crown submits that the only reasonable inference from the evidence is that Mr Sarbandi took the bags and placed them where they were found.
I do not accept that submission as the timing does not realistically allow for the possibility. Mr Sheville’s evidence was that it must have been placed between 6:15 am and 6:45 am. This was, however, either the very period of time during which WJ was at Mr Sarbandi’s house or immediately after she was there.
Her original statement to police gave the following timing:
I would have woken up about say five, five thirty, I got home and it would have been just about six o’clock. So I went back down there and asked my boyfriend, [SJ], if he had my handbag. He said, no, he’s only got my phone. So I went next door while he was in the shower, I quickly went next door and said to the man, I said, ‘Did you, did I leave my handbag here?’ And he said, ‘No’, he said, ‘You didn’t come with a bag.’ So that was that, I left his place and he said to me before I left, ‘You know that your boyfriend’s going to find out about this.’ And, you know, I walked off and he tried to kiss me. I went back to my boyfriend’s house and got my phone and rode home, I was home by six thirty.
On this version of the timing, the inference would have to be that Mr Sarbandi took the bags and dumped them after WJ had searched his house for them. That seems quite unlikely since he never denied that she had been to his house – that was not any lie – and there was no link between the bags and any sexual activity.
I reject this inference that Mr Sarbandi put the bags where they were found by Mr Sheville.
Mr Sarbandi gave his evidence openly, frankly acknowledging a number of the lies he told and giving an explanation for them. I did not form the view that he was deliberately lying in his evidence to me.
Consideration
Of course, even if I reject Mr Sarbandi’s evidence, the prosecution must prove the offences beyond reasonable doubt.
I am also well aware that while individual pieces of circumstantial evidence may be challenged in their own way, I must look at the whole of the evidence and the cumulative effect of the circumstances.
Nevertheless, suspicion and speculation cannot be added together in an inconsistent way. Thus, the reliance of the prosecution on alternatives inferences, namely that a drug facilitating sexual assault was administered to WJ is an alternative not a cumulative explanation to the fact that she was so intoxicated as to be unable to consent. The presence or absence of one cannot strengthen the presence of the other.
For the reasons already indicated, I am not satisfied beyond reasonable doubt that they are the only explanations in all the circumstances and, in particular, I am unable to conclude on all the evidence that Mr Sarbandi was, at the time he engaged in sexual intercourse with WJ, aware or reckless that WJ was, if in fact she was, not consenting.
On WJ’s own evidence, she was able to converse with Mr Sarbandi for a long time. This is consistent with him believing that she was consenting to the sexual intercourse. This is, of course, an essential element of the offence. I am required to be satisfied beyond reasonable doubt that Mr Sarbandi knew or was reckless as to whether WJ was consenting or not. I cannot be so satisfied.
If WJ was not so drunk or was not drugged, then I find it difficult to accept that the sexual intercourse, which I accept occurred, was not consensual. There were no suggestions that it was forced in any way and the only basis for the lack of consent was that any consent was caused by intoxication from alcohol or other drugs. In not being able to find that there was intoxication by alcohol or other drugs to the requisite degree, I cannot be satisfied beyond reasonable doubt that it was not consensual or, at least, that Mr Sarbandi knew or was reckless as to whether it was consensual.
Although I must treat – and have treated – his evidence with caution, the evidence he gave of what occurred prior to and during the sexual intercourse was neither inherently implausible nor necessarily unreliable. I take into account, when making such a finding, that WJ said in sworn evidence that she would not have consented to sexual intercourse with Mr Sarbandi on that night.
Nevertheless, I am left with a reasonable doubt about the precise circumstances of the occurrence of the sexual intercourse between Mr Sarbandi and WJ.
Accordingly, I am not satisfied that the Crown has proved its case to the requisite standard of proof that Mr Sarbandi had sexual intercourse with WJ without her consent and was reckless as to whether she was consenting.
The alternative count also relies on consent. In reality, it was pleaded to address the possible situation where penetration could not be proved. That was never an issue in these proceedings. Thus, for the same reasons, I am not satisfied that Mr Sarbandi is guilty on the alternative count.
I sincerely regret that the pressure of business of the Court has delayed the delivery of this judgment. Nevertheless, notwithstanding the passage of time, I had a good recall of the proceedings and the witnesses. I have also carefully read the whole transcript and reviewed the exhibits. I had access to my contemporaneous notes.
I certify that the preceding four hundred and seventeen (417) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2014
Counsel for the Crown: Ms K Weston-Scheuber
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Lawton
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 29-30 August 2012, 24-25 October 2012, 7 December 2012
Date of judgment: 17 March 2014
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