R v Atai
[2021] ACTSC 157
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Atai |
Citation: | [2021] ACTSC 157 |
Hearing Dates: | 12 – 14 July 2021 |
DecisionDate: | 15 July 2021 |
Before: | Mossop J |
Decision: | See [172] |
Catchwords: | CRIMINAL LAW – TRIAL BY JUDGE ALONE – act of indecency without consent – attempted sexual intercourse without consent – accused reckless as to consent – strong complainant evidence – complainant was a young person – guilty on all counts |
Legislation Cited: | Crimes Act 1900 (ACT), ss 54(1), 60(1) Criminal Code 2002 (ACT), s 44 Supreme Court Act 1933 (ACT), ss 68B, 68B(3A), 68C(2), 68C(3) |
Parties: | The Queen ( Crown) Habib Atai ( Accused) |
Representation: | Counsel S Jerome ( Crown) S McLaughlin ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Number: | SCC 215 of 2020 |
MOSSOP J:
Introduction
The accused, Habib Atai, is charged with the following offences:
(a)Count 1: act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT).
(b)Count 2: attempted sexual intercourse without consent, contrary to s 54(1) of the Crimes Act by virtue of s 44 of the Criminal Code 2002 (ACT).
(c)Count 3: sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.
(d)Count 4: act of indecency without consent, contrary to s 60(1) of the Crimes Act.
Election
As a result of amendments to s 68B of the Supreme Court Act 1933 (ACT), an election could be made for a trial by judge alone in these proceedings, notwithstanding that they related to “excluded offences”: s 68B(3A)(b). Such an election was filed on 6 April 2021, prior to the end of the COVID-19 emergency period referred to in s 68B(3A).
Directions
Under s 68C(2) of the Supreme Court Act I am obliged to set out:
(a)the principles of law applied; and
(b)the findings of fact which I make.
I am also obliged to take into account any warning or direction to be given, or comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3) of the Supreme Court Act.
General principles
In this part of my reasons, I set out the general directions and warnings that I would have given to a jury.
The Crown bears the onus or burden of proving the guilt of the accused. The Crown has asserted that the accused has committed criminal offences, therefore the Crown must prove that the accused committed those offences. The accused does not have to prove that he did not commit those offences.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be 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 the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence and is honestly giving evidence of that memory.
I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
Accused does not give evidence
In this case the accused did not give evidence on oath or affirmation. He was not obliged to do so. The onus at all times lies upon the Crown. At all times the burden lies upon the Crown to prove each element of each offence beyond reasonable doubt.
Manner in which evidence was given
In this trial evidence was given by pre-recorded police interviews, by pre-recorded evidence given in court, by audiovisual link, using a witness intermediary and with a support person present. Each of these aspects of the way in which evidence was given is a usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given any greater or lesser weight because the evidence was given in these ways.
Child witnesses/Sexual offence complainants
I do not give myself either of the warnings or suggestions which are prohibited by ss 80 and 80A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) or s 165A(1) of the Evidence Act 2011 (ACT).
Conflict in the evidence
Liberato direction: There was a significant conflict in the evidence between that given by the complainant and the version of events given by the accused during his interview with police. Even if I prefer the evidence for the prosecution, I should not convict unless I am satisfied beyond a reasonable doubt of the truth of that evidence. Even if I do not positively believe the evidence given to police by the accused, I cannot find an issue against him contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue.
Motive to lie
There is no burden upon an accused to demonstrate that a complainant has a motive to lie. Rather, the burden remains at all times upon the Crown. In a case like this where the Crown case is very much dependent on the evidence of the complainant, the Crown must establish that the complainant’s evidence on matters essential to establish the charges is to be accepted beyond reasonable doubt.
Case largely based on complainant evidence
Murray direction: As the Crown case is largely based on the evidence given by the complainant, I need to examine that evidence carefully. I am entitled to convict the accused on the basis of that evidence if I accept it. However, in order for the Crown to establish the charges beyond a reasonable doubt, I would need to accept beyond a reasonable doubt the accuracy of that evidence. It is therefore important that I consider it carefully.
Multiple charges
Markulevski direction: Each of the charges against the accused must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges because I have a doubt about the evidence of the complaint, who in this case is the central Crown witness, I must consider what effect, if any, the doubts that I have about the complainant’s evidence on that charge have in relation to the other charges.
Sexual assault offence
Delay in complaint: The absence or delay in making a complaint does not necessarily indicate that the allegation that an offence was committed is false. There may be good reasons why a victim of a sexual offence may not make, or may hesitate to make, a complaint about the offence.
Complaint: In relation to evidence of complaints made by the complainant after the event, if I accept that the complaints were made and that evidence is consistent with the evidence of the complainant, then I can use that evidence in two ways:
(a)First, I can use evidence of what was said in the complaint as some evidence that the incident did occur as the complainant said. The law says that because of the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I must consider whether I draw that conclusion in this particular case and so treat the complaint as evidence of the alleged incident by the complainant. If I do use it as some evidence of the incident that is the subject of the relevant count, then I must determine what weight to give it.
(b)Second, whether I do use the evidence of complaint in that way or not, the fact that the complainant raised the allegation against the accused at the time and in the manner that she did may lead me to accept the evidence she gave. In other words, it may make her evidence more believable than if she had not raised the allegation as she did. If I use the evidence in that way, I must determine what weight the evidence should be given.
I must, however, bear in mind that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
In this case, where the accused has pointed to what are submitted to be differences between the terms of the complaints made by the complainant and the evidence that she has given, I must give careful consideration as to the significance of those alleged differences and whether they cast doubt upon the reliability of her evidence.
Expert evidence
In this case, the report of forensic biologist, Amy Williams, was admitted. This report contained expert evidence. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. The value of any expert opinion is dependent on:
(a)the reliability and accuracy of the material which the expert used to reach his or her opinion; and
(b)the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.
The evidence of Ms Williams related to the analysis of samples taken from the complainant’s shirt for biological material including DNA and the analysis of DNA that was found so as to determine the likelihood that it came from the accused.
I must consider the extent to which the opinions expressed by Ms Williams may be applied in the particular circumstances of this case. I am not obliged to act upon the expert evidence, particularly if the facts upon which the expert’s opinion is based does not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
In this case there was no challenge to the expertise of Ms Williams or to the results that she set out in her report. I should therefore accept the accuracy of those results. I must however carefully consider exactly what those results prove and what they do not prove when considering the matters in issue in the case.
Lies
The Crown says that certain statements made by the accused in his police interview were lies. It submitted that these affect the credibility of the accused and hence the weight that should be given to what was said to police during the recorded police interview.
I must determine whether or not the statements said to be lies are in fact lies, that is, that the accused said something that was untrue and that at the time of making the statement he knew that it was untrue. If I decide that a lie or lies were told I cannot use that fact to support a conclusion that the accused is guilty. A lie cannot prove the accused’s guilt, nor can it be used in conjunction with other evidence that the Crown relies upon prove the accused’s guilt. However, I may make use of the lie in my assessment of the accused’s credibility. If I am satisfied that he did lie, then I may consider that in determining whether I believe the other things that he said in his interview with the police.
Elements of the offences
Count 1: Act of indecency without consent
The act of indecency without consent is a charge under s 60(1) of the Crimes Act which provides:
60 Act of indecency without consent
(1)A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment of 7 years.
The elements of the offence are:
(a)The accused committed an act.
(b)The act was indecent according to the standards of morality and decency held by ordinary members of the community.
(c)The act is committed on, or in the presence of, another person.
(d)The other person did not consent to the act.
(e)The accused was reckless as to whether the other person consented to the act.
In order to prove element (b), the Crown must prove beyond reasonable doubt that the act was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in the community. I must determine the standards prevailing in our community when deciding whether the Crown has satisfied me beyond reasonable doubt that the act alleged in this case was indecent.
For an act to be indecent it must have a sexual connotation or overtone. If an act is one which clearly gives rise to a sexual connotation that is sufficient to establish that the act was indecent.
The Crown may prove element (e) if it proves that the accused knew that the complainant was not consenting. Element (e) would also be satisfied if the Crown proves that the accused realised that there was a possibility that the complainant was not consenting to the act, but he went ahead anyway. The Crown can also prove element (e) if it proves beyond reasonable doubt that the accused did not even think about whether the complainant was consenting to the act, treating the question of whether she was not consenting as irrelevant. It is enough that the Crown proves beyond reasonable doubt element (e) in any one of these three ways.
In deciding this issue, I am concerned with the actual state of mind of the accused at the time of the act. It is the accused’s mind I must consider. It’s not a question of what I would have realised, or thought, or believed. It is not a question of what a reasonable person would have thought or believed. This ingredient of the offence requires that I look at what was going on in the mind of the accused. In deciding this issue, I can have regard to all the surrounding circumstances.
In relation to count 1, it is alleged that the act of indecency involved the accused attempting to kiss the complainant’s face when he was on top of her.
Count 2: Attempted sexual intercourse without consent
Count 2 is a charge of attempted sexual intercourse without consent.
Section 44 of the Criminal Code provides:
44 Attempt
(1) If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.
(2) However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.
(3) The question whether conduct is more than merely preparatory is a question of fact.
(4) A person may be found guilty of attempting to commit an offence even though—
(a) it was impossible to commit the offence attempted; or
(b) the person committed the offence attempted.
(5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.
NoteOnly 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).
(6) However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence.
(7) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.
(8) If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence
(9) The offence of attempting to commit an offence is punishable as if the offence attempted had been committed.
(10) This section does not apply to an offence against section 45 or section 48 (Conspiracy).
Section 54 of the Crimes Act provides:
54 Sexual intercourse without consent
(1) A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2) …
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness
The elements of the offence are:
(a)The accused intended to engage in sexual intercourse with another person;
(b)The accused carried out conduct that was more than merely preparatory to the commission of the offence attempted;
(c)The other person did not consent to the sexual intercourse;
(d)The accused knew that the other person did not consent to the sexual intercourse.
The attempted sexual intercourse is particularised as being that the accused attempted to penetrate the complainant’s vagina with his penis.
Count 3: Sexual intercourse without consent
The elements of sexual intercourse without consent are:
(a)The accused engaged in sexual intercourse with another person;
(b)The other person did not consent to the sexual intercourse;
(c)The accused was reckless as to whether the other person was consenting to the act.
The sexual intercourse is particularised as being that the accused penetrated the complainant’s mouth with his penis. The law defines sexual intercourse so that it includes the penetration to any extent of someone’s mouth by another person’s penis.
Count 4: Act of indecency without consent
The elements of this charge are the same as in relation to count 1. The charge is particularised as being that the accused masturbated and ejaculated onto the complainant’s face and shirt.
Evidence of witnesses
Complainant
The complainant gave two evidence-in-chief interviews. The first was on 8 February 2020. The second was on 24 April 2020. The first interview was brief and the complainant became upset at the point where she said that the accused had started touching her. The interview was then terminated.
She gave a detailed account of events in the interview on 24 April 2020. She said that she had been hanging out with friends at the Woden shopping centre on a Saturday. Other evidence established that it was Saturday, 17 January 2020. She and her friends, who I’ll refer to SC and his brother, had been wandering around the shops for a bit. Her friends decided to go home early. She decided that she did not want to go home straight away. She knew SC from school. SC went home at about 1pm.
She had met someone called Jacob on Snapchat about a month earlier. His full name was Jacob Ali. He said he was 17 years old. She had never met him in person before. She called Jacob to see if he wanted to “hang out”. The plan had been to meet outside Big W. Ultimately, they met at David Jones. She described him turning up with a friend. She had not expected him to arrive with a friend. His friend said he was 18. She described Jacob's friend as sitting down next to her and smiling and looking at her in a way that she described as "weird". The males said they were going to have a “sesh”, that is smoke “weed” using bongs.
Jacob and his friend, who she understood was to be called Habib, spoke to each other in a foreign language which the complainant did not understand. They travelled in Habib's grey car to their apartment. She sat in the back on the left-hand side. The apartment did not have furniture in it. Either Jacob or Habib explained that they had just moved down to Woden from Belconnen. There was a balcony in the apartment where they smoked. They were not doing much. She did not know what the males were talking about. They just kept smiling and looking at each other and talking in their language. SC called her at one point, and she told him that she was at a friend’s house. Later on, her mother called and asked her how she was going. She described that it was mostly the two men talking. They moved inside to the lounge room near the kitchen. There was no furniture in it, and they were sitting on the floor on blankets and pillows.
Jacob said he wanted to take a nap. Habib asked Jacob if he could sleep in the other room so that he could have some alone time with her. He said he wanted to talk to her. She described Habib as just keeping looking at her and smiling at her. She did not feel comfortable. Habib kept getting close to her, trying to touch her. She told him that she did not want him to hurt her or go near her or touch her. He tried to touch her legs and her knees. She was wearing a short skirt.
He sat close to her and she described him as telling her things that made her really uncomfortable. He said to her something like “come on, you got me hard”. He wanted her to touch his penis. She did not want to. He grabbed her hand and put it on his penis. She moved her hand away and he smiled at her. She said she did not want to do anything. He said, “why not”. She said “I don't feel like it. I don't want to do that”. She said she was going to go to Jacob and sit with him. He then lay down and was kissing her back. She tried to move away. She got up and went into the other room, but he followed her. Habib grabbed his bong and his weed and started cutting it up again while the complainant and Jacob were on the mattress. Jacob then said he was going out to get money. She told him to hurry up. She said that because she did not want to be alone with Habib. She thought that Jacob had been able to hear everything that occurred when they were in the other room.
Habib kept cutting up his weed and smoking. He went across and sat closer to her, in front of her and touching her knees. He said, “oh, let’s go”, “just let's do it”. She said she did not want to do anything. He persisted, bringing the mattress into the living room. She said she did not want any of that. She stood up and was about to walk out and sit where she was sitting before. He went up close behind her and started kissing her neck. She said, “stop”. He lifted her up and took her outside and put her on the mattress. She tried getting up, but he went on top of her. He tried to kiss her. She moved her head from side to side because she did not want him doing that. He was holding her arms. During the police interview, she demonstrated having her hands held out on either side at about the level of her head. When he got up, she got up but then he sat her down and pulled down his shorts. He had his dick out. She said he laid her down again. She did not know what to do. He tried kissing her again on the neck and on the lips and did not listen to her when she said, “I don’t want you to do that” and “get off me”.
He got up again. She tried moving away from him, but he grabbed her arm. He sat down on the pillows and pulled her down so that she was on top of him and he was hugging her. He started kissing her and she tried to move her head again from side to side. At one point, he was on top of her again. He tried taking off her underwear. He pulled them down to her knees and then she pulled them back up. He tried putting his penis into her vagina. She said, “stop.” When she said she did not want to do that, he said, “Oh, okay” and “Suck my dick instead”. He then got up and tried putting his penis in her mouth. He was in there for two seconds before she pulled away and told him to stop. Then, as she was going to get up and get her bag, he ejaculated on her face. He said he was sorry and laughed. After he ejaculated, there was semen on her face and on her shirt. He got her a tissue, and she wiped her face.
She did not know what to do. She just wanted to leave. As soon as he had finished, Jacob came back in. She said that he was “apparently… outside and… like, heard us”. She got “really mad” because he did not tell his friend to stop. They then dropped her off in Tuggeranong at the shopping centre. She said they were going to a Big W in Tuggeranong and they wanted to get a speaker or something like that. She said she was going home and left them.
She did not say anything to her parents because she was scared to tell them. She just cried in the bathroom. She said Jacob texted her saying, "you liked it" and "oh, you wanted him to do that stuff". During the Snapchat exchange, she said that she was sorry. She did not know why she said she was sorry, but she says that all the time. After that, she blocked him because she did not want to talk to him anymore. That led to the whole of their Snapchat conversations being deleted.
After that, she texted her friend SC. He subsequently called her, and she told him what had happened. He told her to tell the police, but she was too scared to do so. She subsequently told other friends at school.
After she blocked Jacob, she didn't want to tell her mother and father and then she could not hold it in anymore. She said her dad was mad for a bit and she said sorry to him and started crying. When her mother found out, she was upset about it as well.
Subsequently she saw Habib on a bus. She was with her friends. She took a photograph of him.
After the incident, she did not wash the shirt that she had worn. She put it away in her cupboard. Subsequently when she told her father she gave the shirt to him and he put it in a plastic bag.
In cross-examination, she said that she thought she had been messaging Jacob on Snapchat for a month. She said that a few weeks before, he had started talking about meeting up. She denied that she had become interested in having a relationship with him.
She agreed that after she first met Jacob and Habib, she had a short conversation with them and then followed them around Westfield Woden for approximately 15 minutes. She agreed that Jacob did not speak to her much, but that he spoke more than Habib who did not speak much at all.
She denied that Jacob said to her whilst in Westfield Woden that he did not want to be her boyfriend.
She agreed that Jacob and Habib spoke to each other in another language. She agreed that most of the conversation at the unit was between her and Habib.
She said that she had a phone call with SC and that she told him she went to their unit. She said that she told SC that she was not comfortable. She agreed that when she spoke to her mother, she deliberately did not tell her where she was because she did not want to be told to come home because she was having a good time. She said it was later that she felt like something was “off”. She could not explain why, when she started feeling uncomfortable, she did not leave.
She denied that by the time Jacob left, she had made it known to Habib that she wanted to be intimate with him. She said she did not want to be alone with him. She agreed that it was clear to her that by the time Jacob left, Habib was interested in her. It was suggested that he had asked her to be his girlfriend shortly after meeting her, but she could not remember that. She denied that he asked her sexual questions while in the car. She agreed that he had been telling her a lot of stuff about himself when back at the unit.
She denied consenting to him kissing her. She denied kissing him back. She denied being in the bedroom when Habib began kissing her. After the mattress was moved into the lounge room, she agreed that he continued trying to kiss her. She agreed that he was "feeling" her. It was suggested that he removed her underwear. She said he tried to but did not. It was then suggested that he performed oral sex upon her, and she said that was not correct. She denied that his mouth ever came into contact with her vagina.
After she told him that she did not wish to have sex, it was suggested that she offered to suck him. She denied that. She denied that he had his penis in her mouth for 4 to 5 minutes. She said "a few seconds and only the tip. Not the whole thing". She denied that all of the contact between her and Habib was consensual. It was suggested that after he had ejaculated, he told her that he did not want to be her boyfriend. She denied that. She agreed that after he ejaculated, Jacob returned to the unit and a short time later, they left the unit. She agreed that she apologised to Jacob on Snapchat and that she told him she was crying. She denied that after the incident she was still interested in a relationship with Jacob.
It was suggested to her that she told SC things because she was upset at Habib not wanting to be her boyfriend. She denied this. It was suggested to her that even before she left Westfield Woden, she was aware that Habib wanted to be intimate with her. She denied that and denied that he had made comments in the car ride that he wanted to be intimate with her.
The complainant was recalled in order to be further cross-examined about an issue arising from a disclosure by the Crown that occurred after the pre-trial evidence had been given. It was suggested to the complainant that her father was controlling. It was suggested to her that her father had told her that she could not have a boyfriend. The complainant agreed that he had told her not to have a boyfriend until she had a good job and a good degree. She agreed that on one occasion, he had barged into a party in order to introduce himself to somebody whose lap she was sitting on. She agreed that he had asked her on a number of occasions whether she was still a virgin. She agreed that such questions made her uncomfortable but that he continued to ask them.
In relation to the day on which she first told her father of the incident, her father had confronted her about a mark on her neck which was described as a “hickey” (a dictionary definition is: colloquial. A mark caused by biting or sucking on the skin, especially during sexual play.) She agreed that her father was unhappy with her and was yelling at her. Her father asked her questions and she showed him the shirt which had not been washed. She agreed that she was too embarrassed to put it in the wash.
The first time she went to police, both parents took her. Subsequently, she went back for an interview on 8 February and her father took her on that occasion. It was suggested to her that she felt obliged to tell police what she had told her father. It was put to her that what she had told her father was a lie, a proposition which she denied. She could not recall whether she had had discussions with her father in the two weeks between the first and second interview (the period was actually two and a half months). She agreed that her father had taken her to the police station on the second occasion. She agreed that she was felt obliged to tell the same story that she had told her father. She agreed that he made it clear that she would be in trouble if she lied. She denied that she was scared of how her father might react if she changed her story.
In re-examination, the complainant said that when her father was yelling at her she was crying, and she really wanted to tell someone about what happened so she did. Arising out of her answer to the suggestion that she “felt obliged to tell the same story,” she was asked why she felt the need to tell police what she had told her father and she said that she felt that the police needed to know what happened.
SC
SC was a school friend of the complainant. He had known her since primary school. He and the complainant were good friends. He and his brother were going to Woden. The complainant FaceTimed him and said that she was on her way to Woden so they all went together. She told him that she was going to meet a friend she had met online through Snapchat, and he told her that was a bad idea. The complainant said the person she was to meet was of Lebanese descent. After they walked around for a bit at Woden, she branched off and said she was going to meet her friend.
Later that day, she FaceTimed him and was really upset about what had happened. She was crying on the FaceTime call. The call was some time at night. He could see her crying. She said, "when she was over at that guy’s house he was like excessively touching her - like, trying to kiss her and - yeah". She told him that they had been smoking, but she did not say what. She said the individual was “making her do things that she didn’t want to, and yes it was just excessive touching in places she didn’t want to be”. She said that she was telling him to stop, but he continued to do it. She was crying a lot during the FaceTime call. When it finished, the guy that did not assault her drove her to Tuggeranong and she caught a bus home from Tuggeranong.
In cross-examination, he agreed she was quite eager to meet the person from Snapchat. He did not recall her saying anything about wanting a relationship with him. He denied receiving a telephone call from her while she was at the apartment. He maintained his evidence that she had told him that the person was excessively touching her in places that she did not want to be touched and that he had tried to kiss her.
Milad Daghagheleh
Mr Daghagheleh was 16 years old when he gave evidence. His appearance was consistent with him being significantly older than that. He said he had met the accused “a couple of times” and had not seen him or talked to him for ages. He agreed he used the name “Jacob Ali” on Snapchat. He agreed that there was an arrangement for him to meet up with the complainant at Woden shopping centre. He said, "we were like talking and then I met up and that's about it". He said she asked him to meet up and he said all right. He identified himself, the accused and the complainant on still photographs from CCTV from the Woden shopping centre. He said they travelled to Habib's place in Habib's car. He said they talked in the living room for a bit and then he decided to leave because he wanted to see his mates. He said he just had a drink of water and ate a biscuit and then left. He denied smoking anything. He said he needed to leave to see his mates and get money. He denied that there was any conversation in the car between himself and the complainant or between the accused and the complainant. He returned in order to hang out for a bit and then go home. He said they were sitting in the living room when he walked in. They then drove to Tuggeranong. He went and purchased a speaker. She then left.
He said she subsequently started texting him and "apologising and stuff". She said something like "I'm sorry for like everything I've done". He asked her "what you mean" and she said, "words can't explain". He could not recall the actual words that she had said and had no record of the Snapchat messages anymore.
In cross-examination, he was asked how long he had been talking to complainant on Snapchat and said a day and half or two days. He was asked whether he understood that he was meeting her for the purpose of engaging in sexual intercourse with her and he denied that. He denied having told the accused that that was why he was meeting her. He denied that he had told the accused that he and the complainant had arranged to have sex and needed somewhere to do it. It was suggested to him that when he saw her in person, he decided that he did not want a relationship with her. He denied that. It was suggested to him that the accused told him that he would be interested in being her boyfriend and he said, "I can't recall anything on those lines". It was suggested to him that the accused had asked the complainant how horny she was during the car ride, and that the complainant had said that she was horny. He could not recall either thing being said.
He said that prior to him leaving there was nothing unusual in anybody's behaviour. He had decided that he was going to have a lie down because he was tired but then he left. He denied leaving the unit because the complainant and the accused wanted to have sex. He said that he left because his mate was waiting for him. He said he was away for about half an hour and when he returned, the complainant and the accused were having a normal conversation. He said he was only there for five or 10 minutes before they left for Tuggeranong.
In re-examination, he said that he had in fact laid down in the lounge room on a pillow for about 10 minutes before leaving.
The complainant’s father
The complainant’s father gave evidence that in 2020 the complainant was 16 years old and in year 11.
On 2 February 2020 at about 10 or 11pm, he had a conversation with her in which she told him that someone had touched her and taken advantage of her.
She said that it occurred at a friend’s house. She had met a guy at Big W. She went to the house of the guy for a “session”. Her impression was that they were going to hang out. When she went to the car park, his friend was there.
She had initially meant the first guy called Jacob and she had only seen the other guy in the car when they went to the car. She was not expecting a friend of Jacob to be there.
She had met Jacob through Snapchat. The guy in the car drove the grey car to the house. She described him as a skinny guy who looked like he was from the Mediterranean or Lebanese. When they were at the house, Jacob said he was going to get some money and left her alone inside with the guy who started asking questions “about boyfriend and all that”. He was coming close to her. He pulled the mattress out into the loungeroom. He got her to sit down. He “took his clothes off, starting ejaculating”.
She described him putting his penis into her mouth a little bit. She pushed away and then he ejaculated on her shirt. She described him touching her all over her body.
As she was walking out Jacob came back and said, “did you like it”. She asked him to drive her back to Woden.
At the time of the conversation, he observed that she had a bruise on the left side of the back of her neck and her hands. She was very upset and was crying. He said the conversation went for half an hour or 45 minutes. She showed him the shirt. He put it in a plastic bag in order to give it to the police.
He went to the police the next day while the complainant was at school. The police at Tuggeranong Police Station recommended that he see a constable at the Winchester Police Centre in Belconnen. He was there from about 11am until 1pm. He then went home and spoke to his wife. He picked the complainant up at about 3:20pm and went to the Winchester Police Centre at 4pm. He was introduced to Senior Constable Cunningham.
In cross-examination, he was asked about the circumstances in which the complaint occurred. He agreed that he had seen a mark on her neck which she accepted was a “hickey” and that he asked her who had given it to her and where she had been. He agreed that he was upset and angry. He was asked about whether he had threatened to discipline her and threatened to take away her mobile phone. He said he did not see it as discipline. He said that there was a rule applied in their house about the complainant not going to bed with a telephone. He agreed that he had threatened to take her phone from her after finding out about the hickey on her neck. It was suggested to him that she had originally told him that she had met Jacob at the Woden Interchange. He did not agree with that, saying that she had said at Big W. He did not recall her having mentioned the interchange. He denied telling police the next day that she had referred to the Woden Interchange. He denied that he did not give the complainant a choice as to whether to go to the police. He agreed that he had made a statement on 3 February. He agreed that he had made the statement “to ensure that [she] made a complaint later on”. I was not satisfied that the witness appreciated the forensically targeted implication buried within this question.
It was suggested to him that he gave the complainant no choice as to whether to participate in the interview on 8 February or 24 April 2020. He said that she had agreed to. He could not recall conversations about the incident between 3 February and 24 April 2020. He did recall telling her that if she was lying, she would be in big trouble. He agreed that he had mentioned to her that if he thought she was lying he “would have her tested by a doctor as to her virginity”. It was suggested that he had controlled whether she could have a boyfriend. He said he and his wife had always guided her in relation to boyfriends and schooling. He agreed that he had on one occasion walked into a party to see who she was interacting with. He said he had done this only because she was “special”. He denied having tracked her periods. He subsequently admitted that he remembered saying to her “oh, you must be due for your period…?” as a warning to her because her mum is “always whingeing that [she] is always making a mess of the bed” so he just reminded her.
In re-examination he was asked why she described her as “special”, and he gave evidence about her suffering from a particular disability. That was one which would not generally be noticeable.
Senior Constable Andrew Murray
Senior Constable Murray was based at the Winchester Police Centre. He met with the complainant and her parents about 4pm on 3 February 2020. He had a brief conversation with the family and was provided with a white shirt in a freezer bag by the complainant’s father.
At that stage, the complainant told him that she had met a friend called Jacob Ali at Woden Plaza shopping centre. Jacob had brought a male friend with him that she did not know. They left in a vehicle and attended a unit close by. She was assaulted in the unit. Constable Cunningham was also present for the conversation with the complainant. Her parents may have been in the room next door. He took the t-shirt to AFP forensics. The evidence-in-chief interview was conducted on 8 February. This was a short interview.
After the interview was concluded, he got a bit more information about the time and date of the incident. The complainant told him that it was on the 15, 16, or 17 January at about 1:20pm. He spoke to her mother, who disclosed a disability that the complainant had. The complainant said in relation to Jacob Ali that she had met him on Snapchat, that she had added him at random but subsequently blocked him. She was not able to provide his username or retrieve any of the messages between them. He did not inspect the phone himself.
He then got CCTV from the Westfield shopping centre for a two-hour window on the three possible dates. He reviewed the footage and identified that the complainant was there on 17 January 2020 at about 1pm with two other males.
The CCTV shows the complainant sitting on a bench outside David Jones. She is subsequently joined by two males, subsequently identified as the accused and Mr Daghagheleh. The accused sits down next to her on the bench for a short period and then the three leave, the complainant walking behind the two males.
Senior Constable Murray said that he identified the vehicle in which they travelled as a silver Toyota Corolla with a particular registration number. It was driven by the accused, and the complainant appeared to be sitting behind the driver.
The second evidence-in-chief interview with the complainant occurred on 24 April 2020. At that time, the complainant showed the officer a photo on her mobile phone and subsequently sent it to him by email. That was the photograph of the accused taken by the complainant when she was on the bus at some time after the incident.
The officer identified the accused as a result of doing a search of the registration number of the vehicle in which the complainant travelled from the Woden shopping centre. It was registered in the accused’s name.
On 4 May 2020 he found out that the accused was a tenant at a particular address in Horbury Street, Philip, about 1km from the Woden Shopping Centre. On 8 May 2020 he obtained a search warrant and, in company with other officers executed that search warrant at the premises. No one was present and a locksmith was used to gain access to the premises. The photos which became exhibit 3 were taken at that time. The accused arrived at about 4:45pm and was arrested. A Farsi interpreter was used during the execution of the search warrant.
At 6:44pm there was an interview with the accused associated with the forensic procedure which involved the taking of a buccal swab to obtain DNA for comparison purposes.
During the interview, police attempted to explain why the DNA sample was going to be taken. The conversation was as follows:
Q 57. Everyone has a unique DNA profile and I want to compare---
A Interpreter: (Foreign language spoken)
Q 58. And I want to compare Habib’s profile to a sample that we have as part of this investigation.
A Interpreter: (Foreign language spoken)
Q 59. Do you understand?
A Atai: yeah. (Foreign language spoken)
Interpreter: (Foreign language spoken)
Atai: (Foreign language spoken)
Interpreter: Okay. I try to explain it to you but, ah (indistinct) saying to me. I mean, I did take notes, so I just tell you as much as I could write down.
Q 60. No problems.
A Interpreter: Girl, ah, was, ah, supposed to come and see my friend. But, ah – I don’t know, one of them didn’t (indistinct) then my friend said, ‘Would you like to become friends with her?’ So I asked her if she wanted to become my friend and she said, ‘Yes, I do like you. You are handsome.’ Um, but – but then she said that she’s quite shy, I should ask my friend to leave the room – or the house, whatever. Ah, then I ask my friend to leave the area, and he left, um, and, ah, we started to become closer to each other and, ah, once I had my pants down, he said that, um, um – sorry, ‘Your penis is quite big and I’m quite scared of that.’
Q 61. (Indistinct)
A Interpreter: ‘Let me suck – suck it.’
Q 62. (Indistinct)
A Interpreter: So we started kissing each other. So, if you take my DNA and her DNA, obviously, because we kissed each other, her DNA will be in my mouth, but that’s what has happened.
Officers Murray and Cunningham also conducted a video recorded interview with the accused. That will be described further below.
Senior Constable Murray investigated the identity of the two friends of the complainant (apart from SC) who were referred to by the complainant. He identified them as school friends of hers but once he got SC’s statement, he did not pursue statements from the other two friends.
He obtained access to the data on Mr Daghagheleh’s phone. He found the accused’s phone number and incoming and outgoing calls between the two men. He found some text messages between them, but they were not relevant. He found no connection to the complainant on his phone. The complainant’s Snapchat username was not on his phone. He gave evidence of his understanding that the Snapchat servers auto delete messages 30 days after they are opened. He also gave evidence that this means that those messages will only be stored on the phone handsets. Further, if a contact is deleted from one handset then that would also delete the record of the conversation from the other handset.
He did not inspect SC’s phone.
In cross-examination, he was referred to his notes written on 3 February 2020 which made reference to a 16-year-old female meeting a “Jacob Ali” at Woden Interchange and that the assault involved feeling her private parts. He could not say who gave him that information. During that initial conversation, he did speak to the complainant separately and got details of the Snapchat accounts from her.
He was also asked about his notes from 8 February 2020 which record him giving some advice based upon what a representative of the Canberra Rape Crisis Centre had advised him that it was sensible for the parents to not bring the incident up with the complainant.
He also gave evidence that he had spoken to the complainant separately from her parents to ensure that she understood that she was autonomous in relation to any complaint that she made. He agreed that this occurred after the interview in which reference had been made to what her father had told the police and to the fact that she would be liable to prosecuted if she lied to police.
He also gave evidence that the accused had nominated Mr Daghagheleh as a witness after his arrest when he was being transported to the City Police Station.
Other evidence
DNA report
The report of forensic biologist, Amy Williams, was tendered without objection. That was a report of the analysis of DNA found on the complainant's shirt and its comparison with DNA obtained from a mouth swab from the accused. Two sites on the shirt were tested. There was a tape lift from the inner back of the shirt. A mixed profile from a minimum of two individuals was obtained. The accused could not be excluded as a contributor. It was at least 100 billion times more likely that the accused was one of the two contributors to the mixed DNA profile than if the profile originated from two unknown individuals unrelated to the accused selected at random from the Australian Caucasian subpopulation. The second DNA profile was identified as “Female 1”.
A stained section of the white shirt on the front chest area was tested. Semen was detected. A mixed DNA profile from a minimum of three individuals was obtained. The accused could not be excluded as a contributor. It was at least 100 billion times more likely that the accused was one of the three contributors to the mixed DNA profile than if the profile originated from three unknown individuals unrelated to the accused selected at random from the Australian Caucasian subpopulation. Female 1 could not be excluded as a contributor. The remainder of the profile was not suitable for identification purposes.
Accused’s interview with police
On 8 May 2020, following his arrest and the conduct of the forensic procedure referred to in the evidence of Senior Constable Murray, the accused participated in a video recorded interview with Senior Constable Murray and Senior Constable Cunningham. Most of the interview was conducted through a Farsi interpreter, although there were some portions where the accused answered questions directly.
Some evidence was given by the interpreter at the trial that corrected or elaborated upon what was said by the telephone interpreter when contemporaneously translating for the purposes of the interview with police. This assisted in identifying the meaning of some expressions used and identified some minor matters which were said by police or by the accused but not translated. This evidence was of significant assistance.
Between questions 67 and 247 the accused gave his version of events. He was initially asked to respond to the allegation that he had sexual intercourse without consent. He said (through the interpreter):
That girl, ah, first, ah, was supposed to come, ah, and meet my friend, Milad. They texted each other.… While we were walking home from, um, a small shopping centre or something, ah, he was telling me that – Milad was telling me that he doesn’t like her and if I want, I can become friends with her.… I was single at the time and I felt sorry for the girl. To tell you the truth, she was really ugly.… Told her ‘Do not worry. You are beautiful’. And we all started to talk and laugh and we got home.… When we arrived home, I looked at her and said, ‘Are you ready?’ Ah, but, ah, she looks at me and she indicated actually didn’t want Milad to be there, so I asked Milad to leave.… Then, ah, when Milad left, we started kissing each other. And when we were about to have sex, she said that she’s scared of having sex and she doesn’t want to have sex… Then – then, um, I said, um, ah, ‘I mean, why are you fooling around with me? I’m fully naked, ah, so why you are doing that?’ And she said, ‘Don’t get upset, um, I will suck you.’… We didn’t have any sexual intercourse. Ah, and then it finished.… And then I cannot remember that either I – I took her back or she left with Milad.… But the question that I had here if I really did rape her, why she didn’t go at the time or the next day to the police to say that I have raped her.
He volunteered that he had subsequently seen the same girl on the bus with a friend of hers and she took a photo of him.
In relation to Mr Daghagheleh, he said that he knew him through a friend of another person who was a friend of either Mr Daghagheleh’s brother or cousin. He said however, “he does lie a lot. I don’t like him much.… But his English is good. And sometimes when I need help, I do get his help”. Later he said, “I am lonely. I arrange him, ah, to come to just sit together. He’s a funny boy. That’s why I like to hang out with him”.
In relation to the circumstances in which Mr Daghagheleh had had arranged to meet the girl, Mr Daghagheleh had told him “he wanted to become friends with his girl and he had to go to meet her”. His evidence was that they had chatted on Snapchat and she wanted to become his girlfriend.
In relation to feeling sorry for her he said: “Because she was upset. She has her head down. She wanted to cry. So I told her, “don’t be upset. You are pretty. Being pretty is not only on the face. It’s what is inside you”.
In relation to having asked her, “Are you ready?” He said:
I didn’t say, “are you ready,” in words. I was just looking at her, um, to see if she is ready and how is she. And then I saw that she was looking at Milad. Then – I mean, you understood the rest. And I said to Milad, “fuck off and then come back (indistinct)”.
He was asked how he got naked and said:
I was sitting next to the girl. And we were kissing each other. Then we went to, ah, that hall area or that lounge area and, ah, I started taking my… When I went to that lounge area, I started to take my clothing off.… Then she told me that, “you’re” – sorry – “penis is too big. I’m scared”. Then I told her that, ah, “don’t be scared”. Um, then she said, “no, I don’t want to”… Then I told her, “It’s not right. I did take all my clothes off. You made me horny and that’s not right”… Then she told me, “don’t worry. Ah, I do suck you off. And then I will go. Don’t worry”. And I said, “okay”.
Asked what happened after that he said:
She did, ah, suck. And that’s what finished… Milad came back himself. Ah, then I told him that, “you’re right. Ah, she’s not good. She’s timid”.… And I told Milad, “if she wants my phone number or anything of me, don’t give it to her”.
In answer to the question “what did she do that made you think she wanted to have sex with you?” He said:
When I look at her---…---When she wants – when – before she wants to – she wants to be my girlfriend, then I do understand.… If that wasn’t the case, why did she come at all?
He was asked whether he thought that coming to her house involved consent for sexual activity and said:
I don’t have any presumption or I do not judge anybody. But when we were kissing and she was giving me a French kiss, then I do understand.
He later said that:
[It] all started with Milad. Milad was the one who said that [he] has find this girl who is very horny and she would like – and she tells me, ‘find a place. I would like to come and have sex with you’.… When we went to that plaza when, um, Milad was Farsi laughing at her. Then I asked her if she wanted to become my girlfriend and she said, ‘yes’.
He was asked what specific words he used, and he said: “I said, ‘do you like me?’ She‑she said, ‘yes’”. He was asked whether because of that he assumed that she was happy to have sex with him at his house. He answered: “She was supposed to come and have sex, that was our understanding”. The interpreter at the trial explained that this was a reference to a non-verbal understanding. The accused then repeated the conversation:
I ask her, ‘Do you want to be – to be my girlfriend’. She said, ‘yes’. And then I said, ‘I do have my own place. Would you like to come?’ She said, ‘yes’.
He was asked: “So do you think that if any girl agrees to come to your house, she wants to have sex with you?”. He said:
I don’t judge anyone. I don’t think anyone – if going to come to my house, they going to have sex with me. If I see someone look at me and then I understand, yeah, she likes me, I ask her, ‘you do want sex with me?’ ‘Yes’. If she said, “yes”, okay, start kissing and start sex.
The full allegation of attempted non-consensual sexual intercourse and non-consensual oral sexual intercourse and ejaculation was put to him and he denied it:
Well, she has told me that she went into the other room with Milad because she was uncomfortable and scared by you and the way you were behaving. She said that you followed her around the house, that you ended up holding her down by her wrists, that you pulled her underwear down even though she was saying, ‘no, no. Stop, stop’, and squirming and trying to get away from you and that you attempted to have sex with her then. And then after you didn’t put your penis in her vagina, that you stood up in front of her and forced your penis into her mouth. Okay? And then you ejaculated – or you came on her shirt and her face.
Atai: That’s not true… I’m saying that’s not true. I – I tell you the exactly story. I’m not telling you lie.
In answer to questions by Senior Constable Cunningham about the conversation that he had with her he said:
I always told her – or – or asked her, ‘do you want me? Would you like to become my girlfriend?”… But I told her, ah, ‘if you want to become my girlfriend, don’t think about Milad anymore. You can come to my house. I do have my own place.… I said that, ‘if you need help with money, I can help you’.
He was then questioned and gave answers as follows:
Q 175. So you said at the very start that you felt sorry for her and you thought that she was sad and ugly. Why did you want to be her boyfriend?
A Atai: Because I was single too.
Q 176. So what does that mean if someone’s your girlfriend?
A Atai: I didn’t want to – like, she wants to be my girlfriend forever, you know? That I get married. I just want her to be my girlfriend for, like, a few months after that.
Q 177. What does that mean when she’s your girlfriend? What does that mean you can do with each other?
A Atai: Sex and enjoy.
In summary the version of events articulated during the course of the interview was as follows: Mr Daghagheleh had been messaging the complainant. He was going to meet her. The accused understood that Mr Daghagheleh was interested in having sex with her. When Mr Daghagheleh met her, he decided that she was ugly and was no longer interested in her. The accused also thought she was ugly, but told her that she was beautiful. He asked her if she wanted to be his girlfriend and she said yes. They then went back to his house. She gave him a look which led him to ask whether Mr Daghagheleh should leave, and he asked Mr Daghagheleh to leave. He sat next to her. They were kissing each other. Then they went to the lounge area and he took his clothes off. She told him his penis was too big and she didn’t want to have sex. He told him that she had made him horny and that it was not right. She then offered to suck his penis. She sucked his penis and then it ended. Mr Daghagheleh came back. He told Mr Daghagheleh that he was right, she was not good. Then the girl was dropped off.
Other exhibits
A total of 14 exhibits were tendered. It is unnecessary to describe them separately.
Assessment of the witnesses
The complainant was a very credible witness. She gave evidence in February and April 2020 to the police in two evidence-in-chief interviews. She then gave evidence in court on 1 February 2021. She gave evidence in court again at the hearing in July 2021. On each occasion, she appeared to have matured. She gave the impression of being a generally and sexually naïve young woman at the time of the alleged incident. She was embarrassed by, and reluctant to describe, the details of the sexual acts which she said occurred. She was embarrassed and reluctant to say the words that she wrote down for police during the interview (Exhibit 4). She answered questions carefully and with a level of detail consistent with actual recollection. She did not appear to embellish the facts and maintained her version of events even when given an opportunity to make them more dramatic. There were a number of points during her evidence where her naïveté was positively inconsistent with the sort of behaviour required by the version of events put to her on behalf of the accused.
SC was an impressive witness. He gave straightforward answers to the questions that were put. I considered his evidence to be reliable.
Mr Daghagheleh was not a particularly impressive witness. In some ways his evidence was inconsistent with the Crown case. In other ways it was very clearly inconsistent with the version of events put to him on behalf of the accused. He gave the strong impression that he was attempting to minimise his involvement with any perceived wrongdoing that had occurred at the premises. He suggested minimal acquaintance with the complainant, that he had only had a biscuit and a glass of water at the accused’s house, that he had not smoked anything, that he had left in order to see a mate, rather than because he was asked to leave and that he saw and heard nothing unusual. Neither party elicited detailed evidence about what his interactions were in relation to the complainant or about the conversations that he had in Farsi with the accused. I considered his evidence to be unreliable. I have not placed any weight upon his evidence insofar as it contradicts the evidence of the complainant or the version of events given by the accused to police.
The Crown sought to rely upon three lies said to have been told by the accused. The Crown sought to establish that the statements were lies because of inconsistency with what was said by Mr Daghagheleh. The first was the accused’s statement that Mr Daghagheleh had told him that the girl was really horny and that she wanted to have a place to have sex with Mr Daghagheleh. The second was that Mr Daghagheleh told the accused that he was no longer interested in being the complainant’s boyfriend. The third was that the accused had told Mr Daghagheleh to leave the unit because the complainant was uncomfortable with him being there prior to them engaging in sexual activity. Because I have treated Mr Daghagheleh’s evidence as being unreliable, I do not find that each of these matters were lies and hence I cannot use the telling of them as matters damaging to the credibility of the accused.
Consideration
The Crown case involved the evidence of the complainant, the undisputed findings of the accused’s semen on the complainant’s shirt, evidence corroborative of the complainant’s version of events gained from CCTV at the Woden shopping centre, complaint evidence arising from complaints made to her friend SC and her father, the evidence of Mr Daghagheleh and the admissions made by the accused during his interview with police. As indicated above, I have not placed any reliance upon Mr Daghagheleh’s evidence to the extent that it is inconsistent with either the version of events given by the complainant or the version given by the accused.
Most aspects of the version of events given by the complainant to police in her evidence‑in-chief interview have been demonstrated to be accurate. Her description of what occurred at the Woden shopping centre is consistent with what can be seen on the CCTV. Her description of the apartment is consistent with the photographic evidence about the nature of the apartment in exhibit 3. Her evidence as to the accused ejaculating upon her is corroborated by the presence of semen on her shirt. The version of events given by the accused is very similar to that given by the complainant. He gave a version of events which involves actions upon his part intended to give rise to penile vaginal intercourse but ceasing when the complainant said “No”, as well as the complainant subsequently sucking his penis. The difference of substance is that he said that he understood the complainant was consenting and she was in fact consenting to those acts. However, the fact that the complainant’s version has been corroborated in a number of respects in circumstances where she would not have known that it would be so corroborated is significant in assessing the reliability of her evidence.
Supporting the complainant’s credibility and her version of events was her complaint to SC on the evening that the incident occurred. That corroborates her being upset and the fact that the accused was trying to kiss her and excessively touching her in places that she did not want to be touched. Contrary to the submissions made on behalf of the accused, I do not consider it significant that she did not include all of the details of the acts that occurred. That is because if such events occurred, it would not be unusual or unexpected that she would be reluctant to disclose all of the details as, at that early stage, she was just coming to grips with what had happened and had been unwilling to mention what occurred to her parents. The submission for the accused cannot be that because she reported only part of what occurred, her evidence as to the occurrence of the unreported part is unreliable. That is because it is undoubtedly the case that she did not report all that had occurred because of the uncontested evidence of the accused’s semen on her shirt and the admissions of the accused about what happened. Rather, the accused must have been submitting that she did not report everything because what occurred was consensual. However, that would make no sense. It would be very unusual that she would make such a complaint to a close friend in the upset manner that she did if everything that had occurred was consensual.
The evidence of the complaint to her father is a matter to which I give less weight. While it does tend to support the complainant’s version of events, it did occur at a time more removed from the events in question. I address later in these reasons the submissions put by the accused as to the complainant’s relationship with her father. In light of the relationship, there is a good explanation for the delay in the making of the complaint. It is not at all unusual that a complainant of her age and maturity might confide in her close schoolfriends but be more reluctant to make disclosure to her parents. Her evidence about, on the one hand, being scared to make the disclosure but on the other hand desperately wanting to unburden herself by telling them appeared to me to be consistent with the sort of conflicting feelings that a person in her situation might experience.
I take into account that two schoolfriends to whom the complainant said she had, in addition to SC, made complaints, were not interviewed by police. I take this into account but that is not a matter which gives rise to a doubt about the reliability of the complainant’s evidence.
The fact that the complainant was prepared to take the photograph of the accused and subsequently provided that photograph to police is conduct consistent with the Crown allegations and inconsistent with the suggestion that all that had occurred was consensual. It is also behaviour which is inconsistent with the complainant having only pursued the complaint to police because she had told a false story to her father, a submission which I will deal with in a moment.
The submissions of counsel for the accused were directed to pointing out a series of what were said to be inconsistencies between the complainant’s evidence and the evidence of other witnesses. Significant reliance was placed upon what was said to be inconsistencies between the evidence of the complainant and the evidence of Mr Daghagheleh. Those inconsistencies were said to include how long she had been communicating with Mr Daghagheleh on Snapchat, who had contacted who to arrange the meeting, whether there was any smoking at the unit, whether Mr Daghagheleh lay down when he was tired at the unit, whether he could hear what was occurring between complainant and accused before he left the unit and whether the complainant and accused were talking normally when he returned. For the reasons given earlier, I consider that Mr Daghagheleh’s evidence is not reliable and as a consequence, I have not seen as significant any differences between his evidence and the evidence given by the complainant.
Further, considerable reliance was placed upon what were identified as differences between the initial complaint given by the complainant’s father to police and what is demonstrated to have actually occurred. For example, the complaint recorded by police after the complainant’s father made his complaint involved an agreement to meet at the Woden interchange and that she had first met Jacob’s unexpected friend only in the car park. I do not consider that these differences were significant. The complainant’s evidence was consistent with what was demonstrated by the CCTV to have been the case, namely, the three people ultimately meeting outside David Jones within the Westfield shopping centre and going from there. I consider that it is likely that any inaccuracies in what was initially recorded by police as a result of the complaint by the complainant’s father were as a result of his misunderstanding of what he was told, or alternatively some miscommunication of his understanding to police. In assessing the significance of these differences, I have borne in mind that the complainant’s father was angry and upset at the time that the complainant first told him about the events. It is much more likely that there was some misunderstanding on his part or some miscommunication with police than that the complainant was telling him something different to what she subsequently, accurately, described.
Significant reliance was placed by counsel for the accused upon the fact that the complainant was said to have had opportunities to leave the accused’s premises but did not do so. I do not consider these to be of significance. It is understandable that a young woman in her situation, having agreed to go back to premises with a person who she thought was her ally (Mr Daghagheleh), may have hesitated to get up and leave the premises when she started feeling uncomfortable or things started going wrong. It is wrong to judge her by reference to conduct that might be expected of a self-confident adult in familiar circumstances when she was a 16-year-old girl in unfamiliar circumstances.
I accept that in light of SC’s evidence that there was no telephone communication with the complainant while she was at the unit, there must be some doubt as to whether or not this conversation occurred and whether or not the complainant told him that she was at that stage feeling uncomfortable. However, this inconsistency between the evidence of the complainant and SC and the doubt that it generates about the phone call does not cause me to have any doubt about the reliability of the complainant’s evidence generally.
I do accept the submission of the accused that the complainant’s father demonstrated what might reasonably be described as controlling behaviour in relation to his daughter. His conduct, while rationalised in his own mind as being protective of his daughter and in her own interests, was more restrictive and interventionist than many parents. There are likely to be cultural factors at play in relation to his approach. These were not explored in evidence. Based upon the conduct of the complainant’s father, the accused submitted that a matter which should give rise to a doubt as to the truthfulness of the complainant’s account was that she may have made a false complaint at the time of her disclosure to her father because he was angry at her for another reason and that, having made the complaint to him, she was given no choice about making her complaint to the police and felt compelled to continue with the false narrative because of the repercussions from her father or the police if she changed her version of events. I do not accept that submission. It is, in my view, inconsistent with the contemporaneous complaint to SC, inconsistent with the evidence of Senior Constable Murray who spoke separately to the complainant to ensure that she understood that she had autonomy in relation to the making of the complaint and inconsistent with the extent to which the details of her complaint have been proven by other evidence to be accurate. On this last point, the most obvious corroboration of the details is in the CCTV evidence of the circumstances of the meeting at Westfield Woden, their departure from the shopping centre and the existence of the accused’s semen on the complainant’s shirt in a manner consistent with the events that she described.
The collection of other alleged inconsistencies pointed to by counsel for the accused do not individually or collectively cause me to have a doubt about the reliability of the complainant’s evidence.
The version of events given by the accused does not cause me to have a doubt about the complainant’s version of events. I accept that I need to treat what was said in the interview with police with some care because it was largely given through a translator. However, the clear theme of the version of events was one which involved a very unsophisticated view of human sexual interaction. It was premised on the basis that the complainant had agreed to have sexual intercourse with Mr Daghagheleh prior to the meeting and that then, with almost no other conversation, the complainant agreed to be his “girlfriend” and consensually participated in all of the activities that occurred. It involved an expectation on the part of the accused that having come back to his house they would have sex, and that only to the extent to which she was willing to have sex with him did she have any value to him. The attitudes to the sexual interaction demonstrated by the accused are not merely matters which as counsel for the accused accepted “did not paint him in a particularly nice light”, but instead demonstrate attitudes which make it more likely that the complainant’s version of events it is true. Two examples illustrate this:
(a)the sense of entitlement when he complained at her refusal to engage in penile vaginal intercourse with her: “It’s not right. I did take all my clothes off. You made me horny and that’s not right”.
(b)his statement to Mr Daghagheleh after the event that he was not interested in her: “You’re right. Ah, she’s not good.… If she wants my phone number or anything of me, don’t give it to her”.
His version of events involved the complainant making arrangements to meet up for a sexual encounter with a person she had only ever met on Snapchat then, when told that person was not interested in having a sexual encounter with her, having a consensual sexual encounter with his unexpected companion. It also involves her subsequently telling lies to her friend, SC, because of her disappointment that her Snapchat contact was not interested in relationship with her. While this version of events is theoretically possible, I reject beyond reasonable doubt that it was the case here. The complainant appeared to be a relatively unsophisticated and naïve 16-year-old girl. That is clearly the impression obtained from observing her on the CCTV from the shopping centre, during the course of her evidence-in-chief interviews and during cross-examination. There were various examples of that lack of sophistication during the course of her evidence. Three examples are: her reluctance to verbally describe what had occurred; the fact that to my observation she appeared not to understand what circumcised meant; and the fact that she did not understand whether there was any difference between cannabis, marijuana and “weed”. She was clearly prepared to meet in person somebody who she had only known from Snapchat. However, that is very different to agreeing to engage in sexual activity with an unexpected stranger after very little nonsexual interaction and limited conversation.
Although no submission was put to this effect, I consider that the evidence has excluded beyond reasonable doubt the possibility that the complainant freely and voluntarily consented to the sexual acts at the time but subsequently regretted having done so and then chose to make a false complaint.
So far as the elements of the offending are concerned my conclusions are as follows.
Count 1: Act of indecency without consent
The accused committed an act.
I am satisfied beyond reasonable doubt that the accused attempted to kiss the complainant’s face when he was on top of her.
The act was indecent according to the standards of morality and decency held by ordinary members of the community.
I am satisfied that in doing so, those acts were indecent according to the standards of morality and decency held by ordinary members of the community. It clearly had a sexual connotation and did not occur in circumstances where such an attempt might not be considered to be indecent.
The act was committed on, or in the presence of, another person.
I am satisfied beyond reasonable doubt that the acts were committed upon the complainant.
The other person did not consent to the act.
I am satisfied beyond reasonable doubt that the complainant did not consent to the act. There was nothing that the complainant had done to indicate that she consented. The conduct occurred after the accused had been told that she did not want to do anything prior to him bringing the mattress into the living room.
The accused was reckless as to whether the other person consented to the act.
I am satisfied beyond reasonable doubt that the accused was reckless as to whether the complainant consented to those acts because he, in fact, knew that she did not consent. That is because I accept beyond reasonable doubt the complainant’s evidence that she told him that she did not want him to go near her or touch her, that he had forced her to touch his penis and she said she did not want to do anything and moved rooms to sit near Jacob. He then kissed her on the neck after he moved his mattress into the living room. She once again said “Stop”. He then lifted her up and took her outside and put her on the mattress. It was from this point that he tried kissing her and she tried moving her head from side to side and he was holding her arms. I am satisfied in those circumstances that he knew that she was not consenting to those acts. He may have hoped that she would change her mind, but at the time that he committed those acts he was aware that she did not consent.
Count 2: Attempted sexual intercourse without consent
The accused intended to engage in sexual intercourse with another person.
I am satisfied beyond reasonable doubt that the accused intended to have sexual intercourse with her at the point where he pulled down her pants and tried putting his penis in her vagina.
The accused carried out conduct that was more than merely preparatory to the commission of the offence attempted.
I am satisfied beyond reasonable doubt that the accused did not merely expose his penis but instead tried to take off the complainant’s underwear and attempted to put his penis in her vagina. I am not satisfied beyond reasonable doubt that he penetrated any part of her genitalia. I accept the submission by counsel for the accused that precisely what was mechanically involved in the attempt to put his penis in her vagina was not described in evidence. However, that left the complainant’s description that he “tried putting it in” neither challenge nor elaborated upon. Having taken those steps, he then desisted and suggested that she suck his penis instead. I am satisfied that the act of pulling down the complainant’s underwear and what was described as trying to “put it in” were more than merely preparatory in that they were physical acts directed to the mechanics of sexual intercourse that would have immediately preceded the intended sexual intercourse.
The other person did not consent to the sexual intercourse.
I am satisfied beyond reasonable doubt that the complainant did not consent to sexual intercourse.
The accused knew that the other person did not consent to the sexual intercourse.
I am satisfied beyond reasonable doubt that the accused knew that she did not consent to sexual intercourse. That is because she had not consented to the earlier sexual acts, she had been trying to move her head from side to side while he was attempting to kiss her and that she tried to stop him removing her underwear. He in fact did cease his attempt as a result of her lack of consent. Once again, he may have hoped that she would change her mind but that does not detract from the fact that he knew that she did not consent at the point where he was committing the acts.
Count 3: Sexual intercourse without consent
The accused engaged in sexual intercourse with another person.
I am satisfied beyond reasonable doubt that the accused intentionally put his penis into the complainant’s mouth. That occurred for only a few seconds until the complainant managed to pull her head back and remove the penis from her mouth.
The other person did not consent to the sexual intercourse.
I am satisfied beyond reasonable doubt that the complainant did not consent to this act. That is consistent with her earlier lack of consent to each of the other sexual acts that the accused had performed upon her or in her presence. The performance of the act of sexual intercourse was consistent with the sense of entitlement to further sexual activity that the accused had once his attempt at sexual intercourse had ceased.
The accused was reckless as to whether the other person was consenting to the act.
I am satisfied that the accused knew that the complainant did not consent. She had not consented to any of the other sexual acts.
Count 4: Act of indecency without consent
The accused committed an act.
I am satisfied beyond reasonable doubt that the accused masturbated and ejaculated onto the complainant’s face and shirt. That fact was not really challenged and was obviously consistent with the semen present on the complainant’s shirt.
The act was indecent according to the standards of morality and decency held by ordinary members of the community.
I am satisfied that in doing so those acts were indecent according to the standards of morality and decency held by ordinary members of the community.
The act was committed on, or in the presence of, another person.
I am satisfied beyond reasonable doubt that the acts were committed in the presence of and upon the complainant.
The other person did not consent to the act.
I am satisfied beyond reasonable doubt that the complainant did not consent to the act. I accept the complainant’s evidence that she had made clear her lack of consent to all previous sexual acts and that the masturbation and ejaculation occurred shortly after she had avoided the continuation of his penetration of her mouth with his penis.
The accused was reckless as to whether the other person consented to the act.
Having regard to the continuing lack of consent on the part of the complainant, her expression of that lack of consent, the cessation of the accused’s attempt at penile vaginal intercourse and the avoidance by the complainant of the continuation of the oral sexual intercourse, I am satisfied beyond reasonable doubt that the accused knew that she did not consent to the masturbation in her presence and his ejaculation upon her.
Orders
The verdicts that I return are:
(a)Count 1: guilty.
(b)Count 2: guilty.
(c)Count 3: guilty.
(d)Count 4: guilty.
| I certify that the preceding one hundred and seventy-two [172] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 6 August 2021 |
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