R v Davari

Case [2016] QCA 222

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davari [2016] QCA 222

PARTIES:

R
v
DAVARI, Vahid
(appellant)

FILE NO/S:

CA No 92 of 2016
DC No 1893 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Date of Conviction: 6 April 2016

DELIVERED ON:

6 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2016

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was found guilty of raping the complainant who was the appellant’s house cleaner – where the appellant alleges that the complainant consented to sex – where the appellant was sentenced to five years’ imprisonment to be suspended after two and a half years, for an operational period of five years – where the appellant alleges that the trial judge wrongly decided that the evidence of the appellant’s ex-wife concerning the dismissal of the complainant from her employment some 14 months prior to the alleged offence was inadmissible and irrelevant – where it is submitted that the ex-wife’s immediate reaction to the way the complainant was dressed and behaved in front of the appellant furnished a basis for the jury to infer that the complainant had a sexual interest in the appellant and therefore relevant to the fact in issue, that being, whether the complainant consented to sex 14 months later – where evidence of the complainant’s clothing worn during the visit 14 months prior and during the day of the alleged rape was adduced – whether the ex-wife’s evidence could bear upon whether the complainant held a sexual interest in the appellant and was therefore relevant to the fact in issue – whether the trial judge erred in not allowing its admission

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was found guilty of raping the complainant who was the appellant’s house cleaner – where the appellant was sentenced to five years’ imprisonment to be suspended after two and a half years, for an operational period of five years – where the appellant alleges that the trial judge erred in failing to direct the jury on the need to scrutinise the evidence of the complainant – where it is submitted that the circumstances of the absence of witnesses, lack of evidence corroborating the complaint, and the explanation for the content of text messages between the appellant and the complainant after the alleged rape warranted the giving of a Robinson direction – where the trial judge directed the jury that nothing turned on the absence of the witnesses – where it was a matter for the jury to decide whether they accepted the complainant’s explanation for the text…

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Details
AGLC
R v Davari [2016] QCA 222
Case
[2016] QCA 222
Decision Date

CaseChat Overview and Summary

In the case of R v Davari, the appellant, an Iranian man, appealed against his conviction for raping his former house cleaner, an Iranian woman. The appellant contended that the trial judge had erred in several respects, including the improper admission of evidence and the failure to provide a Robinson direction to the jury. The complainant testified that on 1 April 2015, the appellant asked her to clean his bathroom, and during the encounter, he raped her despite her repeated refusals. The appellant was sentenced to five years' imprisonment, with a non-parole period of two and a half years.

The legal issues in the appeal centred on the admissibility of evidence concerning the complainant's dismissal from the appellant’s employment 14 months prior to the alleged offence, and whether the trial judge erred in not giving a Robinson direction to the jury. The appellant argued that the ex-wife's evidence about the complainant's behaviour and attire when she was dismissed was relevant to the issue of consent. The appellant also submitted that the absence of witnesses, lack of corroborating evidence, and the content of text messages between the parties warranted a Robinson direction. The court needed to determine whether the trial judge had erred in excluding the ex-wife’s evidence and failing to give the direction.

The court found that the trial judge did not err in excluding the evidence of the ex-wife regarding the complainant’s prior dismissal, as it was not relevant to the issue of consent at the time of the alleged offence. The court held that the evidence did not provide a basis for inferring that the complainant had a sexual interest in the appellant 14 months prior. Additionally, the court found that the trial judge did not err in not giving a Robinson direction, as the circumstances did not warrant such a direction. The court concluded that the conviction was safe and satisfactory, as the jury was properly directed and had sufficient evidence to find the appellant guilty beyond reasonable doubt.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The complainant’s evidence-in-chief: The complainant was an Iranian woman who had moved to Australia in 2011. At the time of the alleged offending, she was 32 years old. She had two children, but was divorced. She had known the appellant, an Iranian man then 52 years old, since 2012. Once or twice a month during a period of two years from 2012, she had cleaned the house where he resided with his wife, M. The complainant ceased cleaning their house in the summer of 2014. The complainant, whose first language is Farsi, gave evidence with the assistance of an interpreter. She testified that on Monday, 30 March 2015, the appellant telephoned her. Having missed his call, she called him back. He told her that his wife no longer resided at the house and that he was unable to clean his bathroom properly. He asked her if she would come over to do it. She agreed that she would.[2][2]AB38; Tr1-27 ll1-45. At 7.40 am on Wednesday, 1 April 2015, the complainant sent the appellant a text message enquiring whether she could attend at his house that day. He replied that she could. She arrived at about 10 am.[3] According to the complainant, the appellant suggested that they have tea. She agreed. They sat in the backyard drinking the tea and talking about some mutual friends, the death of a mutual acquaintance, and the appellant’s separation from M. He said that he was happier without her. The complainant then took cleaning implements to the upstairs ensuite and cleaned the toilet, the shower glass, the basin and the floor. It took her “one hour or more”.[4] When she finished, she went down to the kitchen to collect her handbag.[3]AB39; Tr1-28 l17.[4]AB42; Tr1-31 l15. The complainant testified that the appellant came over and put his arms around her. She asked him what he was doing. He told her to relax and said:“You know, I’m going to do that because I like to do that and I am being crazy for it.”[5]She asked him to stop and said that she wanted to go home. The appellant ignored her. She tried to “convince him” or “trick him” by saying she was all sweaty and smelly and asking him to let her go home to clean up and then come back. He said that that was not necessary and that he would take her to the shower himself. She kept saying no.[6][5]AB43; Tr1-32 l25.[6]AB44; Tr1-33 ll9-23. The appellant kissed the complainant on the lips several times. He lifted her up with one arm around her shoulders and the other under her legs and carried her upstairs to his bedroom. She asked him to put her down and let her go. He put her on the end of his bed. The complainant gave evidence that the appellant stood between her legs. He tried to take off her clothes and she tried to stop him saying no repeatedly. As he undid buttons she would redo them.[7] He took off her shirt, bra and pants. She asked him to stop and to let her leave. He told her to relax and try to enjoy it. He took off all his clothes, kissed her on the lips and lay on top of her. Sexual intercourse began. She had pain internally in her “lower tummy”. She asked him to stop at least five or six times. The intercourse continued for “maybe more than 10 minutes”. He withdrew his penis and ejaculated on her stomach. He went to the bathroom, obtained toilet paper, used some of it to clean himself up and gave the rest to her. He then went to the bathroom for a quick shower.[8][7]AB47; Tr1-36 ll7-13.[8]AB46-49; Tr1-35 l38 – Tr1-38 l45.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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