R v Imran Hakimi
[2012] ACTSC 11
•3 February 2012
R v IMRAN HAKIMI
[2012] ACTSC 11 (3 February 2012)
CRIMINAL LAW – Particular offences – offences against the person – one charge of sexual intercourse without consent – elements of the offence not proved beyond a reasonable doubt – verdict of not guilty entered – accused acquitted
Crimes Act 1900 (ACT), s 54
Evidence Act 1995 (Cth)
No. SCC 52 of 2009
Judge: Burns J
Supreme Court of the ACT
Date: 3 February 2012
IN THE SUPREME COURT OF THE )
) No. SCC 52 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
IMRAN HAKIMI
ORDER
Judge: Burns J
Date: 3 February 2012
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty is entered and the accused is acquitted of the charge.
The accused, Imran Hakimi, is charged with one count contrary to s 54 (1) of the Crimes Act1900 (ACT) in the following terms:
On 29 June 2008 at Canberra in the Australian Capital Territory Imran Hakimi engaged in sexual intercourse with [CW], without her consent, knowing that she had not consented or being reckless as to whether she had consented.
To this charge he has entered a plea of not guilty. The accused elected to be tried by judge alone.
As the accused has waived his right to trial by jury I am to perform a dual function. I must instruct myself as I would a jury, and then I must decide the case. The first direction I give myself is that it is for the Crown to prove the charge against the accused. The accused is not required to prove or disprove anything in this case. The onus of proving the guilt of the accused remains on the Crown throughout the trial.
Secondly, the Crown must prove the guilt of the accused to the standard of beyond reasonable doubt. If, after considering all of the evidence, a reasonable doubt arises with respect to any element of the charge, the accused must be given the benefit of it and must be acquitted.
The elements of the charge are:
a) the accused engaged in sexual intercourse with CW;
b) CW did not consent to the accused engaging in sexual intercourse with her; and
c) the accused, at the time he engaged in sexual intercourse with CW, either knew she was not consenting or was reckless as to whether she was consenting.
As I have noted, the Crown must prove each of these elements to the standard of beyond reasonable doubt if I am to convict the accused of the charge against him.
The accused gave evidence, although he was not obliged to do so. Effectively, the accused denied having engaged in sexual intercourse with CW on the date alleged. As such much of the evidence and submissions of counsel were directed to this element of the charge. However, I remind myself that I must be satisfied beyond a reasonable doubt of each of the elements of the charge if the accused is to be convicted.
I also remind myself that if I do not accept the evidence of the accused, or any part of it, this is not evidence of the guilt of the accused. Even if I disbelieve the accused, the Crown must still prove the guilt of the accused beyond reasonable doubt.
The Crown Case
The Complainant
The complainant, CW, testified that in 2008 she was residing at a unit in Braddon in the Australian Capital Territory. At that time she knew the accused as a security guard who worked at the unit complex where she resided. She knew him by the name of “Carlos”. It was not until after the incident of 29 June 2008 that she became aware of his full name. Prior to 29 June 2008 she had known the accused for a few months. She would see him around the unit complex, and he would come to her unit from time to time to see if she was “okay”. On one occasion, he allowed her to park her car in his parking area. She had spoken to the accused at least 10 times prior to 29 June 2008. She had, however, never met with him socially before that date.
On Sunday 29 June 2008 CW had contact with her children from just after lunch until 5.00 pm. She did not consume any alcohol on that date. CW testified that the accused attended her unit around 6.00 pm. This attendance was not pre-arranged, and she had not invited him. The accused knocked on the door, and the complainant invited him in. They had a conversation in which the accused told her he had lost his job, as someone had made a complaint about him. He asked if she would like to see a movie with him. CW testified that the accused had directed similar invitations to her on a few occasions prior to 29 June 2008, but she had not accepted.
On this occasion CW agreed. The accused told her that he had to go and make a phone call, and he and CW left her unit together and walked to the Canberra Centre where they parted. They arranged that he would come and collect CW from her unit later that day.
CW testified that the accused came to her unit at about 7:30 pm. CW was wearing jeans and a purple top. She was also wearing a clean pair of hot pink underpants and a black bra. CW and the accused went to the accused’s unit, which I understand to be in an adjoining unit complex. CW had been to that unit on one previous occasion, when the accused wanted to show her his unit as he had only just moved in. This occurred a few weeks or a month prior to 29 June 2008. On that occasion CW went inside and stood in a small foyer area at the front of the unit. At that time she did not go into the bedroom.
On 29 June 2008 CW entered the accused’s unit, and was directed into the bedroom. In the accused’s bedroom there was a television and a DVD player. The accused told CW to sit on his bed. At that time the accused was wearing black pants, a black long sleeved shirt with a collar and buttons and a black trench coat. The bed was made. It was a single bed. The television faced the bed from the side. CW sat on the side of the bed with her feet on the ground, facing towards the television. CW said that she could not remember any other chair or furniture in the room on which she could have sat.
Before the accused put a DVD on, he changed into a pair of shorts and a white tee shirt. The accused then asked CW whether she wanted to watch a “porno movie”, and CW replied that she did not want to as she was not in the mood and she did not really like them. The accused said that he had another movie downloaded from the web. The accused then put on a DVD, and they started watching a movie called “Super Something”. I did not understand the complainant to be saying that this was the actual name of the movie, rather I understood her to be saying that the name of the movie began with the word “Super” but that she could not remember the rest of the title.
CW testified that the accused eventually sat next to her, on her right, facing towards the television. At that time they were about 30 centimetres apart. She said that they watched the DVD for about 10 minutes before the accused paused the movie. He started massaging her shoulders, using both of his hands. At one point during this process he told the complainant that he loved her. He then kissed her neck. At one point he also tried to touch her breast on top of her clothes, but she pulled away.
CW testified that the accused asked her to turn towards him, as at that time she was still seated on the edge of the bed facing the television, and he was now behind her. She asked him why. He said he wanted to see her, so she turned towards him. At that time there was no physical contact between them. He then tried to put his right hand down the back of her jeans, underneath her jeans and her underwear. However, his hands did not go far enough to fully touch her bottom. He then tried to touch her breast again, and pushed her down onto the bed using his hands against her chest. He then started to forcibly remove her jeans. CW testified that the accused pulled down her jeans and underwear, using force. She was not sure whether the jeans and underwear were totally removed. The accused was still in his shorts. He then removed his shorts, and she saw that his penis was erect and wearing a condom. He then penetrated her vagina with his penis. She did not know how long this continued, but said that it felt like forever. She said that she was trying to fight him off and saying “No, I don’t want this”. However, the accused did not stop. At that time the accused was on top of her, and she was lying on her back on the bed.
When the accused ceased sexual intercourse, he lay down with his head on the pillows and asked CW to cuddle him. She said she did so because she was scared of him hurting her more and she was not sure what to do. On a number of occasions she tried to pull away from the accused, but every time he just held her tighter and pulled her towards him. Finally, the accused fell asleep. CW then grabbed her mobile telephone and sunglasses and left the unit. As she was leaving the unit the accused woke up and said “Where are you going?” CW replied “I have to go home, I need to get up and go to work early”.
When CW left the accused’s unit, she returned to her own unit and rang a friend, Kaylene Barry. She then rang the Inanna Incorporated Crisis Service on-call line. As a result of that conversation she rang the Canberra Rape Crisis Centre. Later that evening she went to the Canberra Hospital on the advice of the Canberra Rape Crisis Centre. At the Canberra Hospital she spoke to Police and told them what happened. She also spoke to a doctor and told her everything that had happened to her.
In her evidence in chief the complainant agreed that she was convicted in the Australian Capital Territory in 2006 for offences of giving false evidence and making a false accusation. She said that at that time she was being stalked and harassed by her ex-husband. He was subject to a Domestic Violence Order, but Police were “unable” to arrest him for alleged breaches of the order. CW testified that she became frustrated as every time she moved residence, he found where she was living, necessitating her moving again. She testified that she made a false accusation against her husband in order to get him arrested. She pleaded guilty to the offences in this Court.
Dr Parekh
On behalf of the Crown, Dr Vanita Parekh gave evidence. Dr Parekh examined the complainant on 29 June 2008 at the Canberra Hospital. She took a history from the complainant of what occurred that evening, examined the complainant and took various forensic swabs and samples. In the course of her examination of the complainant, Dr Parekh was unable to find any obvious injury. When asked to consider the importance of the lack of any obvious injury to the complainant, Dr Parekh said:
“In about 70 per cent of people who report sexual assault you will find no injury, and that percentage is approximately the same as those who report sex when that has been part of something they have wanted to happen. There are a number of different responses to a sexual assaultive situation, and those responses include a fight response where there might be a struggle and in that situation you might get injuries. There is a flight response where people will try to get away from that situation – again you may find injuries depending on the struggle or if they fall over. There is a freeze response where people will just not struggle in response and not try to get away, and there is also a negotiating response where they will try to negotiate out of that particular situation, and again that would be a situation in which you might not expect to find injuries.”
Dr Parekh testified that she collected two swabs from the complainant’s vaginal area, one from the low vagina, within about three centimetres past the hymen, and a high vaginal swab taken from higher in the vagina. Dr Parekh expressed the opinion that DNA from a perpetrator of a sexual assault may not be found on a vaginal swab if the perpetrator uses a condom.
In cross-examination Dr Parekh was asked about notes that she made of the complaint by the complainant. Dr Parekh noted that the complainant told her: “He kept trying. He ripped my jeans and got my jeans and underwear off.” Dr Parekh also noted that the complainant had told her: “I was going home to get to work”.
The complainant told Dr Parekh that she had commenced her menstrual period on 24 June 2008, and was menstruating at the time of the alleged sexual assault. Dr Parekh noted that the complainant’s menstrual period was still present when she examined her. Dr Parekh was shown a photograph of the underwear worn by the complainant, which appears to show an area of staining by menstrual blood. Dr Parekh was asked whether, in those circumstances, she would expect to find some blood or staining on the bedding on which the alleged offence took place. Dr Parekh said that she would not necessarily expect to find blood or staining.
Winsome Willow
The next Crown witness was Ms Winsome Willow, the manager of Inanna Incorporated Crisis Service. She testified that on the night of 29 June 2008 she was the on-call worker at Inanna. She received a telephone call from the complainant. The complainant told her that she had been raped. The complainant told Ms Willow that she had been at someone’s house to watch a DVD and had sneaked out after the offender had fallen asleep.
Annie Love
The next Crown witness was Ms Annie Love. She is a crisis counsellor with the Canberra Rape Crisis Centre. She has been employed in that position for eight years. On the night of 29 June 2008 she was on call at the Canberra Rape Crisis Centre. At about 9.55 pm she received a telephone call from the complainant. She said that the complainant was speaking very quickly and sounded like she was very scared. Her voice was staccato, and Ms Love could not make out everything that the complainant was saying. Ms Love said that the complainant told her that she had met a man who was a security guard at Allawah Flats in Braddon and that he had invited her back to his unit to watch a DVD. She said that she did not particularly like him but she thought she would be safe because he was a security guard, so she agreed to go back and after they started to watch the DVD she was raped. The complainant said this happened earlier in the evening around 7 or 7.30 pm. They had then gone to sleep on the bed and the accused had his arm around the complainant, and every time she tried to move or get away he would wake up and hold her tighter. But eventually he went to sleep and she was able to escape. Ms Love said that when she talked to the complainant, the complainant was in such a state that she did not know she was actually safe and that she was not still being attacked. Ms Love ascertained that the complainant was safe, and that she had a friend who was giving her a lift to the Accident and Emergency Department of the Canberra Hospital. Ms Love arranged to meet the complainant at the hospital at 11.00 pm. Ms Love then rang Accident and Emergency and let them know that two women would be coming in and asked that they would arrange for a doctor from the forensic and medical sexual assault unit to attend.
Constable Walsh
The next Crown witness was Constable Nikki Walsh. A statement dated 24 August 2008 prepared by Constable Walsh was tendered by consent. At about 1.00 am on 30 June 2008 Constable Walsh attended the Canberra Hospital and had a conversation with Dr Parekh. Dr Parekh handed Constable Walsh a sealed envelope containing forensic swabs and other material. Constable Walsh then had a conversation with the complainant. The complainant told Constable Walsh that at about 7.30 pm on 29 June 2008 she went to a friend’s place to watch a DVD. She knew this friend by the name “Carlos”. The complainant stated that Carlos worked as a security guard at the units where she lives. The complainant sat on Carlos’ bed to watch the DVD. About 10 minutes into the DVD, Carlos started massaging her shoulders. He then ran both hands down her front, over her clothes and touching her breasts. The complainant told him “No” and tried to pull away. Carlos kept trying to kiss her, and then put his hands down the back of her jeans touching her buttocks. The complainant stated Carlos kept saying he loved her. Carlos pushed the complainant so that she was lying down on the bed, and he pulled her jeans and underwear off. The complainant noticed that Carlos was wearing a condom. The complainant remembered Carlos being on top of her, having sexual intercourse. The complainant was lying on her back, with Carlos on top of her, face to face. Carlos was kissing her mouth and neck. When he finished, Carlos pulled the complainant closer to him and made her lie under the covers. The complainant began trying to find her mobile phone. While in the bed, the complainant stated Carlos was holding her tightly from behind and that every time she moved, he would hold her tighter. The complainant waited for Carlos to fall asleep. Once he was asleep, she got out of the bed and found her phone and clothing. As she was leaving, Carlos woke up and asked her where she was going. The complainant told him she was going home. The complainant described several items in Carlos’ unit, including a single bed, a green pillow case, cream sheets, a Sony television, a chest of draws with photographs on top, and a Spiderman lamp. The complainant stated that this was only the second time she had been in Carlos’ unit. She also stated that at some point during the assault she believed she may have scratched Carlos on his arm.
Sergeant Parsons
The next Crown witness was Sergeant Donna Parsons, a member of the Australian Federal Police and the informant in this matter. A statement dated 21 August 2008 prepared by Sergeant Parsons was tendered by consent. On the morning of 30 June 2008 Sergeant Parsons attended the Canberra Hospital and had a conversation with Constable Walsh. She subsequently had a short conversation with the complainant, explaining the stages of the Police investigation. At about 4.30 am that morning she again spoke to the complainant at the Winchester Police Centre. At that time Sergeant Parsons asked the complainant to remove the clothing that she was wearing during the assault; those items were then seized and exhibited by Constable Freeman. At about 4.47 am Sergeant Parsons commenced a taped record of conversation with the complainant. At about 7.14 am that record of conversation was concluded.
Later that day Sergeant Parsons obtained a search warrant from Magistrate Campbell to search the accused’s premises at Unit 69, Block C Currong Flats, Braddon. At about 7.50 am that day Police attended the unit but no one was home. Arrangements were then made with the owner of the unit, Havelock Housing Association, to provide entry to the unit pursuant to the search warrant. Upon entry to the unit, Police confirmed that there was no one in attendance. Police observed that the unit was a one-bedroom unit with a combined bathroom and laundry, a kitchen and a lounge room. During the course of the search Police located a green fitted sheet on the single bed in the bedroom, a green flat sheet also on the single bed in the bedroom, and a DVD with “Superbad” and “Mighty Ducks I, II and II” written in blue pen on it.
At about 2.15 pm that day Sergeant Parsons had a telephone conversation with the accused. The accused was informed of the allegation against him and agreed to attend the City Police Station on 2 July 2008 at 10.00 am. At 10.00 am on 2 July 2008 the accused attended the City Police Station and, on legal advice, declined to participate in a record of interview. The accused was arrested and charged with the current offence.
Christopher Weaver
As part of the Crown case a statement from Christopher Weaver dated 25 October 2010 was tendered. Since 2006 Mr Weaver has been employed by Security International Services (SIS). He is currently the ACT Operations Manager of SIS. As part of his employment with SIS, in around 2007 Mr Weaver performed the role of mobile/static guard in a precinct encompassing Allawah, Bega and Currong Flats in Braddon. One of the residents of Allawah Flats that he came to know was Solaiman Hakimi, the brother of the accused. Through Solaiman, he met the accused. Not long after Mr Weaver met the accused, the accused told him that he wanted to be known as Carlos. In mid-2007 the accused became an employee of SIS. The accused worked as a mobile/static security guard in the precinct of Allawah, Bega and Currong Flats.
Around June 2008 a complaint was received about the accused through ACT Housing from a resident at Kanangra Court in Reid in the Australian Capital Territory. As a result of that complaint, the accused was moved from the Allawah, Bega and Currong Flats precinct to Anzac Park. Mr Weaver was not certain whether the accused actually started working at Anzac Park, as the accused’s employment with SIS was terminated when they became aware of the present allegations of sexual assault.
After the accused was charged with the present offence, Mr Weaver had a number of conversations with him. In those conversations the accused was consistent in saying that he never had sex with the complainant.
Carol-Ann Shenk
The final witness on behalf of the Crown was Carol-Ann Shenk, a forensic biologist employed by the Australian Federal Police. Counsel for the accused did not dispute Ms Shenk’s qualifications as a forensic biologist, and her report was tendered without objection as exhibit 10. Ms Shenk received the following items for examination relevant to the charge against the accused:
· a medical examination kit relating to the complainant
· a DNA reference sample relating to the accused
· one dark brown mink blanket with flower motif
· one green fitted sheet
· one green flat sheet
· one black bra
· one ladies pink underpants
· one ladies blue jeans
Ms Shenk undertook a DNA analysis of vaginal swabs and a labial swab taken from the complainant. No material linked to the accused was found in the analysis of those swabs. Ms Shenk analysed a dry peri-oral swab taken from the complainant by Dr Parekh. She found a mixed DNA profile from a minimum of two contributors, which could be separated into major and minor components. The complainant could not be excluded as a source of the major component and the accused could not be excluded as a contributor of the minor component. Ms Shenk concluded that the minor DNA profile was at least 119,000 times more likely to have come from the accused than to have come from another unknown, unrelated individual selected at random from the general ACT population. She described that as being “very strong support”.
DNA analysis of the finger nail scrapings of the complainant did not reveal any material which could be linked to the accused.
Samples were taken from both sides of the dark brown mink blanket with flower motif taken from the accused’s unit and subjected to DNA analysis. With respect to each side, mixed DNA profiles were obtained. The accused could not be excluded as the source of one of those profiles, however in each case the complainant could be excluded as a contributor to any of the profiles.
A sample was taken from the green fitted-sheet taken from the accused’s unit and a mixed DNA profile from a minimum of three contributors was obtained. That profile could be separated into major and minor components. The accused could not be excluded as a source of the major component, however there was insufficient information to determine the source of the minor components.
Samples were also taken from the green flat sheet taken from the accused’s unit. A male DNA profile was obtained. The accused could not be excluded as the source. Samples of other areas of the flat sheet revealed a mixed DNA profile from a minimum of two contributors. The accused could not be excluded as a source of the major component, however the complainant was able to be excluded as the contributor to the minor component.
The black bra worn by the complainant on the date of the alleged offence was also subjected to DNA analysis. A sample from the exterior of the bra cups revealed a female DNA profile. The complainant could not be excluded as the source of that DNA profile. A sample taken from the exterior side straps of the bra revealed a mixed DNA profile from a minimum of two contributors. The complainant could not be excluded as the source of the major component, but the accused could be excluded as the contributor to the minor component. A sample taken from the interior of the bra cups revealed a mixed DNA profile from a minimum of two contributors. The complainant could not be excluded as the source of the major component, however the accused could be excluded as the contributor to the minor component.
Samples were also taken from the pink underpants worn by the complainant at the time of the alleged offence. A sample from the interior front of the underpants revealed a mixed DNA profile from a minimum of two contributors. That profile could be separated into major and minor components. The complainant could not be excluded as the source of the major component. The accused could not be excluded as a contributor to the minor component. Ms Shenk expressed the view that the minor component is at least 53 times more likely to have come from the accused than if it came from another unknown, unrelated individual selected at random from the general ACT population. Ms Shenk described this as providing “limited support”. Other samples taken from the exterior front and the exterior rear of the pink underpants provided no material linked to the accused.
Samples were also taken from the blue jeans worn by the complainant on the date of this alleged offence. A sample from the exterior waistband and zip area revealed a mixed DNA profile from a minimum of two contributors. That profile could be separated into major and minor components. The complainant could not be excluded as the source of the major component, however the accused could be excluded as a contributor to the minor component.
A further sample was taken from the interior of the waistband of the jeans. A mixed DNA profile from a minimum of two contributors was obtained. This profile could be separated into major and minor components. The complainant could not be excluded as the source of the major component, however there was insufficient information to determine the source of the minor component.
In cross-examination Ms Shenk was asked whether she would expect to find DNA on bedding in a situation where the complainant has either sat or lay down on that bedding whilst naked from the waist down. Ms Shenk replied: “If there was skin contact with the bedding you would expect to see her DNA”. Ms Shenk also agreed that you would expect to find more DNA from the complainant on the bedding if sexual intercourse had taken place.
No chemical tests for blood were performed on the bedding, however a visual examination of the items of bedding taken from the unit of the accused showed no sign of staining by blood.
The Defence Case
The accused gave evidence. He gave evidence via an interpreter. He testified that on the evening of 29 June 2008 he was at his unit, being Unit 69 Currong Flats in Braddon. He left his flat to go to the shop to get a drink. On his way he saw a girl whose name he did not at that time know (the complainant, CW). He had seen her once previously. The accused was asked whether anything happened when he saw the complainant that evening. He answered: “Yes, the girl told me to come to her house and then from her house we will go to my house...to watch a movie.” The accused said that he went to the complainant’s house on the way back from the shops and she invited him inside her house. He said they stayed there for five minutes, after which time they left and went to his unit. He said that whilst they were in the complainant’s unit, he did nothing, he was standing there talking to her, and waiting for her to come. The accused said they talked about his job. The accused was then asked why they were going to his unit, and he responded: “The girl told me to watch a movie in your house and also to have a look at your flat.”
The accused said that after they entered his unit, he sat on the floor near the bed and the complainant sat on the bed. He said that he put a movie in the DVD player and they watched the movie. He said the movie was a comedy called “Mighty Duck”. He denied offering to play pornographic material for the complainant. He testified that he and the complainant watched the movie, and after it ended, they left the unit. During the time that they were in the unit watching the movie he remained seated on the floor near the bed. He denied at any time changing into a pair of shorts and a tee shirt, massaging the shoulders of the complainant and saying to her that he loved her. He denied taking off the complainant’s jeans and underpants and having sexual intercourse with her. He said that at the time he was watching the movie with the complainant, he was wearing black trousers and a black jacket.
In his evidence in chief the accused initially stated that after watching the movie he took the complainant downstairs and left her outside his unit block. He said he then went to his office. He said that before they parted, the complainant gave him a hug “and that’s it”. He then went on to say that she also gave him a kiss on his cheek. He subsequently went back to his room and went back to sleep.
In cross-examination the accused agreed that he was known by the name of Carlos. He said that as at the date of the alleged offence, he did not know whether the complainant was living alone or whether she had a partner. He reiterated his evidence that it was the complainant who told him that they would go to his place. He agreed that he had never met the complainant socially before, and this was the first occasion on which he had spoken to her socially. He was asked about his evidence that the complainant kissed him, and agreed that he did kiss the complainant, but only after she kissed him. He said that he kissed her on the cheek, after she kissed him on the lips.
The accused agreed that he ceased his employment with SIS in June 2008. He denied ever discussing this with the complainant. He said that the reason the complainant gave to him for wanting to come to his unit was that she wanted to have a look at his unit and how many rooms he had. In relation to the circumstances in which the complainant came to his unit, the accused gave the following evidence:
Question: A stranger just walks up to you with no previous conversation, with absolutely no social meeting, nothing, walks up to you and you discuss that she wants to go into your flat and watch a movie with you?
Answer: Yes.
Question: Did she know or did you tell her whether you had a partner, were you married with children? Did she ever ask you that?
Answer: Yes.
Question: When did she ask you that?
Answer: That night. That night. That night. In the evening that night.
Question: Before you went to your room?
Answer: We were on our way to her flat.
Question: So what you’re saying now is that before she knew whether you had a family, on your way to your unit she asked you about your marital status?
Interpreter: Can you repeat that again, please?
Question: What you’re saying now is that the first time that she asked you that is whilst you left her unit, can I put it that way? On the way to your unit?
Answer: Yes, we had that conversation on our way to my flat.
Question: After the decision was made that you were going to your place to watch a movie?
Answer: She came to my room and we watched a movie.
Question: No, I think you’ve missed my question. Are you saying that the first time you discussed about your marital status is after the decision was made to go and watch a movie with you in your flat?
Answer: I can’t remember that one. I have other problem my head, trauma ... (indistinct) ... damage in my head. Yes, I’ve got a lot of trauma in my head, I can’t remember that.
Later in cross-examination the accused gave further evidence on this issue:
Question: How long had you been working at this particular complex where you lived and (the complainant) lived?
Answer: Yes, approximately three months or four months.
Question: And you had never seen (the complainant) before the 29th?
Answer: No.
Question: Never spoken with (the complainant) at any time?
Answer: No.
Question: Everything happened on 29 June 2008?
Answer: Yes.
Question: You’re admitting that she did not know you and she was prepared to come with you into your flat?
Answer: She told me that you’re looking a nice guy, so I want to come and have a look at the flat.
Question: When you say that you’re a nice guy you were – she knew you were a security officer, isn’t that right?
Answer: She didn’t ask me about my job.
The accused denied that he knew that the complainant was living alone at that time or that he had been to her unit previously. He said he could not remember if he and the complainant talked while they were in his bedroom, or at least could not remember the topic of any conversation.
Crown Submissions
The Crown submitted that CW was a credible witness who testified in a “very frank, honest and credible manner”. It referred to the evidence of the accused about the circumstances in which the complainant attended his unit, submitting that it was the accused’s version that the complainant had suggested watching a movie at the accused’s unit. The Crown submitted that in order to accept this version of events, in circumstances where the accused says he had no previous contact with the complainant, it must be accepted that:
a) the complainant knew the accused had the means to play a movie (such as a DVD);
b) the complainant knew the accused had a movie or movies to play;
c) the complainant knew the accused’s living circumstances (such as absence of a wife or children) were such as to not make such a suggestion inappropriate; and
d) the complainant knew the accused lived in one of the units in the complex, or somewhere close enough to make it feasible for them to walk from her unit to the accused’s residence.
The Crown submits that it is inherently unlikely that the accused’s version of the circumstances of the complainant attending his unit is true. The Crown says that if the accused is believed, the complainant could not have known those matters set out in the preceding paragraph, and if she did not know them then her conduct, as alleged by the accused, is unlikely.
Addressing the forensic evidence the Crown submitted:
·the absence of the complainant’s DNA on the blanket taken from the accused’s bed is explained by the fact that the complainant was fully clothed while seated on the bed;
·the absence of the accused’s DNA on the complainant’s bra is explained by the complainant’s evidence that he touched her on top of her clothes;
·the DNA results on the complainant’s underpants are consistent with the complainant’s evidence; and
·the complainant was unable to specify the position of the blankets and/or sheets on the accused’s bed at the time of sexual intercourse, which may explain why no DNA identifiable as consistent with the complainant’s DNA was found on the sheets or blanket.
The Crown also submitted that the accused gave inconsistent evidence about kissing the complainant. Initially in his cross-examination the accused gave this evidence about kissing the complainant:
Question:All right. And when you parted – did anything happen before you parted company with her?
Answer:She gave me a hug and that’s it.
Question: Sorry?
Answer:She gave me a hug and that’s it.
Question:Did she do anything when she hugged you?
Answer:No, just she kissed from here, that’s it. She gave me a kiss on my cheek.
Question:She gave you a kiss or you gave her a kiss?
Answer:No, she – gave me a kiss on my cheek and then I leave.
Question:What did you do after you left her?
Answer:I went back to my room and slept.
However, late in cross-examination the accused gave the following evidence:
Question:Did you, you said that she kissed you when she was leaving?
Answer:Yes. She kissed me first.
Question:Did you tell your solicitors that, that I did not kiss her she kissed me?
Objection: Your Honour, is my friend laying some sort of blame on me in some way we’ve been deficient in the way I’ve cross examined I guess?
His Honour: No he’s perfectly entitled to ask whether he gave instructions on that issue.
Crown: For record purposes I’m not blaming my learned friend at all. It’s only dealing with the defendant.
Question:Did you tell your solicitors that she kissed me and I did not kiss her?
Answer:I can’t remember.
Question:Sorry?
Answer:I can’t remember
Question:But you wouldn’t tell your solicitors that you kissed her?
Answer:I can’t remember.
Question:Well, is that true that you kissed her?
Answer:After that I kissed her.
Question:So now we’ve got two, two kissing?
Answer:She first kissed me and then after that I kissed her.
Question:So now we’ve improved on a hug and a kiss to now a hug and two kisses?
Answer:She kissed me first. I then only once kissed her after that.
Question:And where did you kiss her?
Answer:On the cheek.
Question:And where did she kiss you? On the lips? The witness is demonstrating on the lips, your Honour.
His Honour: Yes.
The Crown also pointed to the inconsistency between the statement of Christopher Weaver, tendered by the Crown with the consent of the accused, and the evidence of the accused in cross-examination. In his statement Christopher Weaver said that he had a number of conversations with the accused after he was charged with this offence, and the accused denied having sex with the complainant. In cross-examination, however, the accused denied ever speaking to Christopher Weaver about “this case”.
The accused denied ever having worn a white tee shirt in the company of the complainant. He also denied having changed into a white tee shirt when he and the complainant arrived at his unit on 29 June 2008. Two days later when the accused attended the Police station he was wearing a white tee shirt. The Crown submits that the complainant could not have known the accused owned a white tee shirt if her evidence was not true. It is submitted that this bolsters the credit of the complainant.
The Crown further alleges that the complainant gave evidence that the accused’s bed had a fitted sheet on it, which she could not have known if the bed had remained made during the time the complainant spent at the accused’s unit.
Defence Submissions
Mr Sabharwal submitted that this is a case of word against word, with little to support the complainant’s version of events. In particular, he pointed out the lack of forensic support for the complaint, and the fact that no pornographic movies, condoms or condom packaging were found when the accused’s unit was searched. He also submitted that there was a lack of detail in the complaint made by the complainant on 29 June 2008. Finally, he submitted that the evidence of the complaint must be scrutinised carefully, particularly in the light of the complainant’s conviction in 2006 for offences of giving false evidence and making a false accusation.
Analysis
The complainant presented as a witness who was endeavouring to tell the truth, and did not appear to embellish upon the version of events that she had previously given to Constable Walsh. Her version of events was logical and rational. There was nothing in the way in which she gave her evidence that would lead me to doubt her veracity.
The complainant’s prior conviction must be given weight when assessing her credibility. The Crown led evidence from her of the context in which it says those offences were committed, presumably with a view to suggesting that she had a motive to lie in 2006 whereas no motive to lie in relation to her present evidence has been demonstrated. In my view this is an impermissible line of reasoning. The important fact which I must bear in mind is that the complainant admits to previously giving false evidence with respect to allegations of criminal conduct towards her. This is a very significant matter when it comes to assessing her credit.
In the statement of Constable Walsh (exhibit 4) she records the complainant as saying that the sheets on the accused’s bed were “cream” coloured. When Police attended and searched the accused’s unit on 30 June 2008 a green fitted sheet and a green flat sheet were found on the accused’s bed. There is no evidence that “cream” coloured sheets were found in the accused’s unit. In her evidence in chief the complainant was not asked about the colour of the sheets on the accused’s bed. In fact the only evidence she gave on this issue was after she had been shown photographs of the accused’s unit taken in the course of the Police search on 30 June 2008 and which clearly showed the green sheets on the accused’s bed:
Question: Can I just take you back to the bedroom?
Answer: Yep.
Question: You’ve seen in the photos there’s depicted a green bed sheet --- ?
Answer: Yes.
Question: Did you use the bed sheet?
Answer: When I was spooning, cuddling with Carlos we were laying on the bed sheet.
Question: How many layers of bed sheet did you have?
Answer: One underneath me, one on top of me.
Question: Where were you positioned when – between the two sheets or on top of the second sheet?
Answer: I was in between the two sheets.
This is a matter of some significance as the versions of events given by both the complainant and the accused have the complainant in the accused’s bedroom on the evening of 29 June 2008. The major point of variance between their versions is whether a sexual assault occurred in the bedroom. It is an integral part of the scenario put forward by the complainant that the accused disturbed the bed and covered her and himself with the top sheet and the blanket. On the other hand, the accused’s version of events is one in which the bed was made and never disturbed. The complainant’s knowledge of the colour of the sheets on the accused’s bed is an important matter which may tend to support or to contradict the Crown case.
Whilst the complainant gave limited details of the alleged assault to Winsome Willow and Annie Love, this is not surprising. Both spoke to the complainant via telephone, and it was no part of their function that evening to question the complainant about her allegation or to investigate it. The complaint made to Constable Walsh was quite detailed and consistent with the evidence she gave in court.
The evidence of Carol-Ann Shenk that she would expect to find the complainant’s DNA on bedding if she had either sat or lay down on the bedding whilst naked from the waist down must also be given weight. Her evidence that you would expect to find more DNA from the complainant on the bedding if sexual intercourse took place is also a problem for the Crown.
Aspects of the evidence of the accused were unsatisfactory. His evidence that he was “told” by the complainant that they would go to the accused’s unit is, if accurate, improbable. I say “if accurate” because the accused gave evidence via an interpreter and the form of that answer may possibly be an artefact of the translation process.
Secondly, the accused’s evidence that he had never spoken to the complainant prior to 29 June 2008 is improbable. The accused gave evidence of minimal conversation between himself and the complainant before the complainant accompanied him to his unit to watch a DVD. On the accused’s version, the complainant could have known nothing about him before she determined to go with him to his unit.
The evidence of the accused was not only that he never spoke to the complainant prior to 29 June 2008, but also that he never spoke to her at all about his work. In her evidence the complainant said that the accused told her on 29 June 2008 that he had lost his job due to a complaint against him. The evidence of Christopher Weaver was that the accused did not lose his employment with SIS until after the present complaint of sexual assault was made, so that he had not “lost his job” in that sense as at 29 June 2008. However, Christopher Weaver testified that around June 2008 a complaint against the accused was received, and as a result he was moved from his position at Allawah, Bega and Currong Flats to a position at Anzac Park. It would not be illogical or irrational for the accused to have referred to this move as “losing his job”. What is important is that the complainant knew that something had happened with regard to the accused’s employment as a result of a complaint being made against him. On the evidence it is highly probable that the accused was the source of the complainant’s knowledge.
The accused’s evidence contradicting that of Christopher Weaver about conversations between them concerning this charge is problematic. I have no hesitation in accepting the evidence of Christopher Weaver on this issue. His evidence does not in any way implicate the accused in the offence, and in fact he testifies that the accused denied the offence. I am satisfied that the accused’s denial of conversations with Christopher Weaver about the charge is false, but I am perplexed as to why he lied on this issue. In fact, that portion of the evidence of Christopher Weaver was objectionable as hearsay not the subject of any exception under the Evidence Act 1995 (Cth). No objection was taken to it, perhaps for forensic reasons. In any event, the fact that the accused was untruthful in his evidence on this issue is relevant to his credibility, although in determining what weight it should be given in that assessment I bear in mind that his evidence on that point was not addressing an issue central to the allegation against him.
The DNA evidence was either inconclusive, or explicable within the version of events given by the accused. The strongest DNA evidence, from the ___ oral swab taken from the complainant, can be explained by the accused’s evidence that he and the complainant kissed outside his unit. The DNA evidence that would have been consistent with the complainant’s version of events and inconsistent with that of the accused, being the analysis of the DNA taken from the interior front of the complainant’s underpants, is not sufficiently strong to allow for an inference that the accused must be the source of that DNA.
Conclusion
Whilst I am satisfied that the accused has been less than truthful in his description of the events of 29 June 2008, that is not evidence that he committed the offence with which he has been charged. I do, of course, take into account in determining the weight to be given to the accused’s evidence that he has been shown to be untruthful in some aspects of his evidence. I am not prepared to completely dismiss his testimony based on these matters.
As I noted earlier, the complainant gave the appearance of being an honest witness. Her evidence is supported by observations of her voice made by Annie Love in their telephone call at 9.55 pm on 29 June 2008. However, no evidence of demeanour was elicited from Dr Parekh, nor were any such observations included in her notes of her examination of the complainant. In addition, nowhere in the statement of Constable Walsh is there any note of the demeanour of the complainant when Constable Walsh spoke to her at the Canberra Hospital. Similarly, there was no evidence from Sergeant Parsons of her observations. In her statement Kaylene Barry stated that she attended the Canberra Hospital on 29 June 2008 and waited with the complainant. She said that during the time they waited “we didn’t talk about what had happened much. We were talking about normal stuff and just having a joke and a laugh.” I do not put forward the proposition that a particular demeanour is to be expected of a victim of a sexual assault. Victims of sexual assault may react in many different ways, and the absence of indicia of distress does not establish that no assault took place. The absence of such indicia does not weaken the complainant’s evidence; it is simply not available to bolster or support it.
I must take into account the complainant’s history of giving false evidence with respect to allegations she made against her ex partner in 2006. I must also take into account the absence of DNA evidence in circumstances where the Crown witness, Ms Shenk, said she would expect to find DNA if the complainant’s evidence was accurate.
Weighing up all of the evidence I find that I have a doubt about whether the Crown has proved the guilt of the accused to the standard of beyond reasonable doubt. The accused is entitled to the benefit of that doubt. I find the accused not guilty and he is acquitted of the charge.
I certify that the preceding seventy three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:Date: 3 February 2012
Counsel for the prosecution: Mr D Sahu Khan
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Mr J Sabharwal
Solicitor for the accused: Legal Aid ACT
Date of hearing: 17-18 November 2011
12 December 2011
Date of judgment: 3 February 2012
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