Jabir v The Queen; Ahmed v The Queen [2010] VSCA 342

Jabir v The Queen; Ahmed v The Queen [2010] VSCA 342 - VSCA 2010 case summary — Zoe

[51]

Concerning Count 2, I will go to the evidence that bears on consent. This of course is the allegation of penile/vaginal penetration. Once again the complainant says she did not consent. She says that Nass has left the room, and she remembered KJ, as she described him, on top of her. She said she tried to push him off and told him to stop but he did not stop. She said he held her hand behind her back so she could not remove her arms, and she was telling him to stop and get off. So that is the evidence relating to lack of consent that is relied upon by the prosecution.

Akrem Jabir says there was penile/vaginal penetration but it was nothing like this. It was consensual. You have his account of this in his record of interview which you have the CD of and the transcript, and I am not proposing to go to any of the accused's record of interview and read slabs from it, because you have heard them, you have had the transcript and you have had counsel go to each of the records of interview, so, in the context of this case, in my view it is not necessary to go to the detail. If, on concluding my charge to you, counsel urge me to do so then I will, but at the moment I do not think it is necessary and I do not propose to do it.[2]

Concerning Count 3, which is the allegation of penile/anal penetration, what is the issue on consent? Well, of course, with this particular count, of course, penetration is very much in dispute. Akrem Jabir says he did not penetrate the complainant's anus with his penis. The complainant says a little after the penile/vaginal penetration, she was on her side, although she cannot say how she got in that position. She said she did not want him to be doing what he was doing. She said she felt some pain in her anus and compared it to a knife. She said he penetrated her anus with his penis. She said her arms were pinned together, like held together, so she could not move. That is the evidence in respect of lack of consent that the Crown relied upon.

She next said in her evidence that she remembers unknown male 1 was on top of her and, as the case has developed, there does not seem to be any dispute that that is a reference to Nur Ahmed. So concerning Count 4, the allegation of penile/vaginal penetration and consent, what is the evidence? Well, in this instance, we have the evidence of Nur Ahmed and what he says in the record of interview. Mr Nur Ahmed says there was consensual penile vaginal penetration. He sought and obtained the complainant's consent for both this and for digital penetration of her anus.[3]

Once again you have the account of Nur Ahmed in the interview and I am not going to go to it.[4] [The complainant] says she remembers seeing his face on top of her and realised it was him penetrating her. She told him to stop and get off, but he did not. She said he pushed her face to the side and had her hands back on the bed. She said that she was not very strong and was telling him to stop and get off. His penis was in her vagina. So, once again you can see that she alleges that she manifested her lack of consent physically and verbally.

...

I now move to the fourth element, that is the state of mind of the accused. The fourth element relates to the accuseds' state of mind about the complainant's consent. The prosecution, I repeat, must prove beyond reasonable doubt that at the time of sexual penetration, the accused was either aware the complainant was not consenting or aware that the complainant might not be consenting. I have used the shorthand expressions.

...

Concerning Count 2, the vaginal/penile penetration, once again on the prosecution case, the complainant, the prosecution would say, has made feelings well known. During the digital penetration, she tried to push his, sorry, during the vaginal penetration, as I recall her evidence, she said she tried to push him off and told him to stop. She says he was holding her arms, accordingly the prosecution would say that is the evidence you can rely upon to establish that, if you accept that evidence, that Akrem Jabir would have been well aware she was not consenting.

Concerning Count 3, the penile/anal penetration, once again, it would be open to the Crown to rely upon the assertion that this alleged rape follows the digital and penile/vaginal rapes. Accordingly, it would be open to the Crown to argue that Akrem Jabir was well aware that [the complainant] was not consenting. Furthermore, when the anal penetration occurs, the allegation from [the complainant] was that Akrem Jabir was pinning her arms. So that is the evidence that would be relevant to determining this fourth element. Of course, Akrem Jabir says there was no anal/penile penetration.

Concerning Count 4, the penile/vaginal penetration with Ahmed, prosecution says the complainant told him to stop and get off but he did not. The complainant says he pushed her face to the side and had her hands back on the bed. She says she was not very strong and was telling him to stop and get off. Accordingly the prosecution would be entitled to argue if you accept this evidence that Nur Ahmed was obviously aware she was not consenting.

Concerning Count 5, the count of - let me just go back to Count 4, of course, Nur Ahmed says that she was consenting.

...

Concerning awareness of lack of consent each accused says he believes the sexual contact he had with the complainant was consensual. [If] [t]he prosecution cannot exclude this possibility beyond reasonable doubt, the fourth element will not be met. It is for you to determine whether the prosecution has proved that the accused had the state of mind necessary for this fourth element to be proved, so once again I am just emphasising that it is not for the accused to disprove anything, it is for the prosecution to prove beyond reasonable doubt each of these elements.

In making this determination you must consider all of the circumstances. This includes what was said or done or not said or done at the time of the alleged penetrations, as well as any relevant statements in the records of interview concerning the accused account and in particular in the context of element four the accused state of mind at the relevant time.

I draw your attention to the directions I have already referred to concerning the fact that this is a case in which there is a very stark contrast between the account alleged by the complainant concerning each count and the account of each accused. There is a real division here.

If you are unable to reject, beyond reasonable doubt, the account given by any particular accused you must find him not guilty. If you are left with a reasonable doubt that his account may be correct then you could not convict. However, if you do reject, beyond reasonable doubt, the account of any accused before you could convict you would have to go on and determine whether the elements of the count under consideration have been proved beyond reasonable doubt.

[69]

37 Jury directions

(1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.

(2) A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.

(3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to -

(a) the facts in issue in the proceeding; and

(b) the elements of the offence being tried in respect of which the direction is given -

so as to aid the jury's comprehension of the direction.

37AAA. Jury directions on consent

For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are-

(a) the meaning of consent set out in section 36;

(b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;

(c) that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;

(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;

(e) that the jury is not to regard a person as having freely agreed to a sexual act just because -

(i) she or he did not protest or physically resist; or

(ii) she or he did not sustain physical injury; or

(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.

37AA Jury directions on the accused's awareness

For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider -

(a) any evidence of that belief; and

(b) whether that belief was reasonable in all the relevant circumstances having regard to -

(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether

the accused was aware that that circumstance existed in relation to the complainant; and

(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and

(iii) any other relevant matters.

[99]

I have already given you directions concerning the fact that this is a case that depends on the evidence of the complainant with the exception of proof of penetration concerning Count 5 is based on the admission by Nur Ahmed in his interview. Otherwise the case depends on the evidence of the complainant. Accepting her as a witness of truth and reliability is critical in finding guilt. Contrast between her evidence and the account of each accused is starkly dramatic. The Crown concedes the existence of inconsistencies, as I understood Mr Lynch's submissions, in the account she has given to various people. In the context of this case though, inconsistencies is a blunt fact that needs to be faced. The defence submits that the vagueness, uncertainty, false allegations, inconsistencies and shifts in her account or accounts make her a wholly unreliable witness and you should not act on her evidence. Prosecution says these are discrepancies are understandable in all the circumstances, given what she has suffered. You might expect a jumble, inconsistent and incoherent account or accounts.

Because this is a case that depends so much on the truthfulness and accuracy of the complainant, and because of the exceptional nature of the variations in her account and the discrepancies between much of what she has alleged to various people and the account she gives to you, relied upon by the Crown to prove the counts, I warn you as a matter of law that you need to exercise particular care in how you approach this case. In giving you this warning, I am not suggesting, and it would be wrong to suggest that people who make complaints in sexual offences are less reliable than other witnesses, that is not the case. The warning the necessary because the case against each accused depends so much on the complainant and because of the considerable body of material concerning prior inconsistent statements.

The risk of acting on the complainant's evidence, given the prior inconsistent statements which are not in dispute, it is not in dispute that these inconsistent accounts were given, are considerable. So, the risks of acting on her evidence in this context are considerable. I emphasis however, that it is entirely a matter for you. I am just directing you about what the law says. As a matter of law, I am directing you of the need for particular care in such a case. You should very carefully scrutinise her evidence with particular attention to the prior inconsistent statements as well as the other arguments put by counsel and paying heed to the warning that I am now giving you and then ask yourselves if you are satisfied beyond reasonable doubt of the truth and accuracy of the complainant's evidence as it relates to any count under consideration. The risk that I have referred to will be of particular significance in this case if you find the complainant's evidence is unsupported by independent evidence. For this reason, you must consider carefully whether there is support for the evidence of the complainant.

At a glance

Court

Decision date

Before

Source

Judgment (141 paragraphs)

Jabir v The Queen; Ahmed v The Queen [2010] VSCA 342 (15 December 2010)

Legislation Cited (4)

Cases Cited (11)