Khan v R

Court of Criminal Appeal (NSW)|2022-02-21|Before: Price J, Adams J, Ierace J

The applicant's ERISP (revised transcript)

In the record of interview (conducted by police on 10 December 2019), the applicant denied touching the complainant in any way. He told police that some people knew him as "Shahrukh Khan". He agreed that he lived at the Harace household and together with another man. He said that he saw the complainant regularly at soccer training. He denied being present when the photograph, exhibit C, was taken. He knew the complainant's father as "Haji" (that is not his real name so I will not anonymise it in the transcript). He responded as follows when asked about the complainant's family lived next door. "Q130 …Do you remember the kids from next door actually coming into 63 Dennis Street when you were living there? A This house has children. That house also has children. They used to play together. It has nothing to do with me. The children go to their house, their children come to this house. They used to play. Q131 Yep. Yep. And so they'd come over and play, did you say? A Yeah, there were many family, relatives and Rohingya peoples. They used come and visit them [sic]. Q132 OK. And was any of the neighbour's kids, did they ever come into the house when you there on your own? A If they come inside, we scold them and chase them away from the house because they were running and playing in the house. We told them not to shout or play inside the house."

The summing up

Judge Norrish QC gave detailed directions to the jury on the issue of identification evidence which his Honour described as a "very important issue in this case". His Honour continued: "Evidence that the accused has been identified by a witness must be approached by you with special caution before you accept it as reliable. These directions related only to the reliability of the identification evidence given, not to the honesty of the witness. A witness may be honest but that does not necessarily mean that the witness will give reliable evidence. Because the witness who gives evidence of identification honestly and sincerely believes that his or her evidence is correct that evidence will usually be quite impressive, even persuasive. So here even if you thought that the complainant was entirely honest in the evidence you gave you must still approach the task of assessing the reliability of his evidence with special caution. Special caution is necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of criminal courts over the years both here in Australia and overseas has demonstrated that identification may turn out to be unreliable … This is not confined to people who are unfamiliar with the appearance of the alleged offender before relevant events, but also with the identification of persons by people claiming to be familiar with the alleged offender."
His Honour then turned to the evidence before the jury. First, he referred to the issue of the complainant's "opportunity of being familiar with the appearance of the accused". One aspect of this was the complainant's belief that the man who had sexually assaulted him, by the name of Shahrukh Khan, was a friend of Aziz and had joined him and Aziz on social excursions, specifically on three occasions before the offending. His Honour said that the jury would "need to bear in mind in that regard the evidence of Aziz of the fact that he was not a friend of the accused", nor did Aziz know the accused at all. If this evidence was accepted, the applicant cannot have been present when exhibit C was taken on 30 December 2013. Another aspect of the complainant's "opportunity" to know the perpetrator was put as follows: "You must carefully consider the circumstances in which the complainant made his observation of the person and the circumstances of any subsequent identification. So in other words, not just his observation of the person in the room but his observation of the person on any occasion prior to or before the events giving rise to the sexual assault. The circumstances in which the witness made his observation of the person both before and during events relevant directly to the counts in the indictment can affect the reliability of the identification evidence. The familiarity of the person identified before the events giving rise to the charges will be relevant and there is in this case a consideration not just in the context of Aziz's evidence … but there is other evidence about the accused being a guest of the Harace family, the two families not seeming to have much contact with another, the accused occupying a room in the house for some months over a period of time, the boy going into the Harace residence, playing in the backyard, playing on the trampoline and those sort of things."
On the same topic, later in the summing up, his Honour said: "Was the person identified a stranger to the complainant? It is obviously, as the Crown has pointed out, harder to identify strangers than it is to identify people who are well known to the identifying witness. What opportunity did the complainant have to make his observation of the person before the alleged assaults and during the alleged assaults? Did the witness focus his attention on the person at these times or was it just a casual sighting that did not have any significance for the witness at the time? Was there anything about the person observed which would have impressed itself upon the witness? In other words, was there anything distinctive about the person. Was there any special reason for remembering the person observed before the alleged assaults? When was the complainant first asked for a description of the person and how fresh would his memory have been at that time?"
Judge Norrish QC spoke of two "acts of identification": the first was the conversation the complainant had with his sister in June or July 2019 about the soccer photo (exhibit D); the second was the sighting of the applicant in Urban Culture in September 2019. Generally, his Honour warned the jury about the delay between the offending and these acts of identification. In relation to the first act of identification, his Honour cautioned: "Also relevant will be there circumstances in which a person was introduced to the identity by other, either introduced to the name and/or the appearance of the person subsequently identified. The identification of the accused here followed upon nominated of the accused by the sister of the complainant as a suspect based upon information provided by the complainant that did not necessarily identify the accused specifically."
His Honour then set out the relevant portions of Alina's evidence where she described pointing to the applicant in exhibit D and asking the complainant, "is it him?", to which his answer was "yes". His Honour also posed these questions: "Was the identity of the accused suggested to the identifying witness before he made the identification? That is an important matter for you to take into account, the circumstances in which [Alina] showed her brother the photograph of the football team. Was there a reasonable possibility that the complainant had mistaken the accused for someone else or had, in fact, suggested it was someone else responsible?"
Then in respect of the Urban Culture sighting, the second act of identification, his Honour said: "The second identification is the one made in circumstances shown in exhibit G, but occurring after the complainant had been made familiar with the appearance of the accused by the photograph, exhibit D. In that regard you will need to take into account the risk of displacement effect, that is, confirming the identify of someone not from the circumstances in which relevant events to the charges occurred but from knowledge of the appearance of someone from some other source of imagery. … The issue of the identification of the accused from seeing him in the shop raises the question of whether, in fact, the complainant is identifying the person what [sic] was shown to him in the photograph, exhibit D, the photograph of the soccer team. So far as any identification is concerned, you will need to examine the extent or detail of any description given by the complainant to his sister before he saw a photograph of the accused or the accused's likeness was pointed out to him."
The summing up also contained portions of the complainant's two JIRT interviews where he spoke of his familiarity with the perpetrator, his knowledge of the name Shahrukh Khan and gave a description of the perpetrator's physical appearance around the time of the offending. In this respect, his Honour raised the issue "how did the description given by the complainant in the first identification compare with the appearance of the accused at the relevant time?".
Finally, his Honour mentioned Shabbodin in the context of the complainant at one point suggesting that his assailant was the person who took the photograph which is exhibit C. To conclude his Honour said: "You must give consideration to each and all of the matters referred to above. Any one of the circumstances identified above may possibly lead to error in identifying the accused as the offender. What I have done is tell you about the need for special caution in coming to your decision about whether you accept the identification evidence. There is this need for special caution because of the potential unreliability of the evidence and I have told you the reason why that may be so. I want you to clearly understand this so that you can make your decision about the reliability of the evidence by taking into account all of the matters that are relevant to that task and, of course, in that regard I invite you to have regard to the matters that have been put to you in the submissions of the parties today, both the Crown and the defence."

The verdicts

The jury retired to consider their verdict on the morning of 12 February 2021. On 15 February 2021 the jury sent a note indicating they had reached an impasse and would not be able to reach a unanimous decision. The jury sent a similar note the next day, and his Honour gave a Black direction at 3.07pm on 16 February 2021. The jury returned majority verdicts of guilty to counts 1 and 3 at 3.25pm the same day.

The applicant's submissions

Counsel for the applicant gave detailed submissions addressing the difficulties in the identification of the perpetrator, which, it was submitted, was significantly compromised on several bases. Those bases included: the description of the perpetrator as being a friend of Aziz, which Aziz denied; the change in evidence as to whether the perpetrator was present when exhibit C was taken; the picture identification from exhibit D; the fact that the witnesses discussed their evidence and the fact that the physical description of the perpetrator by the complainant was not supported by other evidence in the trial as to the applicant's appearance at the time. I shall consider these matters below.
The applicant also relied upon the decisions of this Court in Penfold v R [2016] NSWCCA 101 and Wood v R [2012] NSWCCA 21 which I will also consider below.

The Crown's submissions

In written submissions and on the hearing of the appeal in this Court, the Crown fairly acknowledged the issues with the complainant's identification evidence but submitted that the complainant's evidence nominating the applicant as the person who had offended against him was "sufficiently accurate" to sustain the convictions.
The starting point was that it was not suggested other than that the complainant was in fact sexually assaulted in some way, nor was there any suggestion that it happened anywhere other than the particular bedroom of the neighbouring property. It was submitted that in these circumstances it would be "curious" for somebody other than the occupant of that room in the house next door to have indecently assaulted the complainant.
Similarly, it was submitted that there is no reason why a 13-year-old boy could not accurately remember that when he was six, his next door neighbour indecently assaulted him. It was submitted that the Crown case was a "simple case": "a man living next door to the complainant sexually abused him and the complainant was able to recognise that person in the years that followed".
The Crown submitted that this was a case of recognition rather than identification as the complainant had some familiarity with the applicant who lived in the house next-door. Indeed, the complainant described the man who had offended against him as a resident of the neighbouring property in Dennis Street Lakemba where the complainant lived with his family in 2013. The complainant said he used to see this man "a lot". The applicant admitted that he had lived next door to the complainant's family in 2013 for a period of 5-8 months. He shared a room with a person who was the same age, but taller and overweight. The applicant appeared to know the complainant or at least remember who he was, and admitted to having had some contact with the children of the neighbouring house (ie the complainant's family).
The Crown also set out other evidence which supported the conclusion that the applicant was the perpetrator. First, the complainant referred to the perpetrator by the nickname "Shahrukh Khan" which was the applicant's nickname at the relevant time. Secondly, the complainant described the perpetrator as having "long hair", a "bit of beard" and "a bit of wrinkles" and the complainant's father described that the applicant had long hair at the relevant time. Thirdly, the complainant saw the applicant at community soccer matches well before any photograph of the applicant was shown to the complainant. The complainant's father was involved in the club and the applicant played soccer about 2-3 years prior to his arrest in 2019. It was submitted that the fact that the applicant was known to the complainant increased the quality of the identification (or recognition) evidence upon which the Crown relied at trial.
The Crown addressed the complainant's evidence about the outing to Target by submitting that its significance was "not the presence of the perpetrator … but the date because it was close in time to the assault upon the complainant". Specifically, the complainant's evidence was that the offences in question happened two days after this outing.
It was conceded at the hearing of this appeal that although the complainant waivered about whether the perpetrator, who he called Shahrukh Khan, was with him at the time when the photograph was taken at Target, he did not waiver on his evidence that the perpetrator went with him to Aziz' sister's place in Liverpool. It was submitted that that there were two ways to explain the complainant's evidence that he used to go on outings with Aziz and the perpetrator, in circumstances where Aziz denied knowing the applicant. The first explanation is that the complainant is mistaken, and the applicant is not the perpetrator. If that was the case, then the appeal would have to be allowed. The second explanation is that the applicant is the perpetrator, but the complainant has recalled him doing something he did not do, namely, going on outings with him and Aziz.
The Crown contended for the second of these options. It was submitted that the possibility that Shaboddin or whoever else was with Aziz and the complainant, either at the Target store or visiting a cousin in Liverpool, was the perpetrator has to be weighed against the opportunity that anyone other than the applicant had to commit a sexual offence in the home of the Harace family. It was submitted that other than the applicant, there seems no other likely candidate. Although there were some questions as to the layout of the bedroom and whether the complainant had thrown away his shorts and underpants, it was not put to the complainant that he was sexually abused anywhere else other than in the house of his neighbour, in that particular bedroom.
It was submitted that it was open for the jury to conclude that the evidence of the complainant visiting Target (where exhibit C was taken) and a cousin in Liverpool with the perpetrator was not of such moment that it raised as a reasonable possibility that another person was the perpetrator rather than the applicant. It was explained as the misunderstanding by the complainant of what his perpetrator (the applicant) had also done, aside from offending against him.
The Crown also addressed the issues with the complainant's recognition of the applicant as the perpetrator by reference to the photograph exhibit D. It was submitted first, that it was open to the jury to accept the complainant's account of how this occurred; secondly, that even if Alina's evidence is to be accepted, the recognition evidence is "not totally negated by her suggestion"; and thirdly, that the photograph exhibit D was not of sufficient quality to displace the complainant's memory of the perpetrator, formed as it was not only during the commission of the offence but during the complainant's intermittent contact with the applicant over some time.
It was submitted that it was open to the jury to conclude that the complainant's selection of the applicant in the photograph, even if that came about through the process described by Alina, arose not through suggestion, but through genuine recognition of the perpetrator.
As for the two other occasions that the complainant apparently saw the perpetrator (ie the "Real Madrid jersey" sighting and the "Urban Culture" sighting), the Crown submitted that it was open to the jury to conclude that this was simply another instance of the complainant recognising the applicant as the man who assaulted him.
In oral submissions, the Crown submitted that the key difficulties with the complainant's evidence arose in respect of the visits to Target and Liverpool, rather than in respect of these post-offence incidents which, on the Crown's submission, did not pose the risk of displacement contended for by the applicant.
Finally, in relation to the applicant's reliance on comments made by the trial judge after discharging the jury to the effect that his Honour had a reasonable doubt, the Crown submitted that it was not appropriate to take post-verdict statements into account in determining the question of unreasonable verdict. It was submitted ultimately that it was open to the jury to conclude that the perpetrator was the applicant and the complainant's ability to know this was not undermined to such a degree as to render the applicant's conviction unreasonable.

Consideration

Most convictions for child sexual assault offences are based almost entirely on the evidence of the child complainant, who in many cases has reached adulthood by the time of giving evidence. There will invariably be delay in reporting the matter to a friend or family member and even further delay in reporting the assaults to police. There will rarely, if ever, be any forensic evidence supporting the allegations. The accused person will often be of prior good character and previously known to the complainant. In these circumstances, an appeal to this Court on a ground that such a verdict(s) is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act invariably involves an attack on the honesty or reliability of the child complainant. In such appeals it is not uncommon for arguments to be put to the effect that the offence(s) could not have been committed because there were other people nearby. In the present appeal reliance was placed on the unlikelihood of the assaults occurring without other members of the Harace house hearing it. I have not found that submission to be of assistance for the reasons explained in Sita v R [2022] NSWCCA 90.
In Sita v R Beech-Jones J (as his Honour then was; with whom Price J and I agreed) addressed an argument that it was inherently unlikely that the offender would take the risk of sexually assaulting a child in the presence of another child and the risk of detection by other people in the house at the time of the offending. His Honour addressed that submission in this way at [55]: "The difficulty with this submission is that it is replete with assumptions about how and why adults commit child sexual abuse. The premise of the Crown case was that the applicant was sexually attracted to children. If he was so attracted, then it does not necessarily follow that he would only satisfy that attraction without taking a risk of being detected. Such a person may enjoy taking the risk, be confident that they can avoid detection, or simply be unable to overcome their attraction to children. Like so many of these cases concerning settings such as families, schools and churches, the Crown case involved the applicant exploiting his position of trust to gain access to and abuse young children. Such a person who behaves that way may have developed a good sense as to the likelihood that at a particular time his abuse may be interrupted by another adult in the house or that a younger sibling who witnessed the assault would complain about it. As was noted by McCallum JA in VP v R [2021] NSWCCA 11 (at [79) "[e]xperience of such trials tells that stealth, opportunism and brazenness are common features of child sexual offending". In one sense, this is all speculative. However, a submission that the alleged conduct was so brazen that it was unlikely is, in itself, speculative and speculative submissions invite speculative responses. At least in this case, the potential that the applicant may have been detected when acting as alleged by count 8 does not support the submission that the verdict was unreasonable."
Otherwise, in contending that his convictions are unreasonable, the applicant did not rely on arguments based on dubious assumptions as to how a child sexual assault victim should behave: see for example VP v R [2021] NSWCCA 11 at [103] per McCallum JA and my judgment in Kassab (a pseudonym) v R [2021] NSWCCA 46 at [253]-[257]. It was never put to the complainant in this case that he was lying or mistaken about being sexually assaulted. This appeal is unusual in that the sole basis upon which the convictions are challenged is the weaknesses in the evidence of the complainant's identification of the perpetrator.
The complainant described the perpetrator as being someone he had seen on a number of occasions both before and after the assaults. Although, consequently, the evidence was not strictly identification evidence, that does not mean that the utmost caution was not required when the jury came to assess the evidence, as the trial judge explained in his summing up.
The applicant relied upon the decision of this Court in Penfold v R [2016] NSWCCA 101 ("Penfold"). That conviction was held to be unreasonable by the Court (R A Hulme J, with whom Bathurst CJ and Hall J agreed) having regard to problems in the evidence of the victim's identification of the appellant as a perpetrator, this being the "critical" piece of evidence in the Crown case. The facts in Penfold were different to the present case in that it was concerned with an aggravated home invasion in which two men forced their way inside the flat of the victim while she and her friend were inside. "Chaotic" scenes ensued, including that the victim's friend was stabbed with a machete carried by one of the men. The victim knew the first man and thought that the other looked "extremely familiar". She participated in a photographic identification procedure with police about five months later, where she identified the appellant as the second perpetrator.
The Court in Penfold was of the view that the jury should have had a reasonable doubt as to whether the appellant was in fact the second perpetrator due to a series of problems with the victim's identification evidence. R A Hulme J noted that one of the recognised difficulties with identification evidence is its "seductive effect": Domican v The Queen (1992) 173 CLR 55; [1992] HCA 13 at 561. His Honour went on to note that the identification evidence was potentially adversely affected by a number of matters, summarised at [57]-[61]. They included: that the incident spanned only a number of minutes "in chaotic, violent and traumatic circumstances"; that the eyewitness's recollection of the second perpetrator varied over time and in some respects was almost certainly wrong; that there was a chance that her subsequent identification of the appellant was contaminated by a rumour she was aware of that the second perpetrator was "Gavin"; that there was a delay of three or four months between the offence and the sighting of the second perpetrator in a shopping centre; and that there was some doubt as to whether the person she saw at the shopping centre was indeed the second perpetrator - if he was not, there was a risk that this sighting had "supplanted" her original recall of the incident. It was the combined effect of these difficulties which led the Court to conclude at [62] that the jury should have had a reasonable doubt.
There are some similarities between Penfold and the present case: in both cases the person purporting to make the identification had some familiarity or contact with the person identified, both before and after the offending, such that evidence may be in the nature of recognition. Further, aspects of the identifier's evidence in both cases were subsequently revealed to be almost definitely wrong. Also, in both cases there was a danger of suggestion, displacement or corruption in the post-offence events surrounding the identification.
The applicant also relied upon the decision in Wood v R [2012] NSWCCA 21 in which McClellan CJ at CL (with whom Latham and Rothman JJ agreed) discussed the problems which can arise with photographic identification evidence at [409]-[414]. Relevant to the present appeal, the identification evidence in that case was contaminated by discussion with another witness, by the fact that the eyewitness was shown one photograph rather than an array and that he was told of a connection that was suggestive of the applicant being the offender. McClellan CJ at CL noted the observations of Gibbs CJ in Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17 at 400 as to the fallibility of identification evidence when only one photo is shown to the eyewitness. His Honour also referred to R v Blick [2000] NSWCCA 61; 111 A Crim R 326 at 335 where Sheller JA (James and Dowd JJ agreeing) observed the following at [29]: "The phenomenon known as the 'displacement effect' was described by Stephen J in Alexander at 409: 'Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace the original memory. Any subsequent identification, in court or in an identification parade, may on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.' This type of evidence was referred to later in Stephen J's judgment at 414 as akin to 'worthless'; see also Mason J in Alexander at 426; Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170 at 178-179 (Latham CJ, Rich, Dixon, Evatt, McTiernan JJ); R v Carusi (1997) 92 A Crim R 52 at 55 (Hunt CJ at CL, Ireland and Newman JJ agreeing); R v Agkul [2002] VSCA 222 at [26]-[27]; [2002] 5 VR 537 ; R v Skaf [2004] NSWCCA 37 at [80]; Aslett v R [2009] NSWCCA 188 at [55]-[56]. In Skaf at [80] this Court described the displacement effect in the following terms: 'The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person.'"
I have had regard to the principles derived from these decisions in determining this ground.
Having read the complainant's interviews and evidence I am satisfied that it was well open to the jury to find that the complainant had been sexually assaulted. The way in which his narrative developed was consistent with a 13-year-old child attempting to explain something that happened to him not long after he first arrived in Australia when he was only six years old. During the complainant's first JIRT interview, he was initially unable to give an account of what happened to him because he felt uncomfortable (Q&A 129, 164-167). He told the OIC that her questions "triggered" him. He wrote down the word "flashback" and agreed that the questions triggered a flashback. He was not able to talk about the flashback at that stage (Q&A 172, 176-178). The complainant later wrote the word "rape" on the same piece of paper. In the second JIRT interview when the complainant was describing the assault, he was unable to say specifically what happened and instead wrote down the words, "he put his penis inside of me".
The complainant's account of being sexually assaulted was cogent and does not leave me with any doubt that he was sexually assaulted. His description of the house, although inaccurate in some respects, was cogent as well.
The difficulty with the applicant's convictions is, as he submitted, the numerous problems with the identification of the applicant as the perpetrator. When viewed cumulatively, I am satisfied it was not open to the jury to convict the applicant. Having undertaken an independent assessment of the evidence at trial, I am satisfied that the jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator. In particular, the following aspects of the evidence have led me to the conclusion that the appeal should be allowed, and the applicant's convictions quashed.

The perpetrator was a friend of Aziz

When the complainant first spoke of the perpetrator to police, he described him as being a friend of Aziz. He told police that the first time he spoke with the perpetrator was when the perpetrator asked to go on outings with Aziz. He told police that he went on three outings to the city with the perpetrator and Aziz in the period leading up to the assaults. He was quite specific about this. He also said they went to Aziz' sister's place together. He did not resile from this evidence. Aziz gave unchallenged evidence that he had never met the applicant.
I have considered the Crown's submission that that there were two ways to explain this aspect of the complainant's evidence: either the complainant has the wrong perpetrator, or the complainant has the right perpetrator but has him doing something he did not do, namely, go on outings with him and Aziz. The Crown contended for the second of these explanations. The problem with this argument is that the complainant's identification of the perpetrator is closely connected to him being a friend of Aziz, as is his understanding that the perpetrator was nicknamed Shahrukh Khan, as will be discussed below.

How did the complainant know the perpetrator was nicknamed Shahrukh Khan?

There was a conflict in the evidence as to how the complainant knew the perpetrator by his nickname Shahrukh Khan. He told police that he called the perpetrator that because that is what Aziz called him. Aziz gave evidence that he did not know the applicant thus it could not be the case that the complainant learned of the nickname Shahrukh Khan by hearing exchanges between the applicant and Aziz.
Further, Alina's email to police (extracted above at [86]) stated that Aziz jokingly told the complainant that the photo (exhibit C) was taken by Shahrukh Khan whereas Sarah's version (extracted above at [87]) was that Aziz told her that the man who took the photo jokingly told the complainant that this was his name. This is consistent with Alina and Sarah having been told by Aziz of some connection between the person who took the photo and the nickname Sharukh Khan.
To further complicate this question, Alina gave evidence that when the complainant first confided in her about the assaults, he did not know the name of the neighbour who he said was the perpetrator (the applicant) and it was she who told him that his (the applicant's) nickname was Shahrukh Khan. The complainant denied this version in his evidence. This was another aspect of the conflict in the evidence of the complainant and his sister on a significant aspect of the identification (recognition) evidence.

Who took the photograph exhibit C?

In his initial complaint to his sister and police, the complainant stated that he could identify the perpetrator by way of a photograph taken a couple of days before the assault occurred (exhibit C). Alina's evidence was that he told her that the perpetrator either took the photograph or was present at the time. In her statement to police, Alina expressed no doubt that this is what the complainant told her. She resiled from this part of her statement in court and described what she said as an assumption. There was nothing in her statement to suggest it was an assumption.
The complainant told police that he thought either the perpetrator or the perpetrator's friend took exhibit C. Although he used the words "I think", when the relevant answers in his JIRT interview (extracted above at [38]) are considered, it seems to me that the doubt was directed to whether it was the perpetrator or another person who took the photograph, not as to whether the perpetrator was there at all.
Despite both the complainant and Alina initially telling police that the perpetrator took exhibit C, both changed their evidence. I am satisfied, despite their denials, that they did so after being told by Aziz, either directly or indirectly, that the applicant was not present when exhibit C was taken.

The involvement of Shabbodin

The emails sent by Sarah and Alina to the OIC after they spoke to Aziz are informative. The explanation provided to police by these witnesses after speaking with Aziz and the complainant is that it was not the applicant but another friend of Aziz (later briefly identified by Aziz as being Shabbodin) who took the photograph exhibit C.
The emails sent by Sarah and Alina to the OIC are consistent with Aziz initially telling police that it was Shabbodin who took the photograph and then, when finding out the nature of the allegation, changing his evidence and potentially telling Shaboddin about the nature of the allegation as well. They are also consistent with Aziz showing Sarah a photo of Shaboddin and her telling him that that was not the Shahrukh Khan who they were looking for.
There were other inconsistencies between the evidence of Aziz and Shabbodin. Aziz initially told police that it was Shaboddin who had taken exhibit C. Shabbodin denies this. Aziz gave evidence that he stayed with Shaboddin when he was in Sydney during that time. Shaboddin denied this. Shabbodin also denied ever going out with Aziz and the complainant. Aziz states that he went on outings with Shabbodin.
The complainant was shown a photo of Shabbodin in court (exhibit K) and denied that he was the perpetrator. By that time, he had seen the applicant on a number of occasions and been shown the photograph of the applicant (exhibit D) in a suggestive way. In other words, by the time he was shown the photo of Shabbodin, the displacement effect may have taken hold. I do not mean to suggest that there was cogent evidence that Shaboddin was the perpetrator. Rather, the fact that Aziz changed his evidence on this point and that his evidence and that of Shaboddin was so inconsistent raises another doubt as to the reliability of the identification evidence in this case.

The first picture identification (exhibit D)

The complainant first "identified" his perpetrator from a photograph shown to him by Alina which depicted a group of people (a soccer team) including the applicant (exhibit D). Alina pointed to the applicant and asked, "is that him?". That was the evidence of Alina; it differed to that of the complainant. If one were to accept her evidence over his, then the identification was compromised. It is to be accepted that the complainant had seen the applicant before being shown exhibit D and to that extent it was recognition evidence. But just because the complainant had seen the applicant at around the time of the offences and subsequently saw him at the soccer club does not preclude the possibility that the complainant had conflated the applicant in his mind over the intervening (six) years with someone else, perhaps Shabbodin.
Alina's version is that when the complainant described the perpetrator, she had an idea of who it was and wanted to make sure that she was thinking of the same person that the complainant was describing. It was in that context that she found a photograph of the applicant and suggested to the complainant that he was the perpetrator.
The complainant also provided a differing chronology of events as to whether a sighting of the applicant near a train station wearing a Real Madrid jersey "triggered" him before or after he was shown the photo of the applicant by Alina, as set out above at [36] and [50]-[51].

Contamination due to family witnesses communicating

I have already addressed this difficulty above in the context of the evidence of Shabbodin and Aziz. The OIC communicated with the complainant and other witnesses by email and, consequently, there was contamination of the evidence of family witnesses as they appeared to have discussed their evidence and then changed critical parts of it.

Description of the perpetrator

The complainant first described the perpetrator as wrinkled, with a beard and long hair. Although there was some evidence that the applicant had long hair at the relevant time, there was no evidence at trial that the applicant was wrinkled or had a beard in 2013/2014. Other witnesses, such as Mr Harace, described the applicant as having medium-length hair at the time. The complainant gave evidence that the perpetrator was not wearing a necklace or any jewellery. The evidence of Alina is that the complainant told her that the person who had raped him had long hair and wore "accessories".
Although, again, it is to be accepted that the evidence was more in the nature of recognition rather than identification, there was scant evidence at trial to link the physical description of the perpetrator with that of the applicant as at 2013/2014.

Many men visited the Harace household in 2013/2014

There was undisputed evidence that many Rohingya men used to visit the Harace household at the relevant time. Mr Harace was a prominent person in the Rohingya community. Photographs of some of the men known to visit the home were shown to the complainant, his sister and parents at trial (exhibits 7-11). The complainant could not identify any of the other men when shown these photographs in court for the first time.

Conclusion

I accept the Crown's submission that, as a general proposition, there is no reason why a 13-year-old boy could not accurately remember that when he was six, his next door neighbour indecently assaulted him and be able to recognise that person in the years that followed. But that general proposition must be considered in the context that in this case, the complainant's initial description of the perpetrator was that he was someone he and Aziz went on outings with, which was someone who was not the applicant. Similarly, although the complainant was able to identify the perpetrator by the nickname Shahrukh Khan, as explained above at [47], the complainant knew him by that name because that is what Aziz called him in circumstances where Aziz denied ever meeting the applicant.
I also accept the Crown's submission that this is a case of recognition rather than identification. But the fact that the complainant had seen the applicant before and described the assaults being committed by his neighbour does not preclude the possibility of him having conflated the perpetrator (who he went on outings with), with the applicant, a man with the same nickname who he also saw around that time as he lived next door. After the offending, the complainant saw the applicant at community soccer matches but there was a delay of some years between the assaults and this contact. Although the complainant's description of the assaults taking place in the house next door was cogent, it was tied temporally with him having been with the perpetrator on outings in the period leading up to the assaults.
Finally, I have considered the Crown's submission that it was open for the jury to conclude that the doubt as to who took exhibit C was not such as to raise a reasonable possibility that another person was the perpetrator rather than the applicant. I am unable to accept that submission given the accumulation of problems with the evidence identifying the applicant I have considered above.
It is to be accepted that it was the jury who saw and heard the witnesses and that the trial judge gave careful directions as to the caution required when considering evidence of identification. But most of the difficulties with the identification evidence in this matter did not turn on the credibility of the complainant nor were most of them in dispute on this appeal.
For these reasons, I am satisfied that the verdicts are unreasonable. Having independently considered the evidence, I am satisfied that it was not open to the jury to convict the applicant on counts 1 and 3. I would allow the appeal.

ORDERS

Accordingly, I would propose the following orders: 1. Grant the applicant leave to appeal. 2. Allow the appeal. 3. Quash the convictions of the applicant. 4. Enter verdicts of acquittal.
IERACE J: I agree with the comprehensive judgment of N Adams J and her Honour's proposed orders, and with the additional observations of Price J.
Her Honour's analysis of the evidence concerning the complainant's identification of the applicant as the perpetrator, in the context of the evidence as a whole, establishes that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant being the perpetrator. In my view, the jury's advantage in their observation of the pre-recorded evidence of the complainant and his sister alongside the evidence of other witnesses in person could not have displaced that concern.

Endnote

[2020] HCA 12; 268 CLR 123. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2022

Criminal Appeals Act 1912(NSW)

Judgment

PRICE J: I have had the considerable advantage of reading the judgment in draft of N Adams J. However, it is incumbent upon me to make my own independent assessment of the sufficiency and quality of the evidence. The question is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of counts 1 and 3.
Unlike this Court, the jury had the opportunity of seeing and hearing the pre-recorded evidence of the complainant for about a day and a half. In Pell v The Queen, [1] the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) made the following observations concerning that advantage at [38]-[39]: "38 It should be understood that when the joint reasons in M v The Queen spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or "constitutional" demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible. 39 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (Footnotes omitted.)
The High Court went on to say: "43 At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt." (Footnote omitted; emphasis in original.) 45 As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (Footnotes omitted.)
The central issue in the trial was the complainant's identification of the applicant as the perpetrator of the offences. The jury was carefully instructed by the trial Judge that "special caution" was necessary before accepting identification evidence. In this Court, the Crown contended that this was a case of recognition evidence rather than identification, as the complainant had some prior familiarity with the applicant. Be that as it may, the need for special caution remains and is not to be disregarded.
The Crown submits that the complainant's evidence nominating the applicant as the person who had offended against him, was "sufficiently accurate" to justify the conviction on which it was based. However, as N Adams J points out at [163] below, there are numerous problems with the identification of the applicant as the perpetrator which her Honour comprehensively details at [164]-[182].
The advantage of the jury in seeing and hearing the complainant's evidence does not overcome those difficulties. I am satisfied that the jury acting rationally ought to have entertained a reasonable doubt that the applicant was the perpetrator.
Having independently assessed the evidence, I agree with N Adams J that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant. I would also allow the appeal.
I agree with N Adams J's reasons and the orders that her Honour proposes.
N ADAMS J: On 16 February 2021, a jury of twelve returned majority verdicts of guilty in relation to the applicant, Kalime Khan, on two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). On 21 April 2021, the applicant was sentenced by Judge Norrish QC to an aggregate term of 3 years and 2 months' imprisonment with a non-parole period of 18 months commencing on 14 April 2021.
On 23 April 2021, the applicant filed a Notice of Intention to Appeal to this Court against his convictions under s 5(1)(b) of the Criminal Appeals Act 1912 (NSW). That day Judge Norrish QC released him on appeals bail pending the resolution of this appeal. He remains on bail.
The sole ground of appeal is that the verdicts are unreasonable and cannot be supported by the evidence. The applicant does not challenge the complainant's allegation that he was indecently assaulted when he was six years old. The sole issue in dispute is whether the perpetrator was the applicant.
A ground of appeal contending that a verdict or verdicts are unreasonable requires a grant of leave as it involves a question of fact or of mixed law and fact: Kees Langelaar v R [2016] NSWCCA 143 at [46]. The grant of leave was not opposed by the Crown in this matter.
In addition to the complainant, his parents, sister and cousin were also called as witnesses in the Crown case. They were all identified by initials in the submissions in this Court to protect the anonymity of the complainant. I propose instead to refer to the complainant simply as "the complainant" and to his father as "the complainant's father". I propose to refer to the complainant's sister as "Alina" and his mother as "the complainant's mother" or "Sarah"; these are pseudonyms. I do not propose to anonymise the complainant's cousin, but I shall refer to him solely by his first name, Aziz.

Unreasonable verdict: the test

The applicant contends that his convictions are unreasonable and cannot be supported having regard to the identification evidence of him as the perpetrator. The relevant principles for an appellate court to apply when considering whether a verdict is "unreasonable" in this context are well established. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mason CJ, Deane, Dawson and Toohey JJ explained the relevant test in this way: (at 493). "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (footnotes omitted) (Emphasis added.)
The High Court re-stated the applicable test in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. In their joint judgment at [13]-[14] French CJ, Gummow and Kiefel JJ stated the following (footnotes omitted): "[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' … [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.'"

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