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District Court 26 October 2021

R v Khorami

[2021] NSWDC 760

Sexual offencesAssault & violence
JUDGE ALONE TRIAL ALLEGED PRANIC AND TANTRIC HEALING TENDENCY EVIDENCE

Citation: R v Khorami [2021] NSWDC 760
Court: District Court of New South Wales
Date: 26 October 2021
Judge: Weinstein SC DCJ

Background

The accused was a sleep technician at the Woolcock Institute in Glebe, a facility providing overnight sleep studies to patients. He was a foreign-trained doctor who was not yet registered to practise medicine in Australia. The complainant, a young woman aged approximately 22 at the time, attended the Institute on 8 February 2018 for an overnight sleep study.

The Crown alleged that during the night, the accused entered the complainant's room while she was sleeping, and, while appearing to adjust wires near her head, placed his knee on her bed, lifted his torso, and touched her outstretched hand with his genitals. The rooms at the Institute were monitored by synchronised closed-circuit television cameras with infrared night recording, and the conduct alleged was captured on CCTV footage.

The accused faced a single count of aggravated indecent assault under section 61M(1) of the Crimes Act 1900. The aggravating circumstance alleged was that the complainant was under the authority of the accused at the time of the assault.

  • Whether the Crown proved each element of aggravated indecent assault beyond reasonable doubt, including the deliberate and indecent nature of the touching, absence of consent, knowledge of non-consent, and the existence of circumstances of aggravation
  • How tendency evidence from four other complainants (from a previous trial) was properly used in the judge-alone reasoning process, and whether those tendency acts were essential to a finding of guilt given the circumstantial elements of the case
  • The appropriate directions applicable in a judge-alone trial, including on onus and standard of proof, delay under section 165B of the Evidence Act 1995, the use of AVL evidence, and the assessment of witness credibility

Decision

The trial proceeded before a judge alone pursuant to section 133 of the Criminal Procedure Act 1986, with the judge required to expose the full chain of reasoning linking the applicable legal principles to findings of fact, as directed by the High Court in Fleming v The Queen [1998] HCA 68. The proceedings were conducted entirely by audio-visual link due to the COVID-19 pandemic, which the court noted required specific consideration of how any limitations in assessing demeanour should be attributed.

On the central issue of what occurred during the night of 8 February 2018, the court relied substantially on the CCTV footage and the synchronised sleep study data. The court was satisfied beyond reasonable doubt that the physical contact alleged had occurred and that it constituted an act of indecency, the act having a clear sexual connotation by reason of the part of the accused's body involved.

The court was also satisfied beyond reasonable doubt that the complainant did not consent to the contact. She had consented only to the manipulation of the wires to which she was connected for the sleep study, and she was asleep at the time. The court further found that the accused knew she was not consenting, and that she was under his authority in the circumstances, satisfying the aggravating element.

Tendency evidence from four complainants who gave evidence in an earlier trial was admitted and considered. The catchwords indicate a question arose as to whether those tendency acts were essential to the reasoning process given the circumstantial nature of parts of the case. The court's ultimate finding of guilt was recorded on the charge as framed in the indictment.

Orders Made

  • The accused was found guilty of aggravated indecent assault contrary to section 61M(1) of the Crimes Act 1900.

Key Takeaways

  • In a judge-alone trial under section 133 of the Criminal Procedure Act 1986, the judge must set out the principles of law applied, the factual findings made, and the reasoning process linking the two, consistent with the High Court's requirement in Fleming v The Queen.
  • A person is under the "authority" of another for the purposes of section 61H(2) of the Crimes Act 1900 where that person is in the care, or under the supervision or authority, of the other person. A patient in an overnight sleep study was found to satisfy this test in relation to the supervising sleep technician.
  • Tendency evidence from separate complainants can be admitted and form part of the reasoning in a criminal trial, including where the case involves largely circumstantial elements. The question of whether such evidence is essential to the verdict depends on the structure of the Crown case.
  • Where evidence is given by audio-visual link rather than in person, any difficulty in assessing a witness's demeanour arising from the practical limitations of AVL is not to be held against the accused. Such difficulty tells against the Crown.
  • An act of indecency for the purposes of the aggravated indecent assault provision requires either an objectively unequivocal sexual connotation (which may derive from the part of the body used by the accused) or, where the act is not objectively unequivocal, an intention on the part of the accused to obtain sexual gratification.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61H(2)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165B

Cases:
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250