Khan v R

1. [1]

   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.

2. [2]

   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]:

3. [3]

   The High Court went on to say:

4. [4]

   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.

5. [5]

   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].

6. [6]

   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.

7. [7]

   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.

8. [8]

   I agree with N Adams J’s reasons and the orders that her Honour proposes.

9. [9]

   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.

10. [10]

    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.

11. [11]

    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.

12. [12]

    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.

13. [13]

    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.

Overview of Crown case

1. [14]

   The complainant was born on 15 March 2007. He and his family are Rohingya. They arrived in Australia to live in May 2013. In 2019, when he was 13 years old, the complainant confided in his sister that when he was six years old he was sexually assaulted by a next-door neighbour to their then home in Dennis Street, Lakemba (on a date between 1 November 2013 and 31 January 2014).

2. [15]

   The complainant’s evidence was that when he was six years old he would visit the house next door to play with the children who lived there. The Harace family lived next door. They were also Rohingya. The perpetrator lived next door with the family. On one occasion around the Christmas/New Year period of 2013/2014, the complainant walked into the backyard of the neighbouring house via a side footpath to play with the children. The perpetrator was standing at the door at the side of the house. The perpetrator pulled him into a bedroom he occupied at the house and gave him a mobile telephone to play with. The complainant described that there was only one bed in the room. The perpetrator removed the complainant’s clothing and touched the complainant’s penis (count 1). The perpetrator did not speak. The complainant alleged that the perpetrator then put him on his lap with his back to the perpetrator’s chest, and then the perpetrator inserted his penis into the complainant’s anus. Although the applicant was charged with one count of sexual intercourse with a child under the age of 10 contrary to s 66A(1) of the Crimes Act (count 2) based on this evidence, the jury found him not guilty of that count and instead convicted him on the alternative count of aggravated indecent assault (count 3).

3. [16]

   The complainant said that the perpetrator threatened him saying he would kill him if he told anyone. The perpetrator opened the door to let the complainant out then slammed the door after him. The complainant hid his underwear and pants under his house as they were wet. The clothing was not recovered.

4. [17]

   The first time the complainant had ever met or spoken with the perpetrator was when the complainant’s older cousin, Aziz, came to visit from Queensland and stayed with the complainant’s family at the Dennis Street property in late 2013. The perpetrator wanted to join the complainant and his cousin on outings. The complainant told police that the perpetrator was friends with Aziz and Aziz’ friends. The “group”, including the perpetrator, used to go into the city and they would take the complainant with them. The complainant recalled that he went into the city with Aziz and the perpetrator three times before the assaults and never afterwards. The complainant confirmed that the friend of Aziz was called “Shahrukh Khan” (also spelt Shah Rukh Khan and Sharukhan). They would also go to eat at Aziz sister’s house which was either near Liverpool or Liverpool Road.

5. [18]

   Shahrukh Khan is the name of a popular Bollywood film star. There was evidence at trial that more than one person in the Rohingya community in Sydney may have had that nickname.

6. [19]

   On 30 December 2013, the complainant and Aziz made an outing to the store “Target” in Bankstown and were captured standing together in a photograph. That photograph was a central exhibit at trial as it formed part of the complainant’s “identification” of the perpetrator. It was tendered and became exhibit C.

7. [20]

   The complainant’s evidence was unclear as to who else was present on the outing to Target when exhibit C was taken, other than himself and his cousin Aziz (who are the two people depicted in the photograph). In his first JIRT interview, he suggested that the person who took exhibit C was the perpetrator or the perpetrator’s friend. He described two different group configurations at that outing. In one version, there were four people, being the perpetrator (Shah Rukh Khan) and another person (the perpetrator’s friend) in addition to the complainant and Aziz. In another version, there were three people present and the complainant was unsure whether it was the perpetrator or his friend who was there (in addition to he and Aziz). In cross-examination at trial, the complainant resiled from the evidence that the perpetrator was present at the shopping centre at all that day.

8. [21]

   The complainant alleged that the assaults occurred two days after exhibit C was taken. He never went on an outing with the perpetrator again. The complainant moved house in 2014 and twice again before he complained to his sister of the assaults in about June 2019 when he was 13 years old.

9. [22]

   It was common ground that the applicant had been given the nickname Shahrukh Khan and that he lived next door to the complainant for about four to five months in 2013/2014.

10. [23]

    By the time that he told his sister Alina about the sexual assaults, the complainant had seen the applicant, his former next-door neighbour, on a number of occasions. In 2016 and 2017, the applicant was a member of the community soccer team that the complainant’s father managed. The complainant would see the applicant during this time. The applicant acted “nice” and sometimes stared at the complainant. However, they never spoke, and have not spoken since the time of the assaults.

11. [24]

    The complainant confided in Alina in about June 2019. He described the perpetrator as being someone who lived next door. He did not know his name. In his version of events, he described the perpetrator as having the nickname “Shahrukh Khan”. He knew this because that is what Aziz used to call him. Alina’s version was that the complainant did not know the neighbour’s name when he first reported the assaults to her, but she remembered there was a man living next door at the time who played soccer who had the nickname Shahrukh Khan. On her version, she was the one who told the complainant the nickname.

12. [25]

    About two to three weeks after the complainant confided in his sister, she asked him whether the perpetrator was in the soccer team their father managed and the complainant said “yes”. She then presented him with a photograph of that community soccer team that she had found on Facebook. That photograph became exhibit D at trial. There were two versions at trial of how the complainant came to be shown that photo. Alina’s version was that she wanted to see whether the person the complainant was talking about was the same person she was thinking of, so she looked online for an image of the person she had in her mind. She found a photo (exhibit D), showed it to the complainant, pointed to the applicant and asked, “is that him?”, to which the complainant said “yes”. The complainant’s version was that his sister showed him the photo and simply asked, “[d]o you recognise anyone on this picture?”, to which he replied “yes” and pointed to the applicant. This was the first picture identification of the applicant as the perpetrator.

13. [26]

    The complainant also gave differing accounts as to the order of events relevant to the identification of the applicant. In his first JIRT interview, on 10 September 2019, the complainant’s evidence was that this first identification was preceded by him seeing the perpetrator walking out of a train station wearing a Real Madrid jersey some weeks earlier. Indeed, this sighting was one of the reasons he first confided in his sister. However, during cross-examination, the complainant said that the identification by reference to exhibit D happened first, and then he recognised that person from the photograph near the train station wearing the jersey.

14. [27]

    On 8 September 2019, which was two days prior to the first JIRT interview, the complainant described seeing the perpetrator at a shop called “Urban Culture” when the complainant was out shopping with his mother. While his mother was in a changing room, the applicant walked into the store wearing a purple jacket and was accompanied by a shorter woman whom the complainant did not recognise. The complainant grabbed his mother’s mobile phone and tried to record the applicant, but the recording did not show his face. CCTV footage was subsequently obtained (exhibit G), and it was common ground that it depicted the applicant.

15. [28]

    Given the significance of exhibit C, investigating police sought to locate Aziz to confirm who was present when the photo was taken. The officer in charge of the investigation was Detective Senior Constable Kelly Dale (hereinafter “the OIC”). The OIC emailed the complainant’s sister and mother and asked them to get Aziz’s details. Aziz and the complainant’s mother had limited command of English. Questions for Aziz were forwarded to Aziz through the complainant’s family. Before he spoke to police, Aziz first spoke to the complainant’s mother by facetime. Following that conversation, both the complainant’s mother and sister sent emails to the OIC explaining that there had been some confusion as the perpetrator, Shahrukh Khan was not present when exhibit C was taken. The emails advise that what actually happened was that the friend of Aziz (who took the photo) joked with the complainant about Shahrukh Khan taking the photo. It was following this that both the complainant, and his sister changed their evidence as to who was present when exhibit C was taken.

16. [29]

    Aziz gave evidence at trial that he did not go on any outings with the applicant (as the complainant maintained) and did not know him. He agreed that he initially told police that another friend of his, Shabbodin Shabbodin, was present that day and took the picture. By the time he gave his evidence at trial, he had resiled from that account.

Unreasonable verdict: the test

1. [30]

   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).

2. [31]

   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):

3. [32]

   I have summarised the Crown case in broad terms above, but it is necessary for me to consider it in more detail in order to determine this appeal. There was no challenge to the complainant’s assertion that he was indecently assaulted in a room in the house next door, so I propose to focus my consideration on the evidence concerned with the identity of the perpetrator, including the evidence of first complaint. Given that some of the witnesses changed their versions over time, it is necessary to extract that evidence rather than simply summarise the effect of it. Although I have extracted a considerable portion of the evidence at trial below, I consider it necessary to do so given the issues raised by the applicant on this appeal.

Evidence of the complainant

1. [33]

   Around the beginning of June 2019, the complainant told his sister, Alina, the details of the assaults. He had recently learnt about sexual offence laws at school two weeks prior. Although he initially told police that another reason he confided in his sister at that time was because he was “triggered” by recently seeing the applicant near a train station in a Real Madrid jersey, in cross-examination, he changed the date of when he saw the applicant at the station until a date after he complained to his sister. He subsequently participated in a JIRT interview on 10 September 2019.

2. [34]

   The first JIRT interview was conducted by the OIC. It was played at the trial and marked MFI 7 at the Pre-Recorded Evidence Hearing. The first answers provided by the complainant as to the identity of the perpetrator are as follows:

3. [35]

   The complainant later clarified that his cousin Aziz was not a distant cousin. Thus, when he first spoke to the OIC the complainant told her that he first spoke to the perpetrator when Aziz stayed at his house and the perpetrator “always wanted to come out” with him and Aziz. The complainant did not know his name, but Aziz used to call him Shahrukh Khan and so did he. The complainant was then asked to describe Shahrukh Khan as follows:

4. [36]

   The complainant recounted the details of the complaint he made to his sister a few months earlier in these terms:

5. [37]

   The complainant told police that his sister had a picture of the perpetrator wearing a “BRC” (Burmese Rohingya Community) soccer jersey.

6. [38]

   Significantly, the complainant told police that he had a photograph of himself and his cousin, “Aniz” (also spelled “Anis” but should be “Aziz”) saved on his iPad. He used the photograph both to identify the time of the assaults, and, initially, the identification of the perpetrator. The relevant portions of his JIRT interview are as follows:

7. [39]

   The above answers can be summarised in this way: the complainant stated that “I think the person who took the picture was him, the guy or his friend”. He and Aziz used to go out with “the guy” known as Shahrukh Khan, who was the perpetrator, to people’s houses including Aziz’ sister’s house: “we” used to eat there and “come back.” The assaults happened two days after the photo was taken. He did not know who took the photo, but he thought the perpetrator was there with another person. He thought it was Shahrukh Khan or his friend and all he could remember is that two days later he went to “their house” and was sexually assaulted.

8. [40]

   As stated above, the photograph, said to be taken by the perpetrator (or the perpetrator’s friend), became exhibit C at trial and I propose to refer to it as such.

9. [41]

   The complainant participated in a second JIRT interview on 16 June 2020. The interview was played to the jury. On this occasion, he told police that after the assault, he threw his pants and underpants into a hole under his house (Q40–A50; A214) and that his father saw him walking through the house afterwards wearing just a shirt (A220). He provided further details about the sexual assault. He also told police that the perpetrator was wearing traditional Burmese pants known as a “longyi” (Q374).

10. [42]

    The complainant gave additional evidence in chief. He was shown a photo of the soccer team his father was the manager of (exhibit D) and pointed out the applicant in the front row, second from the left. He was then asked when he first saw that photograph and the following exchange took place:

11. [43]

    As will be seen below at [59]-[60] and [64], the complainant’s sister, Alina, gave a different account of this.

12. [44]

    The complainant was then cross-examined. When he was being asked about the perpetrator undressing him the following exchange took place:

13. [45]

    The complainant was then asked about when he first complained of the assault to his sister:

14. [46]

    The complainant was then shown a photo of the Bollywood actor, Shahrukh Khan. He stated that the perpetrator looked a bit like him and added, “[j]ust the hair, but longer”. The photograph was tendered and became exhibit 4.

15. [47]

    The complainant was further questioned about his first complaint to his sister and the following answers were given:

16. [48]

    As will be seen below, Alina gave evidence that the complainant did not know the name of the person who lived next door with long hair when he first complained to her and it was she who told him he was called Shahrukh Khan.

17. [49]

    The complainant was then shown a photograph (MFI 12 which became exhibit K) of a man named Shabbodin Shabbodin (“Shabbodin”). Shabbodin was a friend of Aziz. As will be seen below, Aziz initially told police that it was Shabbodin who took exhibit C. The complainant was asked the following questions.

18. [50]

    The topic of the first complaint was returned to and the complainant was asked to confirm the following sequence of events:

19. [51]

    Thus, the complainant told police that it was seeing the applicant at the train station which triggered him to tell his sister. He then changed his account to not seeing the applicant at the station until after he was shown exhibit D (the soccer photo of the accused) by his sister.

20. [52]

    The complainant was then asked about what he told police in his first interview about going to the shops with Aziz, the perpetrator and a friend. He resiled from what he told police about who might have taken the photo exhibit C. He also denied that he changed his evidence after his sister told him that Aziz denied going to the shops with him that day. His answers were as follows:

21. [53]

    The applicant’s counsel then put to the complainant that portion of his first interview where he told police “I think the person who took the picture was him.” The following exchange then took place:

22. [54]

    The complainant later repeated that he was mistaken when he told police that a man named “Shahrukhan” was present when exhibit C was taken in these terms:

23. [55]

    Although the complainant resiled from his evidence that he thought that the perpetrator was at the shops with him when exhibit C was taken, at no stage did he ever resile from his evidence that the perpetrator was a friend of Aziz and the three of them went on outings together prior to the assault. Nor did he resile from his evidence that he knew that the perpetrator was called Shahrukhan because that is what Aziz called him.

Evidence of Alina

1. [56]

   On 25 September 2019, Alina made a statement to police. Her evidence was pre-recorded on 27 and 29 July 2020 and later played to the jury on 5 February 2021. She was 17 years old when she gave evidence. She described a man who lived next door to them at the relevant time in these terms:

2. [57]

   Alina was asked about the circumstances of the complainant first reporting the assault to her:

3. [58]

   The witness was then shown exhibit C and the following questions were answered:

4. [59]

   The witness then repeated the description of the applicant she gave to police: “long hair, he wore accessories, and he was about average height.”. The hair was “I think below his ears or around his neck”. She was then asked about the circumstances of why she obtained the soccer photo – exhibit D:

5. [60]

   Thus, Alina’s evidence on this important issue differed to the complainant’s as to whether she suggested the applicant to him, and he agreed. She agreed that sometime after that the complainant told her that she had seen the perpetrator whilst shopping with his mother in Lakemba and tried to take a photo but could not.

6. [61]

   Alina was asked about the identification of the perpetrator by her younger brother:

7. [62]

   The witness was asked about exhibit C and parts of the statement she made to police on 25 September 2019 were put to her:

8. [63]

   The witness was shown her statement which confirmed that she had in fact told police that the complainant had told her that the perpetrator was present when exhibit C was taken. The following exchange then took place:

9. [64]

   The cross-examination continued until the following day. Alina agreed that it was a few days after the complainant told her about the assault that she showed him exhibit D and pointed out the person she believed was Shahrukh Khan. The sequence of events was again clarified as follows:

10. [65]

    Alina agreed that she sent the photo (exhibit D) the day before the complainant gave his first interview on 9 September 2020. She was then asked some more questions about exhibit C and repeated her (changed) evidence that the complainant did not tell her that he had gone to the shops that day with Aziz and Sharukh Khan. Paragraph 10 of her statement was read to her which, relevantly, was in these terms:

11. [66]

    She was asked about the change in her evidence. She denied discussing the evidence with her mother. She agreed she provided a second statement to police on 12 June 2021 in which she changed her version of whether the complainant told her Shahrukh Khan was at the shops with the complainant and Aziz the day of exhibit C. She denied speaking to her mother or the complainant between those two statements.

12. [67]

    She was shown a photo of Shabbodin. She did not recognise him but agreed that he had long hair. She was shown photos of other men (who apparently used to visit next door) but did not recognise any of them.

Evidence of Aziz

1. [68]

   Aziz is the complainant’s cousin. He was photographed standing next to the complainant in exhibit C. After the complainant gave this photo to the OIC she attempted to contact Aziz through the complainant’s mother and sister. I have extracted these emails below. Before meeting with police and providing a statement, he had a video call with the complainant’s mother, during which they discussed the identity of the perpetrator.

2. [69]

   Aziz’ evidence was that he did not know the applicant. He travelled to Sydney in 2013 and stayed with his friend Shabbodin at his house in Punchbowl for a period of eight or nine days. He had met Shabbodin when he was living in Rockhampton in 2013. He visited the complainant’s father on three or four occasions during that visit in 2013/2014.

3. [70]

   Aziz agreed that he took the complainant shopping to the Bankstown Central Shopping Centre, during which time exhibit C was taken. He denied travelling to the shopping centre with anybody else or meeting anyone else there. He said he could not remember “exactly” who took the photograph. He did not know anyone by the name of Kalime Khan.

4. [71]

   He agreed that he had told the police that it may have been Shabbodin who had taken the photograph exhibit C in the following way:

5. [72]

   In cross-examination Aziz was asked whether Shabbodin took the photograph that became exhibit C. He replied:

6. [73]

   He denied being together with Shabbodin and the complainant together in December 2 013. He gave evidence of having contact with both the OIC and the complainant’s mother prior to giving his police statement. His cross-examination was in these terms:

7. [74]

   The cross-examination continued:

8. [75]

   And further:

Evidence of Shabbodin Shabbodin

1. [76]

   Shabbodin made a police statement dated 18 June 2020. He was a friend of Aziz. He denied ever meeting or knowing the applicant or having been to Mohamed Harace’s home. He denied being present when exhibit C was taken. He said this:

2. [77]

   He knew of Mr Harace. He denied referring to himself as looking like the famous actor Shahrukh Khan. He denied taking the photograph that became exhibit C. He was cross-examined about his contact with the OIC, and the timing of his police statement. He first spoke with the OIC on the telephone on 28 May 2020. There were then emails between him and the OIC on 28 May 2020. They became exhibit 8 and are extracted below at [96]-[97].

3. [78]

   Shabbodin later made his statement to police on 18 June 2020. He was cross-examined about the relevant chronology:

4. [79]

   Shabbodin denied ever making a joke with Aziz in December 2013 and January 2014 about Shahrukh Khan and he denied joking with Aziz that he looked like the actor.

5. [80]

   In re-examination, Shabbodin denied meeting Mr Harace, having been to his house, or ever seeing or interacting with the complainant.

Emails between witnesses and the OIC

1. [81]

   In addition to the email exchanges between the OIC and Shabbodin, further emails were tendered at the trial showing communication between the OIC and witnesses Aziz, the complainant’s mother Sarah, sister Alina and Shabbodin. Some of the emails were marked as exhibits whereas others were just read onto the record. They were in the following terms (chronologically), keeping in mind that the applicant’s first JIRT interview was on 10 September 2019.

2. [82]

   On 25 September 2019 at 11:19 am, the OIC sent Alina an email in these terms (MFI 24):

3. [83]

   On 25 September 2019 at 11:33 am, Alina sent an email to the OIC (MFI 24):

4. [84]

   On 30 September 2019 at 5:18 pm, the OIC sent Alina an email in these terms (exhibit 19):

5. [85]

   On 22 October 2019 at 9.23 am, the OIC sent Alina and her mother Sarah an email in these terms (exhibit 12):

6. [86]

   On 22 October 2019 at 9.34 pm, Alina emailed the OIC (exhibit 20):

7. [87]

   On 22 October 2019 at 9.41 pm, the complainant’s mother Sarah emailed the OIC (exhibit 12):

8. [88]

   There was evidence of a Facetime call between Aziz and Sarah. It is to be inferred that during that conversation he told her that he did not know the applicant and told her that the photo was taken by his friend (Shabbodin).

9. [89]

   On 23 October 2019 at 8:27 am, the OIC emailed Alina (exhibit 20):

10. [90]

    On 23 October 2019 at 3.49 pm, the OIC emailed Aziz (exhibit 10):

11. [91]

    On 23 October 2019 at 2:28 pm, Aziz emailed the OIC (exhibit 10) in these terms, “His name is Shabuddin”. Aziz attached a photograph of Shabbodin, which became exhibit K.

12. [92]

    On 5 November 2019 at 8.47 am, the OIC emailed Aziz (exhibit 10):

13. [93]

    On 5 Nov 2019 at 9.08 am, Aziz emailed the OIC (exhibit 10):

14. [94]

    On 5 November 2019 at 9:26 am, the OIC emailed Aziz (exhibit 10):

15. [95]

    On 5 November 2019, at 9.37 am Aziz emailed the OIC (exhibit 10):

16. [96]

    On 28 May 2020 at 4.00 pm, the OIC emailed Shabbodin (exhibit 8):

17. [97]

    On 28 May 2020 at 5.04 pm, Shabbodin emailed the OIC (exhibit 8):

Evidence of the complainant’s mother

1. [98]

   Sarah gave evidence of living next door to the Harace family on Dennis Street, Lakemba. She knew the Harace family included Mr Harace’s mother-in-law, as well as wife and six children. She gave evidence of her children playing in the Harace house and garden. She gave evidence of another man staying at the Harace household between September 2013 and February 2014 and that her husband told her the man was nicknamed “Shahrukh Khan”. She said she saw him face to face twice.

2. [99]

   In cross-examination she agreed that her daughter sent a photograph on 9 September 2019 (exhibit D, the soccer team photograph) and that she took the complainant to be interviewed by police the next day.

3. [100]

   She said that during December 2013 and January 2014 she rarely left the house, except to take the children to the doctors or to go shopping.

4. [101]

   She gave evidence of Aziz coming to her house with a friend, and that she prepared lunch for them. She also recalled Aziz taking the complainant on a shopping outing but did not know whether anyone else went.

5. [102]

   She was asked about contact with Aziz and the OIC. She said she wrote an email to police (exhibit 12) and that she did not remember having a video call with Aziz prior to writing the email.

Evidence of the complainant’s father

1. [103]

   The complainant’s father gave evidence that he knew the applicant and that he lived next door in the Harace household. He saw and spoke with the applicant “plenty of times”. He spoke Rohingyan with him. He described the applicant as having long hair. He said he knew the applicant by the name “Shahrukh Khan”. The applicant told him he got that name in immigration detention.

2. [104]

   He gave evidence that he saw the applicant often at BRC football games, and that the complainant sometimes went with him to watch the games.

3. [105]

   While living in Dennis Street Lakemba, he met a man named “Shabbodin Shabbodin”, who came to the neighbour’s house. When shown photographs, exhibits K and K1, he said:

4. [106]

   He did not remember seeing Shabbodin (depicted in exhibit K) at the Harace household next door.

5. [107]

   He knew of a man named Shabbodin who did go to the Harace household who was “a sickly kind of guy, from what I remember, and he was, we called him a bit cracked, his mental stability was not that good. That was what they’d said.” He denied this was the same Shabbodin in exhibit K.

6. [108]

   He noticed adult males ‘come and go’ from the Harace household. He specifically identified the photograph of the man in exhibit 11 as a man who came and went to the Harace household. He described the man he knew as Shabbodin as having “close cropped” hair.

7. [109]

   He said he only saw one person staying or living regularly at the Harace household.

Evidence of Mohamed Harace

1. [110]

   Mr Harace was an elder in the Rohingya community. He provided accommodation to recently arrived Rohingya asylum seekers just released from immigration detention. Such men would stay for short periods of time.

2. [111]

   The applicant stayed with the Harace family for a period of about four to five months. He was released from immigration detention in 2013.

3. [112]

   He gave evidence of living with his wife, mother-in-law and six children next door to the complainant’s family. The children from the complainant’s family played in his yard. A man named “Shahrukh Khan” lived at his house from 2013. “Shahrukh Khan” slept in a room with Mr Horace’s son. There were two beds in the room.

4. [113]

   He saw his neighbour, the complainant’s father, coaching the soccer team while “Shahrukh Khan” was playing soccer. He was told the man who came to live in his house was named “Shahrukh Khan” by immigration authorities and the applicant introduced himself by that name. He described the applicant as having “medium” length hair.

5. [114]

   He agreed that in 2013 adult males from the Rohingyan community would visit his house every day.

6. [115]

   He identified a photograph of the applicant (exhibit 13), with his length of hair being the same as when Mr Harace saw him in 2013. He agreed he told police in his statement that the man named “Shahrukh Khan” had dark hair of a medium short length and that there was another man staying in the same room of the house prior to the man named “Shahrukh Khan” arriving, although he could not remember his name.

7. [116]

   Further, another man named “Tahar” lived in the same spare room that the applicant did, in late 2013 or 2014.

Evidence of Hamida Bi

1. [117]

   Ms Bi is Mr Harace’s wife. She gave evidence of a man who her family knew as “Shahrukh Khan”. He stayed at her house in 2013. He shared a room with her eldest son, in a room with two beds. She rarely left the house. The doors to the bedrooms were left open during the day. Different men would come to her home to visit during the period of 2013 to 2014.

2. [118]

   She did not recognise a photograph of Shabbodin (exhibit K) as a person who visited in that time period. She recognised photographs of other men who visited the house from 2013 onwards (exhibits 7 and 15).

Evidence of Daw Palthan

1. [119]

   Ms Palthan is Ms Bi’s mother and Harun Harace’s grandmother. She knew of a man nicknamed Shahrukh Khan who came to live at the Dennis Street house with her and the family. She described the man as having black hair to the top of her neck. She agreed that in an earlier Basha inquiry she said that she had never seen the man she knew as “Shah Rukh Khan” wearing traditional pants, or “Longyi”.

Evidence of Harun Harace

1. [120]

   Mr Harace gave evidence that the man named Shahrukh Khan lived at his house for a period of time, and that he shared a room with a man named “Tahir”, a distant relative. Tahir stayed on for a period of three years after the man named Shahrukh Khan left. He also gave evidence that his mother, Hamida Bi, rarely left the house, except for special occasions.

Evidence of the OIC

1. [121]

   A number of exhibits were tendered through the OIC including the ERISP with the applicant (exhibit M, with the transcript being exhibit M1). She also gave evidence that the applicant was a member of the Lakemba Sports Soccer Club from 2017 to 2020 and had no prior convictions.

The applicant’s ERISP (revised transcript)

1. [122]

   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.

2. [123]

   And further:

3. [124]

   The applicant was shown exbibit C and asked a series of questions (although the answers are unclear, it appears that he recognises Aziz (incorrectly as the complainant’s father’s brother) but not the complainant):

4. [125]

   When the particulars of the allegations were put to the applicant he responded as follows:

5. [126]

   Finally, the applicant was asked if there was anything else he wished to say.

The summing up

1. [127]

   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:

2. [128]

   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:

3. [129]

   On the same topic, later in the summing up, his Honour said:

4. [130]

   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:

5. [131]

   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:

6. [132]

   Then in respect of the Urban Culture sighting, the second act of identification, his Honour said:

7. [133]

   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?”.

8. [134]

   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:

The verdicts

1. [135]

   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.

Ground 1: the verdict is unreasonable

1. [136]

   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.

2. [137]

   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.

3. [138]

   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.

4. [139]

   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.

5. [140]

   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”.

6. [141]

   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).

7. [142]

   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.

8. [143]

   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.

9. [144]

   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.

10. [145]

    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.

11. [146]

    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.

12. [147]

    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.

13. [148]

    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.

14. [149]

    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.

15. [150]

    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.

16. [151]

    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

1. [152]

   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.

2. [153]

   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]:

3. [154]

   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.

4. [155]

   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.

5. [156]

   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.

6. [157]

   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.

7. [158]

   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.

8. [159]

   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]:

9. [160]

   I have had regard to the principles derived from these decisions in determining this ground.

10. [161]

    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”.

11. [162]

    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.

12. [163]

    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.

13. [164]

    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.

14. [165]

    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.

15. [166]

    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.

16. [167]

    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.

17. [168]

    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.

18. [169]

    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.

19. [170]

    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.

20. [171]

    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.

21. [172]

    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.

22. [173]

    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.

23. [174]

    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.

24. [175]

    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.

25. [176]

    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.

26. [177]

    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.

27. [178]

    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].

28. [179]

    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.

29. [180]

    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”.

30. [181]

    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.

31. [182]

    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

1. [183]

   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.

2. [184]

   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.

3. [185]

   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.

4. [186]

   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.

5. [187]

   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

1. [188]

   Accordingly, I would propose the following orders:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the convictions of the applicant.

   4. (4)

      Enter verdicts of acquittal.

2. [189]

   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.

3. [190]

   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.