R v Khorami [2021] NSWDC 760

District Court New South Wales

Medium Neutral Citation: R v Khorami [2021] NSWDC 760 Hearing dates: 6 to 18 October 2021 Date of orders: 26 October 2021 Decision date: 26 October 2021 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: I find the accused guilty of the charge on the indictment. Catchwords: Judge alone trial - aggravated indecent assault during sleep study – alleged pranic and tantric healing - tendency evidence - whether alleged tendency acts are essential to reasoning to a finding of guilt because of the circumstantial nature of the case. Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Fleming v The Queen [1998] HCA 68 Category: Principal judgment Parties: Regina (Crown) Mr Khorami (Defence) Representation: Counsel: Mr G Harrison (Crown) Mr K Buckman (Defence)

Solicitors: Ms G Alexander (ODPP) Mr M Priddis (Legal Aid) File Number(s): 2020/00225974 Publication restriction: N/A

Judgment 1. The accused is charged with one count of aggravated indecent assault contrary to section 61M(1) of the Crimes Act 1900 (alleged to have occurred on 8 February 2018). 2. The indictment reads as follows: Ali Khorami, on the 8th day of February 2018 at Glebe in the State of New South Wales, did assault AB and at the time of the assault committed an act of indecency on AB in circumstances of aggravation, namely at the time of the offence AB was under the authority of Ali Khorami. 1. The allegation relates to a time when the accused was a sleep technician at the Woolcock Institute (the Institute) and the complainant had attended for an overnight sleep study at the Institute's premises at Glebe. The accused was a foreign born and trained doctor, having been born and trained in Iran. He was not yet licenced or registered to practice as a doctor in Australia. The complainant was a young woman aged about 22 years when she attended for her overnight sleep study. The accused was the technician who oversaw and conducted the study. He did not interpret the study or make any recommendations about the results of the study. 2. The accused is now 48 years old and was employed at the Institute between 2016 and 2018. The Institute is a facility where sleep specialists carry out sleep tests on patients to better understand what is happening when they sleep. The tests measure sleep patterns and monitor breathing, heart rate and other body functions in order to diagnose sleep disorders. Sleep technologists interpret the studies which are then given to doctors who make diagnoses. 3. Sleep studies conducted at the Institute are electronically recorded by way of closed-circuit television cameras which are fixed in each room with infrared lights for night recording. The video is synchronised to the sleep study data which is transmitted through body wires which are placed on various parts of the body to record data. A sleep technician monitors the patient from a remote computer monitoring room called a lab which is located a short distance away from the bedroom where a patient sleeps. 4. For the purpose of considering the elements which the Crown must prove, in the context of this case, the elements have been agreed between Mr Harrison on behalf of the Crown and Mr Buckman on behalf of the accused. The elements of each offence are found at Annexure "A" of this judgment. Each element must be proved to the criminal standard of beyond reasonable doubt. 5. The Crown case is that during the night of 8 February 2018, the accused entered the room in which AB was sleeping at the Institute. Her left arm was outstretched, palm up. It is alleged that the accused, whilst pretending to adjust some wires over her head, put his left knee onto her bed, lifted his torso, and then touched her outstretched hand with his genitals. During the time this occurred, the accused looked down at his groin area twice. It is this activity that the Crown submits constitutes the indecent assault. 6. I observe that the entirety of the proceedings was conducted, by consent, by way of audio visual link (AVL) due to the Covid-19 pandemic. I express my gratitude to Mr Harrison who appeared for the Crown and to Mr Buckman who appeared for the accused for the collaborative manner in which they conducted the proceedings.