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. Judge Alone Trial 1. Pursuant to section 133 of the Criminal Procedure Act 1986, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury. The judgment of the court in such a case must include the principles of law that I, as the judge, apply and the findings on fact on which I rely. 2. In Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 the High Court stated that it is necessary for a judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that he or she has reached. 3. I am required, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial, according to law. Onus of Proof 1. Having brought the charge, it is the Crown who bears the onus of proving it. The accused is presumed by law to be innocent of the charge brought against him unless, and until the evidence satisfies the tribunal of fact that each and every element of the offence has been proved beyond reasonable doubt. If the evidence fails to satisfy the court beyond reasonable doubt of any or all of the elements of the offence charged, then the presumption of innocence continues and a verdict of not guilty on that count must be returned. The evidence before the court must be approached with an open and unbiased mind. The court must proceed logically and rationally without acting capriciously. It is necessary to bring into account when assessing the evidence, the common sense of the court and to deliver any verdict according to the evidence. The abovementioned principles of law must be applied to the facts as I find them to be. Presumption of Innocence 1. It is, and it always has been, a fundamental part of our system of justice that persons tried in our courts are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This is known as the "presumption of innocence". 2. The expression "proved beyond reasonable doubt" is an ancient one. It has been deeply ingrained in our criminal law in this State for about 200 years and it needs no further explanation. 3. Mr Khorami has been referred to by both his name and as "the accused". That is all he is – the accused. I must now consider whether the Crown has established its case beyond reasonable doubt on the basis of all the evidence in relation to the charge against him and to render my verdict accordingly. AV Link/Support Person 1. The complainant in this case gave evidence by AVL. There was also a support person with her when she gave evidence. These are standard procedures in cases of this type. 2. CD, EF, GH and JK (the tendency complainants) also gave evidence by AVL in the previous trial. This too was standard procedure. 3. I must not draw any inference against the accused or give the evidence of AB or any of the tendency complainants any greater or lesser weight simply because their evidence was given in this manner or because they had support persons present. I must assess the evidence of each of these witnesses in the same way that I would assess any other witness. If I find it necessary in my fact-finding task that I consider the demeanour of one of more of these witnesses important, and I find it difficult to assess that person's demeanour by reason of the practical restrictions or limitations placed upon that task because of the AVL rather than that witness giving evidence in the courtroom, then that should not rebound against the accused. It should rebound against the Crown. Transcript 1. Transcript was provided and was tendered by consent. I remind myself that what I saw and/or heard from a witness is the evidence. The transcript is an aide memoire. If there are differences between what I saw and/or heard and the transcript, what I saw and/or heard prevails. Exhibits and Witnesses 1. The following were tendered as exhibits in the case and are referred to as Exhibit A and their tab number. I note that there is no Exhibit A – tab 1 or Exhibit A – tab 2. Tab Document 3. Tendency Notice Transcript from the previous trial (edited): DSC Amanda Wallace CD EF Carla Evans 4. GH JK LM Darren O'Brien Malgorzata Bronisz Zhifan Zhang Accused Video recordings of the evidence of the four complainants from the previous trial: 1. CD (1hr 5 mins); 5. 2. EF (51 mins); 3. GH (1hr 19 mins); and 4. JK (1hr 6 mins). 6. Exhibits from the previous trial (with a separate index) 7. ERISP (audio and transcript) from the previous trial (edited) 8. The edited CCTV footage from the previous trial 9. Agreed facts 10. The CCTV footage for AB 11. Stills from CCTV of AB 12. Patient Form of AB 13. "Technician to Complete" Form for AB 14. Table of text messages 15. Audio recording of accused's evidence from previous trial 16. CCTV Synopsis – times of clips of AB on 8 February 2018 1. The complainant AB and the accused gave evidence in these proceedings. Delay 1. Mr Buckman submitted that I should warn myself pursuant to section 165B of the Evidence Act about the delay in bringing the proceedings, as the events the subject of the charge took place more than two and a half years ago, and (as will be seen) the accused says that he has no memory of the events. Mr Buckman did not submit that the accused's lack of memory put the accused at a significant disadvantage in responding to or testing the prosecution case or by bringing forward evidence himself to establish a reasonable doubt about his guilt or both. His submission only was that the accused was disadvantaged because so much time had passed that he could not recall the complainant or her participation in a sleep study and he could not recall any conversations he may have had with her. In my opinion, the accused has not suffered a significant forensic disadvantage because of the consequences of any delay: section 165B(2). 2. As will be seen, there was contemporaneous CCTV footage (in which the accused and the complainant can be seen) and two contemporaneous documents (containing the complainant's and the accused's handwriting). The case depends upon a determination about what the accused was doing at about 4.04 – 4.05 am on 8 February 2018, which is captured on CCTV footage. 3. Whilst I accept that it is optimal to bring proceedings as close as possible to an alleged event, in my opinion any delay here does not merit me directing myself that the accused has been put into a situation of significant disadvantage and that he has been prejudiced in the conduct of his defence. I do not warn myself that before I can convict the accused, I must give the prosecution case the most careful scrutiny. In my opinion, the accused has had a full opportunity – in the circumstances of this particular case – to test the complainant's evidence and to mount a defence bearing in mind the limited issue I must determine. However, I remind myself that the onus is and remains on the Crown to prove its case beyond reasonable doubt, and that the accused retains the presumption of innocence unless and until I find all the elements of the offence proved to that standard. Witnesses 1. In this case, the Crown case in relation to the charge is based entirely on the evidence of the complainant AB and the contemporaneous CCTV footage, subject to one other body of evidence being tendency evidence. 2. My function in deciding what evidence I accept as proved and what is not, involves making an assessment of the witnesses who I observed, including the complainant, and the complainants in the previous trial whose evidence is relied upon for tendency purposes only. In making an assessment of whether I accept evidence is established by a particular witness's account, I need to bear in mind that what I am concerned with is not just the honesty of the witness, but the reliability of the witness. Of course, I may well decide not to rely on the evidence of a particular witness if it appeared to me that the witness was not giving evidence honestly. However, I must also bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation, errors in the witness's recall of events or a witness's inability to accurately describe what it is he or she saw or heard. I bear in mind that I do not have to accept everything that a witness said or reject everything that that witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said, but equally it is open to accept certain parts of what the witness said as reliable evidence that I can act upon, but I am not prepared to accept that witness about other parts of the evidence that he or she gave. 3. In making my assessment of witnesses I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make. 4. I acknowledge that reliability depends upon two quite different but overlapping factors. One factor is the witness's honesty and the other is the witness's accuracy. There are many factors which can have a bearing upon a witness's honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness strike me as being objective and impartial or did the witness strike me as appearing to be colouring his or her evidence in some way? 5. Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that a witness may be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried, or embarrassed. Demeanour and impression alone do not determine the honesty or accuracy of the witness's evidence. 6. If I conclude that a particular witness has been doing his or her best to be honest, I would need to move to the second aspect of reliability which relates to a witness's accuracy. A witness can be perfectly honest and accurate or perfectly honest, but completely or partly inaccurate. To determine how accurate a particular witness's evidence is, I may look to a number of factors. How carefully did the witness observe the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by any emotion such as stress, panic or fear that might have impacted their powers of observation and/or the laying down of an accurate memory? Are there issues relating to drug dependency or mental illness? How important to the witness were surrounding details of an incident or event such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event? 7. Judges do not have the ability to discern if a witness is telling the truth by only observing their demeanour. It is for that reason that the courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above. Inferences 1. I come now to the question of inferences. If inferences are to be drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference, and I should not draw such an inference unless it is the only rational inference in the circumstances. 2. Part of my role involves drawing inferences from direct evidence. They are conclusions rationally drawn from a combination of proved facts. It is possible to draw inferences too quickly and to speculate. It is important that I do not rush to an inference too quickly and I must not speculate about matters. I must approach the evidence calmly, rationally, and logically, applying my reasoning to it and considering the various possibilities as to the inferences that may properly be drawn from the evidence that I am satisfied has been established. I need to look carefully at the facts that I find established, and to consider cautiously the inference or inferences that I might draw from the particular facts with which I am concerned. 3. In some cases, a person's acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person's act, and he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result. 4. In this case, as will be seen, the Crown asks me to draw an inference that the accused's genitals came into contact with the complainant's hand. Circumstantial Case 1. In this case, the Crown relies on circumstantial evidence, being tendency evidence, with respect to the charge, because the CCTV footage does not clearly show the accused's genitals touching the complainant's outstretched hand. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact, that is that the accused's genitals touched the complainant's outstretched hand. 2. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. However, that is not to say that all direct evidence is accepted. 3. In a circumstantial case, the Crown lacks direct evidence of that kind. A case that relies, either wholly or in part upon the drawing of inferences, may be just as convincing and reliable as a case based upon direct evidence. In a circumstantial case, no individual fact can prove the guilt of the accused. Instead, the Crown will attempt to establish basic facts from the evidence. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts, is that an accused person is guilty of the offence charged. 4. The correct approach is first to determine what facts I find established by the evidence. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course, it follows that I must then find the accused not guilty. 5. However, if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt. 6. As I have said, in this case the Crown asks me to draw an inference that the accused's genitals, likely through his pants, came into contact with the complainant's outstretched left hand. Accused Gave Evidence 1. The accused gave evidence in this trial on affirmation. He was not obliged to do so. He could have said nothing at all. He chose to give evidence and thereby to expose himself to cross-examination. His choice to do that does not, of course, mean that the evidence that he gave was necessarily true. His evidence falls into the same category as the evidence of any other witness in this case and I will assess it in exactly the same way. By going into the witness box, Mr Khorami made himself a witness like any other witness, and exactly the same principles apply as I evaluate his evidence. The same considerations relating to his truthfulness and to the reliability of his evidence apply. By taking the course that he did, he in no way altered the fundamental principle concerning where the onus of proof lies. It is not for the accused, Ali Khorami, to satisfy me of his innocence - it is for the Crown to satisfy me of his guilt beyond reasonable doubt of the charge he faces. 2. Mr Khorami denied the charge on the indictment and said that it was anatomically impossible for his genitals to touch the complainant's hand. He said that he put his left knee on the bed to adjust the wires on the complainant's head and that his genitals did not touch the complainant's outstretched left hand. 3. During this trial, I also heard the accused's evidence in the previous trial in which the tendency witnesses gave evidence. The audio recording of his evidence was tendered as Exhibit A – 15. Additionally, the accused's ERISP from the previous trial was played. It is Exhibit A – 7 in these proceedings. I heard and observed the accused during this ERISP. Liberato Direction 1. It is important that I understand that the accused must be found not guilty of the offence charged if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. The following propositions flow from this statement. 2. First, if I believe the accused's accounts in his evidence in this trial, the previous trial and his ERISP, I must find him not guilty of the offence for which he has been charged. Later in this judgment, I deal with his answers with respect to this charge, but he denied indecently assaulting AB. 3. Second, if I find difficulty in accepting the accused's account, but I think it might be true, then I must find him not guilty of the offence with which he has been charged. 4. Third, if I do not believe the accused's account, then I must put it to one side. Then the question will remain: has the Crown, upon the basis of evidence that I do accept, proved on the evidence available, that the accused committed the offence charged beyond reasonable doubt? Zoneff direction 1. It was suggested by the Crown, as will be seen, that the accused lied about certain matters. This is a matter for me to decide. To decide that a lie was (or lies were) told, I must be satisfied that the accused said something that was untrue and that at the time of making the statement he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie. In this particular case, English was not the accused's native tongue. Although the accused had the benefit of a Persian interpreter, he chose not to use her to any great extent. He did not have an interpreter present during his ERISP. I must take into account that if I find that the accused has said something untrue, it may have been because of a misunderstanding of the English language. 2. If I decide that a lie (or lies were) told, I cannot use that fact or facts in support of a conclusion that the accused Ali Khorami is guilty. A lie cannot prove his guilt. Neither can a lie be used in conjunction with the other evidence that the Crown relies upon to prove his guilt. 3. The only use I can make of the fact that he told a lie (or lies) is in my assessment of his credibility. If I am satisfied that he did lie, then that may be considered by me as having a bearing upon whether I believe the other things that he said. Undisputed Facts 1. A document setting out Agreed Facts, signed by the accused, his solicitor, and the Crown, was tendered as Exhibit A – 9 pursuant to section 191 of the Evidence Act 1995. The following facts are not in dispute. 2. First, it is not in dispute that on 7 and 8 February 2018 the accused was the technician assigned to monitor AB for the evening throughout her sleep study at the Woolcock Institute. Second, it is not in dispute that AB is depicted in the bed in the CCTV footage (Exhibit A – 10) and that the accused is the person who enters the room at various times. Tendency Evidence 1. The Crown relies on an Amended Tendency Notice dated 29 September 2021. 2. Part of the Crown case is that the accused had a tendency to have a particular state of mind, namely a sexual interest in female patients aged between their late teens to late twenties, and that he acted upon that sexual interest, namely his tendency to indecently assault and act indecently towards female patients who were under his care as patients during the course of his employment at the Woolcock Sleep Institute (the tendency). The Notice says that the accused was convicted of the previous acts on which the Crown relies, but I put that out of my mind for the purposes of establishing whether or not the accused has the tendency, as no evidence was led to that effect. 3. The Tendency Notice states that the following common features of the allegations are relied upon: - * The complainant AB was aged 22 and the other matters involved females aged between 16 and 29; * The complainant and each of the other four complainants came into contact with the accused at the Woolcock Sleep Institute in his role as a sleep technician, whose primary role was to monitor the data obtained from the patient during the sleep study to ensure their comfort overnight. During a study, sleep specialists carry out sleep tests on patients to better understand what is happening whilst they are asleep. These tests measure sleep patterns and monitor breathing, heart rate and other body functions for diagnosing sleep disorders. * The offending took place over a 6-month period between 7 February 2018 and 29 July 2018. The current allegation took place on 7-8 February 2018. * The alleged conduct and other offences took place during an overnight sleep study conducted by the accused. * During the course of the sleep study, either the study data or CCTV (sometimes both) is disconnected. * The alleged offence and other offences took place whilst the respective complainant was asleep. * The alleged offence and other offence and other offences took place whilst only the accused and the complainant were in the room. * The offending involved a similarity of touching himself or causing the complainants to touch him whilst attending to the equipment on the bed or their comfort, for example, such as the accused's penis contacting the complainant deliberately whilst the complainant was asleep, causing the complainant's hand to touch the accused's penis whilst attending to equipment or attending to the comfort of the patient. 1. The substance of the tendency evidence is contained in Exhibit A – tabs 4, 5, 7 and 8, being the recording and transcripts of the tendency witnesses' evidence, the audio recording and the transcript of the accused's evidence, CCTV footage of the complainant and the tendency witnesses and the accused's ERISP. A statement of the complainant was also relied upon. All this evidence, save the complainant's statement, was led without objection for tendency purposes. 2. The Crown says that I would be satisfied that the accused had the alleged tendency which makes it more likely he committed the offence charged in the indictment. 3. I will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so, I do not consider each of the acts in isolation. I should consider all the evidence and decide what conduct I am satisfied occurred. 4. If I decide that all, or at least some of the conduct occurred, I then need to consider whether it enables the inference to be drawn that the accused had the tendency as alleged by the Crown. I remind myself that care needs to be applied to the drawing of inferences. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I should bear this in mind when I am considering this part of the evidence. 5. If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances, I must put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown case. 6. If I find the accused did have the tendency alleged, then I can use that in considering whether it is more likely he committed the specific offence with which he is charged. However, it is essential that I consider with respect to the charge, whether the accused had the state of mind alleged and acted upon it on that specific occasion. 7. Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offence, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasion that is the subject of the charge. Proof of the tendency is a step to proving by way of inference that the accused acted in this way on the occasion the subject of the charge. It is a means of proving by deduction that the accused acted in a particular way or with a particular state of mind when there is no direct evidence of that conduct or state of mind on the occasion the subject of the charge. That is the only way the accused's alleged tendency may be used. 8. Ultimately, I must decide whether the specific offence with which the accused has been charged has been proved. That decision must be based upon the evidence relevant to the charge. This includes the evidence of the complainant, the CCTV footage, the patient's forms, and the text messages. It will include the tendency alleged by the Crown, provided I am satisfied that it has been established. Ultimately, I will have to decide whether the Crown has proved the essential elements of the charge the accused faces. 9. I must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove the particular charge. 10. The Crown notes section 161A of the Criminal Procedure Act 1986, which provides:- 161A Direction not to be given regarding tendency or coincidence evidence (1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence. (2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact. (3) Subsection (1) does not apply if a court is satisfied— (a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and (b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence. 1. Mr Harrison says that the tendency evidence in this case need not be proved beyond reasonable doubt in accordance with subsection 161A(1). Mr Buckman says that in this particular case, as there is no direct evidence of the accused putting his genitals on the complainant's outstretched hand, and there is a significant possibility that I will rely on the alleged tendency acts as being essential to my reasoning in reaching a finding of guilt because of the circumstantial nature of the case, subsection 161A(3) applies, and thus the tendency evidence must be proved beyond reasonable doubt. 2. In my opinion, there is force to Mr Buckman's submission. In this particular case, I will have to draw an inference about the touching of the accused's genitals to the complainant's hand if I am to reach a finding of guilt. Tendency evidence is very powerful circumstantial evidence. There is a significant possibility that I will rely on the tendency evidence as being essential to my reasoning in reaching a finding of guilt, given the circumstantial nature of this case. I accept that in this particular case, the Crown must prove the tendency evidence beyond reasonable doubt. In the end I am not satisfied to any standard with respect to the acts alleged to have occurred with CD. I am, however, satisfied that the acts the subject of the evidence of EF, GH and JK are proved beyond reasonable doubt. I am also satisfied, taking into account the evidence of those three young women, that an inference can be drawn that the accused has the tendency as alleged by the Crown. 3. I will now summarise the case for the Crown and the case for the accused on this issue of tendency. CD 1. CD gave evidence that she attended the Sleep Institute on 16 July 2018 when she was 23 years of age. The sleep technician, who was the accused, asked her to take her bra off before she went to sleep. He then affixed the various wires. The accused went in and out of her room several times during her sleep study overnight. Five clips of CCTV footage of CD's sleep study were played. 2. The Crown submitted that the CCTV clips showed Mr Khorami was the sleep technician, that at about 12.12 am he placed his hands in between her legs up into her vagina and under her bedclothes, that at about 1.04 am he fondled his penis whilst touching CD's arm, that at 1.03 am the sleep study was disconnected until about 3.18 am and that at about 6.10 am the accused has his penis on the outstretched hand of CD and at about 6.14 am the accused thrusts his hips and masturbates. At about 6.19 am the Crown says that the accused has his penis on CD's outstretched hand. 3. Mr Buckman submits that the footage is very grainy and unclear, and to the extent that anything can be seen, at about 12.12 am the accused was arranging bedsheets, and at 1.04 am the accused may have touched his penis and "adjusted" himself. So far as the clip from 6.10 am is concerned, Mr Buckman says that the accused likely scratched his groin area but that at no stage did he move his hips toward the complainant's feet or masturbate. 4. Having observed the CCTV footage, to the extent that anything can be made out, I can only observe that the accused put his hand toward his groin area on two occasions. I accept that the study was disconnected. I can see nothing more, and certainly nothing that demonstrates any indecent assault. I could not see the accused put his penis on any part of CD's body. I observe that the quality of this footage is very poor. In evidence, Mr Khorami emphatically denied that he touched this complainant inappropriately. There is no evidence from the complainant to suggest that he did. I am not satisfied on any standard that anything untoward occurred on this occasion. EF 1. EF gave evidence that she attended the Woolcock Institute on 3 August 2018 for the purposes of having a sleep study when she was 29 years of age. When she met the sleep technician (the accused), he told her that her blood pressure was low. She did not wear a bra under her bedclothes. When the accused was affixing the wires, he told her about one of his clients having dreams about having sex with celebrities and politicians, and that her sleep study revealed that during the night she would masturbate repeatedly without waking up. At a point when he was attaching wires to EF's legs, the accused braced her foot against his inner thigh close to his groin a couple of inches from his penis. She recalled him being in her room on occasions during the night. She did not give him permission to do anything to her other than attach the wires to her body. It was suggested to her in cross-examination that the accused had a discussion with her about pranic and/or energetic healing. EF replied that she did not consent to him performing either practice upon her, saying that she was a scientist by profession and did not believe in either energy or spiritual hearing. She denied consenting to such practices. I found EF to be an honest and reliable witness. I accept her evidence in its entirety, including her denial of consenting to alternative treatment. 2. Three clips of CCTV footage were shown. 3. The Crown submitted that the first clip demonstrated the accused setting up EF in her room. The Crown submitted that the second clip, at 11.18 pm, shows the accused stretching out EF's hand, placing it on a pillow and then placing his penis on her hand. Mr Harrison submitted that the third clip from about 12.08 am, shows the accused rolling EF towards him and then fondling his penis and later presses his penis against her bottom as he masturbates. He also touches EF's hair. 4. Mr Buckman submitted that to the extent the 11.18 pm clip showed anything, it demonstrated tantric healing to which EF had consented. He said that to the extent that the 12.08 am clip showed anything, the accused possibly touched his penis. He submitted that everything else the Crown alleged was not shown. The accused's evidence was that EF had consented to tantric healing, which involved him touching his penis in this instance. I reject his evidence about consensual tantric healing. 5. Having observed the CCTV footage, it is clear that the accused stretched out EF's hand, placed it on a pillow and then placed his penis on her hand. It also depicts the accused rolling EF towards him and then fondling his penis. He then touches EF's hair. The footage is clear enough for me to make these findings beyond reasonable doubt. I find that EF did not consent to the accused doing these things to her. GH 1. GH gave evidence that she attended the Woolcock Institute on 29 August 2018 when she was 27 years of age. The accused took her blood pressure. When setting up the equipment, the accused asked GH to take off her bra as he said that it would interfere with the study, which she did. He stood very close to her when applying the wires, and she believed that he could see her breasts through the top of her singlet. During the night she woke up groggy and disoriented. Her singlet had been pulled down and she could feel that her breasts were bare. She said that she could sense that the accused was touching her. His hands were down her top on her bare breasts, and he was caressing them and fondling them. She froze. She drifted off to sleep because she could not keep herself awake. She then felt a hand down her jogger bottoms and a hand was rubbing her vagina area in a circular motion. At another point during the night, she recalled taking her left arm and moving it over her breasts and turning to her right side to try and stop what was happening. When on her right side, she could see that the accused was standing right near her face and was touching himself on his penis area about 20 cm away. When she went home, she told her husband PQ about what happened right away. They are no longer together. She said that she absolutely did not give the accused permission to touch her body. In cross-examination, GH said that she had a graphically clear memory of the accused's hands on her breasts. She denied that the accused was scratching himself on his penis and said that he was masturbating through his pants. 2. I found GH to be a highly intelligent and thoughtful witness. I accept her evidence in its entirety. 3. Five clips of CCTV footage were played. 4. The Crown submits that the first clip is of the setup during the evening of 29 August 2018. The second clip shows the camera going to the ceiling at approximately 12:15 am and returning at 12:22 am. It shows that the accused entered the room first at about 12:15 am and then again at about 12:22 am. The next clip shows the accused entering at about 1:38 am, exiting at about 1:39 am and then the camera moving to the ceiling at about 1:40 am. The next clip shows that at about 2:17 am the camera moves from the ceiling to GH. At about 2.18 am the accused enters the room and he touches GH's breasts. The final clip shows the accused entering the room at about 2:53 am. At about 2:54 am, the accused touches GH's stomach and her groin area, and then touches her vagina in a circular motion. At 2:55 am the accused fondles his penis. The camera then moves to the ceiling until 3:16 am when it comes back to GH. At 3:17 am the accused enters the room. 5. Mr Buckman submits that the quality of the footage is too grainy for me to conclude that the accused did anything untoward to GH. The accused denies indecently touching or assaulting GH. Mahmood Direction 1. Mr Buckman submitted that I should give myself a Mahmood direction with respect to the failure on the part of the Crown to call GH's husband to whom she said she immediately complained. There was no evidence of the content of that complaint. There is evidence elsewhere about PQ complaining to the Institute on behalf of his wife. 2. Mr Buckman says that I should direct myself to take into account that there is no evidence from PQ. He says that when deciding whether or not there is a reasonable doubt about the accused's guilt, and in this instance the veracity of GH's evidence, I should draw an adverse inference with respect to the failure to call PQ, and that I should take into account the absence of this evidence when deciding whether or not the Crown has proved the guilt of the accused. 3. I decline to so direct myself. GH was not cross-examined on this point. In two other places in the transcript the complaint is mentioned by other witnesses. They were not cross-examined about the complaint. GH's evidence was tendered for tendency purposes only and the Crown does not rely on the apparent complaint to enhance her credibility or for the truth of its content. In my opinion the absence of PQ's evidence does not affect her credibility. That evidence could only have gone to corroborate the making of the complaint itself. I do not rely on GH making a complaint in reaching any conclusion about her evidence. I put it out of mind. 4. In any event, from observing the CCTV footage, I can see that the accused touched GH's breasts, stomach and vagina. I can also see him touching his penis. It is entirely in keeping with GH's evidence which I accept. I reject the accused's evidence. I find these acts proved beyond reasonable doubt. JK 1. JK attended the Woolcock Institute on 27 July 2018. She was 17 years of age she met the sleep technician with her mother. The accused took her blood pressure. When in the study room, he started connecting the wires. Her mother then left. The accused took JK's blood pressure again and was standing so close to the bed that her hand was touching his leg close to his groin area. She felt very uncomfortable. The accused then said that her bra was interfering with the readings and that she would have to take it off, which she did. JK recalled the accused coming in several times during the night. JK said that she did not consent to the accused doing anything to her apart from attaching the wires to her body. Some months later, JK had another sleep study performed when she was not asked to remove her bra, and when her blood pressure was taken only at the beginning and the end of the sleep study. In cross-examination, JK denied that she talked to the accused about techniques that he had learned in Iran She denied talking to him about energetic, pranic or tantric healing. She denied that he told her that he could heal her problems if she allowed him to simply place his penis in her hand. She emphatically denied any such conversation and said that she did not believe in those types of healings, particularly given her upbringing and her scientific-focused household with her father being a doctor and her mother being a nurse. 2. Three clips of CCTV footage were shown. These were extremely clear. 3. The Crown submits that in the first clip at about 20:30 pm and for about two and half minutes, the accused stretches out JK's hand, put his penis on her hand and looks down at his penis. At about 22:32 pm, the accused places his penis on JK's feet and at 22:34 pm, the accused puts his fingers on JK's wrist and fondles his penis. In the second clip the Crown says that at about 23:18 pm, the accused enters the room and can be seen to fondle his penis. At about 23:20 pm, the Crown says that the accused places his penis on JK's feet. In the final clip, the Crown says that the accused enters the room at about 1:36 am and then leans against JK's bottom. 4. With respect to the first clip, Mr Buckman says that the accused's case is that he is practising tantric healing and that JK consented to this. Mr Buckman says that the other clips are too unclear to make any determination. The accused's evidence was that he touched her hand with his penis as a technique to transfer tantric energy from his penis to JK's hand and that she consented to this. I reject the accused's evidence. 5. Having observed JK, I found her to be a compelling witness and I accept her evidence in its entirety. I find that she did not consent to any touching. The CCTV footage and the accused's admission clearly depict the accused's penis touching JK's hand. It also clearly depicts him fondling his penis and placing his penis on JK's feet. I make these findings beyond reasonable doubt. 6. As I have said, I am not satisfied that I can discern anything that occurred with CD. However, I accept the evidence of EF, GH and JK beyond reasonable doubt. Further, in my opinion, their evidence allows me to draw an inference that the accused had a tendency to have a particular state of mind, namely a sexual interest in female patients aged between their late teens to late twenties, and that he acted upon that sexual interest, namely his tendency to indecently assault and act indecently towards female patients who were under his care as patients during the course of his employment at the Woolcock Sleep Institute. In coming to that conclusion, I take into account the common features set out in the Tendency Notice, which were submitted upon at length by Mr Harrison. CCTV Footage of 8 February 2018 1. Five clips of CCTV footage were played. All were very clear. The first is at 16 minutes after midnight and shows the camera zooming in towards and focusing on the crotch of the complainant. The second at approximately 2:06 am shows the camera zooming in and out onto the crotch and the face of the complainant. The third clip shows the accused coming into the room and adjusting wires near the head of the complainant at about 3:15 am. He then leaves the room. The fourth clip, just after 3:17 am, shows the accused back in the room and adjusting wires near the complainant's head and turning on a torch. He remains in the room with a torch on and rolls the complainant on her side and adjusts wires at her head. He pulls the sheet up and makes a gesture with his hand. It appears as if there is a conversation between them. He removes the blanket and leaves the room. The fifth clip at about 4:03 am, shows the accused back in the room adjusting the wires near the complainant's head. He is at the complainant's left side. He puts his leg and knee up on to the bed and has his crotch just above the complainant's outstretched left hand. He then looks down at his crotch on two occasions. Whilst his knee is up on to the bed he continues to adjust the wires near the complainant's head looking down towards his crotch. He continues this for about a minute and then gets off the bed and leaves the room. I cannot see the accused's crotch making contact with the complainant's outstretched hand. The Complainant's Evidence 1. The complainant gave evidence by AVL. She was 22 years of age when she attended the Woolcock Institute for an overnight sleep study on 7 February 2018. She arrived with her mother. After she met the accused, she changed into her pyjamas and her mother left. He asked her to take her bra off, as he said that it would interfere with the study. AB complied and took off her bra. 2. The complainant was moved from room to room on several occasions. She had conversations with the accused. He told her that he had been in a doctor in a foreign country and was studying to become a doctor in Australia. He also told her about pranic healing which he believed would cure her sleep problems, unlike Western medicine. He told the complainant that she should not tell anyone about this conversation because he would get in trouble for speaking about alternative treatments. He told AB that when he was in his home country, his brother was going blind and they both walked for a very long time to get to a pranic healer. He told her that he believed that Jesus had pranic healing powers. The accused then asked the complainant if he could hover his hands over her, to which she consented. He hovered his hands from the top to the bottom of her body and stopped at her stomach and said that part was blocked which linked up to her neck. He asked if she had neck pain. I note here that Exhibit A – 13, to which the accused certainly had access, being a questionnaire completed on arrival at the Institute and which described neck and jaw pain being the physical complaints which might affect the complainant during her sleep study. In any event, the complainant consented to the hovering of the accused's hands. At some point the accused said to the complainant "do you like sex?" and started asking her about sex, telling her that it releases muscle tension, which the complainant found bizarre. I note that the summary of text communications contained in Exhibit A – 14 records text messages from the complainant to her then boyfriend, where she wrote "please try and stay awake a little longer this place is creepy aha", "Jesus he asked if I like sex" and "he's talking about energy". 3. AB said that she did not give the accused any permission to touch her in any way apart from connecting the wires. 4. The complainant recalled waking up during the night on two occasions. On the first occasion she said he was over her head on the side. The accused said that she had been bumping the wires off and that he was readjusting them on her left side. On the second occasion, the accused was over her legs. It was very dark, and he asked her if she wanted him to do pranic healing on her legs, to which she replied no thanks. 5. In cross-examination the complainant said that when she left the Institute, she thought a lot about pranic healing and went home and researched the topic. Sometime later she rang up the Institute and tried to find out the accused's name because she was interested in a referral from to him for the purpose of finding out more about pranic healing. 6. I found the complainant to be a candid and honest witness. In my view, she did her best to tell the truth and she made no attempt to embellish her evidence. I accept her evidence. The Accused's Evidence 1. The accused gave evidence by AVL. He adopted the evidence in the previous trial, so that it stands in relation to the tendency witnesses' evidence. I have set out the substance of the accused's evidence on that topic above. 2. In examination in chief, the accused said that he could not recall the complainant coming to the Institute, and whilst he accepted that he was her sleep technician on the night, he had no recollection of the event. He had no recollection of any conversation that he may have had with her. There were many cables, and it was his job during a sleep study to fix any that might detach during the night. He said that in this case, looking at the footage, the patient was sleeping on her right side. To reach the patient's face and fix a lead, he had to put his knee on the mattress to reach the patient's face and if his knee or part of the body touched the patient's hand it was only done so as not to disturb the patient sleep. He said he used both hands to fix the leads on the patient's face. 3. The accused emphatically denied that he conducted any pranic healing on the complainant that evening. He also emphatically denied that he put his penis on her hand deliberately. He did not dispute that it was possible that he had a conversation with the complainant about pranic healing and alternative medicine prior to the sleep study. 4. In cross-examination, the accused agreed that he would operate the camera from the computer in the laboratory in which he was present observing the sleep study. The accused would not agree that the complainant was "under his care", because in medical terms he was not caring for the patient. Rather, she was under the care of a doctor at the Institute. He agreed that he took the patient's blood pressure on a regular basis and that he was there to attend to a patient's needs throughout the night. He agreed that he observed a patient throughout the night. He agreed that he would be responsible for changing wires during the night. He agreed that he expected a patient to do as he would direct them. He would not agree that he was supervising a patient but said rather that he was just observing them. He emphatically denied taking any responsibility for a person undergoing a sleep study. I note here that I found this part of the accused's evidence to be very unsatisfactory. It appeared that the accused understood the elements of the offence for which he is charged and was at pains not to give evidence that might meet the legal definition of "under authority". 5. The accused also disavowed any familiarity with Exhibit A – 12, which is the patient acquaintance form. He said that he would not have had access to that document. I make no finding about whether or not he in fact had access. However, the manner in which he expressed his disavowal troubled me. 6. The accused told Mr Harrison that whilst he did have a brother, he was neither blind nor sick. He agreed that if he had told a story about that brother, saying that they had had to walk for hours or days to get to a pranic healer (as recounted by the complainant), that would not have been true. He agreed that would have been a lie. I find that he did tell the complainant this story. It was a lie that can only affect his credibility. 7. The accused said that he had never performed a scanning technique on any patient at the Woolcock Institute. I accept the complainant's evidence about this. This too is a lie that can only affect the accused's credibility. 8. The accused did not agree that if he had performed pranic healing at the Institute that he would have got in trouble, as he said it was legal in Australia and there would have been "no problem". When asked if he thought he would get in trouble with the Institute if he put his penis on a patient's hand and the Institute found out, the accused said "no". He went on to say that he had performed tantric healing on two patients consensually (EF and JK). He denied that he was sexually attracted to the complainant. He denied that he wanted to touch her. 9. The accused agreed that he went into the complainant's room on three occasions during the evening, but said it was always to fix a lead on the patient's face. He said that he never pretended to fix any leads on a patient. He denied that he zoomed the camera in toward the area of the complainant's crotch and said that it could have been another technician who did that. It was suggested to the accused that he was able to manipulate the leads and move the leads on the head of the complainant from either the left-hand or right-hand side of her body with both of his feet on the ground. He did not agree. 10. When asked why he made no attempt whatsoever to move the complainant's outstretched hand before he fixed the wires on her head, the accused said he did not wish to interrupt her sleeping. It was pointed out to him that he had no issue with moving the complainant's hand in clip 3, when he rolled her body whilst she was sleeping. He denied ever putting his groin in contact with the complainant's hand and said that it was anatomically impossible. 11. Mr Harrison suggested to the accused that he had tailored his evidence depending on the quality of the footage. The accused denied this emphatically. 12. Mr Harrison submits that I should reject the evidence of the accused. 13. Mr Buckman submits that I should accept the accused's evidence both in this trial and in the previous trial. He submits that the accused explained as best as he could what he was doing with respect to each tendency complainant and submitted that he had no memory of the events surrounding the complainant in this matter. He said that it was not surprising given the length of time that has passed since February 2018. Mr Buckman submitted that the accused's explanations were both plausible and understandable. Mr Buckman said that I should reject any suggestion that there was any sexual gratification involved. Anything that the accused might have done with tendency witnesses were with respect to alternative healing methods. He submitted that if I thought that the accused was practising unusual healing that I should find that any assault was not accompanied by an act of indecency, because it would not have a sexual connotation or overtone. Even if I rejected the accused's account, he says that it would be open for me to have a reasonable doubt as to whether the accused did the acts associated with the current charge. 14. I am unable to accept the evidence of the accused. He was evasive in cross-examination and would not or could not admit some matters that were corroborated in written documents. He went out of his way to deny that the complainant was under his authority, when it is clear that at the very least, he was a highly skilled babysitter for the complainant whilst she was sleeping at the Institute on the night of 7 and 8 February 2018. I found his evidence most unsatisfactory and not credible. I therefore put it to one side, as it is for the Crown to prove its case on the evidence that it brings. The Crown's Submissions 1. The Crown submitted that the accused believed that he had healing powers and that the best way to transfer energy was from his penis to the palm of the hand of female patients. He said that the accused touched his penis on the hands of other female patients and touched them in other ways. He submitted that he carried out that technique on JK when she was an overnight patient at the Woolcock Institute when he was her sleep technician. 2. The Crown says that whilst the accused said he did not remember talking to the complainant in this case, there can be no doubt that he told her about this alternative procedure and tried to convince her to allow him to perform that type of healing upon her. He said that it is clear that when the accused goes into the complainant's room at least three times during the night, on the first two occasions he appears to adjust wires on her face with both feet on the ground, at which time the complainant's left-hand and arm were by her side. On the third occasion, the Crown says that everything is the same except that the complainant's left arm and hand are outstretched toward the end of the bed. He says that on this occasion the accused puts his knee onto the bed and places his genitals directly over the complainant's hand and then looks down toward his groin and the complainant's hand on two occasions, touching her hand with his genitals. 3. The Crown says that even without the tendency evidence the only reasonable conclusion is that the accused intentionally placed his genitals onto the complainant's hand at this time. However, Mr Harrison says that in circumstances where there is powerful tendency evidence that the accused has a tendency to have a sexual interest in young female patients and a tendency to act on that sexual interest by indecently assaulting them, the Crown case is overwhelming. 4. As to "under authority", Mr Harrison said that the accused was the only person a sleep study patient could speak to or contact during the night as that person was looking after them. The sleep technician was the only person to whom a patient might request assistance. He says that I would easily adopt the expressions "observe and direct the operation of a task or activity", "watch a person or activity to make certain that everything is done correctly and safely" and "be responsible for the correct behaviour or safety of a person" when defining the conduct of the accused vis a vis the complainant. On this point, Mr Buckman says that at its highest the accused was providing practical services in assisting the patient by caring for her immediate needs. He says that the distinction is perhaps a fine one, but the complainant was free to leave at any stage. The accused was not acting as a doctor treating a patient but was merely attaching wires and monitoring the results from another room. He submits that in the circumstances it is not possible from me to be satisfied beyond reasonable doubt that the complainant was under the accused's supervision or authority. 5. I note at this juncture that in my opinion taking into account all the evidence, and in particular because sleep study patients (and the complainant in particular) would do as directed by the sleep technician and because the accused was the point of contact during an overnight stay, I am satisfied beyond reasonable doubt that at the material time the complainant was under the authority of the accused. Each of the expressions used by Mr Harrison is apposite. I accept Mr Harrison's submissions on this point. The Accused's submissions 1. Mr Buckman submitted that I would not be satisfied beyond reasonable doubt of any of the acts which are the subject of the tendency, to which see above. He said that I would not be able to draw conclusion beyond reasonable doubt that the accused had a tendency as alleged by the Crown. I have set out the submissions of Mr Buckman with respect to each of the tendency witnesses above. 2. Buckman says that I must be satisfied beyond reasonable doubt that the accused committed these acts for a sexual gratification rather than a healing purpose. He says that the acts themselves are somewhat bizarre. He submitted that the accused gave evidence in such a way that I would think it quite likely that he was of the view that he was doing something in the form of alternative medicine, as opposed to having a mens rea of wanting to achieve some form of sexual gratification. I interpolate here that with this complainant, the accused himself says that he was not performing any alternative healing, but rather at the time of the alleged assault was trying to fix the wires over her head. I reject his evidence. 3. Mr Buckman says that the Crown must negative either the suggestion that the accused believed, or that there is a reasonable possibility that the accused believed that he did what he did as a form of alternative medicine as opposed to the purposes of sexual gratification. He submitted that having heard from the accused and having seen the CCTV, I would conclude that the Crown has not negatived this heavy onus. 4. Mr Buckman submits that the tendency has not been proven beyond reasonable doubt and that the CCTV with respect to this complaint does not of itself prove the allegation as the footage is far too inconclusive to determine if there was an indecent assault upon the complainant. In the alternative he says that even with the assistance of the tendency evidence, the Crown has not proven its case against the current complainant beyond reasonable doubt. Although a rational inference may exist that the accused was indecently assaulting the complainant by placing his groin on her outstretched hand, he submits that there is another possible rational inference, and that is that the accused was conducting pranic healing without her consent. There is yet another rational inference in Mr Buckman submission. That is that there was no contact at all between the accused and the complainant, and that he was adjusting the wires on her head as can be seen on the CCT TV and looking down toward the area has grown for some innocuous reason that he cannot now recall. 5. As I have said, there is no direct evidence of the accused actually touching the complainant's outstretched hand with his groin. The case is therefore circumstantial. I do not accept that a rational inference is available that the accused was fixing the leads on the complainant's head when he could have done so without putting his knee on her bed and possibly disturbing her sleep. I do not accept that a rational inference is that the accused was performing tantric healing without the patient's consent in circumstances when only pranic healing had been discussed with the complainant. In my opinion, the only rational inference is that the accused touched the complainant's hand with his genitals without her consent, knowing that she was not consenting in an act of indecency, he having both a tendency to have a sexual interest in female patients between their late teens and late twenties and a tendency to indecently assault female patients under his care at the Institute. Consideration – 1. The elements of the offence of aggravated indecent assault are: 1. That the accused assaulted AB; 2. That assault was accompanied by an act of indecency; 3. That the assault was without the consent of AB; 4. That the accused knew that AB was not consenting; and 5. The assault occurred in circumstances of aggravation, namely that AB was under the authority of the accused at the time. 1. As to 88(1), I am satisfied beyond reasonable doubt that the accused intentionally touched AB's hand with his genitals without her consent, knowing that she was not consenting and that he had no lawful excuse. 2. As to 88(2), I am satisfied beyond reasonable doubt that the assault was accompanied by an act of indecency. The touching of AB's hand with the accused's genitals was, in my opinion, an act which right-minded people would consider contrary to community standards of decency. It had a clear and obvious sexual connotation which derived from the area of the body to which the assault was directed and from the area of the body used by the accused. 3. As to 88(3), I am satisfied beyond reasonable doubt that the AB did not consent to the assault. She was sleeping. She consented only to the accused manipulating the wires to which she was connected. 4. As to 88(4), I am satisfied beyond reasonable doubt that the accused knew, at the time of the assault, that AB was not consenting. 5. As to 88(5), I am satisfied beyond reasonable doubt, that the assault occurred whilst AB was under the authority of the accused. Conclusion 1. I find the accused guilty of the charge on the indictment. ANNEXURE "A" ELEMENTS The elements of the offence of aggravated indecent assault are: 1. That the accused assaulted AB; 2. That assault was accompanied by an act of indecency; 3. That the assault was without the consent of AB; 4. That the accused knew that AB was not consenting; and 5. The assault occurred in circumstances of aggravation, namely that AB was under the authority of the accused at the time. The elements of 'assault' are: 1. That the accused struck, touched, or applied force to AB; 2. That such conduct of the accused was without the consent of AB; 3. That the accused knew that AB was not consenting; 4. That such conduct was intentional; and 5. That such conduct was without lawful excuse. An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and the touching does not have to be a hostile or aggressive act or one that caused AB fear or pain. At the time of the assault, the accused must have committed an act of indecency on AB. 1. The Crown must prove beyond reasonable doubt that at the time of the assault, the accused committed an act of indecency on AB. 2. The act of assault and the act of indecency can be the same act. 3. An indecent act is one which right-minded people would consider contrary to community standards of decency. 4. It must have a sexual connotation. That sexual connotation may derive directly from the area of the body to which the assault is directed, or from the area of the body used by the accused person. 5. If the assault objectively does not unequivocally have a sexual connotation, it must be accompanied by an intention on behalf of the accused to obtain sexual gratification. In assessing whether the act is indecent, the tribunal of fact should take into account the surrounding circumstances. A person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person (S.61H(2) Crimes Act). ********** 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: 23 March 2022