REGINA v KHAN [2000] NSWCCA 428

New South Wales Court of Criminal Appeal

CITATION : REGINA v KHAN [2000] NSWCCA 428 FILE NUMBER(S) : CCA 60656/98 HEARING DATE(S) : 8 May 2000 JUDGMENT DATE : 23 October 2000

PARTIES : REGINA v Rahiman KHAN JUDGMENT OF : Grove J at 1; Adams J at 57; Smart AJ at 58

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0171 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : Mr J C Papayanni (Appellant) Mr C K Maxwell (Crown) SOLICITORS : Malelbing Mednis & Associates (Appellant) S E O'Connor (Crown)

Liberato v The Queen 1985 159 CLR 507 Longman v The Queen 1989 168 CLR 79 CASES CITED: R v DJK 1997 A Crim R 450 R v Murray 1987 11 NSWLR 12 R v Robinson 1999 165 ALR 226 DECISION : Appeal against conviction dismissed; Leave to appeal against sentence granted but appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60656/98

GROVE J ADAMS J SMART AJ

MONDAY 23 OCTOBER 2000

REGINA v RAHIMAN KHAN

JUDGMENT

1 GROVE J : The appellant was arraigned before Howie DCJ and a jury at Parramatta District Court upon four counts of common assault, four counts of having sexual intercourse without consent, one count of indecent assault and a count of abduction with an alternative to the lastmentioned of kidnapping. He pleaded guilty to one count of common assault and not guilty to all other counts. Verdicts of guilty were found by the jury on all outstanding counts, it was unnecessary to return a verdict on the count charged in the alternative. The overall effect of sentences was to imprison the appellant for eight years and three months before eligibility for parole during an additional term of two years and nine months. 2 In November 1997 the appellant resided in a house at Punchbowl with his wife and their two children aged about eight and five. Although not divorced, the appellant referred to his spouse as an "ex-wife" as she did herself when giving evidence. The complainant, who was known as Dolly as well as by her formal names, was a student who had arrived in Australia from India at the end of July 1997. She resided at Dulwich Hill. She had part time employment which involved approaching people in the Roselands Shopping Centre (which is in a suburb near to Punchbowl) seeking to interest them in contracting with a carrier which provided an overseas telephone service. 3 On 27 November the complainant approached the appellant for this purpose. The appellant is of Indian ancestry but was born in Fiji. At the time he was approached by the complainant he was accompanied by another Indian man, Daniel Walsh, who is sight impaired. The complainant noticed these men, Mr Walsh walking with his hand on the appellant's shoulder. There was some discussion about the appellant making calls to Fiji. He signed a form which the complainant had filled in and then departed but returned about ten minutes later when he asserted that he incurred a telephone expenditure of about $500 per month. This was of commercial interest to the complainant on behalf of her employer. Another form was completed and the complainant asked for production of an account which would verify the level of telephone use mentioned by the appellant. 4 In the event the complainant supplied him with a business card and her own mobile telephone number. There followed contacts which it is unnecessary to detail completely. Included were messages left on the telephone system. Eventually arrangements were made to meet (some days after 27 November) at 2 pm at Burwood Railway Station. The offices of the complainant's employer were at Burwood. The complainant had originally thought that the appellant seemed a potentially good customer but after these contacts she began to suspect that his interest was rather directed towards her. Nevertheless she met him and they went to a coffee shop. The appellant was again accompanied by Daniel Walsh. 5 During the meeting the complainant received a phone call. It was in fact from her boyfriend but in answer to enquiries she told the appellant that it was her brother in law and that she had to leave "early" because he had called. English is not the complainant's first language and it is plain that she meant that she had to leave soon and was using the call as a pretext for polite but prompt departure. 6 This provoked an extraordinary response from the appellant, a stranger, that he would physically damage the brother in law if he was disturbing her. She asked him to come and meet her boss as she was new to the business and the boss could explain what was being offered. 7 They met again some days later and sat in a car in Dulwich Hill. The appellant, inter alia, claimed that he was able to deport people. Still later they met again at Dulwich Hill and the appellant drove to Wiley Park. They sat in the car for four or five hours. The appellant questioned her about her family, her past, her boyfriends and her religion. She disclosed that she was a Sikh. The appellant said that he was a Muslim. He proposed marriage, remarking that he was thirty eight years old and because he was so old his mother wanted him to marry now. He did not at that point mention his wife and children. 8 The next day the appellant picked up the complainant from Dulwich Hill and drove her to what she described as "the beaches". The appellant received a phone call from his wife, Ferial. He told the complainant that she was a girl living with him whom he was assisting to obtain permanent residency. This call was terminated and the appellant then rang and asked the complainant to speak to the woman Ferial. They had a short conversation in which Ferial told the complainant that she had upset her life. The phone was handed back to the appellant. He then told her that he would drive her to his home to meet Ferial. The complainant declined and asked to be taken to her own house but she was taken to Punchbowl where she met Ferial, two children and Daniel Walsh. 9 The complainant again asked to be taken home but the appellant said they would go for a drive first. All of them went in the car but returned to Punchbowl where the appellant announced that the complainant was to live with them and he would pick up her luggage and would provide her with a bedroom. Ferial was present at this announcement. She was crying and said that if he (the appellant) wanted Dolly to live there, he had to divorce her first. At this point the complainant ran from the front door but was caught and dragged back into the house. 10 The appellant, Ferial and the complainant talked in the lounge room for most of the night. The next day the appellant dropped the complainant at her home. She left and went to her brother in law's home at Ashfield. It was reported to her that the appellant, while she was away, had called at her flat. She received messages from him including a protestation that he intended to kill himself and his children. This provoked her to call him and she asked him to forget her and to do nothing to the children. The appellant was crying. The complainant also rang Ferial. Later she saw the appellant sitting in his car at Dulwich Hill; he was still crying and produced some rope which he said he was going to use to hang himself. 11 She entered the car and they drove around the beaches finally going to Punchbowl. She made a call to her brother in law. They spoke in Punjabi. Conversations other than those in English with the appellant and his family were in Hindi. 12 The complainant again asked to go home saying that she wanted to celebrate her sister's birthday but the appellant reacted by dragging her into the master bedroom and locking the door from the inside. He told the complainant that he wished to marry her and he pushed her to the floor and lay on top of her and started kissing her. There were sheets spread on the floor. Ferial opened the door to the bedroom by use of a key. She said that she had not known that there was a sexual relationship between her husband and the complainant and that she was going to leave. She reminded the appellant that he had to divorce her if he wanted to marry Dolly. The complainant asked Ferial not to leave but the appellant pushed her out of the room and relocked the door. 13 The appellant started to undress the complainant. When she resisted, he slapped her face. He told her that he wanted her to have a baby and proceeded to have sexual intercourse. The next morning there was a repeat of intercourse. The complainant was crying but she did not on this second occasion physically resist. 14 The complainant located these events as the 11 and 12 December. On the latter morning the appellant dropped her back home. She again went to Ashfield but returned to Dulwich Hill on 14 December. While she was there Ferial arrived and spoke to the complainant's boyfriend who was also one of her flatmates at the premises at Dulwich Hill. 15 On 15 December the complainant and her brother in law were walking in Dulwich Hill when the appellant arrived and persuaded them to sit in his car. He drove to Lakemba and dropped the brother in law at his boss's place where he was asked to wait for five minutes but the appellant drove to Punchbowl and then told the complainant that he had decided to kill himself by hanging and that she was "free from today". 16 The brother in law rang and the appellant and complainant returned to collect him after which they proceeded back to Punchbowl where they all dined together with Ferial and the children. Afterwards Ferial drove back to Dulwich Hill. She and the complainant went inside and talked for about half an hour. The appellant and Harpreet (the complainant's brother in law) remained in the car. Later Anurag (the complainant's boyfriend/flatmate) was driven to his place of work at Earlwood. He left the car there accompanied by Harpreet. The appellant, the complainant and Ferial returned to Punchbowl. At the house the appellant manhandled the complainant into the bedroom. He abused her with remonstrations such as "You silly bitch" and "You slept with another guy and you deceived me". He punched her about the face and body. She called to Ferial for help and Ferial came into the room from the shower, wrapped in a towel. The appellant pushed her out of the room. Then the complainant was threatened by him with a kitchen knife. She called again to Ferial who eventually re-entered and told the complainant to "just sit and talk nicely". She told the appellant that she had spoken to Anurag and that he and the complainant were just friends. The appellant pushed Ferial out of the room. 17 The complainant asked to make a telephone call but the appellant refused. She said that she thought she would die so she asked if she would be allowed to pray. The appellant permitted this and left the room. He left the knife behind. The complainant hid it. Upon return the appellant bound the complainant's mouth with tape but then removed it. The complainant asked and was permitted to go to the toilet. She locked the door. The appellant broke it down. She ran to the master bedroom and locked it. She called to Ferial that he was going to kill her but Ferial replied that he was not going to do that and she said "Believe me". 18 The appellant was allowed into the room by Ferial. He was equipped with blue and brown rope and he tied the complainant's hands and feet. He put her in the boot of the car and opened a hatch to allow some air in and then got into the driving seat. The complainant was able to free herself, in part by use of a sharp instrument which was in the boot. 19 The appellant had noticed the complainant's first escape from her bonds and he retied her more tightly. The complainant told him that she loved him and wanted to marry him. She was not sincere and said so only in the hope that she might make her escape. Thereafter the appellant again applied tape around the complainant's head area. He then opened her undergarment and began kissing her breasts. 20 Next the appellant said that they would go to Brisbane on the following day. He untied the ropes and led the complainant back to the bedroom. Ferial was in the house but she ignored the complainant. 21 Later Ferial came to the door and the appellant told her to go to Dulwich Hill and pick up the complainant's luggage but she said that it was too late. The appellant assented to a request to telephone the complainant's brother in law on condition that she spoke in Hindi and not in Punjabi. She asked that some medicine and luggage be brought. Ferial departed and returned with these things about three quarters of an hour later. 22 The complainant said that she was feeling suffocated and was again taken for a drive around the beaches. Upon return the appellant started to undress her again. He engaged in digital penetration and cunnilingus. They remained in the bedroom and on the next morning the complainant heard Ferial depart in one of the two cars which were located at the premises. 23 The appellant and the complainant dressed and had breakfast with the children. There was a confrontation during the meal over the complainant's refusal to eat an egg which she declined to do for religious reasons. She was crying. The children were taken to school and upon return the appellant and the complainant again had sexual intercourse. The complainant did not resist but continued the pretence of affection in the hope of effecting an escape. 24 Afterwards they showered and dressed. The appellant made a call to the complainant's parents in India. She had provided the telephone number. Each of them spoke with her father and sister. The complainant described him as speaking gently to her family members. The conversations were in English. The appellant had again warned the complainant not to speak in Punjabi. She told her father that the appellant was a very nice man. 25 At the end of the call there was further mention of going to Brisbane and the complainant said that she would need to collect her pay from Burwood. The appellant took her there. She went in and talked to her boss and called her brother in law and also Ferial. She was concerned that if she was in there too long that the appellant would follow her. She also spoke to Parminder Singh who was her sales team leader. He went downstairs with the complainant and she started to walk to the station whereupon the appellant came to her and pulled her into the back seat of the car. She called through the window for help and asked Parminder Singh and passers-by to call the police. The appellant grabbed her but she got away although her shirt and jacket were torn off. The appellant recaptured her asserting to the gathering people that she was his wife. He drove the car away but halted at a red traffic light and several people came and assisted the complainant out of the car. She was by this time clad only in her bra and trousers. She was taken to police and later to Westmead Hospital. 26 The foregoing, although lengthy, does not repeat all of the detail in the complainant's evidence. It sketches a series of events in which the conduct of both principal participants is difficult to comprehend. Nevertheless it is plain that the jury accepted the substantial truth of the complainant's evidence and their advantage in being able to assess her was of great importance particularly as even reading the transcript reveals the difficulties which the complainant had with many expressions of the English language and its nuances. For example, her affirmative answer to a leading question whether she was attracted to the accused clearly in the light of all of the evidence showed that she did not understand the word "attracted". The complainant was aged twenty two when she gave evidence and was therefore twenty or twenty one at the time of the events giving rise to the charges. 27 Many of the actions testified to by the complainant and her own descriptions of submissive behaviour could mystify anyone whose cultural experience was limited to current western society and it is important not to overlook the appreciation of the complainant's situation which was reflected by the verdicts of the cross section of the community constituting the jury. 28 I turn the grounds of appeal. I shall set them out as expressed.