Regina v Nabil Ayoub [1999] NSWCCA 231

New South Wales Court of Criminal Appeal CITATION : Regina v Nabil Ayoub [1999] NSWCCA 231 FILE NUMBER(S) : CCA 60597/98 HEARING DATE(S) : 17 May 1999 JUDGMENT DATE : 12 August 1999

PARTIES : Regina v Nabil Ayoub JUDGMENT OF : Dunford J at 74; Greg James J at 66; Smart AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3270 LOWER COURT JUDICIAL OFFICER : Ford A/DCJ

COUNSEL : Appellant: A.J. Bellanto QC Crown: Mr L.M.B. Lampratti SOLICITORS : Appellant: Watson Stafford Crown: C.K. Smith CATCHWORDS : Criminal law; indecent assault; sexual intercourse with child under 16; faulty direction as to standard and onus of proof; verdicts not reasonably open CASES CITED: R v Dwyer [10999] NSWCCA 47 at paras 13-20 DECISION : Appeal allowed; convictions quashed; verdicts of acquittal entered.

IN THE COURT OF CRIMINAL APPEAL

60597/98 DUNFORD J GREG JAMES J SMART AJ

Thursday, 12 August, 1999 REGINA v NABIL AYOUB JUDGMENT 1 SMART AJ: Nabil Ayoub appeals against his conviction on five counts, namely, indecent assault (hand on vagina) on F, then aged 11, sexual intercourse (finger in vagina) with F, then aged 12, sexual `intercourse (penis in vagina) with F, then aged 13 and sexual intercourse (penis in vagina) with F, then aged 15. 2 He was acquitted of a further count of sexual intercourse (penis in vagina) with F, when aged 12 as the incident could not have occurred as alleged. Effectively the appellant was sentenced to a minimum term of three years and an additional term of one year. The appellant complains about some of the judge's directions and that the verdict was unsafe and unsatisfactory. This latter ground necessitates setting out the facts in some detail. 3 The alleged offences extended over a period of about 4 years 4 months (December 1992-April 1997) with the first three offences allegedly taking place at the home of F and her family and the latter two offences at the appellant's hairdressing salon. The appellant was a relative of F. When he came to Australia in December 1987 he lived with F's family and was treated as a member if it 4 As at 1992 and until late 1993 the appellant resided at 60 Wilga Street, Fairfield. The family consisted of the mother, F's two elder sisters, F and her two younger brothers and the appellant, F's father having died. 5 The house at 60 Wilga Street was a small three bedroom residence with each of the bedrooms opening off a common area. They were close to the kitchen and the lounge room. There was a rear sunroom. There was a door from the sunroom to the backyard. F's mother occupied one front bedroom with the two boys, F and her two elder sisters occupied the adjoining front bedroom and the appellant occupied the third bedroom which was at the rear of the house but adjoined the bedroom of the three sisters. In this compact home everyone was likely to know all that was happening. 6 According to F, in 1992 the routine was for her and her younger brother, to have dinner, a shower and watch television and go to bed about 8.30 pm. This did not apply to her older sisters. 7 F said that one night in December 1992 the appellant came into her bedroom while she was alone. She believes that her brothers were in bed and that her sisters were in the lounge room. She was wearing a shirt and her pyjama pants and leaning near the bin behind the door. She said that he came from behind her, put his hands on her waist, slid them down inside the front of her pants and touched her on the vagina. Just as she was about to say something he put his hand to her mouth and said "Don't say nothing. If you scream I'll tell your Mum you came to me". So she said nothing. He kissed her on the cheek and walked out. 8 In January 1993, according to F, the appellant came to her room one night a little after 8.30 pm when she was alone. Her brothers were in bed and her mother was probably in the lounge room. She did not know where her sisters were. He put his right hand under her nightdress and touched her breasts. He placed his left hand inside her underpants and started to rub the outside of her vagina. Eventually he put his finger inside her vagina. She said: "Stop it, you're hurting me". He kept on going for a couple of minutes. When he finished he removed his left hand. It was clenched, save for the index finger which was extended. She did not scream because of what he had earlier said as to going to her mother and telling her that F had come to him. At the conclusion of the incident he kissed her and walked out of her bedroom. After going to the toilet she went to bed without speaking to anyone. She said that she did not feel that she could talk to her mother as her mother liked the appellant a lot and they had a good relationship. 9 F asserted that on a Sunday in February 1993 members of the family were outside the house cleaning the pool. F's mother was sitting watching. The appellant was also outside. He went inside the house but came back outside and told her that there was someone on the telephone for her. She went inside the house and he followed her. When she picked up the telephone receiver there was no-one there. He took the handset and said that there was no-one there. He took her hand and led her to his bedroom, touched her breasts on the outside of her costume and next slid his hand under the costume and touched her breasts for a period. She protested but he continued. Then he took his penis out of his shorts with his hand and moved his hand up and down his penis. She noticed that he was not circumcised. His penis went hard and he told her to suck it. She said "No". By this stage she was sitting on the bed. Her put his penis near her face. He persisted. She refused. He continued to persist and press her. She said that she was scared and that he slapped her across the face. Eventually and reluctantly she gave up, thinking that he would not give up and that it was best to get it over and done with. He put his penis in her mouth and ejaculated. By this time his shorts were on the floor. He held his penis, picked up his shorts and went naked to the bathroom, the door of which was a few paces from his bedroom. It was a trip on which he could easily have been seen by other occupants of the house if they had been in the house. She went to the toilet and cleaned herself up. After he vacated the bathroom she entered and cleaned her teeth. She said that she did not know why she did not say anything. She did not call out to her sister who had remained in her bedroom listening to music. The complainant said that the appellant was actually cleaning the pool. As the only male in the household this is not unexpected. She said that he had wet feet and denied that there was a rule that you did not walk into the home with wet feet. F's mother and the appellant said that there was such a rule. The appellant said that the family had a cordless telephone and that when the pool was being cleaned he and the other members of the family gathered outside and they brought out the cordless telephone. The telephone in the house could not be heard outside at the pool. The whole incident seems somewhat strange. 10 I pass over the incident in respect of which the appellant was acquitted. 11 The complainant alleged that on a Saturday in about March 1995 she was at the appellant's salon working. He had a lady known as Michelle working at the salon. He was living with her at the time and she later became his wife. When asked whether anyone had been working there that day apart from her and the appellant F replied "Yeah, that Michelle girl again" She alleged that after work the appellant took Michelle home in his car. After dropping Michelle off she and the appellant drove back to the salon. His usual excuse was that he had forgotten to turn off the lights. It was later explained that this referred to a neon light outside the shop. She did not want to get out of the car but he insisted that she return to the salon. Once inside he called her out to the back room. He approached her directly and touched her. She withdrew from him but he replied "Oh come on, you know I miss you" and "We haven't done this in a long time". He removed his clothes and her clothes and laid her on the sofa. He engaged in some intimate touching and there were various changes of positions. He laid down and had her sit on him. Intercourse took place and he ejaculated. After cleaning up they dressed and went home by car to her home. He came inside and had dinner with F and her family. The complainant said nothing, asserting that it was too late (in the sense that intercourse had taken place) and she was scared of the appellant. In April 1995 on the appellant's 30th birthday she gave him a birthday card in affectionate terms. The card seems to have been specially prepared by F. 12 About July 1996 F's family and the appellant had a falling out. F did not see him for a period. Apparently there was then some easing of the ill-feeling. After that he is alleged to have said "I'm gonna tell your Mum you've got a boyfriend" and also that he would tell F's Mum what they had been doing. She said that as a result of these threats she was scared, and as a result, saw him "a lot of times on Sundays". Given the mother's protective attitude to her daughters it is most unlikely tha tthe appellant, if he had done what is alleged, ever contemplated telling F's mother and that he made such remarks to F. The appellant would have realised that this would involve him in serious trouble. 13 She stated that on the night of 12 April 1997 he telephoned her house and told her "You'd better come and if you don't come I'm gonna come over and tell your Mum what you did". On 13 April 1997 they met at the salon. She said that she told the appellant that this was going to be the last Sunday and he replied that it would be the last time he would have intercourse with her. Her removed his clothes and she got partly undressed. Sexual intercourse was had with him inserting his penis into her vagina and ejaculating. He was wearing a condom. After cleaning up she went shopping (the activity of which she had told her mother when leaving home). 14 F stated that she was scared of the appellant because he used to hit them. From the time of her father's death the appellant had become a father figure. (He described it as "older brother"). He had lived with the family for a long time. In the earlier years her mother had given the appellant permission to hit the children. As the children grew older her mother told the appellant not to hit the children. F asserted that he hit the children for no or insufficient reason. The mother did not state or suggest that the appellant hit the children. The elder sisters were not called to give evidence. If the appellant had hit the children one would have expected that allegation to have been supported by evidence from the mother and the two elder daughters. The appellant denied that he ever hit the complainant. He said that if the girls got a bad report he did scream at them and was tough on them to get better results. 15 On 29 April 1997 according to F, the appellant came to the family home at night. There was an argument about him not giving her a haircut when he was meant to do so. The argument developed. Apparently he said quite an amount to her mother including that F was a liar. F said that he gave the mother a number of hints but she did not piece the story together. Eventually F told her mother that the appellant had touched her. The appellant was in the process of leaving the house and the mother called him back. He said that he had not had sex with F and that she was lying. He was rather vehment. The mother said that she was going to the police and he replied that he was not afraid of the police. They would not do anything. The mother said that the appellant suggested that she take F to the doctor. 16 As might be expected, counsel for the appellant made little headway in cross-examination suggesting that the various incidents did not occur. However, what did emerge from the cross-examination of F and her mother was their dislike of the appellant's wife and the bitter relations that had developed between F's family and the appellant's family. It appeared that in the later months of 1993 the appellant was courting his present wife. In about late 1993 the appellant's parents and his brother Josef came to Australia and, for a very short period (a couple of weeks), stayed with F's mother and family. The appellant, his parents and his brother moved to another house at 14 Wilga Street. The parents moved to another residence after about two months. In 1994 the appellant's wife moved into 14 Wilga Street and she and the appellant commenced to live as man and wife, marrying some time later. 17 F did not accept that the appellant had been keeping company with his wife Michelle and said that Michelle moved in as a room mate as she had nowhere else to go. F volunteered that the appellant said that Michelle could move in because he thought it would make his parents angry because they did not like her. F denied that the appellant was romantically involved with Michelle. F kept asking for how long Michelle had been the appellant's wife. F preferred to describe Michelle as his de facto and said that he did not like her and wanted to get rid of her. She was just a room mate who became pregnant. When the appellant enthused about his baby, born in 1996,F claimed that Michelle turned around and said to him "No, it's not yours". The evidence suggests that the appellant and his wife were very close and proud of their two sons. 18 The mother said that in 1992 and 1993 all the children went to school and would go to bed about 8.30 pm. There were no locks on the doors inside the house and the doors to the bedrooms were normally kept open, even at night. 19 The mother said that F used to help the appellant at each of the salons which he ran. She telephoned the salon when F was late coming home to see when she would be home. The mother was not asked if the appellant hit the children. 20 The mother said that in April 1997 when the appellant came to her home there was a dispute in the family. The mother said that initially the appellant had arguments with her in which he said that F was telling lies. The mother stated that the appellant had always said that F told lies and that "we should not believe her". The mother spoke to F in her bedroom and asked her why the appellant was saying that she was lying, to which F replied "because Nabil had touched me". The appellant was outside when this occurred. The mother agreed that the appellant denied touching F. 21 In answer to the suggestion that the appellant was upset because of the lies F was telling about Michelle the mother said that she did not remember F saying anything about Michelle. That is hard to accept. In her answers the mother revealed that she was very reluctant to treat Michelle as the appellant's wife. 22 At the trial the Crown placed some reliance on knowing that the appellant was uncircumcised. The appellant endeavoured to meet this suggestion by contending that the mother on a number of occasions referred to the inexpert way her elder son had been circumcised and the competent way her younger son had been circumcised. The bathroom window was left open while the boys bathed. That window opened onto the sunroom. The position was noticeable and the mother's comments drew attention to it. The appellant claimed that he made a comment to the effect that he was glad that he had not been circumcised. The mother said that she did not remember any discussion in the house about the elder son not being circumcised properly. When pressed that she had commented that "the doctor didn't do a very good job", she replied in English "Maybe, but I can't remember". It was a curious answer. 23 The mother agreed that at the beginning she wanted Josef (the appellant's brother) to marry Charmaine, her daughter, but not later, as she (the mother) found out that Josef was not the right person to marry her daughter. She denied that the marriage did not take place because Josef's refusal and that that caused some unpleasantness between her and Josef and the appellant. 24 The mother agreed that she had told Michelle, the appellant's wife, that she was always making trouble between the family. The mother made her attitude plain when she said "I have nothing to do with Michelle, she is not part of the family". 25 Dr P.A. Brennan, the Director of the Sexual Assault Unit at Liverpool Hospital examined the complainant on 15 May 1997. The doctor found a transection of the hymen at 8 o'clock, She illustrated this by a sketch, explaining that if you looked at the edge of the hymen, the transection was not a scar "but a breach all the way through to the vaginal wall", that is, a tear which has stayed open. The transection showed no signs of acute tearing recently and by "recently" she meant within months prior to the examination. The doctor stated: "It depends when the injury took place as to how a tear would take place. Before puberty the ring is quite tight it depends on the diameter of anything going through, it has to be bigger so if something of bigger diameter than that went through it, it would cause it to tear, …it's never … genetic it always splits in this back half because that's the weakest spot … Most commonly it splits in one of those two positions (4 and 8 o'clock) … it split at … 8 o'clock" 26 The doctor agreed that what she saw was consistent with an injury occurring to the complainant from about the age of 3 to a few months before her examination. However, she added that it was her experience that the problem area was on either side of puberty, that puberty for the complainant started at 13 and that this was a significant issue. The conduct allegedly occurred when F was 11 to 15 27 This evidence was capable of having considerable impact. F did not give evidence that no-one else had access to her although this may have been the impression created. She was not, nor could she have been, cross-examined as to her sexual experiences other than those involving the appellant. 28 Accordingly, immediately after the doctor completed her evidence the judge warned the jury: "… that evidence … has to be looked at very cautiously, very carefully. If you have no such information as to the state of the young woman's vagina and her hymen. If you were simply unaware of that condition you might very well think what she said here on the subject of sexual intercourse is pure imagination on her part, it's something she has made up. The most that can be said about it is that the doctor's evidence is consistent with her hymen having been penetrated by some object and there's no evidence … to suggest the object in this case was the penis of the accused. So you must be very careful in the way that you use that evidence, very careful indeed. It's consistent with her having had sexual intercourse but with whom, that's something about which you may not speculate". 29 The judge did not refer to the evidence of Dr Brennan in the body of his summing-up. After hearing requests for directions the judge referred to the evidence of Dr Brennan of damage to F's hymen with the critical period being before and after puberty and reminded the jury of his earlier instruction to view that evidence very cautiously. The judge told the jury that the law did not permit counsel for the accused to cross-examine the complainant about her sexual experience other than the sexual experience of which she complained in the course of giving her evidence. 30 In his evidence the appellant stated that he lived with the complainant's family from his arrival in Australia until he moved out with his parents in about November 1993. The appellant denied ever touching F indecently in her private area. He did enter the girls' bedroom but that was to help them with their homework or check it. He denied enticing F inside the house when the pool was being cleaned. He said that you could see into his room from the backyard through the window and the curtains. He dealt with the discussions about circumcision and his not being circumcised and asserted that F was present when these occurred. 31 The appellant denied having sexual intercourse with F at the hairdressing salon. The neon sign had a timer which regulated when the sign went on and off. He never touched it. Before he left the shop he always switched the lights off and turned the alarm on. He said that F started working for him in 1995 not 1994. She worked on Thursday evenings and Saturdays. He gave her a lift home except when her mother picked her up at the salon. He never took her back to the salon after she had left for the day. He sometimes dropped Michelle off at their home first so she could open the house and start cooking and then proceeded to F's home. F left the car and he went immediately to his home. He said that he always helped Michelle with the cooking. On a couple of occasions F's mother had cooked a Lebanese dish and he had portion of a meal at the mother's home before joining Michelle at their home. 32 The appellant said that there was a falling out between F's family and his family when Josef declined to marry the eldest daughter of F's mother as she wanted. Ill feeling developed between F and the appellant's mother after F abused her at the shopping centre. It came to the appellant's notice that F and her family called Michelle a slut. As a result the appellant told F to cease working at his salon. F and her sister made some visits to the salon after that. Consequent upon pressure from his family the appellant declined to cut F's hair and that of her family. 33 The appellant gave a detailed account of why he had refused to cut the hair of F and of members of her family and of F referring to Michelle as a slut and of the ensuing telephone calls with F's mother about F's conduct and her telling lies. The appellant also gave a detailed account of his telephone calls on 29 April 1997 and of the events when he called at the home of F's mother and asserted that F was lying and it was said in reply that F had slept with the appellant. 34 The appellant was cross-examined by the Crown Prosecutor at some length and vigorously. He said that he took the role of an elder brother. He agreed that the girls did what he told them. He claimed that he was never alone with F and rejected the suggestion that he interfered with her while the remainder of the family was watching television. Despite the mother's evidence, he was challenged on his assertion that the mother liked the doors to the various rooms to be open except when the occupants were dressing or undressing. As to the incident involving cleaning the pool, the appellant said that the complainant was too young to take telephone calls and that the mother was strict. He insisted that as a result of pressure from his family, F and her family were banned from the shop. His sister, who worked at his shop, told the members of his family if F or any of her family came to the shop and this upset his mother and she would not talk to him. Despite this, on occasions F and members of her family came to his shop. On her own initiative, F would sweep the floor or clean up. There were also occasions when F took the dog of the appellant and his wife for a walk. She collected it from his house when Michelle was there and when there some strain (or perhaps dislike) in the relationship between the two women. There was a period of about six to twelve months while F and probably also members of her family were in dispute with members of his family and relations were very strained. The appellant stated that despite these he bore no ill-will to F or the members of her family. 35 The appellant stated that the dislike (or hatred) F had for Michelle and Michelle's response of dislike and anger built up over a period. It was about the end of 1996 that F regularly called Michelle a slut. The position worsened in 1996 leading to the incidents of April 1997 36 The appellant stated that he was never alone in the salon. It had eight chairs and he had four to five girls working for him. He said that he and the staff all left the salon together. 37 The appellant agreed that it was not the custom in a Lebanese family to discuss sexual matters with female children. The mother did however refer to the unsatisfactory way in which Samir had been circumcised. It annoyed or angered her. The appellant did not regard this as a sexual matter or something bad. The mother had known him as a baby and knew that he was not circumcised. The appellant said that she expressed the view that it was better for the boys to be circumcised. 38 The appellant said that on 29 April 1997 he spoke to both F and her mother by telephone. He was very upset and angry about F calling Michelle a slut to his face. Apparently F had turned the position around and maintained that Michelle had called her a slut. He went to the mother's house in an effort to stop F calling Michelle a slut. It was during that visit that the appellant was accused of sleeping with F. 39 During the cross-examination it was apparent that the appellant did not follow some of the questions. The cross-examination was argumentative and provocative. It was punctuated with assertions by the cross-examiner that the appellant was lying or advancing ludicrous propositions. At other times it was dismissive of the appellant's position and feelings. Sometimes it was difficult to tell if the cross-examiner was making an assertion or asking a question. The appellant was inclined to give lengthy answers and explanations and to become indignant and emotional but the type of cross-examination encouraged this. He was over anxious and, at times, tended to put his case too highly. 40 After the appellant had given evidence the judge told the jury that they may decide not to hear any further evidence and find the appellant not guilty. The jury wished to hear more. 41 The appellant's wife gave evidence dealing with her association with the appellant which went back to August 1993 and her association with F. She had spoken to F about the incident involving the appellant's mother. F's mother spoke to Michelle and then F telephoned her, called her a slut and said that she was "in trouble now". Michelle said that on another occasion when she was in the back room of the salon F abused her and said that her older son was not the appellant's son and that they had photos to prove it. 42 Mrs Ayoub said that because of all the trouble she asked the appellant to tell the members of F's family not to come to the shop, She also asked him to stop cutting the hair of the children in F's family. She recalled only two occasions on which the appellant, after dropping her at their home, stayed at the home of F's mother to have some dinner. He was away for no more than half an hour. He then had dinner with her. She said that they left the shop together. She recalled a couple of occasions on which the appellant returned to the shop when they had forgotten to take all the dirty towels home and collected them. This occurred before they moved to their Bossley Park home. She painted a picture of the appellant and her being a devoted couple. She could only remember a small number of occasions beside the periods spent in hospital having her two children when she and the appellant have been apart. It was put to her by the Crown Prosecutor that she was telling lies and mouthing what her husband had told her to say. The allegation of her telling lies was put to her on a number of occasions. She was anxious to support her husband, and perhaps put their close relationship too highly. She and the appellant may also have been apart more than she thought. However, they both worked and lived together. 43 Josef Ayoub gave evidence that he came to Australia with his family in late 1993. He asserted that F's family wanted him to marry Chairmaine. He declined. This caused tension with F's mother. She threatened to cause him a lot of trouble and to force him to leave Australia. He said that the accusations made against the appellant were completely out of character. 44 This Court has been furnished with a draft summing-up marked "Preliminary Proof Transcript Subject to Revision". It is necessary when reading the transcript to make some obvious amendments.