A Sydney shopping centre security guard has sensationally had his conviction for indecently assaulting a young girl while on duty quashed on appeal.
Mohammad Hassan Al Bayati was in 2019 jailed for up to four-and-a-half years after a jury found him guilty of assaulting and exposing himself to the then three-year-old girl in a stairwell at the Direct Factory Outlet at Homebush.
Mr Bayati has consistently maintained his innocence and after serving more than two-and-a-half years behind bars, the NSW Court of Criminal Appeal on Friday ordered that his convictions be quashed after it found that his indecent assault conviction was not supported by the evidence.
Following a second trial in May 2019, a jury found him guilty of indecent assault, committing an act of indecency and taking a child to obtain advantage.
He was jailed by NSW District Court Judge John Pickering for four-and-a-half years with a two-and-a-half year non-parole period.
His non-parole period expired in July last year.
Justices Lucy McCallum, Peter Hamill and Richard Cavanagh on Friday ruled that his indecent assault conviction be quashed and that he be acquitted.
They also ordered his convictions for the other two lesser counts be quashed and that he face a retrial on those charges.
However, it is now up to the Director of Public Prosecutions to decide whether Mr Al Bayati will face a third trial given his non-parole period has now expired and that he has served several years in prison.
The court heard that Mr Al Bayati had been captured on CCTV taking the girl by the hand and leading her into a stairwell.
The girl was found in the centre’s play area, along with a sibling, while their mother did Christmas shopping in December 2016.
Mr Al-Bayati received a call to assist a “lost child” and led her by the hand to a service corridor and stairwell.
He and the child disappeared from the view of CCTV cameras for 11 minutes when he was alleged to have assaulted her.
The court heard that he was only charged with indecent assault during pre-trial arguments and only after Judge Pickering suggested he could be charged with indecent assault.
Mr Al Bayati argued on appeal that he was subject to a miscarriage of justice because the crown should not have been allowed to amend its indictment.
As well, his barrister argued Judge Pickering was disqualified from hearing arguments about an amended indictment due to his own statements.
The Court of Appeal found that Judge Pickering “entered the arena” by “blurring” the lines between judge and prosecutor.
The three judges also found that the indecent assault charge was not supported by the evidence presented to the court.
“The child denied on several occasions that the applicant touched her,” the court said in its judgment.
“The first complaint she made to her father did not, according to his account, suggest there was any touching that might have amounted to an indecent assault.”
The court heard that after the alleged incident, the girl was returned to her mother who had arrived at the play area.
Later, the girl told her father that the “man at shops want to kiss my bum bum.”
The Court of Appeal found that the conviction for indecently assaulting the girl was only supported by hearsay evidence from the mother of what her husband had told her.
As well, DNA evidence – which was a one in 750 match for Mr Al Bayati’s DNA – found on the girl’s underwear could have been the result of secondary transfer after he was holding her hand, the court heard.
“Our review of the evidence leaves us with a substantial and reasonable doubt as to the applicant’s guilt on the third count,” Justices McCallum, Hamill and Cavanagh said in their judgment.
“This is a doubt that the jury should also have experienced. We have taken into account the role of the jury in the criminal trial process and the advantages it enjoys in making collxjmtzywective determinations on behalf of the community.
“Even allowing for those matters, the verdict on the third count cannot be permitted to stand.”
Mr Al Bayati will now be arraigned in the District Court early next month with the Director of Public Prosecutions to decide whether he faces a third trial.
