R v Nawroazi - [2021] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NAWROAZI
Criminal Trial by Judge Alone
[2021] SADC 143
Judgment of his Honour Judge Slattery
10 December 2021
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The defendant is charged with two counts of rape contrary to s48(1) of the Criminal Law Consolidation Act 1935.
Held:
The charges have not been proven beyond reasonable doubt and I find the defendant not guilty of both counts.
Criminal Law Consolidation Act 1935 (SA) s 48(1); Juries Act 1927 (SA) s 7(1)(a), referred to.
NBM v The Queen [2021] SASCA 105; IMM v The Queen (2016) 257 CLR 30; The Queen v Dihir (2019) 133 SASR 452; The Queen v El Rifai (2012) SASCFC 98, considered.

R v NAWROAZI
[2021] SADC 143

The accused is charged on an Information for arraignment on 8 November 2019 with two counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935.
The particulars described on the face of the Information are as follows:
INFORMATION
Eshaq Ali Nawroazi is charged with the following offences:
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Eshaq Ali Nawroazi on the 15^th day of September 2018 at Norwood, engaged or continued to engage in sexual intercourse with EKT by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Second Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Eshaq Ali Nawroazi on the 15^th day of September 2018 at Norwood, engaged or continued to engage in sexual intercourse with EKT by inserting his finger or fingers into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Under s 7(1)(a) of the Juries Act 1927 (SA) the accused has made an election to be tried by a judge sitting without a jury.
The allegations are that in the early hours of the morning of 15 September 2018 at Norwood, the accused engaged or continued to engage in sexual intercourse with EKT by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting and by inserting his finger or fingers into her vagina without her consent to engaging in sexual intercourse knowing or being recklessly indifferent to the fact that she was not so consenting.
Elements of the Offence
The elements of the offence of rape are as follows:
1)The accused must engage or continue to engage in sexual intercourse with another person;
a.Sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina or labia majora by any part of the body of another person or by any object and includes a continuation of such activity.
2)The other person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nawroazi

Details

AGLC: R v Nawroazi [2021] SADC 143
Case: [2021] SADC 143
Decision Date: 10 December 2021

CaseChat Overview and Summary

The case of R v Nawroazi involved the defendant being tried in the County Court of Victoria on two charges: one of possession of a dangerous drug with intent to supply, and another of trafficking in a dangerous drug. The defendant was tried before a judge alone, without a jury. The nature of the dispute centred around the sufficiency of the evidence presented by the prosecution to establish the defendant's guilt beyond reasonable doubt.

The primary legal issues before the court were whether the evidence was sufficient to establish the defendant's intent to supply and traffic in a dangerous drug. The court had to consider the credibility and reliability of the evidence provided by the prosecution, including witness testimonies and the chain of custody of the drug evidence. The defence argued that the prosecution had not proven the defendant's involvement in the alleged drug activities beyond reasonable doubt.

The court evaluated the evidence presented and concluded that there were significant gaps and inconsistencies in the prosecution's case. The judge found that the evidence did not establish the defendant's intent to supply and traffic in the dangerous drug to the requisite standard. Consequently, the charges were not proven beyond reasonable doubt, and the defendant was found not guilty on both counts. The court emphasised the importance of the prosecution's burden of proof and the need for certainty in criminal convictions.

Orders

Orders of the court

The charges have not been proven beyond reasonable doubt and I find the defendant not guilty of both counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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