R v Sultani
[2019] SADC 26
•7 March 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SULTANI
Criminal Trial by Judge Alone
[2019] SADC 26
Reasons for the Verdicts of His Honour Judge Cuthbertson
7 March 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with seven counts of rape against complainant. Complainant claims to not be consenting due to fear that accused would show compromising photographs to family of complainant.
Verdicts: Not guilty counts 1, 2, 3 5 and 6. No case to answer count 4.
Criminal Law Consolidation Act 1935 s 46, 47, 48; Evidence Act 1929 s 34M, referred to.
R v Mas [2013] SASCFC 122; R v Bilick & Starke (1984) 36 SASR 321, considered.
R v SULTANI
[2019] SADC 26
The defendant is presented on an Information alleging six counts of Rape pursuant to s 48(1) of the Criminal Law Consolidation Act, 1935.
As there is some disputation as to whether there is a case to answer, I set out the charges in full.
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Hanif Sultani between the 1st day of October 2016 and the 30th day of November 2016 at Parafield Gardens, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her consent, knowing that Zeinab Mirzanei was not consenting to the act of sexual intercourse or being recklessly indifferent as to whether Zeinab Mirzanei consented.
Second Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Hanif Sultani between the 1st day of December 2016 and the 31st day of January 2017 at Parafield Gardens, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her consent, knowing that Zeinab Mirzanei was not consenting to the act of sexual intercourse or being recklessly indifferent as to whether Zeinab Mirzanei consented.
Third Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Hanif Sultani between the 15th day of December 2016 and the 31st day of January 2017 at Paralowie, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her consent, knowing that Zeinab Mirzanei was not consenting to the act of sexual intercourse or being recklessly indifferent as to whether Zeinab Mirzanei consented.
Fourth Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Hanif Sultani between the 15th day of January 2017 and the 9th day of February 2017 at Paralowie, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her consent, knowing that Zeinab Mirzanei was not consenting to the act of sexual intercourse or being recklessly indifferent as to whether Zeinab Mirzanei consented.
Fifth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Hanif Sultani on the 10th day of February 2017 at Paralowie, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her consent, knowing that Zeinab Mirzanei was not consenting to the act of sexual intercourse or being recklessly indifferent as to whether Zeinab Mirzanei consented.
Sixth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Hanif Sultani on the 10th day of February 2017 at Paralowie, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her consent, knowing that Zeinab Mirzanei was not consenting to the act of sexual intercourse or being recklessly indifferent as to whether Zeinab Mirzanei consented.
Rape
The elements of Rape are relevantly as follows:-
1The defendant committed a voluntary and intentional act of sexual intercourse (insertion of the male penis into the female vagina is an act of sexual intercourse).
2The act committed was the insertion of the defendant’s penis into the vagina of the complainant.
3The act occurred without the consent of the complainant.
4As the issue of consent arises in an unusual situation I set out s 46 of the Criminal Law Consolidation Act, which deals with the question of consent.
CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 46
46—Consent to sexual activity
(1) In this section—
sexual activity includes sexual intercourse.
(2)For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3)Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—
(a) the person agrees because of—
(i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or
(ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or
(b) the person is unlawfully detained at the time of the activity; or
(c) the activity occurs while the person is asleep or unconscious; or
(d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or(e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or
(f) the person is unable to understand the nature of the activity; or
(g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
(h) the person is mistaken about the nature of the activity.
5The offender knows or is recklessly indifferent, to the fact that the person does not so consent or has so withdrawn consent (as the case may be).
Reckless Indifference
47—Reckless indifference
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—
(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
Summary of Case
The complainant and the defendant met in late 2015. The defendant owned a shop where the complainant worked for a time. Three to four months after meeting they commenced a sexual relationship which lasted for about seven months until October 2016.
During the course of the relationship the defendant took photos and videos of himself and the complainant engaging in various sexual acts. While the complainant knew of at least some of these images, there were others that she did not know had been taken. In any event she asked the defendant to delete them from his phone and the defendant told the complainant that he would look at them once and then delete them.
After the relationship ended the defendant continued to visit the complainant and vice versa.
The prosecution case is that the complainant was forced into sexual activity due to threats made by the defendant either at the time of the offence or, so it is asserted on an ongoing basis. The threats were said to be by the defendant that he would distribute the compromising material to relations of the complainant if she did not have sexual intercourse with him.
At the trial Police called the complainant and a witness as to complaint evidence and tendered various exhibits including a list of call charge records between the defendant and the complainant. A folder containing the contents of the defendant’s telephone and photographs of images from the complainant’s telephone which depicted messages between the pair on FaceBook Messenger and telegram applications were also tendered.
During the relevant period, the defendant lived in Parafield Gardens and the complainant lived in Paralowie. The complainant had two children from a previous marriage who lived with her. The defendant’s wife and children lived in Pakistan.
I have no doubt that a threat to release photographs of the complainant having sex with a man that was not her husband would have been distressing and a matter of shame for the complainant, especially in her community. She is Iranian.
I direct myself as follows:
Onus of proof
There is a presumption of innocence in favour of the defendant and the defendant is regarded as innocent unless and until guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies wholly upon the prosecution. The defence does not have to prove anything.
Separate consideration of counts
The defendant is charged with six separate counts and each count must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other counts, although a verdict of not guilty for one count based on a lack of acceptance of the complainant’s evidence beyond reasonable doubt may affect the credibility of the complainant in respect of the other counts[1].
[1] R v Mas [2013] SASCFC 122
Other discreditable acts
I am not to reason that because the defendant is guilty of a particular count, or it is proved against him that he has committed a particular uncharged act of sexual impropriety against the complainant that therefore he has a propensity to commit sexual offences against the complainant and is guilty of an offence charged on that account.
The relevance of the other counts or other acts of alleged sexual impropriety by the defendant against the complainant, in considering a particular count, is that they may demonstrate that the defendant has a serious sexual interest in the complainant. They may also explain why the complainant may not have complained after a particular incident and why the defendant may have believed he could perform the particular act in question without complaint or physical remonstration.
Use of screen and court companion
The complainant gave evidence with a court companion present and with a screen between her and the defendant. I am not to draw any adverse inference against the defendant by the use of the court companion by the complainant or from the fact that the complainant gave evidence from behind a screen.
Evidence of initial complaint
Evidence was given that the complainant finally complained to one Mosaed. That is not evidence of the truth of what was complained. I am entitled to use that evidence to inform me as to how the allegations first came to light, and as evidence of consistency (or otherwise) of conduct of the complainant.[2]
[2] Evidence Act 1929 (SA) s34M(3), s34M(4).
There appears to be at least some consistency as the complainant told the witness it happened on the couch while the children were at school. This is consistent with her evidence. There is no evidence from the witness, however, that the complainant told her that intercourse occurred on two occasions. The account of the complaint by the witness is too short and vague to show anything telling as to consistency or lack of it.
I also remind myself that the failure or delay in making a complaint is not of any probative value in itself but rather I am to determine the relevance of any failure or delay in the context of the particular case. In this case I am not of the view that the failure or delay in making a complainant is of any significance.
The defendant did not give evidence
In this case the defendant did not give evidence. He was not obliged to give evidence and there may be many reasons why he did not give evidence. Because it was his right not to give evidence I must not hold it against him. I must not take into account that he did not give evidence in determining the question of guilt or innocence.
Particularisation of charge and case to answer
The test to be applied is whether, on the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate, and on the further assumption that all inferences most favourable to the prosecution, which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused. (See R v Bilick & Starke).[3]
[3] (1984) 36 SASR 321 at 337.
Count 1
Particulars Given (T14)
1The offence occurred between 1st October 2016 and 30th November 2016 at Parafield Gardens.
2The complainant went to the defendant’s house to tell him that she wanted to end the relationship.
3The defendant threatened to send intimate photos of the complainant to her family.
·The complainant thought she had no choice but to submit due to the threat.
4They engaged in penile/vaginal intercourse more than once.
5The first act is the act charged.
The Evidence (Tx55-56)
1The defendant demanded that he attend her house at Parafield Gardens. (Tx54)
2The complainant told him to concentrate on getting his family to Australia. (Tx54)
3It happened in October. (Tx54)
4The complainant suggested they have sex once per week. (Tx54)
5The discussion took place on the couch. (Tx55)
6When the complainant suggested they break up the defendant got angry and got a knife, came towards her and said “First I’m going to kill you and then I am going to kill myself because you are with someone else for sure”. (Tx55)
7The complainant said that it would be fine and that she would stay with him and do whatever he demanded. (Tx55)
8He took her to the bedroom. (Tx55)
9In the bedroom they had sex. He put his penis into her vagina, two or three times but definitely two times. (Tx56)
10On that occasion, he bit her around the breast. (Tx57)
Ruling
In my view, there is sufficient evidence to identify and make out the charge. I note however that the complainant described the incident as occurring in the context of a threat with a knife and a threat to kill. This was not suggested in the Opening during which particulars of the charge were given by the Prosecutor. This damages the credibility of the complainant.
Count 2
Particulars Given (Tx15)
1The events occurred between 1st December 2016 and 31st January 2017 at Parafield Gardens.
2The defendant demanded that the complainant attend his house at Parafield Gardens.
3The complainant was threatened for the first time by the defendant with a knife which he obtained from the kitchen and pressed it against her side.
4He threatened her about releasing intimate photographs.
5He took the complainant into the bedroom where they engaged in penile/ vaginal intercourse three times, the first being the occasion charged.
The evidence (T70)
6It was at the defendant’s house.
7He got angry because the complainant said she did not want to have sex and he went to the kitchen, got a knife and came back with it. (Tx70-71)
8The complainant was sitting on the couch. (Tx71)
9On that occasion he was overly drunk. (Tx71)
10He grabbed hold of the complainant, put the knife to her and said “I am just going to kill you”. (Tx71)
11Then he put the knife against his own body and said that he was going to kill himself. (Tx71)
12Then he put the knife to the right side of the complainant’s body and he started hitting himself on the top of the head and put a knife to his body and said he was going to kill himself. (Tx71)
13The complainant said that she would stay with him and they started talking about their families. (Tx72)
14He approached her and took her to the bedroom and they had sex. (Tx72)
15He did not wear a condom. (Tx73)
16On this occasion, they had penile vaginal intercourse two times or maybe three times but certainly more than once. (Tx74)
Ruling
This occasion was described as the first occasion a knife was introduced between the parties. There is sufficient evidence to make out a case to answer. There is a real possibility that the complainant has confused the incidents described in Counts 1 and 2 due to their similarity. It affects the credibility of the complainant.
Count 3
Particulars Given (Tx15)
1The events occurred between 15th December 2016 and 31st January 2017 at Paralowie (her house).
2The occasion was around the January school holidays.
3It occurred at the complainant’s house at Paralowie.
4The complainant was washing dishes and the defendant arrived at about 7.30am.
5The occasion is distinguished by the fact that the two boys were at home sleeping.
6The defendant told the complainant he wanted sex.
7The complainant told him to pay someone to have sex.
8He got a knife in the kitchen and closed the internal doors to the house.
9He pushed the complainant onto her bed and proceeded to have penile vaginal intercourse with her three times.
10It is the first occasion of penile vaginal intercourse that is charged.
The evidence (Tx73)
11The boys were home on holidays.
12The complainant was washing dishes.
13The complainant asked the defendant if he wanted some food to take to work. (Tx77)
14The defendant started hugging the complainant who said she had kids at home.
15The complainant closed the children’s bedroom door.
16The complainant and the defendant went to her bedroom.
17Due to the fear of the defendant distributing photos of her the complainant went along with having sex. (Tx78)
18They had penile vaginal sexual intercourse. (Tx82)
19He wore a condom. (Tx82)
20The sex was more than once. (Tx82)
Ruling
There is sufficient evidence to identify the occasion charged and make out a case to answer.
Count 4
Particulars Given (Tx15)
1It relates to the start of February 2017.
2The children were back at school.
3The defendant attended the complainant’s house at Paralowie.
4The defendant showed the complainant photos on his phone of them having sex.
5The complainant asked the defendant to delete them.
6The defendant went to the knife drawer.
7The defendant made a threat to kill the complainant.
8They had sex on the couch.
9The defendant used condoms. They had penile vaginal intercourse twice and the first act is the Count charged.
The Evidence
There is no evidence given by the complainant about an incident which can emphatically be said to meet the description of Count 4 as given in the Opening. There is no case to answer.
Counts 5 and 6
Particulars Given (Tx16)
1The incident occurred on the 10th February 2017 at Paralowie.
2The defendant attended the complainant’s house after she had dropped her children at school.
3There was a discussion where the defendant told the complainant she did not hold an appropriate Visa.
4The defendant threatened to call the complainant’s former husband.
5They engaged in penile vaginal intercourse on two occasions. Condoms were used by the defendant and two condoms were located by the Police.
6This was two days before the complainant complained to the witness Mosaed and then the Police.
The Evidence (Tx 57)
7The complainant was “really sick” and it was hot.
8She had taken the children to school and had come back home.
9She was laying on the couch when the defendant arrived. He walked in and the complainant was angry with him.
10She asked what he wanted and he said that he was here for sex.
11She said she was sick and he banged his hands on the table.
12He said “Okay” and grabbed his phone.
13He started throwing the phone and going through photos of someone other than the complainant and saying that it was the complainant.
14There were also photos of the complainant and photos of the other persons’ faces had been superimposed on the photo.
15The complainant said, “I don’t want to continue on anymore”.
16The defendant knew everything about her and the complainant told him that it is “just like Iran”.
17The defendant kept reminding the complainant about her Visa and what she is permitted to do and not permitted to do and he reminded her that she cannot do anything or he will report it to the Police.
18At the time, the complainant had a Bridging Visa and was concerned that it might be cancelled.
19They had sexual intercourse on the couch.
20He had full sex and about 10 minutes later he came and did it again. He was putting his penis inside the complainant and changing positions.
Ruling
The occasions are sufficiently identifiable and there is a case to answer on both counts.
Application to Amend the Information
At the conclusion of the evidence application was made by the prosecution to amend the Information as follows:
The First Count to read “Between the 1st day of October 2016 and the 30th day of November 2016”.
The Second Count to read “Between the 1st day of December 2016 and the 31st day of January 2017”.
The Fourth Count to read “Between the 15th day of January 2017 and the 9th day of February 2017”.
I indicated that I would rule on the question of leave to amend upon the conclusion of the case.
Ruling
1The date of an offence is not an element of the offence and it is not fatal to the charge that the date is wrong. This is not a case where the date of offending may be relevant such as USI cases where age is of concern.[4]
[4] R v Abdulla (2010) 200 ACrimR 365, 89-90.
2I am not aware of any prejudice that the defence will suffer if I allow the amendments.
3In the circumstances, I allow the requested amendments.
Discussion
Underlying the case for the prosecution is the argument that at all relevant times when the offences occurred the complainant was subject to an ongoing threat by the defendant that non-cooperation in having a sexual encounter would lead to the release of the photographs of the complainant in a compromising situation.
In my view, if there was an ongoing threat to release compromising photographs if the complainant did not take part in an act of sexual intercourse and that threat was operating in the mind of the complainant at the time intercourse was taking place, that would satisfy the requirement for proof of the element of rape that requires that the act occur without the consent of the complainant.
The threat need not have been made on each occasion intercourse took place. If it is accepted that the threat operated on her mind as an ongoing threat that had not been withdrawn, then there is no consent to the intercourse. The question of whether there is consent is a subjective matter
Section 46 of the Criminal Law Consolidation Act specifies that for consent to a sexual activity a person must “freely and voluntarily agree to the sexual activity”.[5]
[5] Criminal Law Consolidation Act (1935) s46(2).
Further, it is specified that a person does not freely and voluntarily agree to sexual activity if there is “an express or implied threat to degrade, humiliate, disgrace … the person”.[6]
[6] Ibid s46(3)(a)(ii).
In my view, a threat to release photographs of the complainant having sexual intercourse with a person other than her husband would be a threat to “degrade, humiliate, disgrace …. the person”.
If the threat is taken as ongoing and not withdrawn, the next issue would then become whether, in relation to a particular count, it is proved beyond reasonable doubt that the defendant was aware that the complainant was not consenting or was recklessly indifferent to whether she was consenting or not.
Examination in Chief and Cross Examination of the complainant in this matter was lengthy. The complainant gave evidence via an interpreter. Some of her answers were extremely lengthy and made under circumstances of mental distress. I could discern this myself, observing the witness in the witness box as expressed by her tone of voice and facial expressions, extreme distress from time to time and frustration.
I make no criticism of the interpreter who, I thought, was endeavouring to perform a very difficult job. I doubt, however, that the interpreter was able on a number of occasions to communicate/translate verbatim what was said by the complainant because of the extreme length of the answers she gave. It would have been impossible, in my view, for anyone to remember sentences as lengthy as those frequently given by the complainant in evidence and then to interpret them accurately.
Any deficiency in the interpreting process must not be held against the defendant as it is the prosecution that must prove its case beyond reasonable doubt.
Frequently the interpretation process means that a Judge is not able to get the flavour of what a witness is saying and assess its accuracy or the witness’s truthfulness as easily as if the witness speaks the same language as the Judge.
From time to time the complainant appeared frustrated. I gained the feeling that she felt frustrated that she was not able to get her explanation across to the Court due to the intermediary of the interpreter.
I am prepared in a general sense to accept that the defendant was holding over the head of the complainant an ongoing sometimes expressed and otherwise implied threat to release the photographs.
I am prepared to find as much based on the appearance of genuineness and conviction expressed by the complainant in her evidence so far as I could discern it, given the intermediary of the interpreter.
Also, the retention of the photographs by the defendant in circumstances where the photographs were generally unclear and not particularly likely to be the subject of a desire to retain them for aesthetic purposes indicates the presence of a motive other than sexual arousal.
In the circumstances, however, I have significant difficulty in being satisfied that in respect of each Count the complainant is referring to a particular actual circumstance that occurred between her and the defendant.
Her accounts were generally confusing and I cannot be satisfied that her accounts accurately establish six different occasions of rape as particularised.
I note the following imperfections in the prosecution case:
·The prosecution Opening made no mention of the use of a knife in Count 1 a very obvious and significant aspect of the allegations. One might have expected it to be mentioned as it would obviously be a significant part of the allegations in Court. The failure of it to be mentioned in the opening causes me to have significant doubts that this incident occurred as alleged.
·The Opening in relation to Count 2 described that Count as the occasion when the defendant first introduced a knife into the relationship conflict. The evidence suggests that occurred in the evidence described in the first Count.
·The description of the incident described in Count 1 is very similar to the description of the incident in Count 2 and I consider that there is a possibility that in the mind of the complainant she has confused the two incidents. For this reason, I cannot be satisfied beyond reasonable doubt in relation to Count 2.
·On various occasions, the complainant said she would “go along” with the sex or pretend to be happy to keep the accused happy – this raises a doubt as to the defendant’s knowledge or recklessness regarding a lack of consent.[7]
[7] See Tx 52; 83; 145-146; 149.
·The incident described as Count 4 does not appear to have been described by the complainant in her evidence.
·I find the complainant’s evidence confusing and cannot conscientiously accept it beyond reasonable doubt.
·The complainant was on medication which she said affected her memory. (No evidence has been led as to the nature of the medication and the possible effects it may have on memory).
·The complainant said that on the very first occasion the defendant came to her house, he raped her. She gave details of how that occurred. She never mentioned that to the Police in any of the five statements that she gave (TX 120). This event has been a very significant incident which the complainant would be expected to remember.
·The complainant failed to mention anything about a knife being involved in Count 3 in her evidence notwithstanding that the allegation was made in the Opening. She told Police she was penetrated from behind. She told the Court that she was penetrated from the front.
·She told Police that the sex was on a couch. She told the Court the sex was in the bedroom.
·She told the Court she did not elbow him and she told the Police she did.
·She told the Police the sex went for two minutes. She told the Police it went for 20 minutes to half an hour.
·Her final position was that she wasn’t sure whether the sex was on a couch or in the bedroom (Tx 145).
·She told Police he pulled onto the couch and she resisted.
·She gave evidence that she never physically resisted (Tx 148).
·Discrepancies and inconsistencies by the complainant in respect of one Count affect her credibility in respect of the others.
Verdicts
In all the circumstances, I cannot be satisfied that the actus reus occurred in respect of any of the particular allegations in Counts 1 to 6.
I return verdicts of not guilty in relation to Counts 1, 2, 3, 5 and 6.
There is no case to answer in relation to Count 4.
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