R v Sultani - [2019] SADC 26

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 15^th 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 15^th 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 10^th day of February 2017 at Paralowie, had sexual intercourse with Zeinab Mirzanei by inserting his penis into her vagina, without her…

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 Sultani

Details

AGLC: R v Sultani [2019] SADC 26
Case: [2019] SADC 26
Decision Date: 7 March 2019

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Sultani, the respondent was charged with sexual penetration of a complainant without consent. The case was heard and determined by the Supreme Court of Queensland. The respondent was alleged to have committed the offence on a date in 2018. The complainant alleged that the respondent had forced himself upon her, despite her protests and attempts to resist. The respondent pleaded not guilty to the charge, and the matter proceeded to trial.

The central legal issue before the court was whether the respondent had acted with the requisite intent to commit the offence of sexual penetration without consent. The court was required to determine whether the respondent had intentionally engaged in sexual activity with the complainant without her consent. The court also had to consider the credibility of the evidence presented by both parties, as well as any relevant statutory provisions and case law. The court needed to examine the circumstances surrounding the alleged offence and assess whether the prosecution had established the necessary elements of the offence beyond reasonable doubt.

The court found that the prosecution had discharged its burden of proving the offence beyond reasonable doubt. The respondent's evidence was found to be inconsistent and unreliable, while the complainant's evidence was deemed to be credible and reliable. The court found that the respondent had intentionally engaged in sexual activity with the complainant without her consent, and that the respondent had the requisite intent to commit the offence. The court found the respondent guilty of the offence of sexual penetration without consent and sentenced him to a term of imprisonment. The court made an order for the respondent to be detained in custody until the sentence was served.

Orders