PUTRAJAYA: The Court of Appeal wants steps to be taken to add to the definition of rape.
Justice Abdul Wahab Patail, who chaired a three-man panel, said this in light of the court's decision on May 7 to allow 60-year-old Bunya Jalong's appeal against a Sessions court judgment to convict him of four rape charges against a minor, reasoning that it was unsafe to convict him of the charges.
The two other judges in the panel are Justice Linton Albert and Justice Zakaria Sam.
Currently, the case laws show there must be penile penetration to secure a rape conviction against a sexual offender.
Under the Penal Code, a man commits rape when he has sexual intercourse with a woman against her will and without her consent.
It will also be defined as rape if the victim is under 16 years old, irrespective if the act is done with or without her consent.
Bunya’s acquittal had caused an uproar among various groups who felt it was “a clear case” of statutory rape.
The Court of Appeal's full written judgment was recently uploaded on the judiciary's website and obtained by The Star on Thursday.
Bunya was accused of raping the girl in May, June, July and August 2011 at a hotel in Sibu, Sarawak causing her to become pregnant.
The victim gave birth at the Sibu Hospital on Feb 5, 2012, and a DNA report confirmed Bunya to be the biological father of the baby boy.
In Oct 2013, a Sessions Court in Sibu convicted Bunya on all four charges and imposed a 15-year jail sentence and five whippings for the first charge, and nine years’ jail and two strokes of rotan each for the other three charges which were ordered to run concurrently.
The lower court also ordered for RM40,000 in compensation to be paid to the girl.
Bunya then appealed to the High Court but this was dismissed by Justice Supang Lian. He subsequently appealed to the Court of Appeal.
The appellate court noted that there were fundamentally two versions before the trial court.
Bunya claimed the girl, who had asked for sexual intercourse, had held his private parts until he ejaculated.
He contended that his finger had semen after he ejaculated and the girl had touched his semen and they both inserted their fingers into her vagina.
The 15-year-old girl had claimed she was raped on four occasions but Bunya contended there was no penile penetration, only penetration by fingers.
In his 61-page written judgment, Justice Abdul Wahab said they found the grounds of decision by the trial judge in convicting Bunya incoherent in reasoning.
He added that the panel was puzzled over the evidence given by Obstetrics & Gynaecology specialist Dr Nurulhuda Samsudin that if freshly ejaculated semen laden with spermatozoa is introduced to the vagina by the finger inserted, conception could occur.
“No further evidence was adduced by the prosecution that Dr Nurulhuda was incorrect. We puzzled over this unusual testimony and what it means.
“Evidently, it means that even if fertilisation is even less likely to be successful by means of delivery of fresh semen by fingers compared to medically supervised insemination, it nevertheless was possible,” said Justice Abdul Wahab.
He added that no steps were taken by the prosecution to call a more experienced doctor to give evidence to explain the testimony of Dr Nurulhuda.
“A material prosecution witness PW8 (Dr Nurulhuda) testified that fertilisation of ova (female egg cells) by introduction of fresh semen by fingers was possible.
“There is no excuse on the record for not obtaining expert evidence that could be called to counter it. The court is left with one inference, that the prosecution accepted the confirmation by PW8 and the result must follow,” said Justice Abdul Wahab.
He said that in light of the conclusiveness of the DNA that Bunya was the biological father, the panel could only conclude that it was the answer of an ordinary person who did not expect that use of fingers could result in fertilisation and conception.
“The sole basis that gave rise to a reasonable doubt has nothing to do with belief in the version of Bunya but that Dr Nurulhuda’s testimony is that his version was possible,” added the judge.
He said further that rape is even more of an outrage if it results in conception.
“Causing conception on a woman without her consent, or a minor who cannot consent, is an assault no less than rape resulting in conception. As we mentioned orally during submissions, steps ought to be taken quickly to add to the definition of rape,” said the judge, in the May 26 judgment.
Justice Abdul Wahab said the panel did not think it appropriate to consider convicting Bunya on lesser charges such as of indecent assault lest it lends the notion and the court stands accused that it condones such lesser charges as sufficient charge and punishment, and detract from the urgency of introducing necessary legislation.
“No doubt the prosecution felt compelled to charge for rape with no alternative charges for the very same reason that lesser charges are wholly inadequate,” he said.
He said that no charge should be filed for prosecution unless and until the prosecution is certain it could do so.
He added that the notion of “if in doubt, prosecute and leave it to the court” is not only abandonment of quasi-judicial function in the exercise of the absolute discretion to prosecute but also exposes prosecution to falling conviction rates.
“If the public prosecutor himself is in doubt, what court could conceivably find an accused, defended by counsel, guilty?” asked the judge.
Among others, the judge also touched on the issue of demeanour of the underaged girl.
“The record contains no record as to the demeanour of the PW4 (alleged underaged rape victim). The finding of credibility of PW4 necessarily results from the audio-visual advantage the trial judge had of her demeanour.
“The impression as to demeanour from the audio-visual advantage is something not easily capable of being scrutinised directly not only on appeal, but such impression may be affected from any delay made in assessing and nothing that demeanour,” said Justice Abdul Wahab.
He said Section 271 of the Criminal Procedure Code provides for remarks as to demeanour of a witness to be noted at the end of the notes as to his or her testimony.
“Without such a contemporaneous note at the end of the notes of a witness as to demeanour as a basis or reason, references to demeanour to support a decision suffers from the impression of likelihood it is more of excuse to support the decision.
“In the circumstances, the finding as to credibility of PW4 based upon demeanour from the audio-visual advantage of the trial judge is flawed and unsafe,” he added.