Accused freed as report did not state victim was raped

Accused freed as report did not state victim was raped

Jul 05, 2008
The New Straits Times

By Rita Jong

SHAH ALAM, MALAYSIA: The High Court yesterday provided a valuable lesson to rape victims -- police reports by victims should mention the fact that they were raped.

High Court judge Datuk Mohd Zaki Md Yasin said this should also be done in court to support the allegation that the crime had occurred.

"After analysing the victim's police report, the court finds it strange as to why the victim did not state that she was raped in her report.

"Instead, she had only stated that three men had threatened to rape her and snatched her necklace," he said when allowing an appeal by a 31-year-old contract worker over his conviction by the Sessions Court on a charge of raping a 20-year-old club singer more than 10 years ago.

Mohd Zaki set aside Suhardi Jamalludin's sentence of 10 years jail and three strokes of the rotan issued on Aug 28, 2006.

The lower court had found the contract worker guilty of committing the offence along Jalan Alang Sedaya Jungle Lodge, Batu 14, Jalan Lama Gombak at 5.45am on March 31, 1998. He was arrested and charged four years later in 2002.

Suhardi, 31, appealed against the conviction and sentence, while the prosecution filed a cross-appeal.

In allowing Suhardi's appeal, Mohd Zaki said the fact that the victim did not say in her police report she had been raped, opened the truth to reasonable doubt.

He said there was a vast difference between "they had threatened to rape me" and "they had raped me".

"The victim did not even tell her cousin, who was with her just before the alleged incident, that she was raped.

"A friend of Suhardi, who had testified that the appellant had raped the victim, was in my view, an accomplice as he had admitted to helping him pin the victim down as the alleged rape occurred."

Evidence of an accomplice, he said, must be corroborated. In this case, he added, it contradicted the victim's testimony.

Mohd Zaki had also said the victim's medical examination was done nine hours after the incident.

"Based on the doctor's testimony, she had said that the victim had been sexually active for more than a year prior to the incident and had also gone through an abortion," he said.

"Although her background of being sexually active does not mean she was not raped, the victim had never said this in court," he said, adding that he deemed it hearsay as it was only said by the doctor.

He said based on the medical report, there was no sign of force and she did not suffer any injuries.

"If the rape occurred on a tarred road, she would surely have scratches or bruises. In legal principles, it is not whether he did it or not, but whether the crime can be proven.

"Therefore, the Sessions judge should not have ordered Suhardi to enter his defence."

Mohd Zaki also dismissed the prosecution's cross-appeal for a heavier sentence.

DPP Alfred Egin prosecuted and counsel Ahmad Zaharil Muhaiyar and S. Saravanan represented Suhardi.

Meanwhile, Suhardi shed tears of joy after being freed of the charge, saying that the first thing he wanted to do was to go home and see his five children and his mother, who had taken care of them in his absence.

"It is time for me to pick up the pieces of my life and move on.