BANDAR SERI BEGAWAN

THE Court of Appeal recently dismissed a prosecution’s appeal to overturn an acquittal for a man accused of raping and outraging the modesty of his daughter.

The defendant, SHS, whose name shall remain anonymous to protect his identity, was accused of two counts of outraging modesty, one count of rape and one count of attempted rape of 14-year-old Miss X over a period of several months in 2013. In a ruling by the presiding Intermediate court judge for the case delivered on June 9 and November 5, the court acquitted the defendant as the prosecution had failed to lead sufficient evidence on each of the charges for the court to be able to make findings of guilt beyond reasonable doubt.

The Intermediate Court Judge said that Miss X’s evidence was too scant for the court to say that there could even have been attempted rape and that it was not sufficiently explained how penetration failed, if it was attempted at all.

On the outraging of modesty, the judge acquitted the defendant because she considered Miss X’s evidence to be unreliable as she gave inconsistent evidence. The prosecution submitted that the acquittal should be set aside stating that it is unsafe or unsatisfactory; it was a wrong decision on any question of law; and that there was a material irregularity in the course of the trial. In the Court of Appeal verdict, Justice John Barry Mortimer said that it is a serious error for appellate courts to try to assess witnesses from a record of their evidence when they have not seen and heard them give it as the Intermediate Court judge had a unique advantage over anyone reading the transcript evidence after having seen and heard the witnesses for both the prosecution and the defence. “Although reading of parts of the evidence given by the girl may seem compelling in spite of the inconsistencies and lack of detail, we cannot and must not assess her evidence in the absence of the judge being plainly wrong. This is not the position here,” said the court. The court said that in spite of the judge’s serious error of law at the outset of her extempore reasons for acquittal and her failure to explain that error or summarise its true effect, the judge plainly stated when she acquitted on June 9, that she found that the prosecution had failed to prove the case beyond reasonable doubt on all the charges. Justice Mortimer went on to say that although some of the points she made on November 5, appear to be strained, “they are basically sound”. “Whereas we have considerable sympathy for some of the prosecutor’s submissions in the result, we are driven to dismiss the appeal. The public prosecutor’s appeal against the acquittal is dismissed,” said the judge.

The Brunei Times