Tuesday, December 20, 2011

Former Teacher’s Appeal Against Conviction & Sentence For Rape Dismissed



KOTA KINABALU: A former teacher of a special education primary school in Tuaran lost his appeal against conviction and sentence at the High Court here yesterday for raping his student nine years ago.

Justice Datuk David Wong Dak Wah upheld Shahmirul Salleh’s conviction and sentence of 18 years’ jail plus 12 whippings yesterday, as he held that the Sessions Court judge had correctly said that the offence requires proof of two ingredients, which were the identity of the appellant (Shahmirul) and the penetration of the appellant’s penis into the vagina of the prosecution witness (who was also the rape victim).

In his reserved judgment, Wong further held that in respect of the identity of the appellant, he found that the trial judge was fully entitled to say that there was no doubt as to the appellant’s identity as there was no dispute that Shahmirul was staying at the flat where the rape took place and apart from that, PW10 had directly identified Shahmirul.

“As for the issue of penetration, counsel Hamid Ismail for Shahmirul, attacked the finding of the learned Sessions Court judge on the ground that she did not fully appreciate that penetration by Shahmirul was not possible based on the evidence of PW10 when she testified that her tight shorts and panty were at her thigh level,” ruled Wong, in dismissing the appeal.

Wong also said, in the trial judge’s grounds, she accepted the explanation of PW10 in that she was wearing her mother’s panty which was loose and did not create an impediment for penetration.

“In determining whether the learned Sessions Court judge was correct, I asked myself whether or not her decision was one which no reasonable tribunal could arrive at, and if the answer is in the affirmative, her decision must be overturned,” he pointed out.

“One must not forget that PW10 was merely 14 years old and the appellant was 20 years older than her, which gives rise to the natural and reasonable inference that PW10 could be physically overcome by the appellant’s strength.”
Wong said, “PW10 had testified that the appellants legs were between her legs when he was on top of her.

With that position, penetration in my view was possible as the panty PW10 was wearing, could and would have been stretched.”

“Again the size and strength of the appellant’s legs would have separated the legs of PW10.

For this reason, PW10 was able to testify and demonstrated that to the court with a doll as what happened on that day,” said the judge, adding that in his view, the medical report of the doctor (PW9) provided corroboration of the rape in that it stated that there was an old tear to PW10’s hymen which could be caused by intercourse in the manner described by PW10.

On Nov 30, 2006, the Sessions Court here sentenced Shahmirul, 39, to 18 years’ imprisonment and ordered him to be given 12 strokes of the cane after finding him guilty of raping his 14-year-old mute and deaf student in a room at a teachers’ flat in Tuaran between May 1 and 31, 2003.

The offence was framed under Section 376 of the Penal Code which is punishable by a maximum jail of 20 years and also liable to whipping, upon conviction.

Wong further said another factor which gave credibility to PW10’s version was the fact that she did not lodge the report straight after the incident as it was her intention to frame the appellant for scolding her for playing with the appellant’s computer.

“Hence, it is not entirely correct to say that the learned Sessions Court judge had relied entirely on the demeanour of PW10 in arriving at her decision, though the trial judge was fully entitled to, if and which indeed she had in warning herself in accepting the evidence of PW10 without corroboration.

“Accordingly, I decline to interfere and I affirm the sentence imposed by the Sessions Court here, and therefore the appeal is dismissed,” Wong held.

Counsel Mary Lee held a watching brief for Sabah Society for the Deaf, the Malaysia Coalition and the Prevention of Child Abuse and the Sabah Women Action Resource Group (Sawo).

- The Borneo Post

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