Update from Bernama.com
January 30, 2004 17:35 PM
KOTA KINABALU, Jan 30 (Bernama) -- Two General Operations Force (GOF) personnel charged with raping a 13-year-old girl at a temporary immigration detention centre in Menggatal near here two years ago were acquitted and discharged by the Sessions Court here Friday without their defence being called.
In acquitting them, judge Datuk Nurchaya Arshad said she found that the prosecution had failed to establish a prima facie case against the two men, Mohamed Fauzee Yahya, 34, and Ahmad Nazri Zainurrdin, 33, both of Perak.
Mohamed Fauzee was charged with raping the girl at Block G of the centre between July 27 and Aug 12 2002 while Ahmad Nazri was charged with committing the offence at the same venue between July 27 and Aug 16 2002.
Nurchaya said the prosecution failed to establish that the alleged incident had indeed taken place with or without the consent of the victim.
"There were no signs that the victim had put up a struggle during the alleged incident as prosecution witness Dr Soon Ruey did not find any external injuries to the victim's private parts and no examination was conducted to find any injuries to the accused persons.
"There was no evidence introduced by the prosecution that the victim had shown signs or behaviour immediately after the alleged incident which was consistent with her being forced against her will," she said.
Nurchaya said there was also a long delay between the time of the alleged incident and the time of the victim's complaint which was made for the first time in the Philippines where she was mistakenly deported along with other Filipinos.
"The victim has alleged that the incident took place in full view of the other guards as the room door was left open.
"The prosecution has however chosen not to call any of the other guards to corroborate this story and I am in a real state of doubt as to whether the incident has occurred as alleged," she said.
Nurchaya also said that she had doubt concerning the issue of the victim suffering from gonorrhoea and whether the prosecution had proven that the GOF men had sexual intercourse with her when there was no evidence that they had contracted the disease. On the issue of identification of the GOF men, Nurchaya said there was a doubt from the testimony of two investigating officers as to whether the girl did in fact gave a description of the men before their photographs were shown to her.
"Even if the identification parade (IP) was conducted in a fair and proper manner, its evidential value was weakened from the fact that the victim was shown the photographs of the accused persons while she was in the Philippines and again before the second IP was conducted," she said.
The prosecution had also failed to establish that the girl was under 16 years' old during the alleged incident.
Although documents were tendered to prove she was under 16, her father as well as investigating officers had created doubts when they were unable to rule out the possibility that it might belong or refer to some person other than the girl, said Nurchaya.