PUTRAJAYA, 23 Jan 2009: The testimony of a child rape victim in court cannot implicate an accused person in the crime unless it is supported by independent evidence, the Court of Appeal here ruled today.
The panel of three judges held that the evidence by a child of tender years must be corroborated by material evidence to distinguish between facts and fantasy which might be crafted by the child.
Appeals Court President Tan Sri Zaki Tun Azmi (now Chief Justice) together with Appeals Court Judges Datuk James Foong and Datuk KN Segara unanimously decided to allow the appeal by a mini market supervisor against the conviction and sentence of 15 years’ jail and five strokes of the cane for raping a five-year-old girl.
The girl at that time was under the charge of his wife at her day nursery.
In setting aside the conviction and sentence, Justice Foong said the evidence given by the girl’s family, investigating officer and the child psychiatrist were not sufficient to support her (the child) testimony as it was made based on what the girl had told them.
“The prosecution had failed to prove beyond reasonable doubt that the accused raped the victim. Defence should have not been called. We allowed the appeal and set aside the conviction and sentence imposed,” he said.
Mohamed Yusof Rahmat, 38, was found guilty by the Shah Alam Sessions Court of raping the girl at the day nursery in Taman Greenwood, Gombak, between 8am and 5pm on 25 Dec 2001 and 14 Jan 2002.
During the trial, the girl testified against Mohamed Yusof through video conferencing.
Judge Suraya Othman in her judgment said the girl had unhesitatingly identified Mohamed Yusof as the person who committed the offence.
She also said that the court had been cautious so as not to convict a person based on the unsworn evidence of a child, who was then six years old.
However, she said, the girl’s evidence was corroborated by the evidence of medical experts and family members.
Mohamed Yusof was represented by counsel Mohamed Hanipa Maidin while DPP V Shoba appeared for the prosecution. — Bernama
