Liom on why Bunya Jalong was acquitted by the Court of Appeal

Augustine Liom explains why Bunya Jalong was acquitted

After so much furore, I feel compelled to emerge out of reticence to make some clarifications and to present a more balanced picture relating to the case, particularly, when the Honourable and learned panel of Judges of the Court of Appeal are in no position to go out to the open to explain their decision.

In fairness to them, they did, before pronouncing their verdict and after a lengthy deliberation, expressed, in the hearing of all those in Open Court, that they found the case very disturbing that a young girl got pregnant through a non-sexual intercourse activity but our law being such that sexual intercourse means only penile penetration their hands are tied and they could only leave it to the legislators to effect any amendment to the law if deemed necessary.

Augustine Liom  defence counsel for Bunya Jalong, says the Court of Appeal pronounced the verdict after a lengthy deliberation

As to a possible conviction on a reduced charge of what some call “indecent  assault” or outraging of modesty, the Court did scrutinize the Appeal Record and found in it the alleged victim had been cross-examined on the incident at the YMCA Resort which may constitute the outraging of modesty but she had denied the incident and disagreed to the questions put to her relating to it.

Once the alleged victim herself denied that the incident ever took place, then there would be no evidence to base any conviction for outraging of modesty because she has denied by sworn evidence the incident ever happened.

So even if there is to be a fresh prosecution for outraging of modesty, the alleged victim could not now turn around to say there was such incident when in that trial she had already denied.  She would be committing a perjury.

To take the accused’s story in defence to base a conviction on outraging modesty would also not be possible because the accused’s evidence unchallenged by the prosecution is that it was the alleged victim who initiated the incident inviting him to the YMCA toilet and stripping herself and the accused of his pants.  In other words she had consented.  If she had consented, her modesty could not have been outraged.  Indeed there was no modesty to speak of in the first place.

It is pertinent to state at the outset that the Solicitor – General has been reported  to say that his Chambers would not be asking for a review and that their office has accepted the decision of the Court of Appeal.  That would, in the circumstances, put the matter to rest.

Much of the concern that have been expressed seems to arise out of a basic assumption or perception that the girl is naïve and innocent and has spoken the whole truth and the accused a sexual predator who had taken advantage of her. That simply is not the case. 

Also it seems to be a general assumption that the Courts  below had come to a correct assessment of the credibility of the alleged victim when numerous indications in the case clearly show otherwise but the courts below have failed to subject her evidence to any critical scrutiny and pieces of evidence favourable to the accused were ignored and swept aside as of no significance.

First, no account was taken of the hotel register which would condemn the alleged victim’s story and which would support and corroborate the accused’s story that he had never been to the hotel. 

Regards being had to the normal course of a hotel business that guests are required (indeed by law) to be registered, then when they have not been and so registered, they are presumed to not have been to the hotel.  That presumption of law remained un-rebutted to the end because the prosecution has failed to call the inn-keeper to explain if there are circumstances or situations when guests are not required to be registered.  The gap in the prosecution case has not been closed. 

If the victim had been taken four times to the hotel, it is surprising she was unable to name the hotel to the police particularly when the hotel’s name was prominently displayed at its enterance. 

So it means that when she was taken on a patrol around Sibu town by the police, she had at random pointed to that hotel because a check later showed she had not been there at all.

If the Charges allege the incidents had happened specifically at  a particular hotel and if it is shown that they could not have happen there, the charges are not proved and the prosecution case crumbles and falls to the ground.

The lower Courts did not consider the effect of this because they had erroneously  construed to the detriment of the accused that defence was one of alibi when it never was.

Second, the alleged victim despite having been calmed down and put at ease by a medical social worker who was also professionally trained to elicit as much story out of her as possible, only told of an incident in August 2011. 

That story of the only incident in August 2011 persisted for quite a long time even when she was interviewed by the police.  It was only when it was discovered on a count backwards from her date of delivery that the incident in August 2011 could not have made her pregnant, that she came up with the story of the incidents in May, June and July.  She had not therefore been straight-forward but had concealed important matters about the case. 

Third, in order to explain why she had not told anybody nor reported the alleged rape until one month after she had delivered, she said she did not realize she had been pregnant because she continued to have her monthly menses until her delivery. 

But the O and G Specialist reported back that “It is not possible for a pregnant woman to have menses, unnoticable abdominal swelling nor unappreciable foetal movement.”

The alleged victim has therefore demonstrably lied.

Fourth, the Courts below gave no significance to and indeed ignored the O & G Specialists expert evidence  that for normal and fertile couple conception could occur if freshly ejaculated semen bearing spermatozoa is introduced to the vagina by the finger inserted. 

One of the Courts even said “Furthermore there simply is no evidence that they are a fertile couple”.   This was a shocking and erroneous statement because the clear and accepted evidence is that the girl bore a child belonging to the accused.  What more evidence is required that they are a fertile couple?

To cut matters short, the Court of Appeal has found that a reasonable doubt exists if  sexual intercourse had taken place.  That element of the offence has not been  proved beyond any reasonable doubt.

The Specialist Expert’s evidence would corroborate the accused’s story and the effect of this is that it would neutralize the corroborative effect of the DNA report because it means conception could also occur without sexual intercourse.  Once the effect of the DNA report is neutralized, there would be no corroborative evidence at all in the case.

Fifth, to the police, the alleged victim has said three incidents of rape case were  with her consent. They led to the three Charges being under Section 376(1) of the Penal Code and not under Section 376(2)(d). 

But in Court her evidence was that all four incidents happened in exactly the same manner of forced sexual intercourse against her will.  Her entire evidence and her credibility is then in doubt. She had either lied to the police or to the court or to both because there might have been no such incident at all.

Then there is evidence that the alleged victim’s family had demanded from the accused a sum of RM100,000.00 which the accused, besides being unable to afford, refused to pay as he said he did not commit the offence. 

That demand amounted to an extortion.  When it was clear the accused was not paying only then did they decide to lodge a report.   The alleged victim also admitted in evidence that she had accumulated unpaid fares to the accused amounting to a few hundred ringgit. 

The accused said she had frequently asked for small amounts of RM20.-  to RM30.- each time as her mother had not given her enough money  and on the day of the incident at YMCA Resort she had earlier  asked him to buy her a laptop and if he would do that she would be very happy.

What all these could mean is that being understandably too embarrassed to disclose the incident that had caused her pregnancy i.e. the incident at the YMCA Resort toilet, she first told of an incident in August 2011 but when that still could not explain her pregnancy she created a story of sexual intercourse at a hotel but when checked the hotel register did not shown she and the accused had been to the hotel.

So, shocking as it may seem, we could just mistakenly underestimated the guile and craftiness of some of our present-day 15 years old. - May 14, 2015