PUTRAJAYA, 23 Jan 2009: A gardener who was sentenced to 20 years’ jail for allegedly raping his daughter was freed by the Appeals Court here today after it ruled that his joint trial for the two rape charges in the Sessions Court was null and void.
The panel, comprising Appeals Court President Tan Sri Zaki Tun Azmi (now Chief Justice) and Appeals Court Judges Datuk James Foong and KN Segara unanimously allowed the gardener’s appeal and set aside the conviction and sentence on both charges imposed by the Sessions Court.
The court held that the two alleged offences, one occurring in October 1992 and the second in 1995, were not committed within the space of 12 months, and therefore could not be tried jointly under Section 164 of the Criminal Procedure Code (CPC).
“We wish to observe that rape is not a continuing offence but a single act of unlawful sexual intercourse. When a charge prejudices the accused to a fair trial by not being able to legitimately raise a defence of alibi, that charge must be deemed defective,” said Justice Segara in his written judgment.
He said the appellant (name withheld) ought to have been tried separately on the two charges and the failure had resulted in an illegality.
“On the face of the two charges, the two offences could have occurred up to three years apart. There is clear absence of proximity of time between the two offences for continuity of action and purpose, to render the acts to have been done in one series so connected together as to form the same transaction.
“We are of the view that this is obviously not a case in which the two charges can be tried together in one trial which is sanctioned by the law. The two charges do not fall within Section 165(1) of the CPC,” he said.
The gardener, 67, was charged with raping his daughter, 13 (at that time), in their house in Kampung Tasek Tambahan, Ampang, Selangor, at 12.30pm in October 1992 and between 1992 and 1995 at the same place.
He was convicted by the Sessions Court, Ampang and sentenced to 20 years’ imprisonment to run consecutively for both charges.
The High Court dismissed his appeal against the conviction, but allowed the appeal against sentence and ordered the jail term to run concurrently. However, the order was also set aside by the Appeals Court today.
No order for a re-trial was made, but the Public Prosecutor was at the liberty to exercise his discretion to charge the appellant afresh, the court said.
The appellant was represented by counsel Karpal Singh while DPP K Mangai appeared for the prosecution.— Bernama
