Public Prosecutor v. Abdul Rahman Mohamad [2005] 1 CLJ 700

Court of Appeal (Putrajaya)

Rape

2.     She met the Respondent based on her father’s recommendation and persuasion. The Victim had stayed at the Respondent’s house throughout the whole period of treatment together with the Respondent’s wife and children since she stayed far away from her parents.

3.     The therapy session was alleged to have started with the recitation of quranic verse and incantation in the name of Allah or players before proceeding with the sexual intercourse.

4.     The prosecution added that according to the Respondent, the sexual intercourse was a will of God and failure to abide by it would make her become insane or die.

5.     The fact that the Respondent’s wife had requested her to follow the instructions since he had treated numerous girls when they used to live in Pahang, strengthened the victim’s faith.

6.     The wife also informed her that the Respondent was a holy man, also known as a Wali, rather than a typical bomoh.

7.     She only realised she had been duped when she did not menstruate and, after confiding in her mother and consulting a doctor, discovered she was pregnant.

8.     On 1 November 1993, a police report was filed, followed by a medical examination by SP2, which confirmed that she was 21 weeks pregnant.

9.     During his defence, the Respondent denied that the Victim stayed at his house to seek treatment, but rather because her house was far away and she needed to be closer to her workplace.

10.  He claimed that they had been friends for three months and that she was fully aware of and consented to the sexual encounter.

11.  The problem arose when he broke his promise to marry her and claimed that the child in the victim’s womb was not his because she had a boyfriend before him.

12.  At the conclusion of the trial, the Session Court found the respondent guilty, convicted, and sentenced him to eight years in prison with eight whipping strokes.

13.  However, the decision was overturned by the High Court on the grounds that the Victim had consented to the sexual intercourse, and thus he was discharged and acquitted.

2.     Whether the Respondent act amounted to rape?

(a)  Since both issues are interrelated with each other, hence the appeal court deliberated of both issues together.

(b)  The Appellant contended that there was no consent given by the Victim / SP6 to the sexual intercourse and event if there was consent, it was only given for the treatment to cure her ailment.

(c) Furthermore, the Appellant cited the decision of the English Court of Appeal in Thomas Patrick Malone [1998] 2 Cr. App. R 447 that the absence of consent does not need to be demonstrated or communicated to the Defendant for the actus reus of rape to exist, and the prosecution also does not need to prove that the Victim said no or put up physical resistance.

(d)  All they have to do is to submit evidence that illustrates the lack of consent, like what they had done in the present case.

(e)  Another argument advanced by the Appellant was that the Victim consented to the sexual act in the mistaken belief that it was part of the treatment rather than actual/true consent to have sex with the Respondent.

(f)  The Appellant cited the case of R v Olugbojaa [1982] 1 QB 320, in which the Court of Appeal dismissed the Defendant’s appeal despite the fact that the Victim did not scream or struggle and had consented to sexual intercourse without the Defendant having to use force or threaten violence.

(g)  In this case, the Victim was tricked into entering his house by the Respondent after being raped by a man. At that time, she was being kept against her will and since she was scared, she submitted to have sex without the presence of any force or threat, with the Respondent who has been having the determination to do such act with her.

(h)  The Court found that the jury must focus on the Victim’s mental state immediately before the sexual intercourse, after examining the relevant circumstances, particularly the events preceding the act and her reaction to them, demonstrating their impact on her mind.

(i)   The Court also added that whether the Victim in the present case had consented to the sexual intercourse is a question of fact and must be determined through the evidence adduced in the trial.

(j)    The Court after reading the grounds of judgement made by the Session Court judge found that she was justified in accepting the evidence given by the Victim since she found the Victim to be truthful, consistent and unshaken during the extreme cross-examination.

(k)  The Appeal Court found more than enough evidence to show that the Victim did the sexual intercourse with the Respondent under the misconception of fact for the following reasons:

(i)  She genuinely believed that she was being treated or was undergoing medical treatment by a famous bomoh and that if she refused such treatment, ‘bala’ in the form of disaster, death, or insanity would come for her.

(ii) It was not a single incident, but several over the course of two months, during which she was asked to say prayers, recite incantations, and endure elaborate procedures and strange occurrences that reinforced her belief in the Respondent’s claim that the sexual act was a revelation and will from Allah.

(iii) The Respondent’s wife claimed the same thing above.

(iv) There was a time where the Victim ran back home but when that happened, her own parents persuaded her to go back and finish the treatment.

(v) The Victim also believed that she was unwanted by her parents and she therefore must be cleansed by the Respondent.

(l)     In addition to that, the Respondent was also inconsistent when he was testifying. The Court found that the High Court’s decision was unjustified and unsustainable and that it must be overturned because it would be absurd to say that the Victim consented to the Respondent’s repeated sexual assaults when her mind was clouded, confused, and she lacked of free will.

(m) According to Section 375(b) of the Penal Code (Act 574), a man is deemed to commit rape if he has sexual intercourse with a woman without her consent, and consent is not valid if the person was giving it under the fear of injury, or under a misconception of facts, or if the consent was given as a result of such fear or misconception.

(n)  The Court then referred to the case of R v Flattery [1877] QBD 410 which upheld the conviction of a rape when the victim said that she submitted to carnal connection with the belief that it was part of a surgery to treat her sickness.

(o) According to the court, this belief was fraudulently induced by the prisoner and did not constitute consent.

(p) Just like in the case of R v Flattery above, there was nothing in the case that shows the victim had consented in fact or in law.

(q) The Court in this case held that the Respondent had fraudulently induced her since he knew that she would never submit herself if it was not because of the persuasion, threat, deceit and false rituals to convince her to submit.

(r)   The trial judge was correct in finding that the Victim was not in a voluntary and conscious state of mind when she allowed the Respondent to take her person’s liberty despite her act of obedience and submission.

(s)  It was also the decision of the Court that consent must necessarily imply submission, but that submission does not imply consent because submission can be obtained through fear, force, threat, inducement, or deception. In this case, it was undoubtedly the result of inducement and deception.

(t)  Hence, the High Court judge has misdirected himself by acquitting the Respondent.

2.      In order to establish the element of consent to sexual intercourse, the judge must rule on the evidence presented at trial.

3.      To conclude, consent to sexual intercourse is a factual question that is heavily reliant on the credibility of witnesses.