The prosecution into the controversial Bunya Jalong case may not be able to review the acquittal, and the full written judgment by the Court of Appeal may show the reason for this.

Justice Abdul Wahab Patail, who wrote the unanimous decision resulting in the acquittal noted that Dr Nurulhuda Samsudin, an obstetrics and gynaecology specialist testified at the prosecution's case that fertilisation of the ova by introduction of fresh semen through fingers, was possible.

“No steps were taken (by the prosecution) to call a more experienced doctor to give evidence to explain away the testimony of this doctor.

“There is no excuse on the record for not obtaining expert evidence that could be called to counter it. The court is left with one inference, that the prosecution accepted the confirmation by Dr Nurulhuda and the result must follow,” the judge wrote in his 61-page judgement sighted by Malaysiakini .

Justice Wahab along with justices Linton Albert and Zakaria Sam acquitted Bunya, despite DNA evidence that a child born to the then 15-year-old victim in 2011 was fathered by the accused.

Bunya was convicted by the Sessions Court and High Court in Sibu on four counts of raping the victim in the months of May, June, July and August 2011 and was initially sentenced to a total 15 years' jail.

‘No sexual intercourse' claimed

During Bunya's testimony when defence was called, the accused claimed that he did not have sexual intercourse with the girl on those occasions claiming there were no penile penetration, and that the penetration was done by the girl's and his fingers following revelation that semen from the accused was found in the victim.

The accused said the alleged victim had asked for sexual intercourse with him but although he had touched her vagina, he did not have intercourse because her vagina was too small.

“PW4 (the victim) held my organ until I ejaculated. My hand or finger had semen after the ejaculation,” he said adding that he continued to touch the victim's vagina and she touched his semen and they both inserted their fingers into her vagina.

On cross-examination, and when asked by the prosecutor that DNA evidence showed that Bunya had fathered the child, the accused disagreed maintaining he had not engaged in sexual intercourse with her.

In light of the conclusiveness of the DNA evidence that he was the biological father, justice Wahab wrote it can only be concluded that it was the answer of an ordinary person who did not expect that use of fingers could result in fertilisation and conception.

The court further noted that the police report on the matter was only done by the girl's father, and not the girl following the birth of the victim's child.

‘Reasonable doubt raised’

Justice Wahab also wrote in the judgment that the trial judge had failed to record the victim's demeanour in the decision, although the Sessions judge had the audio-visual advantage.

“In the circumstances, the finding as to the credibility of the victim based upon demeanour from the audio-visual advantage of the trial judge is flawed and unsafe,” the Court of Appeal ruled.

Upon a maximum evaluation of the whole of the evidence before that court, justice Wahab wrote the introduction or delivery of semen by fingers was no longer considered “but not in the least probable”, but became a reasonable doubt because of the testimony of PW8 (Dr Nurulhuda).

“There was the testimony of Bunya, properly having been laid out in cross-examination of the medical officers, that fingers had been so used. The confirmation by the gynaecologist made the challenged but unshaken testimony of the accused just at the very least bit probable as to raise a reasonable doubt.

“The sole basis that gave rise to a reasonable doubt has nothing to do with belief in Bunya's version but that the gynaecologist’s testimony that the accused’s version was possible,” said the judge.

‘Review definition of rape’

In ending the verdict and granting the acquittal, justice Wahab wrote on the possibility of reviewing the existing laws in defining rape.

“Finally, rape is even more of an outrage if it results in conception. Causing conception on a woman without her consent, or a minor who cannot consent, is an assault no less than rape resulting in conception.

“As we mentioned orally during submissions, steps ought to be taken quickly to add to the definition of rape,” he said, adding the court did not think it is appropriate to consider convicting Bunya to lesser charges such as indecent assault as the prosecutor did not offer such alternative charges.

The case sparked uproar both at home and abroad, and it was reported that international organisation Unicef was disturbed by the acquittal.

There was also a protest on June 7 over the acquittal, urging an expansion of rape laws.

Full written judgment