Father's conviction for rape overturned

PUBLISHED : Saturday, 28 November, 1998, 12:00am
UPDATED : Saturday, 28 November, 1998, 12:00am

A stepfather jailed for twice raping a nine-year-old girl yesterday became the first prisoner to have his convictions overturned by the Court of Final Appeal.

The historic decision followed claims by his barrister, Gerard McCoy, SC, that the girl, who was 17 at the time of the trial, had been 26 days too old to give evidence by television link.

Chief Justice Andrew Li Kwok-nang said the appeal was allowed unanimously after a two-day legal battle.

The restaurant worker, 39, who has spent 18 months behind bars, walked free from the dock and straight into the arms of his wife, who wept with joy.

He had been jailed for 6.5 years in April last year after a jury convicted him on two charges of raping his stepdaughter during 1989.

During the trial she had given the first part of her evidence by way of a video played to the court.

Mr McCoy said that this was legal because video evidence could be used in such cases so long as the victim was under the age of 18.

But the stepdaughter had been questioned by defence counsel while using a television link, which meant she did not have to endure the trauma of testifying in court.

The age limit for witnesses using the link is 17 and she was 26 days too old at the time this was allowed, Mr McCoy said.

Mr McCoy also argued that the convictions should be quashed because his client faced two charges of rape, but the girl had claimed in court that it happened 10 times.

He challenged the concept of 'sample charges', where a defendant faces a set number of allegations which are said to represent many more similar crimes.

It was unfair that the stepfather did not know precisely which of the girl's allegations he was being convicted of or the circumstances in which they were alleged to have occurred.

Tony Schapel, for the Government, had resisted the appeal.

He argued that the television link laws should be interpreted in such a way as to enable the girl to use the system.

Mr Schapel also supported the use of sample charges.

The girl had claimed that her stepfather raped her during the 1989 school holidays while her mother was absent.

The case was not reported to the police until the girl was 16.

Mr Justice Li, Mr Justice Henry Litton, Mr Justice Charles Ching, Mr Justice Kemal Bokhary and Sir Anthony Mason will give their reasons for allowing the appeal at a later date.