Pendakwa Raya v RAHNI BIN MAT SUDIN

Case Significance

Illustrates that a conviction for incest under section 376B of the Penal Code may be sustained without a virility test where other evidence establishes the accused's capacity, and that reliably dated digital evidence should not be excluded merely because some files bear later metadata.

This High Court decision at Taiping concerns a prosecution appeal against acquittal on a charge under seksyen 376B Kanun Keseksaan (section 376B of the Penal Code) — incest. This charge, the second of three heard together against the same accused, alleged an act of incest on 24 July 2019 at a house in Kerian, Perak; the complainant in all three charges was the same girl, aged 13 at the time. The accused had claimed trial. The Sessions Court found a prima facie case at the close of the prosecution case and called for a defence, but ultimately acquitted the accused on all three charges, holding that the defence had raised a reasonable doubt, and the prosecution appealed.

The appeal turned in part on whether a virility or potency test of the accused was necessary and, if none was done, whether its absence weakened the prosecution case where other evidence indicated that the accused was capable of sexual intercourse. The High Court also reconsidered the Sessions Court's rejection of pornographic images and videos found on the accused's mobile telephone. The Sessions Court had disregarded that material because certain files carried modification dates after the phone was seized on 1 August 2021; the High Court held this to be plainly wrong, as many images bore dates before the seizure, and any later dates could have been explained scientifically had the analysing police officer been questioned.

The High Court set aside the acquittal, found the accused guilty and convicted him on all three charges, imposing 10 years' imprisonment on each, to run concurrently and taking into account the remand period served. The judgment illustrates that a conviction for incest may be sustained without a virility test where other evidence establishes capacity, and that reliably dated digital evidence should not be excluded on account of some later metadata.