Sabah Lawyers In Uproar Over ‘DNAA’ In Child Sex Offence Case

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COMMENT: The Sabah Law Society’s [“SLS”] Human Rights and Women and Children’s’ Rights Subcommittees are alarmed with the content of an article appearing in a local Newspaper on the 4th October 2019 where it was reported that an accused man, having being charged under the Sexual Offences Act Against Children Act 2017 was granted a “Discharge Not Amounting to an Acquittal” [“DNAA”] by the court as the complainant mother had withdrew her report against the man and the Prosecution received instructions to withdraw the same.

Strictly speaking a police report cannot be withdrawn by a complainant and a complainant may merely make a written application so that no action is taken against the report lodged. The final decision is vested in the Public Prosecutor and the the power to allow or reject the application should be made based on the facts and circumstances of each case.

The SLS states that although it is ultimately up to the Public Prosecutor to determine whether to proceed with the prosecution of the accused, the decision not to continue to prosecute must be exercised with great caution. If an offence has been committed, the withdrawing of a report cannot take away the offence.

The victim of the alleged offence in this matter is underaged and therefore it is her interest that is of paramount consideration in this matter and not that of the complainant. The decision not to prosecute at this juncture only creates speculation amongst the public at large as to why the trial or charge against the accused did not proceed.

Where there are such concerns, an avenue may be available for the High Court to exercise its powers of revision to enquire as to why a DNAA was recorded.

The SLS does recognise it is not aware of the full facts and circumstances surrounding this matter.

However, wherever an alleged offence and especially one of this nature has been allegedly committed, the SLS would strongly urge the Public Prosecutor to fully and thoroughly investigate the rationale for the intended “withdrawal” before allowing a DNAA to be recorded against the accused.

The Public Prosecutor must be vigilant in this respect before deciding not to proceed with the prosecution of the accused.

It is to be noted that a recording of a DNAA against the accused does not mean that the matter has come to an end, as it is not a complete acquittal. The accused can be recharged if new evidence surfaces and the Public Prosecutor decides to proceed with the prosecution.

When making a police report one must be absolutely certain of the facts and evidence. If it is discovered that a false report was made, there are severe penalties.

Under section 177 of the Penal Code it is an offence to “Furnish False Evidence” and under section 203 of the Penal Code it is also an offence to “Give False Information in respect of an Offence Committed”.

Both these offences are punishable with imprisonment of up to two years or a fine or with both. This only re-emphasises the necessity to identify the cogent and valid reasons why a complainant does not wish to have any further action against an accused if the initial report was genuine.

If there are none, the prosecution should and ought to continue. Based on the reporting of this case, the welfare department would also be entitled to initiate their own investigation on the mother who reported and thereafter withdrew the same.

*This statement was jointly issued by: Dominic Ghani and Michelle Usman Co-Chairpersons of the Human Rights Subcommittee, Sabah Law Society as well as Datin Mary Gomez, Chairperson of the Women and Children’s’ Rights Subcommittee, Sabah Law Society