Three Gozitan men were today found not guilty of gang-raping a woman after a court declared that evidence showed this had been "a consensual act between adults”.
The alleged gang-rape took place in a construction site in Qala in the early hours of November 19, 2008.
Paul Xerri, 54, of Xagħra, Mark Cutajar, 39, of Nadur, and Aaron Camilleri, 36, of Nadur were accused of having been involved in the violent indecent assault against the woman whom they allegedly held against her will in an act which also offended public morals. Mr Cutajar alone was accused of the rape while the other two accused were charged as accomplices in the crime.
The versions of the three accused were consistent throughout, from the moment they testified shortly after their arrest up to their testimony in open court, the court observed. These men always gave "the same version of facts in all their details”.
Mr Cutajar had testified that it was the victim who had invited him to have sex, pulling him towards her and later even suggesting to be taken to his apartment. This version of events was corroborated by Mr Xerri who noted that what had taken place was totally consensual.
Mr Camilleri had also testified that the alleged victim had actually led him on, even taking off her clothes. The man had explained how he felt cheated because the woman had fooled him and as a result of her action he had wasted nine years of his life in court.
The court, presided by magistrate Joseph Mifsud, noted that the victim had recalled the earlier part of the evening preceding the alleged rape in great detail, saying that she had been drinking at a bar in Nadur and had argued with her friend who wanted to go back home to her boyfriend. The victim had decided to stay on after one of the accused had allegedly offered her a lift back home.
However, the victim could hardly remember anything of what had happened as the evening progressed, changing her version several times. "I can't remember exactly how it happened... My memory has gone blank," the woman had testified.
The court observed that both the forensic expert as well as the casualty doctor who had examined the woman in hospital had concluded that the victim bore light scratches and that her clothes showed no signs of a physical assault.
The doctor had noted that the victim smelt of alcohol but was alert. The forensic expert had excluded the use of violence upon the victim who first indicated one of the accused as her aggressor but later seemed to forget all about him.
The court concluded that the evidence showed that this was "a consensual act between adults". The alleged victim was not a minor and could have stopped or called for help rather than go along with the co-accused.
Moreover, the matter had come to light after the victim had created a scene outside her friend's house and the police had been called in by the friend's boyfriend.
The court observed that although 31 witnesses had been called to testify, the prosecution had failed to summon the investigating officer to the witness stand.
The prosecution had also neglected its responsibilities by not presenting the statements released by the co-accused, even though the court had requested these declarations to be exhibited.
The court remarked that the prosecution owed its duty not only towards the victim and the accused but also towards society at large. In this case, court expert expenses amounted to €6,056 and these had to be forked out by the state, the court observed.
Inspector Josric Mifsud prosecuted. Lawyers Stephen Tonna Lowell, Kathleen Grima and Deborah Mercieca were defence counsel.