A man, forgiven by the woman he had raped, has had his jail term converted to a probation order after the court of appeal held that there was insufficient evidence to prove the unlawful arrest.
Omar Pisani, 35, had been charged with multiple offences including rape, unlawfully holding his victim against her will, violent indecent assault, offending public morals and harassment. A married woman reported that she had been raped by the accused inside his car.
The incident had taken place on April 2, 2012 when the woman was walking towards the Casino along the Vittoriosa front. She had suddenly sensed the accused’s car approaching.
The two had known each other for quite a while having been involved in an intimate affair and had even exchanged text messages earlier that day.
Although the woman had first crouched behind some parked vehicles to avoid meeting Mr Pisani, she had subsequently answered a call from a private number, believed to be from her daughter, only to find the man she was fleeing on the other end.
Shortly after, the man himself, in a visibly drunken state, had walked up to the woman insisting on having sex.
After trying to shrug him off, the woman had suggested sharing a cigarette and got into his car, too scared to get away, even when he stopped at a grocery store in Kalkara to purchase a bottle of wine.
Upon reaching a desolate spot close to the Xgħajra tower, the man beat her, tied her hands and forced her to have sex, the woman later telling the police she had finally relented, accepted several glasses of wine and engaged in sex three more times.
It was four days later that she filed a police report, meanwhile continuing to text her alleged aggressor.
During criminal proceedings, the victim forgave her attacker and withdrew her complaint, with the prosecution pressing forward with their case since the acts were against public morals and could be prosecuted ex ufficio by the police.
The accused was found guilty in June 2015 and was handed an effective jail term of three years five months.
Upon appeal, defence lawyer Franco Debono argued that the first court ought to have abstained from ruling on the rape charge once the victim had withdrawn her complaint.
Moreover, all the evidence indicated that the victim had not been held against her will, which meant that the man could never have been found guilty of unlawful arrest.
The court of appeal, presided over by Mr Justice Antonio Mizzi, observed that the first court had failed to take into consideration the victim’s forgiveness and withdrawal of her complaint when handing down judgment.
As for the charge of unlawful arrest, the court declared that after closely studying the records of the case, “it is of the opinion that there was no unlawful arrest.”
Rather, the scenario that emerged appeared to indicate that the woman had “wanted the appellant to find her,” the court observed, pointing out that the victim had offered no resistance to go with the man in his car.
Nor had she seized a later opportunity to get away. “Yet again she did nothing,” the court remarked.
For this reason, the accused was to be acquitted of the accusation regarding the unlawful arrest.
The court, however, confirmed the conviction regarding the offence against public decency or morals, reducing the punishment to a three-year Probation Order.
Lawyer Franco Debono was defence counsel.
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