A teen and his brother-in-law were acquitted of raping a teenaged girl, but convicted of filming the sex acts.
|||Durban - A teenage and his brother-in-law have been aquitted of the rape of a schoolgirl, in which the sexual acts were filmed on a cellphone and circulated, because of insufficient evidence.
Darren Mogany, 19, and Adish Deonarain, 26, were on Wednesday acquitted of two counts of rape by the Durban Magistrate’s Court.
Deonarain was cleared because witnesses corroborated his version of events: That he had not taken part, or filmed, the sexual activity.
Mogany was cleared of rape because testimony by a friend of the teenage girl had contradicted the complainant’s version of events.
However, magistrate Sharon Marks found Mogany guilty on three charges: creating, keeping and distribution of child pornography after he filmed the sexual acts on a cellphone, and sent it to other people.
He will be sentenced in June.
Deonarain and Mogany were aquitted of procuring a child for the production of child pornography.
Mogany and Deonarain had been accused of spiking a schoolgirl’s drink and raping her on July 30, 2010.
The video of the incident went viral on cellphone networks before the pair were arrested last year when the complainant, who is now 19, laid charges against them.
The incident had happened at Mogany’s home in Merebank after a group of teenagers had bunked school and indulged in alcohol and dagga.
Magistrate Marks said the court could not accept that the video had been “unwittingly” distributed as it was clear from the evidence that Mogany had showed it to others at the house that day.
“His utterance of the words that it was like ‘Phoenix 2’ (another sex video that had been sent around), him Bluetoothing it to others, shows that he had the intention to make the video,” she said.
In 2009, a five-minute-long cellphone video clip did the rounds among school pupils in the Phoenix area before being distributed via Bluetooth to countless cellphones throughout the province. That video showed a giggling 16-year-old girl naked on a bed while four boys in full school uniform appeared to have sex with her.
Marks said that Mogany had been evasive when some questions were put to him, “like why he inserted the beer bottle into the complainant’s vagina, why he had exposed her breasts if the video was meant to be a momento, and the reasons why he had made the video in the first place”.
On the decision to acquit Mogany and Deonarain on the rape charges, the court had considered the state of the complainant in the video, the magistrate said.
“She was passed out, so to speak, but what was pertinent about this evidence is that her eyes were closed through the whole recording, but when she testified she said she saw what happened,” Marks said.
The complainant had earlier testified that Mogany had given her something to drink and when she asked for a book that she had lent him, he took her upstairs to a bedroom.
“I was drowsy and I didn’t have any strength,” she had testified. “When I opened my eyes, I was naked on the bed and he was having intercourse with me.”
The teen claimed Deonarain appeared later, in a celebratory mood from passing his driver’s test, and he too had intercourse with her.
While drifting in and out of consciousness at the time, she had said she seen Mogany recording the incident and tried to push them away, but she was too weak.
Marks said the video corroborated the evidence relating to the other counts against Mogany – but not the rape charges against the two accused.
And although the complainant had testified, she said the court could not rely on single witness evidence.
Marks said the only evidence that the court could rely on that was factual, was the video.
“There is no corroborating evidence to implicate (Deonarain),” said Marks, when she acquitted the father of two of all charges.
Speaking to the Daily News outside court later, Deonarain said justice had been done and he could now finally live his life in peace.
“I had been wrongfully accused for so long,” he said. “It cost me a fortune to sort this whole thing out and it had put me in a situation where I couldn’t even take my children to visit their grandparents in Merebank.”
Deonarain said the trial had impacted on his life drastically and he would have not made it through without the support of his mother and wife.
“As much as this whole thing was horrific for me, imagine what my mother and wife were going through,” he said.
Neither the complainant nor her family were in court yesterday.
Daily News