Teen in 'living nightmare' of HIV rapist

An HIV-positive taxi driver found guilty of raping a young woman has been shunned and assaulted in prison, his lawyer says.

But the 18-year-old rape victim endured what a court was previously told was a "hellish living nightmare" learning of his HIV status and waiting for her own test results.

Abdirazak Yussuf Mussa, 56, wore two condoms each of the two times he raped her. She ultimately learned she was not infected.

In Wellington District Court yesterday a judge said the victim who has given evidence at two trials never wanted to be asked about the rapes again but Mussa's lawyer said an appeal against conviction was planned.

The lawyer, Donald Stevens, QC, said publicity about Mussa's HIV status meant most other prisoners avoided him in prison and he had been assaulted.

Judge Bruce Davidson imposed a nine-year jail term on Mussa on two charges of rape. Mussa has spent about one year in prison on the charges so could be considered for parole in two years.

Mussa was not on duty but had been in central Wellington collecting levies from other drivers when he agreed to drive the young woman home in the early hours of September 3, 2006. She was tired and affected by alcohol and said Mussa pestered her to have a drink with him. He stopped to buy alcohol and then drove her to his home despite her protests.

Judge Davidson said she was devastated to learn Mussa was HIV-positive and still had nightmares about the incident which had profoundly affected her physically, emotionally and psychologically. He read part of her victim impact statement saying it had changed her life forever.

But Dr Stevens said she was less than two minutes' walk from her home when Mussa stopped to buy alcohol and she could have left the taxi then or not have followed Mussa into his home.

Judge Davidson said the public should be able to rely on taxi drivers to take them home safely and Mussa's crimes were a significant breach of that trust.

He said he took two years from the sentence Mussa would otherwise have received because of "unusual personal circumstances".

Mussa had cried during the sentencing hearing, and Judge Davidson said he accepted Mussa, who is Somali, had a traumatic and ghastly early life before coming to New Zealand as a refugee.

Dr Stevens said Mussa had shared the care of his 18-year-old son, who died of a degenerative disease in 2005. His eight-year-old Down syndrome daughter was greatly distressed without him.

He said Mussa had worked hard for the Somali community whose members sent a petition to the court saying they could not reconcile themselves to the jury's verdict.

FLAWS LED TO RETRIAL

A prosecutor's "misconduct" allowed Abdirazak Mussa a second chance to defend himself on rape charges, it can now be revealed.

In a decision last year that was suppressed until the retrial was over, the Court of Appeal said the prosecutor's final address to the first jury during the first trial in October 2007 was emotive and personalised.

The court ruled that emotive language emphasising Mussa's alleged lies, and the prosecutor's references to why Mussa might use two condoms during sex, combined to raise the real risk of a miscarriage of justice.

The prosecutor suggested Mussa might have used two condoms because he was "very forensically aware". Mussa, who is HIV-positive, told police he used two for safety.

The first jury was not told Mussa was HIV-positive. The Court of Appeal said that having agreed not to call evidence of his infection, the Crown should not have suggested a contrary reason for using two condoms when the defence could not effectively back up Mussa's stated reason of using two for "safety's sake".

The prosecutor was also criticised for "personalising" the issues and repeatedly using the victim's first name instead of calling her "the complainant".

He had also spent four pages out of a 22-page address talking about Mussa's "whopping" lies.

At the first trial, Mussa was found guilty of abducting the young woman and raping her twice. He was sentenced to 11 years in jail.

He successfully appealed against his convictions in August 2008 and a retrial was ordered.

Last month a jury who was told he was HIV-positive found him guilty of the rapes but not guilty of abduction.