The hearing of the Prosecution's appeal against a High Court’s decision to acquit a man of five sexual offence charges continued before the Court of Appeal in the afternoon of Wednesday (23 January).
This came after the Prosecution was allowed to bring in certain fresh evidence to support the appeal in February last year, where the Court of Appeal laid down important guidelines that apply whenever the Prosecution intended to introduce new evidence on appeal.
58-year-old Mohd Ariffan bin Mohd Hassan faced a total of five charges for offences of rape, digital penetration and outrage of modesty allegedly committed against his live-in lover's daughter between March 2009 and January 2011. There was another charge for an offence committed against the alleged victim's sister, which had been stood down.
In April 2017, Senior Judge Kan Ting Chiu cleared Mr Ariffan on all five charges, finding that the alleged victim’s account of sexual abuse was inconsistent with and contradicted the accounts of many other witnesses in various aspects.
In particular, the girl claimed that for a period of over two years, she was raped and molested by Mr Ariffan in the cabin of the prime mover, which was owned by Mr Ariffan’s employer. She also described the interior of the cabin as having curtains, and there was also a cloth or rag placed in it.
However, the employer, who was a witness for the Prosecution, testified that the interior of the cabin was filthy with oil stains and there were tools such as lashing gear and helmets in it, which would make sexual intercourse difficult without suspicion or detection.
The Prosecution's appeal was first heard together with the application to introduce fresh evidence in November 2017, where the Court of Appeal - comprising Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Judge of Appeal Judith Prakash - reserved judgment after hearing arguments on the application to introduce fresh evidence.
In February last year, the Court of Appeal allowed only a fraction of the new evidence - namely, two sections of contents in a psychological report - to be admitted on appeal, as the other parts of the fresh evidence could have been adduced earlier with reasonable diligence or were unreliable.
At the resumed hearing of the appeal proper, Deputy Attorney-General Hri Kumar Nair argued that Justice Kan had erred in his findings of fact in the judgment. One example of this was his coming to his own views of how rape victims in general should reasonably react. Another category of errors was where Justice Kan had either misunderstood or only selected a portion of the witness' evidence out of context, in coming to certain conclusions.
In relation to the girl's delay in reporting the matter and the judge's perception of absence of reasons in the delay, Mr Nair described this as an "unfair assessment by the judge". Mr Nair also pointed out that the defence had belatedly accused the family members of the alleged victim of collusion, in giving their evidence unfavourable to Mr Ariffan, describing it as a "desperate attempt to make up a defence".
Mr Abraham Vergis, representing Mr Ariffan, drew the judges' attention to certain portions of the evidence in making out the case that the alleged victim's account was indeed inconsistent and contradictory. In particular, he highlighted that the employer's description of the cabin's interior was unchallenged.
Mr Vergis also strongly took issue with certain accusations made by the Prosecution, in their written case on appeal, that "their witness (Mr Ariffan's employer) had come prepared to give evidence in favour of [Mr Ariffan]". The Prosecution's grave suggestion that their witness had committed the offence of perjury on oath, combined with the unsatisfactory nature of the police investigations regarding the prime mover, led Mr Vergis to describe it as being "unfair to the witness, judge and the accused".
"The Prosecution really had no answer to [the employer]'s evidence on this issue," Mr Vergis reiterated.
After three and a half hours of arguments, the court adjourned the hearing to Friday (25 January) afternoon, as Mr Vergis had yet to complete his oral submissions and both lawyers needed more time to finish presenting their case.