The Court of Appeal on Thursday (8th August) morning upheld the decision of the High Court to acquit a 58-year-old man of five charges relating to sexual offences allegedly committed by him against his live-in lover’s daughter, finding that the Prosecution had not proven all charges beyond a reasonable doubt.
The decision of the apex court ended a 5-year long ordeal suffered by Mohd Ariffan bin Mohd Hassan since he was first charged in December 2014.
The Prosecution’s appeal against the High Court’s acquittal was heard proper over two separate afternoons in January this year, where the Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Judge of Appeal Judith Prakash – reserved judgment at the conclusion of the hearing.
During the appeal, Deputy Attorney-General Hri Kumar Nair, who appeared for the Prosecution, had argued that the trial judge in Mr Ariffan’s case, Senior Judge Kan Ting Chiu, had erred in failing to consider the reasons given by the complainant, who could not be named to protect her identity, in relation to her delay in reporting the matter.
Mr Nair also argued that there were objective evidence corroborating the complainant’s account of events with regards to the sexual incidents that took place in a red prime mover, such as parking summons proving that the prime mover had been parked in the vicinity of the flat shared by the complainant’s family and Mr Ariffan.
Delay in reporting not a reason for disbelieving a complainant or rape victim: Court of Appeal
Delivering the judgment of the court, Justice Prakash explained that victims of sexual assault, especially youthful ones assaulted in a familial context, may not report the offence in a timely manner as there were empirically-supported psychological reasons for it, which includes feelings of shame and fear.
This point was supported by a section of a psychological report, which was admitted as fresh evidence before the Court of Appeal for its consideration during the appeal.
The explanation given by a complainant should be considered by the court, in determining the impact of the delay in reporting the matter on the credibility of the complainant, Justice Prakash wrote.
Further, as the psychological report also explained, a victim of sexual assault cannot always be expected to provide a completely similar and full account every time he or she discloses the offence to another person.
The court, however, noted that there may be cases where inconsistent or incomplete accounts of the complainant may impact negatively on his or her credibility, and each case must be assessed on its own facts.
Nevertheless, the Court of Appeal agreed with Justice Kan that the complainant’s evidence was not “unusually convincing”, albeit on different grounds, despite disagreeing with him on his general view of delay in reporting and inconsistencies in accounts.
The court noted that the complainant’s disclosure to her boyfriend in relation to one of the sexual incidents was “forced out of her” by him, and the subsequent disclosure to her mother follows as a consequence.
There were also discrepancies in the complainant’s account regarding the length of time over which the sexual offences took place. The complainant told the police that the sexual assaults ended by mid-2011, whereas she told her brother that the sexual offences took place “2 to 3 times a week at night”, right up to the point she informed him in December 2012. Against this, the court found no explanation given as to why the complainant had lied to her brother.
This account was also inconsistent with the complainant’s mother’s testimony at trial, who testified that Mr Ariffan only asked her to get the complainant to accompany him at night sometimes. Further, between the frequent family trips to Johor Bahru and Mr Ariffan’s long working hours which stretched to the early hours of the morning on some occasions, there would not have been many nights for Mr Ariffan to have taken the complainant out alone.
No objective evidence to corroborate the complainant’s allegations
With regards to two of the charges that allegedly took place in the flat, given that there was no other objective evidence and the complainant’s evidence was not unusually convincing, there was no basis to reverse their acquittal.
In relation to the alleged incidents which took place in the prime mover, Justice Prakash explained that while the parking summonses established that the prime mover had been parked in the vicinity of the flat on seven occasions, it did not prove that it had been driven there by Mr Ariffan.
The complainant also did not identify the prime mover as the scene of crime in her earlier police statements, and only identified it when the investigating officer showed her photographs of two prime movers owned by Mr Sim Hock Beng, who was Mr Ariffan’s employer, one of which bore the company’s name and which the complainant knew Mr Ariffan to be working at.
To this point, Mr Ariffan’s lawyer, Mr Abraham Vergis, had suggested that it was “not surprising” that the red prime mover had been identified. Further, the investigating officer did not know that Mr Sim owned four prime movers and simply showed two photographs to the complainant, such that the identification exercise carried out was “inadequate”.
The Prosecution’s case was also adversely affected by its own witness, Mr Sim. He testified that the back seat of the prime mover was dirty and used to store lashing gear, and that it was not possible for sexual relations to have taken place.
He also testified that Mr Ariffan had never driven the prime mover; Mr Ariffan had regularly driven his own car to and from work. His testimony at trial therefore contradicted the other witnesses for the Prosecution, i.e. the complainant and her family members.
While there may have been discrepancies in Mr Ariffan’s evidence, the court noted that the burden have always been on the Prosecution to prove his guilt beyond any reasonable doubt. If the Prosecution had not been able to done so, it could not rely on the accused person’s inconsistencies to support some aspects of its case, Justice Prakash explained.
About the case:
Mr Ariffan faced five charges of rape, aggravated outrage of modesty and sexual assault by digital penetration against the complainant, who was 15 to 16 years of age at the time of the alleged offences.
He was accused of first molesting the complainant in March 2009, namely, by restraining her and molesting her in a red prime mover parked in a forested area in Punggol. He was also alleged to have raped her in the prime mover in the same area in 2010 and 2011. On two separate occasions in June 2010, he was also alleged to have digitally penetrated the complainant in a flat, which they shared with the complainant’s mother and siblings.
The alleged events came to light gradually beginning from 2010, when the complainant first told her boyfriend about one of the alleged incidents. After the complainant informed her brother in December 2012, the brother made a police report.
Mr Ariffan denied that he had ever sexually assaulted or raped the complainant. He claimed, among other things, that he had never driven the prime mover, whether with or without the complainant. Further, the Defence contended that the rapes could not have occurred in the cabin of the prime mover as that area was dirty and contained tools and heavy items.
At trial, Mr Sim testified under cross-examination that one “Idris” had been assigned to drive the prime mover “most of the time” between 2009 and 2011.
In April 2017, Senior Judge Kan Ting Chiu delivered his judgment, acquitting Mr Ariffan of all five charges. He found that the complainant’s evidence was not “unusually compelling or convincing” for the following reasons.
First, he found that there was a long period of silence between the offences and the complaint lodged, for which there were no reasons to account for. It was thought that the complainant had ample time to recover from any distress or embarrassment that she may had experienced.
Second, when she did break her silence, her testimony was also contradictory and inconsistent – this can be seen from the allegation of touching (but no rape) made to her mother, and subsequently the allegation of rape (but no digital penetration) made to her siblings.
Third, the complainant’s evidence regarding the prime mover was contradicted by Mr Sim’s evidence. Her evidence in relation to the incidents which took place in the flat was also not corroborated by her sister, who was mentioned as part of the complainant’s account of events and who was also a Prosecution witness at the trial.
Dissatisfied with the trial judge’s decision, the Prosecution duly filed an appeal, and also filed an application to adduce fresh evidence on appeal. In the application, the Prosecution sought to admit the evidence of Idris’s son, Mr Matin, to rebut Mr Sim’s evidence regarding Idris.
The Prosecution also sought to admit a psychological report which addressed misconceptions of rape victims in general, and which applied these findings to the complainant to conclude that her behaviour, specifically her delay in reporting the matter, was “highly realistic”.
The appeal was first heard by the Court of Appeal in November 2017, where the Court of Appeal dealt with the application to adduce fresh evidence first. Having heard three hours of arguments by Mr Nair and Mr Vergis, the Court of Appeal reserved judgment on the application.
In February 2018, the Court of Appeal delivered judgment on the Prosecution’s application to adduce fresh evidence. This was a landmark judgment as it sets out the principles which apply in a case where the Prosecution intends to adduce fresh evidence on appeal.
Applying those principles to the facts, the court allowed parts of the psychological report to be admitted, as the rest of the fresh evidence could have been adduced earlier with reasonable diligence or were unreliable. The court also found that there was no need for a re-trial, and this paved the way for the appeal to be heard proper.
Chronology of events:
March 2009 – January 2011: Period where the sexual offences stated in the charges allegedly took place
April 2010: The complainant first told her boyfriend about one of the alleged rape incident
2011: The complainant told her mother about some aspects of the alleged sexual abuse.
December 2012: The complainant told her brother and sister about the alleged incidents, police report lodged by the complainant’s brother
December 2014: Mr Ariffan charged in respect of five sexual offence incidents
July 2016: Mr Ariffan’s trial commences before Senior Judge Kan Ting Chiu
April 2017: Justice Kan acquits Mr Ariffan of all five charges, Prosecution files appeal
October 2017: Prosecution files application to introduce fresh evidence on appeal
November 2017: Prosecution’s appeal and application heard together, Court of Appeal reserves judgment on Prosecution’s application
February 2018: Court of Appeal delivers judgment allowing Prosecution’s application in part, sets out principles for adducing fresh evidence on appeal that apply to Prosecution
January 2019: Prosecution’s appeal heard over two afternoons, Court of Appeal reserves judgment on Prosecution’s appeal
August 2019: Court of Appeal delivers judgment dismissing Prosecution’s appeal, affirming Mr Ariffan’s acquittal