What is the legal test to be applied when evaluating the evidence of an eyewitness to any crime? Would the evidence of an eyewitness be generally less reliable compared to that of the victim itself?
These are the legal questions which the Court of Appeal faced on Wednesday (25th September), in the context of a criminal reference filed by the Prosecution, against a nursing home worker who had been cleared by the High Court of molestation.
The 35-year-old man was accused of having committed outrage of modesty on a 56-year-old patient on 26th November 2016. At trial, the Prosecution’s case turned on the evidence by a nurse, who was an eyewitness to the alleged incident. The patient herself was unable to testify and give evidence.
The district judge found the nurse’s evidence to be “unusually convincing” and convicted the man as charged, but High Court Justice Aedit Abdullah acquitted the man on appeal in November last year in an oral judgment.
In his written grounds of decision subsequently released in February this year, he stated that the nurse’s evidence “would not have been sufficient to secure a conviction”, and that there might have been a reasonable doubt that she was mistaken as to what she had seen.
The three-hour debate between Chief Prosecutor Kow Keng Siong for the Prosecution, and Mr Lau Wen Jin for the Defence, centred on how certain paragraphs in Justice Abdullah’s written judgment should be interpreted.
Mr Kow submitted that it was unclear which legal test Justice Abdullah had adopted in assessing the nurse’s evidence, even though the High Court judge agreed that the evidence of an eyewitness must be “unusually convincing” if it was the sole basis for the Prosecution’s case.
Mr Lau, on the other hand, relied on both the oral judgment and the written grounds of decision in refuting Mr Kow’s submission by stating that Justice Abdullah had clearly applied the “unusually convincing” standard in assessing the nurse’s evidence.
In relation to another paragraph where Justice Abdullah had stated that “an eyewitness’s account would be subject[ed] to a greater degree of misperception, misapprehension and misattribution” as compared to the account of a victim, Mr Kow took the position that the judge had expounded his general opinion on while Mr Lau maintained that it was just a general starting point of the analysis.
Chief Justice Sundaresh Menon was troubled by this proposition as it was not supported by scientific facts, while Judge of Appeal Andrew Phang questioned whether such a proposition was correct in law even as merely a starting point.
Mr Lau also made the point that the questions of law referred by the Prosecution, though of public interest, did not affect the outcome of the case as the High Court’s decision on appeal was based on its assessment of the totality of the evidence adduced.
Finally, in the event that the apex court decided to review the facts of the case, Mr Lau forcefully submitted that the nurse’s evidence was inconsistent and not reliable.
The Court of Appeal – which also included Judge of Appeal Judith Prakash – has reserved judgment.