Apex court reverses acquittal of nursing home worker of molestation charge in criminal reference, but reduces original jail term imposed

Eyewitness evidence generally "neither less nor more reliable" than alleged victim's account, court rules in landmark decision

Initially found guilty of molestation by the district court and then acquitted by the High Court on appeal, a 35-year-old nursing home worker was finally pronounced guilty, after the Court of Appeal ruled in a criminal reference on Wednesday (22nd January) morning that the High Court had applied the wrong legal test in the process of acquitting him.

However, instead of having to serve 22 months in jail as originally ordered by the district judge, the Court of Appeal ordered the man to serve a reduced jail term of 16 months, coupled with 3 strokes of the cane, as the district judge had erred in principle in meting out the original sentence.

The 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 victim 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, finding in process that the nurse’s evidence, being eyewitness evidence, was “subject to possible misapprehension and errors in observation”.

The criminal reference filed by the Prosecution, referring the following questions of law to the Court of Appeal, was heard in September last year and judgment was reserved:

a) What is the standard to be applied when evaluating the evidence of an eyewitness to a crime, where such evidence – (i) is uncorroborated; and (ii) forms the sole basis for a conviction (“the Applicable Standard Question”)?

b) Is the evidence of an eyewitness inherently less reliable than that of an alleged victim (“the Inherent Reliability Question”)?

c) How should the court assess the evidence when it applies the “unusually convincing” standard (“the Specific Test Question”)?

As Chief Justice Sundaresh Menon reads out the judgment on behalf of the court, which included Judges of Appeal Andrew Phang and Judith Prakash, they unanimously ruled that the “unusually convincing” test is to apply in all cases where a single, uncorroborated testimony formed the sole basis for a conviction, regardless of the nature of the offence and regardless of whether the testimony originated from an eyewitness or the alleged victim.

The apex court also ruled that the evidence of an eyewitness is neither less nor more reliable than that of an alleged victim, and its reliability is dependent on the circumstances of each case.

Having found that Justice Abdullah evaluated the nurse’s evidence based on an erroneous principle, the Court of Appeal went on to review the facts of the case, finding that there was no reason to doubt that the nurse was honest, and there was nothing inconsistent or implausible in her testimony.

In contrast, the man’s testimony was riddled with inconsistencies between accounts, as well as when viewed in light of the objective evidence.

Following the reinstatement of the man’s conviction, the Court of Appeal had to consider the issue of the appropriate sentence to be imposed; the man’s lawyer, Mr Lau Wen Jin, had made alternative submissions for a reduced sentence in the High Court during the appeal, which were not considered as a result of the acquittal.

The apex court was not satisfied that the present case was one of the worst type of outrage of modesty offences warranting the maximum sentence of two years’ imprisonment, which the district judge reduced to 22 months taking into account the seven weeks the man had spent in remand. In particular, the Prosecution failed to prove that there was premeditation on the part of the man or that the victim had suffered psychiatric harm.

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