AOF v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 18 April 2012
• Neutral Citation: [2012] SGCA 26
• Date: 18 April 2012
• Docket Number: Criminal Appeal No 25 of 2010
• Published date: 06 June 2012
• Plaintiff Counsel: Harpreet Singh Nehal SC, Lim Shack Keong and Lau Kah Hee (WongPartnership LLP)
• Hearing Date: 29 July 2011,08 February 2012
• Defendant Counsel: Lee Lit Cheng, Elizabeth Lee and Darryl Soh (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Law

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

The importance of granularly examining the facts in determining the outcome of contested criminal proceedings cannot be overstated. Certainly, the importance of such intense scrutiny needs no reiteration where sexual offences without any objective corroboration are in question. This was indeed the case here and this will also explain the need for meticulous attention to the detailed facts that constitute the core of the present judgment. As a consequence of this scrutiny, significant evidential gaps were revealed. This resulted in the present appeal having to be heard in two tranches whilst further evidence was sought. As we shall see, this exercise was not a wholly successful one although the new facts that were unearthed were significant in confirming the inadequacy of the evidence before this court that (in turn) led to our decision. This, then, was one central strand in the present appeal. It was inextricably connected with a second.

The second central strand consisted in that precious and indispensable “golden thread” which runs “[t]hroughout the web of the English Criminal Law” (see per Viscount Sankey LC in the leading House of Lords decision of Woolmington v The Director of Public Prosecutions [1935] AC 462 at 481) – and, we might add, Singapore Criminal Law as well. That “golden thread” is, of course, the fundamental principle that the Prosecution bears the legal burden of proving its case against the accused (here, the Appellant) beyond a reasonable doubt. This principle has been stated in the local context in far too many cases to be enumerated here. More importantly (and as already mentioned), it is inextricably connected to the first central strand simply because the facts are an integral part of the process by which the court ascertains whether or not the legal burden just referred to has been discharged.

Given the crucial importance of the facts in the context of the present appeal and (in particular) the detailed analysis that follows, it would be helpful to first set out a table of contents to guide the reader, as follows:

Table of contents	Paragraphs
Introduction	[1]–[11]
Facts	[12]–[68]
Background	[12]
The relevant parties	[13]–[15]
The Prosecution’s case at the trial below	[16]–[50]
CI’s testimony at the first tranche of the trial	[17]–[35]
The first charge	[17]–[18]
The second charge	[19]–[20]
The third charge	[21]
The day incident	[22]
The fourth charge	[23]–[24]
Events in 2006	[25]–[27]
CI’s diary	[28]
C1’s disclosure of the sexual assaults to C2	[29]
The fifth charge	[30]–[35]
C1’s testimony at the second tranche of the trial	[36]–[42]
C1’s HSA statement	[40]–[42]
The medical reports	[43]–[45]
The mother’s testimony	[46]–[48]
Lathiff’s testimony	[49]
C2’s testimony	[50]
The Appellant’s case at the trial below	[51]–[68]
The Appellant’s version of events at the trial below	[51]–[53]
The sister’s testimony	[54]–[61]
The sister’s husband’s testimony	[62]–[64]
The Appellant’s father’s testimony	[65]–[68]
The decision below	[69]–[85]
C1’s testimony	[70]–[72]
Collusion	[73]–[78]
The Appellant’s cross-examination of C1	[79]–[81]
Corroborative evidence	[82]–[84]
Sentence	[85]
The appeal	[86]–[109]
The first Court of Appeal hearing (“the first CA hearing”) on 29 July 2011	[87]–[89]
The events between the first and second CA hearing	[90]–[107]
The first PTC	[90]–[97]
The CA’s second round of requests from the Prosecution	[98]–[99]
The Prosecution’s reply	[100]–[101]
The second and third PTC	[102]–[104]
The fourth PTC	[105]–[106]
Summary of the status of the CA’s requests before the second CA hearing	[107]
Parties’ submissions at the second hearing before the Court of Appeal (“the second CA hearing”) on 8 Feb 2012	[108]–[109]
Issues before this court	[110]
Issue 1: Was C1’s testimony “unusually convincing”?	[111]–[172]
The law	[111]–[115]
Application of law to the facts	[116]–[172]
C1’s evidence at the trial below	[117]–[146]
C1’s pre-trial testimony	[117]–[119]
C1’s testimony at the trial	[120]–[146]
Recollection of the first charge	[120]
Recollection of the second charge	[121]–[122]
Recollection of the fifth charge	[123]–[129]
The frequency of the alleged rapes	[130]–[146]
Was C1’s testimony “unusually convincing”?	[147]–[152]
Epilogue: the new material	[153]–[172]
Alleged physical abuse	[154]–[156]
The frequency of the alleged incidents of fellatio	[157]–[160]
The people C1 told about the alleged rapes	[161]–[162]
CI’s previous sexual history	[163]–[172]
Issue 2: Was there any corroborative evidence?	[173]–[209]
The law	[173]–[177]
Application of law to the facts	[178]–[209]
C2’s testimony	[180]–[187]
The medical evidence	[188]–[206]
Do C1’s hymenal tears amount to corroborative evidence?	[195]–[200]
Did C1’s interview with the doctors corroborate her testimony at trial?	[201]–[206]
Dr Pang’s report	[201]–[203]
Dr Lim’s report	[204]–[206]
Was the medical evidence and C2’s testimony consistent and corroborative?	[207]–[209]
Issue 3: Did the Prosecution at the trial below prove beyond reasonable doubt that the complaint was not the result of collusion?	[210]–[269]
The law	[210]–[216]
Application of law to the facts	[217]–[248]
The shifting of the burden of proof	[217]–[225]
C1 and the mother’s motive	[226]–[233]
Major and minor collusion	[234]–[248]
The new material	[249]–[268]
C1’s full HSA statement	[250]–[251]
The phone records	[252]–[255]
Alleged police report for loss of mother’s IC	[256]
Lathiff and the mother’s passports for all travels they undertook in 2009 and 2010	[257]
Lathiff and the mother’s police statements recorded for the theft of cough syrup investigation	[258]–[268]
Summary of findings on collusion	[269]
Issue 4: Should the Appellant be retried, acquitted or have the new materials remitted before the same trial judge, ie, the Judge?	[270]–[311]
Applicable law	[271]–[298]
Application of law to the facts	[299]–[311]
Remitting the new materials to the Judge	[299]–[305]
A retrial or acquittal?	[306]–[311]
Conclusion	[312]–[315]

Before proceeding to consider the salient facts in the detail that is required, a little by way of preliminary background is appropriate. Close to three years ago on 30 April 2009, the Appellant was arrested by the police after his daughter (“C1”) dramatically alleged that she had been repeatedly and systematically raped by her father over a period of 10 years. She was then 16 years-old. The rapes allegedly took place at a one bedroom rental flat where the Appellant’s family resided (“the flat”).

In the High Court, the Prosecution proceeded against the Appellant on the following five charges (out of a total of nine charges), which will henceforth be referred to as the first to fifth charges, respectively:

That you, [Appellant],

(1) sometime in 1999, in [the flat], voluntarily had carnal intercourse against the order of nature with [C1] (DOB: xx March 1993), to wit, by having the said person perform fellatio on you, and you have thereby committed an offence punishable under section 377 of the Penal Code, Chapter 224 (1985 Rev Ed). (2) on one occasion in the period from March 2003 to May 2003, in [the flat], committed rape on [C1], while she was under the age of 14 years, and you have thereby committed an offence punishable under section 376(2) of the Penal Code, Chapter 224 (1985 Rev Ed). (3) sometime in June 2003, in [the flat] committed rape on [C1], while she was under the age of 14 years, and you have thereby committed an offence punishable under section 376(2) of the Penal Code, Chapter 224 (1985 Rev Ed). (4) sometime in 2004 (1st occasion) which was after 11 March 2004, in [the flat], committed rape on [C1], while she was under the age of 14 years, and you have thereby committed an offence punishable under section 376(2) of the Penal Code, Chapter 224 (1985 Rev Ed). (5) on 29th day of April 2009 at about 2.30pm, in the flat, used criminal force on [C1] intending to outrage her modesty to wit, by undoing one button at the front of her blouse, and further, in order to facilitate the commission of the said offence, you voluntarily caused wrongful restraint to the said complainant, to wit, by grabbing her...