Public Prosecutor v GCK and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 22 January 2020
• Neutral Citation: [2020] SGCA 2
• Date: 22 January 2020
• Docket Number: Criminal Reference No 6 of 2018 and Criminal Motion No 7 of 2019
• Published date: 25 January 2020
• Plaintiff Counsel: Kow Keng Siong, Agnes Chan, Chin Jincheng and Etsuko Lim (Attorney-General's Chambers)
• Hearing Date: 25 September 2019
• Defendant Counsel: Lau Wen Jin (Dentons Rodyk & Davidson LLP)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Standard of proof,"Unusually convincing" standard,Evidence,Eyewitness testimony,Witnesses,Proof of evidence,Court's substantive jurisdiction to answer questions,Beyond a reasonable doubt,Criminal references,Court's power to reframe questions

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

There is but one true evidentiary standard in criminal law – proof beyond a reasonable doubt. This sacrosanct principle is easy to express, but defies simple definition. Difficulties often arise where the sole basis for a conviction is the uncorroborated testimony of a single witness. These difficulties may intensify where, as in the present case, that witness is not the victim (who was mentally unfit to testify), but an eyewitness. The case law has developed techniques to manage these difficulties. One, in particular, is the stipulation that the uncorroborated evidence of a victim must be “unusually convincing” if it is to be accepted as the sole basis for convicting an accused person. But just what does that mean? And should it be applied to the evidence of an eyewitness, and if so, how? In our judgment, the difficulties are considerable, but they are not insurmountable. What is required in the final analysis is a careful and holistic consideration of the evidence. At all times, the court remains concerned with assessing whether the Prosecution has met its burden of proving its case beyond a reasonable doubt, no more and no less.

The present case affords us the opportunity to clarify certain important aspects of the law of evidence in the foregoing context. The respondent (“the Respondent”), who was a male employee at a nursing home (“the Home”), was charged with one count of outrage of modesty (“the OM Charge”) under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). The alleged victim (“the Victim”) was an elderly female resident at the Home who was suffering from serious physical and cognitive disabilities. She was found unfit to testify. The Prosecution’s case therefore rested substantially upon the testimony of an eyewitness – Nurse MJ, a female nurse at the Home – who alleged that she had seen the Respondent straddling the Victim with his trousers pulled down and the Victim’s diaper exposed, and with his groin placed on the Victim’s groin.

In the District Court, the Respondent was convicted of the OM Charge. On appeal, the High Court reversed the decision of the District Court and acquitted the Respondent. In so doing, the High Court appeared to draw a distinction between the evidence of alleged victims on the one hand, and eyewitness testimony on the other. This led the Prosecution to file Criminal Reference No 6 of 2018 (“the present Criminal Reference”), raising before us several questions specifically pertaining to the “unusually convincing” standard and its application to sexual and non-sexual offences as well as to the evidence of alleged victims and eyewitnesses. As shall be seen, the remit of those questions also touched more generally upon the meaning of the standard of proof beyond a reasonable doubt.

Background facts

The Respondent was 32 years old at the material time. He had been working at the Home since 2010, initially as a housekeeping attendant. After suffering a back injury in 2013, the Respondent stopped working in that capacity, and instead undertook maintenance and cleaning duties as a maintenance technician for the Home. Those were his duties at the time of the alleged incident on 26 November 2016.

The Victim was 55 years old at the material time. She had suffered a series of strokes some years earlier, which limited her mobility on the left side of her body and impeded her speech. As a result of those strokes, the Victim displayed easily-changing moods, alternating between crying and giggling. She was generally unable to raise her voice, and would make high-pitched cries of a soft to moderate volume. Due to her cognitive disabilities, the Victim was certified unfit to testify at the trial.

The Victim occupied Bed 7 of a room that was exclusively for female residents (“the Room”). The Room was located on one of the upper levels of the Home and contained 12 beds. It was partially divided by a wall into an inner section and an outer section. The Victim was bed-bound, and her bed was located at the far corner of the inner section of the Room next to the windows. For ease of reference, a repurposed sketch of the Room is set out at Annex A to this judgment.

The Prosecution’s case at the trial and in the appeal depended principally on the testimony of Nurse MJ, who had been working at the Home since April 2016. The Victim was one of the residents under Nurse MJ’s nursing care.

Accounts of the events on the day of the alleged offence Mdm RM’s, Mr ST’s, and Dr S’s testimonies

On 26 November 2016, the Home was hosting a community involvement programme on the ground floor. The programme was scheduled to last from 2.00pm to 4.00pm. An administrative officer of the Home, Mdm RM, testified that all of the Home’s staff, including its maintenance staff, would have been made aware of the programme through the noticeboards. Mdm RM further testified that the Respondent was the only maintenance staffer on duty that day. At around 1.00pm, the Respondent assisted Mdm RM in setting up audio-visual equipment for the programme.

Mr ST, the director of the Home, testified that five residents in the Room (including the Victim) remained in their beds during the community involvement programme. They did not join in the programme because they were asocial, required assistance in movement, or were suffering from mental disabilities that rendered them unable to mingle with members of the public.

Dr S, who was the resident physician of the Home, opined that the other four residents who were present in the Room at the material time had dementia, amnesia, or were otherwise incapable of communicating a narrative. In his view, none of them were mentally capable of testifying.

Nurse MJ’s testimony

Nurse MJ testified that she started her shift at 7.00am on 26 November 2016. At around 3.41pm, she proceeded on her rounds to the Room.

Nurse MJ noticed that the curtains around the beds in the inner section of the Room were fully drawn, except for the curtains around the Victim’s bed (Bed 7), which were half-drawn. She found this odd as the curtains were usually only drawn when the residents’ diapers were being changed. However, none of the residents in the Room was having her diaper changed at that time. In fact, several of the residents were not even occupying their beds, as they were either at the dining hall or at the community involvement programme. Aside from the Victim, the only other resident present in the inner section of the Room was Mdm MG in Bed 6, located across from the Victim.

Nurse MJ walked towards Mdm MG to check on her. As she was drawing open the curtains to Bed 6, she heard a crying sound emanating from Bed 7. Nurse MJ recognised this sound as one that the Victim would make whenever she was being moved or was in pain.

When Nurse MJ turned, she saw that the curtains to Bed 7 were half-closed. She testified that she had a full view of Bed 7 because the curtains were not drawn across the bed’s width and she was only about one-and-a-half arm’s lengths away. She saw the Respondent on the bed with his knees astride the Victim. The Respondent’s pants were lowered and Nurse MJ saw his exposed buttocks. The Victim’s pants were also lowered and the left side of her diaper was open.

Nurse MJ was shocked. She testified that “[the Respondent’s] groin area and [the Victim’s] groin area w[ere] together”, and she thought “it was something to do with sex and it was wrong”. She had a half-view of the Respondent’s face and recognised him as an employee of the Home. The Victim continued to make the crying sound. Nurse MJ observed the scene for about five seconds before leaving. She did not attempt to stop the Respondent because she was frightened.

Nurse MJ was not aware if the Respondent had noticed her. She did not know why the Respondent had entered the Room. It was the Home’s policy that male staffers had to be escorted by a female staffer when entering a room occupied exclusively by female residents.

The timing of the events recounted by Nurse MJ was consistent with what was recorded on the close-circuit television (“CCTV”) situated at the entrance to the Room. The CCTV footage showed that Nurse MJ entered the Room at 3.41.32pm and remained there for a total of 11 seconds.

Nurse DS’s testimony

Nurse MJ immediately headed to the dining hall on the same level of the Home and called out to a male nursing aide, Nurse DS, who subsequently testified that Nurse MJ’s tone and appearance were not normal and that she sounded as if there was an emergency. On the first two times Nurse MJ called to him, Nurse DS told her to wait as he was tending to a patient, but on the third time, she shouted at him and asked him to “[p]lease go and see what [the Respondent] is doing on [the Victim’s] bed”.

The CCTV footage showed that about a minute and 40 seconds after Nurse MJ left the Room, Nurse DS entered. Nurse DS saw that the curtains around Bed 8 were fully drawn, which he too found strange as that would only be done when the residents’ diapers were being changed. Standing on tiptoe, Nurse DS was able to peer through the upper netting portion of the curtains around Bed 8 to get a view of Bed 7. He saw the Respondent kneeling on the floor in the space between Bed 7 and Bed 8 and apparently looking at his mobile phone. The curtains around Bed 7 were fully open, and Nurse DS observed that the Victim was sleeping on the bed. She appeared normal and there were no sounds coming from her.

The Respondent’s testimony

The Respondent claimed that sometime around lunchtime on 26 November 2016, one of the Room’s residents, Mdm JP, asked him to repair her portable television as he had done on previous occasions. At around 3.30pm, the Respondent remembered Mdm JP’s request and decided to attend to it in the Room. He claimed not to have known of the Home’s policy forbidding male...