Pram Nair v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 25 September 2017
• Neutral Citation: [2017] SGCA 56
• Citation: [2017] SGCA 56
• Defendant Counsel: David Khoo, Sharmila Sripathy, Kavita Uthrapathy and Sarah Shi (Attorney-General's Chambers)
• Published date: 30 September 2017
• Hearing Date: 11 April 2017,27 June 2017
• Plaintiff Counsel: Paul Tan, Zhuang WenXiong and Arthi Anbalagan (Rajah & Tann Singapore LLP)
• Docket Number: Criminal Appeal No 32 of 2016
• Court: Court of Appeal (Singapore)
• Date: 25 September 2017
• Subject Matter: Offences,Sentencing,Rape,Criminal Law,Benchmark sentences,Criminal Procedure and Sentencing

Chao Hick Tin JA (delivering the judgment of the court): Introduction

On the night of 5 May 2012, [V] went with a female friend [S] to a party at the Wavehouse, a club at Siloso Beach, Sentosa. There they met Pram Nair, the appellant. A period of revelry followed. Later that night [V] and the appellant left the club by themselves and headed for the beach. What happened after that was the central dispute in this case. [V] said that by this time, she was intoxicated to the point of being barely conscious, and that the appellant had penetrated her with his finger and also raped her while they were on the beach. The appellant asserted that [V] was not as intoxicated as she claims to have been, and that the sexual activity between them, which included some foreplay, was consensual.

Following investigations, the Public Prosecutor (“PP”) brought two charges against the appellant: one for rape under s 375(1)(a) of the Penal Code (Cap 224, 2008 Rev Ed), which is punishable under s 375(2), and another for sexual assault by penetration under s 376(2)(a), punishable under s 376(3).

At the conclusion of the trial in the High Court, the judge (“the Judge”) convicted the appellant of both offences and sentenced him to 12 years’ imprisonment and 6 strokes of the cane for each charge. The Judge reduced the imprisonment terms to 11 years and 19 days for each offence to take into account the time that the appellant had spent in remand before being released on bail. With both sentences ordered to run concurrently, the appellant’s aggregate sentence was 11 years and 19 days’ imprisonment and 12 strokes of the cane. The Judge issued separate grounds of decision in respect of the appellant’s conviction and sentence: Public Prosecutor v Pram Nair [2016] 4 SLR 880 (“Conviction GD”) and Public Prosecutor v Pram Nair [2016] 5 SLR 1169 (“Sentence GD”) respectively. The appellant has appealed against his conviction and sentence.

We heard the appeal on 11 April 2017 and received further submissions on 27 June 2017. Three significant legal issues were the focus of counsel’s arguments: first, how is a court to determine whether a rape victim, who was intoxicated at the material time, had in fact consented to sexual activity; second, whether the fact that a victim is intoxicated is a factor that aggravates an offence of rape or sexual assault by penetration; and third, whether or not the benchmark sentences for the two offences should be equated. We will set out our views on those issues in due course. For now, we turn to sketch out the factual background in greater detail, focusing for the moment on those facts which are undisputed.

Background [V] goes to the Wavehouse with [S]

The material events occurred over a short span of about four hours, between 11pm on 5 May 2012 and 2:50am on 6 May 2012. [V] was 20 years of age at the material time and was employed as a contract teacher.¹ She wanted to have a “girls’ night out”.² She learnt through a Facebook invitation of a beach party that would be held at the Wavehouse on the 5th of May, with free entry and drinks for women. The party was to promote Cointreau, a brand of orange-flavoured liqueur.³ She asked [S], whom she had met through a teachers’ training program, to go with her.⁴

On the evening of 5th May, [V] and [S] met at the Harbourfront MRT station and they took the sky-train to Sentosa. ⁵ [V] was wearing a white tank top, a black strapless bra, a blue-green bikini bottom, a pair of sweat shorts, and pink flip-flops.⁶ They entered the Wavehouse after someone named [K], the event promoter who sent [V] the Facebook invitation, had let them in.⁷ [K] then took his leave of [V] and [S]⁸ and asked someone named [J] to attend to them.⁹ [J] was working part-time for an events company and [K] was his superior. [J] was working at the party at the Wavehouse that night.

Before meeting [V] and [S], [J] had proceeded to the bar inside the Wavehouse to prepare drinks with alcohol provided by the club manager.¹⁰ The bar is located on the beach and resembled a hut (it is a four-sided bar with just one way in and out).¹¹ There, [J] met the appellant, who was sitting at the bar counter and having drinks.¹²

The appellant, who at the material time was a part-time beach patrol officer, had finished his shift at 7pm and had planned to attend the Wavehouse party with some friends. He registered himself at the party and collected a bottle of Cointreau which he had won. He drank some Cointreau and left the bottle at the bar.¹³ While waiting for his friends, he went back to the beach patrol office, and had drinks with some colleagues there. It turned out that his friends could not make it for the party. He thus returned to the Wavehouse on his own.¹⁴ He sat at the bar and drank Cointreau with mixers such as Coke and Sprite.¹⁵ He was wearing a black T-shirt and red shorts.¹⁶

The appellant struck up a conversation with [J]. He offered [J] a few drinks of Cointreau with mixers. They chatted about their jobs.¹⁷ During their conversation, [J] called [V] asking her to meet him at the bar counter.¹⁸

[V] meets the appellant

[V] arrived at the bar counter with [S]. This was probably sometime after 11:20pm. This is because [V] and [S] both recalled having to wait for some time, after reaching the Wavehouse at 11pm, for [K] to let them in; [S] estimated that it was about 20 minutes.¹⁹ In fact, [J] said that [K] had texted him at 11:45pm asking him to entertain [V].²⁰

After [V] and [S] arrived, the appellant started talking to them. [V] recalled that the appellant spoke more to [S] than to her²¹ and that she was more inclined to talk with [J].²² The appellant recalled that he chatted a little bit more with [V] than with [S].²³ We should add that we do not think it really matters whether at that point the appellant was talking more to [V] or to [S]. [J] was also at the counter and recalled interacting with [V] and [S]. However, he would sometimes have to entertain other guests.²⁴ While he did so, the appellant, [V], and [S] would continue conversing amongst themselves.²⁵

There was plenty of drinking. [V] recalled drinking neat shots of whisky or Cointreau and Cointreau mixed with juice.²⁶ At times she allowed [J] or the appellant to pour whisky or Cointreau directly into her mouth from the bottle²⁷ – [S] remembered that [V] had Cointreau poured into her mouth at least four to eight times.²⁸ [S] herself drank two mixed drinks and also had liquor poured into her mouth once or twice.²⁹ The appellant consumed a few drinks and he too had liquor poured into his mouth by [J].³⁰

There was one occasion where [V] had Cointreau poured into her mouth for some 20 seconds straight. It came to light that she had turned 20 the week before, on the 29th of April.³¹ It was thus suggested (either by the appellant, according to [V] and [S],³² or [S], according to the appellant³³) that [V] should drink Cointreau continuously for 20 seconds. It is undisputed that it was the appellant who poured Cointreau directly from the bottle into [V]’s mouth for that 20 seconds.³⁴

[V] goes to the VIP area and returns to the bar counter

At one point in time, [V] left the bar counter for the VIP area in the Wavehouse because [J] had asked her to go there with him.³⁵ The VIP area is also outdoors but further away from the seashore.³⁶ According to [J], [V] drank more Cointreau with mixers.³⁷ [V] could not remember what she had drunk there.³⁸ She did however remember that [S] and the appellant were not at the VIP area and that she left her bag at the VIP area.³⁹ [V] later went back to the bar counter area to rejoin [S] and the appellant.⁴⁰⁴¹

It is reasonably certain that the appellant, [V], and [S] stayed at the bar counter until past midnight. We know this because while they were at the bar counter, [S] used her Canon camera to take two photos⁴² of [V] and the appellant. The timestamp on the photos was inaccurate as the camera was set to a different time zone but it is not in dispute that they were both taken at 12:15am on 6 May 2012.⁴³ In both [S]’s and the appellant’s recollection, the photos were taken after [V] had gone to the VIP area and returned.⁴⁴

In both the photos, [V] was standing on the appellant’s right, her arm around his shoulder. They were both facing the camera and standing close enough to each other for their bodies to be in contact. As the photos were probably taken in quick succession, they are identical in most respects. One difference is that in the first photo, [V] was pointing at the appellant with her index finger, whereas in the second photo, she was holding up two fingers, also pointed towards him. Another difference is that the appellant was smiling in the first photo but not in the second.

[V] dances with [J]

[V] recalled dancing on the dance floor with [J]. [V] may have shuffled between the VIP area and the bar counter a few more times, though she could not recall how she ended up going from the VIP area to the dance floor. She did however remember that she liked [J] and had a “really good time” dancing with him.⁴⁵ She hugged and kissed him while dancing.⁴⁶ [J] noticed that [V] was in general quite energetic at the dance floor: she was “very hyper” and “dancing a lot”.⁴⁷ The appellant saw [V] go to the dance floor and that she danced with “a couple of guys”.⁴⁸ [V] could not remember if she danced with anyone else apart from [J].⁴⁹

At some point, while she was dancing, [V] realised she was “way too drunk” and wanted to go home. She thus tried to look for [S]. ⁵⁰ She went to the bar counter because that was where she had last seen [S]. In [V]’s recollection, [S] then “popped out” of nowhere and told her that they needed to go home. [V] agreed and recalled telling [S] something to the effect of “we need to go home”. [S] then asked her where her ([V]’s) bag was, and [V] told her it was in the VIP area. [S] then told her to stay at the bar counter where she was...