Public Prosecutor v Pram Nair

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 18 July 2016
• Neutral Citation: [2016] SGHC 136
• Plaintiff Counsel: Bhajanvir Singh, Kavita Uthrapathy and Kenneth Chin (Attorney-General's Chambers)
• Docket Number: Criminal Case No 45 of 2015
• Date: 18 July 2016
• Hearing Date: 21 April 2016,14 April 2016,16 September 2015,25 August 2015,27 August 2015,02 September 2015,26 August 2015,15 September 2015,12 April 2016,01 September 2015,13 April 2016,23 May 2016,17 September 2015
• Subject Matter: Criminal Law,Rape,Offences
• Year: 2016
• Citation: [2016] SGHC 136
• Defendant Counsel: Peter Ong Lip Cheng (Templars Law LLC)
• Court: High Court (Singapore)
• Published date: 03 October 2017

Woo Bih Li J: The charges

The accused faces the following two charges:

That you, PRAM NAIR,

1ST CHARGE

On or about 6 May 2012, at or about 2.25 a.m. at the Siloso Beach at 51 Imbiah Walk near “Wavehouse”, Singapore, did commit rape of one [V], a female then aged 20 years old (D.O.B. XXX), to wit, by penetrating the vagina of the said [V] with your penis without her consent, and you have thereby committed an offence under section 375(1)(a), punishable under section 375(2) of the Penal Code (Chapter 224, Revised Edition 2008).

2ND CHARGE

on or about 6 May 2012, at or about 2.25 a.m. at the Siloso Beach at 51 Imbiah Walk near “Wavehouse”, Singapore, did sexually penetrate with your finger the vagina of one [V], a female then aged 20 years old (D.O.B. XXX), without her consent, and you have thereby committed an offence under section 376(2)(a), punishable under section 376(3) of the Penal Code (Chapter 224, Revised Edition 2008).

Background

The accused is a 27 year old Singaporean male. He was 23 years old at the time of the alleged incident and was then working part-time as a beach patroller at Sentosa beach.

The victim is 24 years old. At the time of the incident, she was 20 years old and was teaching.

The victim met the accused for the first time on 5 May 2012 at a party held at the Wavehouse at Siloso Beach in Sentosa. The victim was invited to the party by a friend, [K], whom the victim met through Facebook. Through [K’s] invitation, the victim would be able to enter the party for free and obtain free drinks. The victim attended the party with one of her friends, [S], an Indian lady, whom she (the victim) had asked along. According to [S], the victim and her got along well with each other but were not the best of friends.¹

The victim and [S] first arrived at the entrance of the Wavehouse at around 11pm on 5 May 2012. Thereafter, the victim notified [K] that she had arrived and [K] met her and [S] at the entrance to bring them into the Wavehouse. Upon entering the Wavehouse, [K] parted ways with the victim and [S]. The victim and [S] then proceeded to wait near the bar counter for one of [K’s] friends who would meet them and obtain free drinks for them.

The person who was supposed to meet the victim and [S] was one Jim Alif Bin Mohamed Yusof (“Jim”). At that point in time, Jim was working for an events company which organised events such as the party at the Wavehouse. Jim’s main role was to procure patrons for these events. During the event itself, Jim would have to talk to and entertain the patrons he procured. That night, [K] had asked Jim to entertain the victim and [S].

Prior to meeting the victim and [S], Jim had met the accused at the bar counter. At that time, the accused was alone at the bar counter and was drinking a liquor called “Cointreau”. The accused knew of the party at the Wavehouse through one of his friends and decided to attend it. The accused had offered some “Cointreau” liquor mixed with soft drinks to Jim and the two struck up a conversation.

Midway through their conversation, Jim called the victim and asked her to meet him at the bar counter. When the victim and [S] arrived, Jim proceeded to obtain some alcoholic beverages for them. Meanwhile, the accused, the victim and [S] entered into a conversation. This was the first time the victim and [S] met the accused. The four of them then stayed together at the bar counter for a while to drink.

[K] managed to find a table at the VIP area and so Jim went over to the table and asked the victim to go there. The victim was at times at the VIP table and at times at the bar counter.

The victim was also dancing at the dance floor. On occasions she danced with Jim and they were very close, hugging and French kissing each other. At one time, while the victim was dancing with Jim, she also turned to a Caucasian male and hugged and kissed him. Jim later walked to the VIP area.

According to [S], she subsequently called the victim on the phone and the victim said she was in the VIP section. [S] and the accused then obtained their VIP wristbands to enter the VIP section. They then entered the VIP section to look for the victim. The accused found the victim first and [S] met them at the intersection between the bar and the VIP section. The accused had his arm under the victim’s armpit. The accused asked [S] to go and get the victim’s bag from the VIP section. [S] went to do so but when she returned, she could not find the victim and the accused. Unknown to [S], the victim and the accused had left the Wavehouse and gone to the beach about 80 or 90 metres away from the Wavehouse and in front of a building known as Sapphire Pavilion.

[S] said she was looking for the victim inside and outside the Wavehouse but could not find her. She spoke to Jim who surmised that if the accused and the victim were not around, the accused had probably brought the victim home.

[S] said she eventually found the victim who was lying on the sand at a beach away from the Wavehouse looking like she had passed out. [S] tried to talk to the victim who did not respond. [S] realised that the victim was wearing her tank top but was naked below the waist. The accused was rummaging through his bag (which he had brought along). He threw a pair of red shorts to [S] and went over to help [S] to put the pair of shorts on the victim. [S] declined his help and he went back to the Wavehouse. [S] noticed that the accused was wearing a t-shirt of a different colour from the one he was wearing when the victim and her first met him at the Wavehouse.

[S] tried to talk to the victim who was murmuring. [S] then saw the victim foaming at the mouth. [S] panicked and called the Singapore Civil Defence Force at around 2.50am on 6 May 2012. She reported that she suspected her friend had been raped and was foaming at the mouth. An ambulance eventually came and the victim was brought to Singapore General Hospital with [S] accompanying her.

In the meantime, a member of the public who was at Siloso Beach had called the police. The accused was eventually arrested at about 6.20am on 6 May 2012 at Imbiah Walk, Siloso Beach, Sapphire Pavilion, Singapore.

The issues

The issues were: whether the accused penetrated the victim’s vagina with his penis; whether the accused penetrated the victim’s vagina with his finger; whether the accused did either or both the alleged acts without the consent of the victim; and whether the accused could rely on s 79 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”).

The case for the Prosecution and for the Defence

The Prosecution relied on the evidence of the victim and two statements made by the accused to establish that the accused had penetrated the victim’s vagina with his penis.

The Defence denied that there was penile penetration. However, the Defence did not deny that the accused had penetrated the victim’s vagina with his finger.

As for consent, the Prosecution’s case was that the victim did not factually give consent to either penetration. If she did, the victim was so intoxicated that her consent was invalid in law, in view of s 90(b) of the Penal Code.

The case for the Defence was that the victim did consent to the digital penetration with his finger and the penile penetration (if established) after a round of active sexual foreplay which the victim participated in. Also, the victim was not too drunk to give such consent. Alternatively, the Defence relied on s 79 of the Penal Code which excuses a person from an act which may constitute an offence if the act was done by that person under a mistake of fact, in good faith, believing himself to be justified by law in doing it.

The ancillary hearing

After his arrest, the accused gave three statements to the police on three different occasions, viz, on 7, 15 and 21 May 2012 before he was charged. On all three occasions, the accused’s statements were recorded by Senior Staff Sergeant Aloysius Tay (“SSSgt Tay”) from the Serious Sexual Crimes Branch of the Criminal Investigation Department. The Prosecution was relying on only two out of these three statements, namely, the statement recorded on 7 May 2012 (“the 7 May Statement”) and the statement recorded on 21 May 2012 (“the 21 May Statement”). These two statements were found in the Agreed Bundle (“AB”) at pp 10-17 and pp 18-21 respectively, as the accused had agreed to their inclusion in the AB. However, in the midst of the trial, the accused eventually challenged the admissibility of both statements and so an ancillary hearing was held to determine the admissibility of the two statements. For easy reference, I will refer to the page numbers in the AB where the two documents were located.

The 7 May Statement

There were three versions of the 7 May Statement that were tendered to court. The first version consisted of five pages (ie, pp 10, 11, 13, 15 and 17 of the AB) and contained the accused’s initial response to questions that were posed to the accused by SSSgt Tay.

The second version included handwritten amendments made by the accused, which comprised both deletions and additions of certain words, phrases and sentences. As there were quite a number of amendments, I will not set them out individually. However, I will refer to some of them in the course of giving my reasons for my decision in respect of the ancillary hearing. The second version comprised the same five pages as the first version (ie, pp 10, 11, 13, 15 and 17 of the AB).

The third version came about because SSSgt Tay said he decided to convert the accused’s handwritten amendments in the second version to typewritten format. In respect of the accused’s additions, SSSgt Tay typed it out in red font (as opposed to the black font used for the rest of the statement). In respect of those parts that the accused deleted, he applied “strikethrough” to it....