Public Prosecutor v GBA (B1) and BAV (B2)

• Jurisdiction: Singapore
• Judge: Marvin Bay
• Judgment Date: 25 June 2015
• Neutral Citation: [2015] SGDC 168
• Court: District Court (Singapore)
• Docket Number: Magistrate’s Appeal No 38 of 2015/01-02, MA 39/2015/01-02
• Published date: 16 July 2015
• Year: 2015
• Hearing Date: 15 May 2013,14 May 2013,01 August 2013,07 April 2014,14 November 2013,11 April 2014,13 August 2013,20 May 2013,17 February 2014,13 May 2013,02 August 2013,23 August 2013,29 September 2014,21 August 2013,29 July 2013,25 October 2013,15 August 2013,14 April 2014,09 March 2015,16 May 2013,13 September 2013,14 August 2013,20 August 2013,29 October 2013,28 March 2013,13 November 2013,21 November 2013,18 November 2013,12 December 2013,25 March 2013,24 November 2014,31 July 2013,08 April 2014,30 July 2013,28 October 2013,23 May 2013,21 May 2013,20 November 2013,26 March 2013,27 March 2013,19 November 2013,16 August 2013,24 October 2013,24 February 2014,17 May 2013,12 November 2013,12 March 2015,13 December 2013,15 November 2013,22 August 2013,22 May 2013
• Plaintiff Counsel: DPP Ramesh Ethan Ananda and APP Raja Mohan
• Defendant Counsel: R Shiever and Ho Thiam Huat (B1) and Ravinderpal Singh (B2)
• Citation: [2015] SGDC 168

District Judge Marvin Bay: Introduction

The two accused persons, GBA and BAV, who are close friends and previously classmates at their secondary school, face a number of charges of having committed various sexual crimes against a female former classmate, Ms C in the early hours of 18 April 2009. The three have known each other for about nine years, remaining in close contact after leaving school. On 18 April 2009, Ms C was invited to GBA’s flat for a gathering. Ms C was the sole accepter of this invitation, but had indicated her belief that other ex-school mates would also be present.

The proceedings began with a nostalgic reminiscence of days past as well as disclosures of their present situation in GBA’s flat at Bukit Panjang. As the night progressed, Ms C and the two men consumed cocktails of vodka, beer and mango juice. After the catching up was done, drinking games were played. The complainant’s account is that she had a disproportionate intake as she lost most of the rounds. She asserted that this intake of alcohol culminated with her falling into a state of deep stuporous inebriation. She remained in this deeply unconscious state for the next three hours and only became dimly aware of what had transpired as the alcohol metabolized. While the victim was not fully aware of what took place, this gap was filled by the fact that BAV took a number of photographs where she appeared to be totally unconscious and insensate. 27 of these photographs show sexual acts and intrusion to her private parts while she was in this stuporous state of unconsciousness.

The charges

GBA faces the following charges: one charge of sexual penetration of the vagina of Ms C with his fingers without her consent, under section 376(2)(a) and punishable under section 376(3) of the Penal Code, Chapter 224 (DAC 3403/2012); and four charges of using criminal force with intention to outrage her modesty, under section 354(1) of the Penal Code, Cap. 224 (DACs 3404 -3407).

BAV faces the following charges: one charge of using criminal force with intention to outrage her modesty by placing her penis on, or about, the mouth of Ms C, under section 354(1) of the Penal Code, Cap. 224 (MAC 970/2012); and 27 charges of insulting her modesty in relation to 27 images taken by him, showing Ms C in a state of undress or in an otherwise compromised position, contrary to section 509 of the Penal Code, Cap. 224 (MACs 971-997/2012).

In the context of this case, GBA, BAV and Ms C had studied together at the same secondary school, and she had known them since 1998. In the aftermath of the event on 18 April 2009, Ms C approached police with a memory stick from a digital camera. Twenty seven images depicted acts of a sexual nature being apparently performed on Ms C. She made a police report alleging that the acts were done without her consent, and that she had been in a state of intoxicated stupor when the acts were perpetrated.

The principal issue in this case is therefore whether GBA and BAV had committed the alleged sexual acts against Ms C without her consent. The prosecution’s case is that there was either on the facts a total absence of consent, or a situation where Section 90 (b) of the Penal Code would apply in that: “90 A consent is not such a consent as is intended by any section of this Code ─ (b) if the consent is given by a person who from unsoundness of mind, mental incapacity, intoxication, or under the influence of any drug or other substance, is unable to understand the nature and consequences of that to which he gives his consent.

The digital images taken by BAV

A series of photographs taken by BAV in the course of the night the three persons spent together, have taken a central place in the evaluation of what occurred there. The photos are part of a collection from an SD card or ‘memory stick’ that had been surreptitiously removed from BAV’s camera, then been secreted by Ms C from GBA’s apartment. The memory stick was surrendered to police the same day, when Ms C made a police report. These were analysed and authenticated; by the Technology Crime and Forensics Branch.

The salient images are images 88 to 128 of Annex B of the TCFB Report. The images unequivocally show sexual activity of a sort taking place. The images can be divided into three separate tranches in terms of the time interval. The first series starts with Ms C variously nursing and drinking a glass containing a mixture of mango juice and alcohol at images 85 to 87. Image 88 shows her in a state of partial undress one hour and 25 minutes thereafter. In image 88, BAV’s penis is presented in the vicinity of her mouth. At images 90 and 94, GBA is seen inserting his fingers into Ms C’s vaginal orifice from different angles of approach. BAV’s penis is again featured in image 91, with the tip pushing against her lower cheekbone and the shaft in the vicinity of her mouth. At this juncture, her t-shirt is seen trapped by her hand, and her purple brassiere is lowered beneath her chest. Images 88 to 101 appear to have been taken in quick succession in an 8 minute period.

The next series are taken half an hour later, showing Ms C almost nude and the series are principally of GBA handling and fondling her, interspersed with images at images 112 to 114 of BAV fitting in a condom to a partially erect penis. There is no real dispute that Ms C never acknowledges the camera. Her face, when seen, appears to be a state of calm repose. Even when four shots are taken with flash photography in 18 seconds, none of the photos show any flinching or evidence of muscular movement. There is a long pause between image 118 and the final set of images.

The last series of pictures are taken two hours and twenty minutes later, and at images 119-128 depicting Ms C, with panties on, but with breasts exposed and her bandeau tube pushed to her ribs. She is faced away from the camera. The prosecution’s case is that she was in a state of complete alcohol induced inebriation when the shots were taken. Notable too, is the absence of any full framed photograph showing Ms C propping or supporting herself on her own power. A single photo, image 116 does show her left shoulder to be raised, but her head remains tilted to the bed. This suggests that her body was braced either by an object or another person in close proximity.

To facilitate a considered analysis of this case, I have set out a list of salient images below. I have also made short descriptions of what can be seen in each of these significant images. All parties are in agreement that the time stamp does not depict the actual time the images were taken. The camera date and time setting were awry, with the year set at an improbable 2080, with a date setting of 04 21, suggesting 21 April, rather than actual date of 18 April 2009. There is no dispute that the software would nevertheless maintain a reliable record of the duration between each photograph. This insight to the time elapsed between the images is integral for a proper analysis of what likely transpired, especially in juxtaposition with witness accounts and police statements.

S/No	Serial number	Inage reference	Time stamp	Description
1.	83-84	DSCO 1069. JPG and DSCO 1070.JPG	12:00:34 and 12: 00: 48	A bare-chested man is seen playing a guitar.
2.	85, 86, 87	DSCO 1071. JPG, DSCO 1072.JPG and DCSO 1073.JPG	12:01:02, 12: 01:17 and 12:05:19	A fully dressed woman is seen nursing and then drinking a glass of bright yellow fluid.
3.	88	DSCO 1074. JPG	13:30:10	A woman is lying on bed, with a penis placed at her mouth. The penis is exposed from a pair of black trousers.
4.	89	DSCO 1075. JPG	13:32:29	A woman is lying on a bed, with a naked man on top of her.
5.	90	DSCO 1076. JPG	13:32:40	A man inserts finger/s into a woman’s private parts at her genital area.
6.	91	DSCO 1077. JPG	13:32:57	A penis is placed against a woman’s mouth, with the tip pushing against her cheek, and part of the shaft around her mouth. Image is similar to 88 above.
7.	92	DSCO 1078. JPG	13:33:08	A woman is seen lying on a bed with only lower jaw in frame, with purple brassiere exposed to reveal both breasts.
8.	93	DSCO 1079. JPG	13:35:18	A woman is lying on bed with closed eyes, and her right arm raised, and apparently entangled on her red top. Her purple brassiere is lowered and her right breast exposed. A man’s head looms around the right edge of the frame.
9.	94	DSCO 1080. JPG	13:35:28	A partial posterior view of a woman on a bed. A man inserts his left index and middle fingers into the woman’s vagina.
10.	95	DSCO 1081. JPG	13:35:34	A partial posterior view of a man with his penis and scrotum exposed, and his forearm in the foreground showing a wrist tattoo.
11.	96	DSCO 1082. JPG and	13:35:58	A woman is lying on a bed, with purple brassiere pulled down, and right arm raised, and apparently entangled on her red top, and her right breast exposed. A man’s head looms around the right edge of the frame, and the penis of a second man can be seen at the left edge of the frame. The penis had been fitted with a pink condom.
12.	97, 98. 99, 100	DSCO 1083. JPG DSCO 1084. JPG DSCO 1085. JPG and DSCO 1086. JPG	13:36:04 13:36:09, 13:36:16 and 13:36:22	A woman is lying on a bed, with closed eyes and her right arm raised, and apparently entangled on her red top. Her right breast is exposed in the first image. The subsequent three images are shot in close succession of under twenty seconds, and pan closer to her face, her eyes remain closed.
13.	102	DSCO 1089. JPG	14:09:57	A man and a woman are lying in bed. Both are naked, and facing against the camera in a semi

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