Public Prosecutor v Mohd Ariffan bin Mohd Hassan

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] SGCA 10
• Citation: [2018] SGCA 10
• Published date: 06 March 2018
• Plaintiff Counsel: Hri Kumar Nair SC, Charlene Tay Chia, Crystal Tan and Michael Quilindo (Attorney-General's Chambers)
• Defendant Counsel: Abraham S Vergis (Providence Law Asia LLC) and Sadhana Rai (Law Society's Criminal Legal Aid Scheme)
• Docket Number: Criminal Motion No 24 of 2017
• Hearing Date: 22 November 2017,09 November 2017
• Date: 14 February 2018
• Subject Matter: Criminal Procedure and Sentencing,Adducing fresh evidence,Appeal

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

The three conditions for the admission of fresh evidence on appeal as articulated by Lord Denning in Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”) have stood largely unchanged for more than 60 years. The longevity of that formulation attests to the succinct yet comprehensive manner in which the three conditions – non-availability at trial, relevance and reliability – encapsulate the relevant considerations for the court in determining whether it is appropriate to allow evidence that was not placed before the trial judge to be brought belatedly into play. Our courts have adopted the Ladd v Marshall conditions in the context of civil appeals as the criteria for determining whether there exist “special grounds” warranting the admission of further evidence after the conclusion of the trial, pursuant to O 57 r 13(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed), as well as in criminal appeals to ascertain if the further evidence is “necessary” within the meaning of s 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”).

The present application by the Prosecution for the adduction of further evidence provides an opportunity for us to consider three particular aspects of Ladd v Marshall in the context of criminal appeals. The first concerns whether the approach ought to be the same regardless of whether the application is brought by the Prosecution or by the accused person. The second pertains to the condition of non-availability and whether this should be understood to include evidence that, although physically available at trial, was reasonably not thought to be necessary at that time. The third raises an additional consideration of proportionality – that is, whether the court in deciding such an application should consider the likely procedural consequences of admitting the further evidence and the potential prejudice that might be occasioned to the respondent if this were done, and weigh this against the justification advanced in support of the application.

The present application has been brought by the Prosecution in the context of its appeal against the trial judge’s acquittal of the respondent on several charges involving allegations of serious sexual offences. In support of its appeal, the Prosecution seeks to have two sets of further evidence admitted under s 392(1) of the CPC. We begin with an account of the background to the appeal.

Background facts

As the subject of this judgment is the application filed by the Prosecution to admit further evidence on appeal, we will limit ourselves to providing a brief sketch of the facts and the proceedings leading to this application. In recounting the facts, we will focus on those aspects of the parties’ cases that concern the new evidence sought to be admitted.

The charges

A total of six charges were brought against the respondent. The second charge against the respondent was for the offence of aggravated outrage of modesty under s 354A(1) read with s 354A(2)(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”), allegedly committed against the complainant’s sister. That single charge was stood down at trial and has yet to be decided. The Prosecution proceeded with the five remaining charges at trial and they all concern sexual offences allegedly committed by the respondent against the complainant. They are summarised as follows: The first charge (“the First Charge”) was for the offence of aggravated outrage of modesty under s 354A(1) of the Penal Code. In March 2009, sometime at night, the respondent is alleged to have touched and kissed the complainant’s breasts in a prime mover (“the Prime Mover”) which was parked in a forested area in Punggol. In order to commit the offence, he wrongfully restrained the complainant by confining her in the Prime Mover. The complainant was 15 years old at the time. The third charge (“the Third Charge”) was for the offence of sexual assault by digital penetration under s 376(2)(a) of the Penal Code. Sometime in the beginning of June 2010, in the morning, the respondent is alleged to have penetrated the complainant’s vagina with his finger without her consent, in the living room of the flat where the complainant stayed with her mother, sister and brother (“the Unit”). The complainant was 16 years old then. The fourth charge (“the Fourth Charge”) was likewise for the offence of sexual assault by digital penetration. Sometime at the end of June 2010, in the afternoon, the respondent is alleged to have penetrated the complainant’s vagina with his finger without her consent, in the bedroom of the Unit. The complainant was 16 years old at the time. The fifth charge (“the Fifth Charge”) was for the offence of rape under s 375(1)(a) of the Penal Code. Sometime in the beginning of January 2010 at about 10pm, the respondent is alleged to have raped the complainant by penetrating her vagina with his penis without her consent in the Prime Mover, which was parked in a forested area in Punggol. The complainant was 15 years old when this occurred. The sixth charge (“the Sixth Charge”) was likewise for the offence of rape. Sometime in the early part of 2011, at night, the respondent is alleged to have raped the complainant in the Prime Mover in a forested area in Punggol. The complainant was 16 years old at the time.

The trial

The trial took place over a period of 10 days. The Prosecution called a total of 13 witnesses, including the complainant; the respondent took the stand as the only witness for the defence (“the Defence”).

The Prosecution’s case was primarily based on the complainant’s account of events. According to the Prosecution, the respondent came into the complainant’s life sometime in 2004, when he began a relationship with the complainant’s mother. He moved into the Unit soon after this and then lived with the complainant’s mother, sister, brother and the complainant herself. The sexual abuse began in March 2009, when the complainant was just 15 years old. The respondent took her out in the Prime Mover, a vehicle that was owned by Sim Hock Beng Company (“the Company”), which was the respondent’s employer. According to the complainant, the Prime Mover was red and bore the registration number XB4268Z. The respondent drove to a forested area in Punggol, where he caressed and kissed the complainant’s breasts in the cabin of the Prime Mover. This was the subject of the First Charge. The respondent’s misconduct escalated when he committed digital-vaginal penetration on the complainant on two occasions during the June 2010 school holidays, while they were in the Unit. This formed the subject of the Third and Fourth Charges. He also raped the complainant on two occasions, in the beginning of 2010 and 2011 respectively. The rapes occurred in the cabin of the Prime Mover, which was parked in a forested area in Punggol. These were the subject of the Fifth and Sixth Charges.

The events came to light only gradually. The complainant first confided in her boyfriend sometime in 2010. The boyfriend pressured the complainant to inform her mother about the incidents and the complainant eventually told her mother about some aspects of the sexual abuse in 2011. The full extent of the respondent’s alleged wrongdoing only came to light towards the end of 2012, after the complainant spoke with her sister on 25 December 2012. Her sister then revealed that she had similarly been subjected to unwanted sexual advances from the respondent. They then decided to inform their brother about the respondent’s conduct. The brother in turn lodged a police report on 27 December 2012.

The respondent contested all five charges that the Prosecution proceeded with, and denied that he had ever sexually assaulted or raped the complainant. In relation to the charges concerning the offences that allegedly occurred within the Prime Mover (namely, the First, Fifth and Sixth Charges), the respondent claimed that he had never driven the Prime Mover, whether with or without the complainant. The Defence also contended that in any event, the rapes could not have occurred in the cabin of the Prime Mover as alleged, since that area was dirty and contained tools and heavy items. Notably, the Defence relied on the testimony of Mr Sim Hock Beng, the owner of the Company. Mr Sim testified under cross-examination that between 2009 and 2011, one “Idris” had been assigned to drive the Prime Mover “[m]ost of the time”. “Idris” had, however, passed away three or four years prior to the trial. Mr Sim also stated that Idris “would drive and sleep in the vehicle”, and not go home because “he was tired from his work”. He “would park at … East Coast Park” and sleep in the vehicle. It is not disputed that this was the first time that the existence of “Idris” was made known to the Prosecution.

The respondent also contended that the allegations relating to his use of the Prime Mover were implausible, having regard to their frequency and duration. The Prosecution’s case was that the respondent had brought the complainant out for two-hour stretches at night, two or three times a week over a period of one and a half years. As to the Third Charge, the Defence contended that if the respondent had in fact sought to sexually assault the complainant in the manner alleged, while they were in the living room of the Unit, the complainant would surely have run to the safety of the bedroom where her mother was sleeping at that very time. In relation to the Fourth Charge, the Defence sought to cast doubt on the Prosecution’s case that the respondent had contrived a situation to be alone with the complainant by sending her sister out on an errand to buy lunch. The Defence suggested that it was “curious” that the complainant had failed to accompany her sister so as to avoid remaining in the Unit alone with the respondent.

The issue of whether,...