Roseli bin Amat and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JC
• Judgment Date: 31 March 1989
• Neutral Citation: [1989] SGCA 6
• Docket Number: Criminal Appeal No 13 of 1986
• Date: 31 March 1989
• Year: 1989
• Published date: 19 September 2003
• Plaintiff Counsel: Peter Fernando (Leo Fernando)
• Citation: [1989] SGCA 6
• Defendant Counsel: Mahadi Abu Bakar (Mahadi Abu Bakar & Associates),S Vellupillai (Donaldson & Burkinshaw),Vijay Kumar (Vijay Perumal & Jeremiah),Jennifer Marie (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Principles,Allegation that accused not given fair and impartial trial,Criminal Procedure and Sentencing,Functions of judge,Role of trial judge in considering evidence before him,Whether trial judge prejudiced and made up his mind before conclusion of evidence,Appeal,Evidence

Cur Adv Vult

(delivering the judgment of the court):The appellants were charged and convicted in the High Court of rape of one Orranuch Nilprang (the complainant). The first appellant was charged with and convicted of one count of rape; the second appellant two counts of rape; the third appellant two counts of rape, and the fourth appellant one count of rape. The first appellant was sentenced to a term of imprisonment of 14 years and 15 strokes of cane; the second appellant to a term of imprisonment of 13 years and ten strokes of cane on each charge, the sentences of imprisonment to run concurrently; the third appellant to a term of imprisonment of 12 years and ten strokes of cane on each charge, the sentences of imprisonment to run concurrently, and the fourth appellant to a term of imprisonment of ten years and ten strokes of cane. All the appellants appeal against their convictions and sentences.

The complainant is a Thai national and entered Singapore illegally sometime in July 1985 and at the material time was a prostitute. She occupied a room on the fifth floor of an uncompleted block of flats, Blk 172, Yishun Ave 7 and carried on her business on the fourth floor, and her customers were mainly Thai construction workers. The appellants at the material time were members of the police force attached to the Paya Lebar Police Station and were crew members of a police task force patrol team; the first appellant was the leader of the team with the second appellant as his deputy.

On the night of 17 October 1985 the complainant after entertaining two Chinese clients in the room on the fourth floor returned to her room on the fifth floor. There she found her two friends, Thai male construction workers; one was drinking and the other was sleeping on her bed. She changed and went to lie down on the floor beside the bed listening to her tapes.

At about 2am, on 18 October 1985, the four appellants went to Blk 172, Yishun Ave 7 and conducted a search on the uncompleted block of flats. They saw light from a room on the fifth level and they went up there to investigate. The complainant was in that room and so were the two male Thai workers. When the complainant heard a knock on the door and sensing that it was a police raid she scaled a window and hid herself on the window ledge clinging to the metal scaffolding. One of the male Thai workers then opened the door and the appellants entered and conducted a search. They found the complainant and ordered her to return to the room which she did. On returning to the room her purse which contained $60 and 5,000 Indonesian rupiahs slipped out of her pocket and fell on the floor. The first appellant picked it up and put it in his pocket. He then recorded on an envelope particulars of the two male Thais who had with them their work permits. The first appellant then handcuffed the complainant and detained her. The complainant was taken down to the car park where the police car was. There, the appellants, after a discussion among themselves, took the complainant into the car. The first appellant drove the car with the second appellant seated next to him, and the third and fourth appellants were seated at the back with the complainant between them. Once inside the police car one of the appellants removed her handcuffs. The first appellant drove the police car along Yishun Ave 7 and turned into Yishun Ave 2 and from there to an unnamed track until they reached a vacant hut, On arrival there, the appellants and the complainant all alighted from the car. Subsequently, the appellants each took turn to have sexual intercourse with the complainant in the hut; the second and the third appellants each had sexual intercourse with her twice. Thereafter, the complainant was brought out from the hut and the first appellant handed her a piece of paper on which was written the second appellant`s name and telephone number. The first appellant asked the complainant to telephone `Ali` (referring to the second appellant) at 11am later that morning.

The complainant was then driven back to the construction site at Yishun Ave 7 where the appellants left her near the foot of Block 172. The complainant proceeded to the fourth level of Block 172 and saw her friend AO Pantusavan (AO), to whom she related that she had been raped by the four policemen. She was crying in front of AO; her hair was in a mess and she was smelling of spermatozoa. Later she returned to her room on the fifth level where she washed and cleaned herself and then went to bed. She woke up at about 1pm and went to the fourth level again, discussed the matter further with her friend AO and decided to lodge a police report. Accompanied by her friend AO, she lodged a police report at the Criminal Investigation Department. The four appellants in consequence were arrested and charged, and were tried jointly.

The case of the prosecution was that the complainant was arrested and handcuffed on the fifth level of Blk 172, taken down to the car and brought to the desolate vacant hut at about 2.30am and was then raped by each of the four appellants in turn. The evidence of the complainant was that the first appellant took her into the hut, forced her to take off her clothes, and out of fear she submitted to having sexual intercourse with him. She said she was frightened. Thereafter, also out of fear, she submitted to having sexual intercourse with each of the other appellants in turn; in like manner, that is, out of fear, she submitted to having sexual intercourse a second time with the second and third appellants respectively.

All the appellants raised the defence of consent. They admitted that the complainant was brought to the vacant hut and that they each had sexual intercourse with her; the second and third appellants admitted that they each had sexual intercourse with her twice. But they said that the complainant consented to the acts of sexual intercourse. The consent, according to the appellants, arose out of a bargain made between the complainant and the first appellant. The first appellant said that when the complainant was alone with him on the fifth floor of the block of flats, she fondled his private part and spoke to him in a mixture of broken Malay and Thai and pleaded with him to release her. When she was brought down to the car park she offered him sexual favours in exchange for her release. Though her hands were handcuffed behind, she made sexual gesture with her fingers at the back, and when they all got into the car his colleagues released her handcuffs. That offer though made to the first appellant was made in the presence of the other appellants. At that time the first appellant had not decided to take up the offer; but while he was driving the car to the police station he decided to accept the complainant`s offer and he thereupon made a `U` turn and drove the car to the hut. There, after he had sexual intercourse with her, he asked her on behalf of the other appellants and she agreed to have sexual intercourse with them also. The second, third and fourth appellants said that they did not force her and that she consented to having sexual intercourse with them respectively; she smiled and laughed with them.

The learned judge at the conclusion of the hearing found the appellants guilty of the offences with which they were respectively charged and convicted them accordingly; he sentenced each of them to the term of imprisonment and caning as we have described.

The arguments put forward on behalf of all the appellants in the forefront of the appeal were directed not against the reasoning and finding of the learned judge in his judgment but against the incidents that took place during the trial. They complained that the learned judge throughout the trial persistently interfered with the presentation of their defences and interrupted their counsel excessively. The interventions were on such scale both numerically and in length and hostility that the appellants were deprived of a fair and impartial trial. Mr Fernando, who argued this ground of appeal on behalf of all the appellants, grouped the interventions of the learned judge roughly into three categories:

(i) excessive interruptions by the learned judge in the examination and cross-examination of witnesses by counsel with the consequence that counsel were unduly hampered in the cross-examination of the prosecution witnesses and in the examination of their own clients;

(ii) unfair and improper cross-examination by the learned judge of the appellants in a hostile manner including disallowing them to give evidence in their own way; and

(iii) making adverse comments or observations which strongly indicated that the learned judge had closed his mind and predetermined the guilt of the appellants prior to considering all the evidence before him.

We now consider these categories of interventions seriatim. In respect of the interruptions complained of Mr Fernando drew to our attention the specific instances where, he said, the learned judge interrupted counsel in the cross-examination of the prosecution witnesses and the examination of the appellants. We have examined the transcripts and the interruptions referred to and also the relevant parts of the transcript leading to the interruptions, and are compelled to say that the...