By Sim Yizhen, Xing Yun, Hong Jia Hui and Valencia Soh
“The truth is rarely pure and never simple”, opined the famous playwright Oscar Wilde. Indeed, ascertaining the truth in most sexual assault cases poses a very real and troubling problem to judges. In cases involving rape under section 375 of the Penal Code,1 the determinative element is often the consent of the victim. Unfortunately, there is rarely tangible physical evidence to prove consent or the lack thereof. As most sexual crimes happen behind closed doors, oftentimes the only proof that the sexual acts were committed without the victim’s consent is the victim’s testimony itself.2 This article will explore how the accused persons are tried in cases where courts can only rely upon the victim’s evidence. In the process, the article will also touch on issues of witness testimony and consent, which are the determinative elements of such sexual assault cases.
In the seminal case of Ong Mingwee (alias Wang Mingwei) v. Public Prosecutor,3 the accused, Ong, was accused of raping the 25-year-old female victim, who claimed that he did not allow her to leave his house unless she had sex with him. The undisputed facts were that the accused had not threatened her with violence or physically restrained her in any way,4 and that she was sober enough to have possessed the capacity to give consent.5 The victim’s consent to sexual intercourse was therefore freely given; not vitiated by fear of injury, wrongful restraint or intoxication. Additionally, the appeal judge also doubted the corroborative value of the testimonies of other prosecution witnesses for being tentative and non-committal, lacking in particulars and depth. Therefore, because the Prosecution’s case “principally relied on the complainant’s evidence in support of its case”, her lack of credibility “directly affected the question of whether the Prosecution had discharged its burden of establishing the elements of the charge (i.e. that the complainant did not consent to sexual intercourse with the appellant) beyond a reasonable doubt”.6 The charge having not been made out, the accused was accordingly acquitted.
Ong Mingwee presents a very specific category of sexual assault cases where the conviction or acquittal of the accused rests almost exclusively on the victim’s testimony. Therefore, it is instructive to analyse the court’s deliberation in a realm where the facts evince only of a limited scope of evidence. Two other issues were highlighted in the judgment—the credibility of the victim’s testimony, and the precise definition of consent.
Witness Credibility: “Unusually Convincing” Testimony
It is trite law that the standard of proof that the Prosecution must meet in criminal cases is that of “beyond a reasonable doubt”.7 This is taken to mean “reasoned doubt”, which in turn mandates that all doubt, for which there is a reason relatable to and supported by the evidence presented, be taken into account in favour of the accused.8 However, Ong Mingwee and other relevant decisions9 on sexual assault suggest that in cases where the conviction rests solely on the victim’s testimony, the burden of proof is more multi-faceted than simply proving the elements of the charge beyond a reasonable doubt. Indeed the High Court in Ong Mingwee stated that “it was trite law that a conviction may be sustained on the testimony of one witness only if the court made a finding that the witness’ testimony was so compelling that a conviction could be based solely on it.”10 This view was first adopted in Khoo Kwoon Hain v. PP,11 where Yong CJ (as he then was) held that while there was no rule in Singapore that in sexual offences, the evidence of the complainant must be corroborated, it was nonetheless unsafe to convict unless the evidence of the complainant was “unusually convincing”.12
The terms “unusually convincing” and “unusually compelling” are used interchangeably, and its exact definition and its relationship with the standard of “beyond reasonable doubt” are rather difficult to pin down. In Teo Keng Pong v. PP, Yong CJ stated that “unusually convincing” simply meant that “the witness’s testimony must be so convincing that the Prosecution’s case was proven beyond reasonable doubt, solely on the basis of the evidence.”13 This definition, which equates “unusually convincing” with “beyond a reasonable doubt”, has been rendered otiose by the Court of Appealin Ong Mingwee,14 which reasoned that this cannot be the case or else “unusually convincing” would merely be a restatement of the ordinary standard of proof.
As the Court of Appeal in AOF15 further clarified, “[t]he phrase ‘unusually convincing’ is not a term of art; it does not automatically entail a finding of guilt… Nor does it dispense with having to assess the complainant’s testimony against that of the accused, where the case turns on one person’s word against the other’s.”
The case of AOF16 also clarifies the substantive elements of “unusually convincing” testimony which is the “demeanour of the witness” weigh alongside “both the internal and external consistencies found in the witness’ testimony.”17
From this, the authors infer that the process of proof in such cases is two-fold. First, the Prosecution must show that the complainant’s testimony satisfies the substantive elements of being “unusually convincing”. Second, this “unusually convincing” evidence must then hold up to the regular criminal standards of proving the Prosecution’s case beyond reasonable doubt. This two-step process is implied in AOF, which states that the law on unusually convincing testimony does not change the “ultimate rule that the Prosecution must prove its case beyond a reasonable doubt”.18
The authors feel this is a positive indication because even if a complainant’s testimony is “unusually convincing”, it can only establish the internal coherence and persuasive demeanour of the complainant; these factors alone cannot ipso facto be determinative of the guilt. As noted by SGHC in PP v. Mohammed Liton Mohammed Syeed Mallik,19 “[i]n a criminal case, the court may find… the complainant’s story to be more probable than that of the accused person’s version, and yet, be convinced that there is a reasonable possibility that the accused person’s story could be true. If that were the case, the court’s duty is to acquit.”
Witness Credibility: The Archaic Defence of “Immoral Character”
It is interesting to note that, until recently, a man prosecuted for rape could impeach the credibility of the alleged victim by demonstrating, under section 157(d) of the Evidence Act that the victim was of “generally immoral character”.20 This provision was based on an old common law assumption that a person who is sexually experienced is more likely to be untruthful and to have consented to intercourse.21 The direct implication of this rule is that rape charges involving female victims who are deemed “promiscuous” rarely succeed when it is a case of one (wo)man’s word against another. Section 157(d) is evidently illogical in that it transfers a woman’s consent to copulate with third parties to the accused. Local women rights group AWARE has also identified the provision’s potential to deter rape reporting and codify victim blaming.22 Following submissions by AWARE, the Singapore Parliament decided to repeal the section in early 2012.
|“In an area of criminal justice where the facts are often unclear, the accounts are varied and the physical evidence sparse or unhelpful; the heavy onus is often on judges to tread with delicacy and precision to ensure that the factually innocent are not wrongfully convicted.”|
This does not however mean that a victim’s sexual history is now entirely inconsequential.23 For example, evidence of prior consensual sexual activities between the two parties could be adduced to demonstrate the victim’s state of mind towards the accused.24 The court also retains much latitude in deciding whether the victim’s sexual history is “relevant”, as it does with regards to any other evidence.25 This is especially so since Singapore has yet to implement “Rape Shield” laws similar to those in other jurisdictions.26
The second issue judges must attend themselves when convicting solely on the basis of witness testimony and indeed in all cases of rape under section 375 of the Penal Code is the element of consent. The Penal Code provides no statutory definition of consent, though it does elucidate when consent is invalid.27 Relying on the definition of Ratanal & Dhirailal’s Law of Crimes28 adopted by the local High Court29, consent is voluntary participation where one freely exercises a choice between resistance and assent after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act.30 In essence, consent requires “the exercise of free and untrammelled right to forbid or withhold what was being consented to” in which there exists “a voluntary and conscious acceptance of what was proposed to be done by another and concurred by the former”.31
It is particularly challenging to ascertain whether there was consent in controversial cases involving unconventional fact patterns, such as where the victim had originally consented to the sexual act, but withdrew her consent right before the time of the sexual act, or if the victim had indeed agreed to have sexual intercourse but was mistaken about significant issues which motivated her to agreement.32 It has been argued that if at the time of the sexual activity a person would not have consented to it had they known all the facts, including the accused’s state of mind, there is no consent.33 Similarly, if the accused knew or ought to have known that the victim was not consenting to the activity, he should be guilty of an offence.34 The general principle, it seems, is that consent must be continuous, it must be given at the material time, and for that particular act.
In the realm of other sexual offences such as outrage of modesty35 and insulting the modesty of a woman,36 it has been suggested that unfortunate circumstances have resulted from the arguable difficulties of the accused proving his innocence. For instance, where the accused is too drunk to recall anything, he may compromise on his factual innocence and pay the complainant to compound their cases in order to avoid a legal suit that might risk harming his reputation and matrimonial relationship.37 However, it must be noted that the law does not discriminate either party and the standard of proof to be applied in such sexual offences is simply the criminal standard—beyond a reasonable doubt. Where there are allegations made against the accused, the veracity of the victim’s testimony and the strength of the witness recollections must be subject to scrutiny.
It thus bears well to keep in mind Yong CJ’s warning in Siew Yit Beng v. Public Prosecutor,38 that allegations of sexual assault should never be taken lightly because “given the social stigma usually attached to such offences, it could irretrievably damage the reputation of the alleged “rapist” even if the allegations were subsequently proven to be false.”39 In Siew, the accused was sentenced to four weeks’ imprisonment for making a false allegation of rape against her Chinese physician. In his judgment, Yong CJ highlighted the difficulty of verifying allegations of sexual assault because they are often the “word of one person against another”.
In an area of criminal justice where the facts are often unclear, the accounts are varied and the physical evidence sparse or unhelpful; the heavy onus is often on judges to tread with delicacy and precision to ensure that the factually innocent are not wrongfully convicted.
Sim Yizhen, Hong Jia Hui, Valencia Soh, all 21, and Xing Yun, 23, are third-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.
1Cap 224, 2008 Rev. Ed. Sing.
2 Chen Siyuan & Eunice Chua, “Wrongful Convictions in Singapore: A General Survey of Risk Factors”  28 Sing. L. Rev. 98.
3  SGHC 244 [Ong Mingwee].
4Ibid. at .
5Ibid. at .
6Ibid. at .
7Ibid. at  and .
8Public Prosecutor v. Mohammed Liton Mohammed Syeed Mallik  SGCA 48 at  [Mohammed Liton].
9 See e.g. Public Prosecutor v. Ravindran Annamalai  SGHC 77; Public Prosecutor v. V Murugesan  SGHC 160.
10 Ong Mingwee, supra note 3 at .
11 2 S.L.R.(R.) 591.
12Mohammed Liton, supra note 8.
13Teo Keng Pong v. PP  2 S.L.R.(R.) 890 at .
14Supra note 3 at  to .
15Ibid at [114(d)]. AOF v. Public Prosecutor  3 S.L.R. 34 [AOF].
16 Ibid. at .
17Ibid. at .
18 Ibid. at .
19Public Prosecutor v. Mohammed Liton Mohammed Syeed Mallik  SGHC 47 at  [“Mohammed Liton (No 2)“].
20 Evidence Act (Cap 97, 1997 Rev. Ed. Sing.), s. 157(d); since repealed by Evidence (Amendment) Act 2012 (Act No. 4 of 2012), s. 18.
21 R v. Seaboyer; R v. Gayme  2 S.C.R. 577.
22 “Repeal of Section 157 (d) of the Evidence Act; Implementation of Rape Shield Laws”, online: AWARE <http://www.aware.org.sg>.
23 “Law Ministry to propose repeal of Section 157(d)”, online: The Public House < http://www.publichouse.sg>.
24 Mohammed Liton, supra note 8at .
25Ibid. at .
26 Rape Shield Laws are laws which prescribe or guide when and how previous sexual conduct could be used by a defendant at trial. For more elaborate discussion, see supra note 21.
27 Under s. 90 of the Penal Code, consent is vitiated if it was given under (1) fear of injury or wrongful restraint to the person consenting or to some other person, (2) a misconception of fact that the accused knows or has reason to believe that the consent was given under the above circumstances, (3) an unsoundness of mind, mental incapacity or intoxication.
28C K Thakker & M C Thakker, Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860, 26th ed, vol 2, (New Delhi: Bharat Law House, 2007) at 2061.
29 Public Prosecutor v. Iryan bin Abdul Karim,  2 S.L.R. 15.
30 Supra note 25.
31 Supra note 26 at .
32 Jonathan Herring, “Does Yes mean Yes? The Criminal Law and Mistaken Consent to Sexual Activity”  22 Sing. L. Rev. 182.
34 Supra note 26.
35 Supra note 1, s 354(A).
36 Supra note 1, s509.
37 Mavis Toh, “More women say: Touch me, Pay me”, The Straits Times (28 December 2009) online: Diva <http://www.divaasia.com/article/6701>.
38  SGHC 157 [Siew].
39 Ibid at .