SINGAPORE: A nursing home technician on Wednesday (Jan 22) was sentenced to jail and caning for molesting a 55-year-old resident, after the Court of Appeal overturned his acquittal and restored his conviction.
The man, who cannot be named due to a gag order protecting the victim, was sentenced in May last year in the District Court to 22 months’ imprisonment and three strokes of the cane.
District Judge Lim Tse Haw called it "one of the worst cases of its sort", after hearing from a nurse who had witnessed the molestation. The victim was not able to testify because of her disabilities.
The man appealed against his conviction and sentence. On Nov 23, 2018, the High Court acquitted the man after Justice Aedit Abdullah ruled that the eyewitness' account alone was insufficient to convict the accused.
But on Wednesday, the Court of Appeal overturned his acquittal and restored the man's conviction after the prosecution filed a criminal reference to the apex court.
The man was sentenced to 16 months' jail and three strokes of the cane for one count of outraging the victim's modesty after the apex court ruled that the man had not premeditated the molestation.
NURSE WITNESSES MOLESTATION
On Nov 26, 2016, the nurse who witnessed the incident had entered the room where the victim was resting to check on the residents who had not gone for a community event.
When the nurse entered the room, she had found the victim's curtain half-drawn. She found this odd as the curtains were usually drawn only when their diapers were being changed.
While the nurse checked on another resident in the room, she heard the victim's crying sounds.
"She saw the (accused) on the bed with his knees astride the victim. The (accused's) pants were lowered and the nurse saw his exposed buttocks," Chief Justice Sundaresh Menon said in his written judgment.
She said the victim's pants were also lowered and the left side of her diaper was open, and that the accused's "groin area and the victim's groin area were together".
The nurse was shocked and testified that "it was something to do with sex and it was wrong". She recognised him as the technician, and said the victim had continued to make the crying sound.
"She (the nurse) did not attempt to stop the respondent because she was frightened," Chief Justice Menon said.
It was the nursing home's policy that male employees had to be escorted by a female employee when entering a room occupied exclusively by female residents.
"The timing of the events recounted by (the nurse) was consistent with what was recorded on the close-circuit television situation at the entrance of the room," the chief justice said.
MAN DENIED MOLESTING VICTIM
The man, who was 32 years old at the time of the incident, had denied molesting the victim and claimed that the nurse was "mistaken" about what she saw.
He told the court that he had entered the room that day to repair another resident’s portable television.
While inside the room, the man said he saw the victim’s head touching the side railing of her bed and noticed that her pillow was displaced, and thought the victim was in pain as she was crying.
He placed his knees between the bars of the side railing to reach for the victim's pillow to place it under her head and claimed he did not touch the victim.
Judge Lim said he found the nurse's evidence to be "unusually convincing", a term that indicates a witness' testimony was "so convincing that the prosecution’s case is proven beyond reasonable doubt, solely on the basis of the evidence".
He added that the accused's evidence was "inconsistent", with contradictory statements to police and the court.
During a visit to the scene in the course of the trial, the man was asked to demonstrate how he retrieved the victim's pillow.
Judge Lim said he found the accused's posture to be "highly unnatural and contrived" because he could have reached for the pillow without placing his knees on the bed.
EYEWITNESS ACCOUNT "RELIABLE"
He said the man had chosen to strike when several of the room’s residents were away at an event.
Calling it the "most shocking and disturbing case of outraging of modesty", he said the man's actions were "highly repulsive and greatly offended our sense of decency".
On appeal, the man was acquitted by Justice Abdullah, who said although he had "no reason to doubt" the nurse's statement, he could not find that her evidence alone was sufficient to convict the man.
"The reporting to others could not assist the prosecution's case ultimately; it is weaker than reporting by a victim, who would be recounting on an assault on herself," Justice Abdullah had said.
"A victim is not likely to have misperceived what was happening to her. But in contrast, a witness reporting what she saw would still be subject to mistake or misapprehension."
The prosecution filed a criminal reference upon the High Court's decision.
On Wednesday, the Court of Appeal said the "unusually convincing" standard applied across all types of offences, regardless of whether they were sexual in nature or not.
Chief Justice Menon said an eyewitness account was "neither less nor more reliable than that of an alleged victim", and that all circumstances of the case had to be considered.
The apex court ruled that Justice Abdullah had incorrectly found the nurse's evidence to be less reliable than a victim's evidence, and that there was no suggestion that her line of sight had been obscured or that she was too far away to witness the assault.
CCTV footage also corroborated the nurse's evidence, the court said.
"SIGNIFICANT DEGREE OF OPPORTUNISM"
"We respectfully disagree with the district judge that the (accused) premeditated the offence. In our judgement, the most that could be said was that there was a significant degree of opportunism on the (accused's) part," Chief Justice Menon wrote.
He had taken advantage of the fact that most of the residents were at the community event and that the other residents in the room were too cognitively impaired to raise the alarm.
"Accordingly, we reverse in part the district judge’s order as to sentence by substituting the original sentence ... with a sentence of 16 months’ imprisonment and three strokes of the cane," Chief Justice Menon said.