- A 48-year-old former Grab driver accused of sexually assaulting and attempting to rape 19-year-old passenger was acquitted on Wednesday
- Experts and lawyers say they are not surprised by the decision, despite public sentiment being divided
- They say that the passengers’ lack of consent in engaging in the sexual acts was not proved beyond reasonable doubt
- They also explained that being intoxicated does not mean that one cannot consent or make decisions
- Having ‘objective evidence’ in the form of an audio or video recording is also important in establishing the facts for such cases
High Court judge Pang Khang Chau acquitted Mr Tan, who said the sexual acts with the woman were consensual, after finding that the prosecution could not prove beyond a reasonable doubt that the woman lacked the capacity to consent.
TODAY spoke to lawyers to break down the judgement, and explored the reasons set out by Justice Pang for Mr Tan’s acquittal.
This means that the judge has found that the charges levelled against the accused were not proven beyond reasonable doubt, said law lecturer Alexander Woon from the Singapore University of Social Sciences.
“It does not mean that the judge believed one side or the other,” he added.
“Importantly, the acquittal in this case does not mean that the judge found that the complainant was lying,” he said. “He simply found that it was not beyond reasonable doubt that she lacked the capacity to consent to the sexual activities.”
Lawyers told TODAY that for Mr Tan to be found guilty of a sexual assault, rape, or outrage of modesty charge, the prosecution had to not only prove that the sexual acts were committed, but that the woman did not or could not consent to them.
The lawyers agreed that while it had been proved that the sexual acts occurred, it could not be proved beyond reasonable doubt that they were carried out without the woman’s consent.
Lawyer Rajan Supramaniam from Regent Law LLC said that in this case, the accused was consistent in his account of the incident, while the woman’s account was not “compelling”. Thus, the accused could not be found guilty beyond reasonable doubt.
The woman testified during the trial that she could not remember the encounter and could not give evidence as to whether she had consented to the sexual acts. The prosecution thus argued that she did not consent, and in any event, she was so intoxicated that she could not consent to any sexual activity.
However, she could be heard crying and interacting with Mr Tan during the car ride in audio recordings taken from the in-car camera.
“The evidence found does not corroborate (the prosecutor’s stance), especially the in-car camera footage, as well her conduct and her responses, when it was mentioned that she was aware of her surroundings,” said Mr Rajan.
Agreeing, Mr Woon said that sexual activity is “not wrong per se”, but it “only becomes morally and legally wrong when it is done without mutual consent”.
“Therefore, since lack of consent is an element of the offence, the prosecution needs to prove lack of consent beyond reasonable doubt in order for the accused to be convicted,” he added.
He added that a “foundational principle of criminal law is the presumption of innocence”.
“That’s why it’s important to treat the accused as innocent unless and until he is proved guilty beyond reasonable doubt in a court of law.”
In his oral judgement on the case, Justice Pang noted from a previous apex court decision that the mere fact that she was intoxicated was not enough to establish a lack of capacity for consent.
She appeared to be inhibited, and said she did not remember the sexual encounters due to an alcoholic blackout, but it did not mean that she was “not able to perform cognitive functions”, said Justice Pang.
Senior Law Correspondent
Published 27 Apr 2022, 8:59 pm SGT
SINGAPORE – A former Grab driver accused of trying to rape a drunk passenger was acquitted of all charges on Wednesday (April 27) after the High Court found that the prosecution failed to prove beyond a reasonable doubt that the woman lacked the capacity to consent.
Tan Yew Sin, 47, admitted that he had fondled the woman, who was then 19, and tried to have sex with her in his Kia Carens in the early hours of May 19, 2018, but said the acts were consensual.
He contested one count each of attempted rape, sexual assault by penetration, and outrage of modesty.
Tan had picked the woman up from a bar at Seletar Aerospace Park, after the woman’s friend had booked a Grab car to take her home to a condominium in Jalan Loyang Besar.
Tan testified that they started kissing after he went to the back seat to check the address on her identity card, so that he could dial her unit number on the intercom at her condominium.
She was later found lying in the middle of the road some distance from the condo by another Grab driver, who called the police.
The woman could not remember the events in the car, due to what is known as an alcohol-induced blackout, and thus could not give evidence as to whether she actually consented to the sexual acts.
An alcohol-induced blackout refers to gaps in a person’s memory for events that occurred while they are intoxicated.
During Tan’s trial, experts for both sides agreed that while alcohol affects the ability of the brain to encode memories, a person experiencing such a blackout may still retain the ability to understand the nature and consequences of their actions.
On Wednesday, in clearing Tan of all three charges, Justice Pang Khang Chau cited a precedent case and noted that the mere fact that the woman was intoxicated was insufficient to establish lack of capacity to consent.
What the court needs to determine, he said, is whether the woman had lost the capacity to understand and to decide.
Justice Pang said there were several points that night where the woman had demonstrated such capacity.
Justice Pang added that he generally accepts Tan’s account of events, which has been materially consistent since the first statement he gave to the police after his arrest.
It is particularly relevant that Tan gave the police statement at a point in time when he could not know that the woman was unable to remember what had happened.
It is also significant that his account is corroborated by audio recordings from the in-car camera, said the judge.