A 35-year-old nursing home employee who was convicted, then acquitted, of molesting a patient was yesterday sentenced to 16 months’ jail and three strokes of the cane after the Court of Appeal overturned the acquittal. The case rested on the testimony of a nurse who said that she saw the man straddling the 55-year-old patient with his trousers pulled down. The patient was found to be mentally unfit to testify. In 2018, a High Court judge cleared the man of a molestation charge, saying that an eyewitness account was subject to a greater degree of misapprehension and error compared with a victim’s own testimony. But, yesterday, the Court of Appeal said there was no reason to disbelieve the nurse’s testimony. The three-judge court also ruled that the evidence of an eyewitness was neither less nor more reliable than that of an alleged victim. “We are of the view that the judge erred when he appeared to suggest that there were differing standards in relation to eyewitnesses as opposed to alleged victims,” said the court in an 85-page judgment written by Chief Justice Sundaresh Menon. Case law stipulates that the uncorroborated testimony of a victim has to be “unusually convincing” for it to be accepted as the sole basis to convict an accused person. The apex court made it clear that the same standard of proof applies to eyewitnesses as well. “If an eyewitness were subject to a less stringent standard than the ‘unusually convincing’ standard, it would implicitly suggest that sexual offence victims are inherently less honest than eyewitnesses, and that their evidence needs to be treated with more suspicion,” said the court. In the current case, the victim has difficulty moving and is confused most of the time as a result of multiple strokes. The nurse was on her rounds on Nov 26, 2016, when she saw the man kneeling on the bed on top of the patient, whose diaper was partly opened. The man’s trousers were pulled to thigh level and his groin was touching the patient’s, she said. After five seconds, she left and told a male nurse to check the room. He saw only the accused looking at his mobile phone. The accused argued that the nurse was mistaken about what she saw as she had only a quick look. He said he was in the room to repair the TV set of another resident, when he saw the patient’s head pressed against the side rail of her bed. He said he put his knee between the railing’s bars to reach for a pillow on the far side of the bed and placed it under her head. He said no part of his body touched hers. In May 2018, the man was sentenced to 22 months’ jail and three strokes of the cane after he was found guilty by a district court following a 14-day trial. His appeal against the conviction was allowed by a High Court judge, who said the nurse’s testimony alone was not strong enough to prove the case against him beyond a reasonable doubt. The prosecution then filed a criminal reference, asking the Court of Appeal to rule on legal questions relating to the standard of proof in such cases. The apex court held that there was no reasonable doubt – the nurse was standing about 11/2 arm’s length away from the victim’s bed and her view was unobstructed. Her account was so drastically different from the man’s version that it could not be explained as a mistake, said the court. The court added that a 16-month jail term was appropriate, as the prosecution could not establish that there was premeditation or that the victim suffered severe psychiatric harm.
