PUBLIC PROSECUTOR v Tan Yew Sin

Facts

Tan Yew Sin, a private hire driver, was tried in Criminal Case No 36 of 2019 on three charges: sexual assault by digital-vaginal penetration under s 376(2)(a) of the Penal Code, attempted rape under s 375(1)(a) read with s 511, and outrage of modesty under s 354(1). He admitted the sexual acts but said they were consensual; consent was the only disputed element.

In the early hours of 19 May 2018 he drove the complainant home after she had drunk five pints of beer at a bar with friends. She was visibly intoxicated, unsteady and crying, and had repeatedly tried to make herself vomit, but had declined a friend's offers to take her home. The accused at first declined the fare when told she was a little drunk, relenting after her friend repeatedly assured him she was okay. At her condominium she could not get through the side gate, and the accused suggested she rest in the car. There she sobbed, thumped her chest and knocked her head on the window. By his account, after he moved to the back seat to search her bag for her identity card, they ended up kissing, and he denied initiating it. Two episodes of sexual activity followed, with a short drive in between; the in-car camera captured her moaning, and the sexual activity ended after she said no. She then told him to just drive, later walked into her condominium unassisted, left again soon after, and was found lying on a road nearby. Because of an alcohol-induced blackout she could not recall the sexual acts, so the only direct account was the accused's, together with the in-car audio and CCTV footage.

Issues

1. Whether the complainant lacked the capacity to consent because of intoxication under s 90(b) of the Penal Code
2. Whether, if she had capacity, the Prosecution proved that she did not in fact consent
3. Whether the accused could rely on the defence of mistake of fact under s 79 of the Penal Code

Holding

Pang Khang Chau J found that the Prosecution had not proved its case beyond a reasonable doubt and acquitted the accused of all three charges. The Prosecution has appealed.

Reasoning

On capacity, the court applied Pram Nair v Public Prosecutor [2017] 2 SLR 1015: intoxication, disinhibition or out-of-character behaviour does not by itself mean incapacity, which requires inability to understand the nature and consequence of the act. It accepted an estimated blood alcohol level of 164 to 182 mg/100ml during the relevant period, consistent with a blackout, but both experts agreed a person in a blackout can remain conscious and functioning. The court gave little weight to the Prosecution expert's conclusion on capacity, finding it built on factual errors and on a medical idea of informed consent that conflated disinhibition with incapacity. Her observed behaviour showed situational awareness throughout the night: she arranged for a booking to be cancelled, reasoned about not worrying her friend, answered the driver appropriately, remembered a cat that usually sat on the gate, stopped hitting herself when told to, and later said no and pushed his hand away. There was a reasonable doubt that she lacked capacity.

On consent in fact, the absence of recorded verbal consent was not conclusive, since the law does not require consent to be verbal. The paramedic's view that the complainant behaved like past assault patients was unreliable lay opinion and was given no weight. Given the finding on capacity, her saying no was more plausibly a withdrawal of consent already given. The court found the accused credible: his account was consistent with his statements and the audio, he volunteered unfavourable details, cooperated fully, did not drive her somewhere secluded, and stopped when she signalled she did not want to continue.

Although unnecessary to decide, the court also found the mistake of fact defence made out on a balance of probabilities. Blackouts may not be apparent to others, the friends had assured him she was not too drunk, and her responses, her initiation and reciprocation of the activity and the absence of resistance showed that he believed in good faith, with due care and attention, that she had capacity and consented.

From the judgment