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SINGAPORE — A former Grab driver was on Wednesday (April 27) acquitted of sexual offences against a female passenger in 2018, after a High Court judge found that the prosecution could not prove "beyond a reasonable doubt" that she lacked the capacity to consent.
Mr Tan Yew Sin, now 48, had claimed trial to one charge each of attempted rape, sexual assault and outrage of modes
The married man was accused of committing the acts in his car after picking up the alleged victim, then 19, from a bar in the early hours of May 19 in 2018. She had drunk about five glasses of beer throughout the evening while with some friends.
She cannot be named due to a gag order to protect her identity.
During the trial, Mr Tan had testified that he thought the sexual acts were consensual, and that at no point did she try to reject his advances.
He said he had assessed that she was drunk and was “normal just like any other passenger”, despite his initial reluctance to let her into his car. While he claimed he had not initiated the kiss, he also said he could not remember who started it.
Mr Tan also described how he and the passenger got intimate with each other in the car and said that “she was very much involved” by touching him all over as well.
On the other hand, the prosecution had argued that she did not consent, and in any event, she was so intoxicated that she could not consent to any sexual activity.
JUDGE'S VERDICT
On Wednesday, High Court judge Pang Khang Chau 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.
That the alleged victim had drunk a substantial amount, appeared inhibited, or behaved unusually also did not indicate a lack of capacity for consent, which requires that a complainant is unable to understand the nature and consequences of what she consents to, the judge cited.
That morning, Mr Tan had accepted a booking from the teenager to travel from Wild Seed Bar at the Seletar Aerospace Park to her condominium. It was his third booking of the night.
When Mr Tan got there, her friend told him that she was drunk and passed her a plastic bag in case she needed to vomit in the car. She lay down in the rear passenger seat.
She testified during the trial that she could not remember the encounter and could not give evidence as to whether she had actually consented.
However, she could be heard crying and interacting with Mr Tan during the car ride in the in-car camera footage.
Closed-circuit television footage also showed that her gait was unstable, Justice Pang noted.
The judge said that it was not conclusive whether she could remember the sexual encounters due to an alcoholic blackout, and her inability to form memories due to intoxication did not mean she was “not able to perform cognitive functions”.
The “ultimate inquiry” was not whether she was intoxicated, per se, but whether she lost the capacity to “understand and decide”, said Justice Pang.
He added that the alleged victim demonstrated such a capacity at several points during the night, such as by repeatedly rejecting her friend’s offer at the bar to drive her home.
She said it was to avoid worrying her friend, which Justice Pang said showed that she could look beyond her immediate needs and consider her friend’s.
In addition, she had told Mr Tan when they got to her condominium complex that she was not ready to leave the car, and searched for money to pay for the ride.
At the end of the sexual acts, when she began saying no and pushed Mr Tan’s hands away, this conveyed an intention that she did not want to be touched and that she was aware of what was happening, the judge further noted.
Tan's defence was that he had stopped what he was doing when the woman said no.
After the sexual encounters, she told Mr Tan that she was okay and asked him to drive. This showed an ability to assess whether to leave or remain in the car with him, Justice Pang said.
Because of these and other factors, the prosecution failed to prove beyond a reasonable doubt that she lacked the capacity to consent, he added.
This meant that the legal burden of proof to convict someone accused of a criminal offence was not met.
The prosecution, led by Deputy Public Prosecutor Muhamad Imaduddien, had accepted that because the alleged victim was unable to recall the incident, the credibility of Mr Tan's testimony was crucial in determining whether there was consent.
Mr Tan’s version of events was consistent since his first statement to the police, Justice Pang said in accepting that his testimony was credible.
The judge added: "It is particularly relevant that the police statement was given at a point in time when the accused did not and could not know that the complainant was unable to remember what happened during the sexual encounters.
"It is also significant that his account is corroborated by the audio recordings from the in-car camera."
And even if the woman had lacked the capacity to consent, the judge said Mr Tan would have had a “reasonable belief” that she had the capacity. She had responded "appropriately and relevantly" to Mr Tan's questions and suggestions as well as to her surroundings.
Following the court hearing, his defence counsel, Mr Chenthil Kumarasingam from Withers KhattarWong, told reporters that his client is keen to get back to his life after a four-year-long court process.
The prosecution did not indicate if it will appeal the verdict.
If convicted of attempted rape and sexual assault, Mr Tan could have been jailed up to 20 years, and fined or caned.
If found guilty of outrage of modesty, he could have been jailed for up to two years, fined or caned, or any combination of these punishments.
https://www.todayonline.com/singapo...attempting-rape-19-year-old-passenger-1884171
