The “Unusually Convincing” Test in “He Said, She Said” Cases

Last updated on April 13, 2022

In some criminal cases, particularly sexual offences, the only two people who have first-hand knowledge of what happened are the accused and the alleged victim. In many of these instances, the case might then devolve into a case of one person’s word against another.

When deciding whether to convict the accused based solely on the victim’s word, especially when the accused’s account starkly contradicts what the victim says, the Singapore court will convict the accused only if the evidence is “unusually convincing”.

Read on to find out:

What is the “Unusually Convincing” Standard?

The “unusually convincing” standard sets the threshold for a witness’ testimony to be preferred over the evidence put forth by an accused person where it is a case of one person’s word against the other’s, i.e. when the sole witness and the accused give mutually exclusive and competing testimonies.

The witness’ testimony will be considered “unusually convincing” if the testimony, when weighed against the overall backdrop of the available facts and circumstances, satisfies the court that no reasonable doubt exists in favour of the accused.

Put another way, the “unusually convincing” standard describes a situation where the witness’ testimony is so convincing that the witness’ testimony alone is sufficient to prove the prosecution’s case beyond a reasonable doubt. This is despite any concerns arising from the lack of corroboration and the fact that the accused will likely dispute the evidence.

What is a “reasonable doubt”?

In any criminal case, the prosecution has the burden of proving each and every element of a criminal charge against the accused “beyond a reasonable doubt” to convict the accused.

A reasonable doubt is a doubt for which a reason can be given, so long as the reason given is logically connected to the evidence. In other words, a reasonable doubt is the same as a “reasoned doubt”. If such a reasoned doubt exists, the accused will be acquitted.

A reasonable doubt may arise in two main ways:

From within the case mounted by the prosecution, i.e. all the evidence given by the prosecution at each stage of the proceedings, e.g. the sole witness’ evidence; and/or
From the totality of the evidence, including a holistic assessment of both the prosecution and the defence’s evidence and how they interact, e.g. the strength of the accused’s testimony as against the sole witness’ testimony.

When is the “Unusually Convincing” Standard Applied?

The “unusually convincing” standard applies only when the case boils down to one person’s word against another’s. This would be the case if the sole basis of the prosecution’s case against the accused is the uncorroborated testimony of one witness. For example, if there was only one witness who saw (or claimed to have seen) the accused commit the crime, and there was no one else to back up what the witness said.

That said, if the court finds there to be inherent and irredeemable weaknesses in the sole witness’ evidence such that a reasonable doubt arises before even examining the accused’s evidence, then the “unusually convincing” standard does not come into play. This is because the prosecution is required to prove their case beyond a reasonable doubt before the accused person can be convicted of an offence. If reasonable doubt arises from examining the sole witness’ evidence, then the accused must be acquitted, with no further need to decide whether such evidence is “unusually convincing”.

Practically, this means that even if there are discrepancies in the accused’s testimony, but there remain significant inconsistencies (internal or external) within the prosecution’s case that generate reasonable doubt, then the court is still obliged to acquit the accused. This does not change even if some weaknesses in the accused’s defence might support some aspects of the prosecution’s case, because weaknesses in the defence’s case cannot normally bolster the prosecution’s case.

Does it make a difference if the witness is the victim or otherwise?

It does not matter whether the prosecution’s sole witness was the complainant, the alleged victim or an eyewitness. The standard applies equally, as long as the testimony of the witness in question is the sole basis for the conviction.

Does the “unusually convincing” standard apply only to sexual offences?

The “unusually convincing” standard usually features in sexual offence cases since the testimony of a single eyewitness is common in such cases. However, the Singapore Court of Appeal has made it clear that the applicability of the standard does not depend on the category of offence against the accused person, but rather on the uncorroborated nature of the evidence presented to the court.

As a result, the “unusually convincing” standard applies to the uncorroborated evidence of a witness in all offences (and not just sexual offences), where such evidence forms the sole basis for a conviction.

Do repeated complaints or police reports count as corroboration?

Repeated complaints by the same witness (including reporting to a superior/colleague or filing a police report) do not constitute objective or independent corroborative evidence (i.e. evidence that strengthens existing evidence). Such evidence will not dispense with the “unusually convincing” standard.

What about non-eyewitness evidence like CCTV footage and text messages?

Non-eyewitness evidence like CCTV footage and text messages may not constitute corroborative evidence for the purpose of dispensing with the “unusually convincing” standard if it does not show the accused committing the offence. This is so even if such evidence corroborates aspects of the witness’ account or prosecution’s case.

What considerations does the court take into account when deciding whether a testimony is unusually convincing?

Assuming the court does not find the sole witness’ testimony to on its own raise any reasonable doubts, the court will assess whether the sole witness’ testimony is “unusually convincing”. Relevant considerations include:

The witness’ demeanour;
The internal consistency within the content of the witness’ testimony;
The external consistency between the witness’ testimony and the extrinsic evidence, including testing the former against inherent probabilities and undisputed facts; and
The defence’s case and the evidence adduced by the accused, including its internal and external consistency.

As the “unusually convincing” standard is inextricably tied to the evaluation of whether the prosecution has proved its case beyond a reasonable doubt, the assessment of the prosecution’s evidence under the “unusually convincing” standard must be made with regard to the totality of the evidence. This includes the case made by the defence, including the accused’s evidence.

If the defence is able to point to such evidence that generates a reasonable doubt in the prosecution’s case, the accused will be acquitted.

How is the “Unusually Convincing” Standard Applied? – Case Study of PP v GCK

In the case of PP v GCK, the Court of Appeal convicted the accused (GCK) on a charge of outrage of modesty based on the sole witness testimony of Nurse MJ. In doing so, the Court of Appeal overturned the High Court’s decision to acquit GCK. For context, the High Court’s decision itself overturned the decision of the District Court to convict GCK of the charges.

The incident had taken place in a nursing home. GCK was a male maintenance technician at the nursing home. On the other hand, the victim was a 55-year-old lady who occupied Bed 7 of the room in question, and had mental difficulties that rendered her unable to testify. The victim was also prone to sudden mood swings.

Nurse MJ and Nurse DS’s testimonies

At the material time, Nurse MJ said that she made her rounds and noticed the curtains were closed. When she went to check on a patient (who occupied Bed 6, which was opposite the victim), she noticed the victim’s curtains were not drawn (which allowed her to have a full view of Bed 7). She testified she saw GCK on the bed with his knees astride the victim, with his pants lowered such that Nurse MJ saw his exposed buttocks.

According to Nurse MJ, GCK’s and the victim’s groin areas were together. She had a half view of GCK’s face and recognised him as an employee of the nursing home. Nurse MJ also heard the victim crying. She watched the scene for about 5 seconds before leaving. CCTV footage showed that Nurse MJ was in the room for a total of 11 seconds.

Nurse MJ immediately headed down and called out to a male nursing aide, Nurse DS, who testified that Nurse MJ called out to him 3 times. The third time, Nurse MJ shouted at him to “[p]lease go and see what [GCK] is doing on [the victim’s] bed”. The CCTV footage showed that Nurse DS entered 1 minute and 40 seconds later and saw that the victim’s curtains were fully drawn. By standing on her tiptoes, Nurse MJ saw the victim sleeping on the bed normally (without making any sound) and saw GCK kneeling on the floor between Beds 7 and 8, apparently looking at his mobile phone.

GCK’s testimony

GCK said that one of the room’s residents (Madam JP) had asked him to repair her portable television. He said that he knelt on the floor between Bed 7 and Bed 8 (Madam JP’s bed) to do so. He claimed that he then heard a sound from Bed 7, causing him to turn and see the victim’s head touching the side railing of her bed.

GCK said he saw that the victim’s pillow was displaced. He observed tears flowing from the victim’s eyes and thought the victim was in pain as her head was bent towards the railing. GCK claimed that he placed his left knee between the bars of the side railing to reach for another round pillow which was to the side of the victim. According to him, no part of his body touched the victim while he was reaching for the round pillow. He placed the round pillow under the victim’s head. The victim then smiled a little.

Thereafter, he cleared some food from Madam JP’s bed and disposed of them in the toilet. He then placed Madam JP’s television down on her table. At about that time, a friend of Madam JP came by Bed 8 to retrieve Madam JP’s spectacles. Accordingly, GCK then left the room, and had not noticed Nurse MJ or Nurse DS entering the room.

Subsequent events

Thereafter, there were some police reports and investigations done. During investigations, GCK also stated that he had placed both knees on the bed (instead of just his left knee as he stated in his testimony in court). In one statement, however, it was recorded that GCK stated he placed his “knee” on the side of the bed. The police later testified that this was a typographical error.

The District Judge also visited the home and asked GCK to demonstrate the position GCK was in to grab the round pillow. The District Judge found the pose that GCK demonstrated (with one knee) was highly contrived, and that GCK could have easily reached for the pillow without placing either of his knees on the bed.

Applying the unusually convincing standard

The Court of Appeal found that Nurse MJ’s testimony was unusually convincing.

The Court of Appeal first analysed whether any reasonable doubt arose on the prosecution’s case. The court found this was not the case because:

Nurse MJ was an honest witness, with no evidence supporting any motive to lie or embellish the facts (e.g. bearing a grudge against GCK).
There was nothing inconsistent or implausible within Nurse MJ’s testimony. As Nurse MJ’s credibility was not in issue, there was no reason to doubt:
- Her alleged position and her line of sight;
- Her testimony on the daytime lighting conditions in the room;
- Her period of observation (5 seconds); and
- The fact that she was not fatigued when she made her observations.
The fact that she had a short 5-second glimpse itself did not make her account insufficient or unreliable, and it did not imply that Nurse MJ could not possibly have seen the incident within the 5-second window.
- The duration of her observation had to be viewed in the context that she was not describing a mundane event, but a dramatic one with GCK straddling the victim with his buttocks exposed and his groin in contact with the victim’s exposed groin.

The Court of Appeal then found that there was no reasonable doubt that arose on the totality of the evidence.

The Court of Appeal found that on the evidence, the High Court was wrong in finding that there was a possibility that Nurse MJ could have misperceived GCK’s posture. This is because Nurse MJ’s account of GCK straddling the victim on top of her bed with his buttocks exposed was so drastically different from GCK’s account of standing by her bed attempting to adjust the victim’s head on the pillow and reach for another pillow to support her head, that it could not be perceived as a mistake.

In other words, this was a question of which of the two wholly incompatible and mutually exclusive accounts, by GCK and Nurse MJ, was to be believed.

In assessing there to be no reasonable doubt on the totality of the evidence, the Court of Appeal found that:

Based on GCK’s own narration of the sequence of events as against the CCTV footage, all the events that GCK narrated must have happened at least 5 minutes before Nurse MJ had even entered the room. This meant that by GCK’s own account, it was not possible that he was assisting the victim with her pillow when Nurse MJ saw him. This meant that there could be nothing for Nurse MJ to have been mistaken about.
GCK’s defence that his posture had been misperceived was internally and externally inconsistent.
- The District Judge found that regardless of whether GCK had placed one or both of his knees onto the victim’s bed while reaching for her pillow, GCK’s alleged position was highly unnatural and contrived as he could have easily reached for the pillow without using his knees.
  - The District Judge also had had the benefit of a demonstration on-site.
  - The fact that GCK did not need to place his knees on the victim’s bed rendered it even less probable that Nurse MJ could have misperceived his alleged posture.
- GCK could not explain the inconsistencies in his statements to the police on whether he had placed one or both of his knees on the victim’s bed while reaching for the pillow.
  - He claimed he corrected the reference to both his knees, but there was no evidence for this save for a single reference to “my knee”, which the police testified was a typographical error.
  - The weight of the evidence supported the reference to “my knee” being a typographical error, as there were other parts in the same statement referring to “both” his knees.
- GCK had asked the police to place two arrows on the bed to correspond to both his knees during an on-scene investigation with the police.
  - The only explanation that GCK could give was that he was “nervous” and “scared” during the on-scene investigation and was afraid to tell the police about his prior mistake. However, this contradicted GCK’s claim that a day earlier, his fellow remandees gave him the courage to make the correction (“my knee”) in his statement.
- Ultimately, the court found GCK’s explanations to be a patchwork to tailor his defence to be as close as possible to Nurse MJ’s account. As a result, even if GCK managed to identify a possible doubt in the prosecution’s case, such a doubt was not a reasonable doubt grounded in the evidence. In any case, the “glaring inconsistencies” in GCK’s defence also meant that the prosecution had successfully rebutted that doubt.
Nurse MJ’s evidence was externally consistent when put side by side with GCK’s account.
- The High Court had alluded to the inherent improbability that Nurse MJ allegedly observed the victim crying in pain, when only 1 minute 40 seconds after Nurse MJ left, there was a “drastic change” in that Nurse DS saw the victim asleep.
  - This would be considered an external inconsistency in Nurse MJ’s evidence under the “unusually convincing” standard.
- On the totality of the circumstances, however, such inconsistency was neither meaningful nor realistic. This was because the victim had various cognitive impairments that meant she would not exhibit standard behaviour:
  - The victim had emotional dysregulation causing mood fluctuations.
  - The victim would alternate between crying and giggling.
  - The victim’s disability occasionally prevented her from showing emotions even if she was distressed.
  - The victim was incapable of explaining what sexual intercourse was or its consequences.
- Even on the defence’s case (which forms part of the totality of the circumstances), there was nothing meaningful about the point that the victim exhibited a rapid change of behaviour. According to GCK, the victim was capable of quickly going from being in tears to smiling soon after (when GCK allegedly adjusted the victim’s pillow).

Therefore, the Court of Appeal reversed GCK’s acquittal and convicted him of the outrage of modesty charge.

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Ultimately, there is only one standard of proof that the prosecution must satisfy to convict, namely, “beyond a reasonable doubt”. In cases where it is one person’s word against the other, however, the prosecution will be able to prove its case only by showing that its sole witness’ testimony is “unusually convincing”.

If you are a victim or the sole witness to a crime, it is important to be honest and to be credible before the court, because your evidence will be crucial for convicting the accused (assuming the accused is guilty).

On the other hand, if you are an accused person caught up in such a case and have a completely different account of events, note that your account will also be scrutinised for its consistency and plausibility compared to the witness’ account. This is particularly if the witness’ account is internally consistent and also externally consistent with the other available evidence.

While it is helpful to know the standard the court will use to examine the case at hand, it is equally, if not more important, to have guidance in navigating the complex legal system.

If you have been charged with a criminal offence in Singapore, you may wish to discuss your options with a criminal lawyer, who will be able to advise you on important matters such as the strengths and weaknesses in your case and how to proceed from here.