Defence appeals rape conviction of ex-Wah!Banana actor, alleging woman fabricated evidence

Defence appeals rape conviction of ex-Wah!Banana actor, alleging woman fabricated evidence Defence lawyers for Lev Panfilov argued that the woman's accounts were inconsistent and urged the court to acquit the Russian man of all charges. SINGAPORE: Defence lawyers for former Wah!Banana actor Lev Panfilov appealed against his rape conviction on Thursday (Aug 13), arguing that there were material inconsistencies in the alleged victim's account and that evidence presented by her had been fabricated. The defence urged the Court of Appeal to acquit the 30-year-old Russian national of all four charges against him, comprising rape, sexual assault and molestation. Panfilov, a Singapore permanent resident who was an actor at the comedy channel, appeared in court wearing a purple prison outfit. He has been serving an 11-and-a-half-year jail sentence for the sexual assault that purportedly took place at his condominium unit on Jan 12, 2021. He was also sentenced to 12 strokes of the cane by the trial judge, although the caning has not been carried out. Because there were no witnesses in the case, the key issue was whether the sexual encounter was consensual, as Panfilov maintained, or not, as alleged by the woman. To convict in such a situation, the complainant's evidence had to be "unusually convincing", a legal standard that Justice Pang Khang Chau found satisfied, resulting in his conviction of Panfilov. However, on Thursday, Panfilov's latest set of lawyers argued that the standard had not been met. DEFENCE ALLEGED FABRICATED EVIDENCE The Court of Appeal that heard the appeal arguments on Thursday comprised Chief Justice Sundaresh Menon, Justice Ang Cheng Hock and Justice Sushil Nair. Mr Johannes Hadi, who argued the case along with Mr Eugene Thuraisingam, said the woman, who met Panfilov on Tinder, had initially told the police there was no evidence of rape but later produced a pair of bloodied panties. To do so, she had to dig through clothes in a laundry hamper that had been left there for a week. The defence alleged that the blood came from the woman's period, which began two days after the alleged assault, rather than from an injury sustained during the incident. The Health Sciences Authority previously said it was possible to test for the difference, but that no such test was done. The defence also highlighted what it said were inconsistencies in the woman's account. For example, she told a doctor, according to the doctor’s verbatim notes, that she had screamed during the alleged assault. She later testified at trial that she had wanted to scream but did not. At least one of Panfilov's flatmates was present at the apartment at the time and said they did not hear any commotion. Mr Hadi argued that the woman's account had changed because she realised the claim that she had screamed would be difficult to reconcile with the flatmate's evidence. Mr Hadi also pointed to the woman's actions after the alleged assault, including her visit to another doctor asking for a memo stating what her injuries were and the probable cause. However, when told she would first have to make a police report, the woman asked the doctor to cancel her registration at the clinic, essentially erasing the record of her visit, alleged the lawyer. When asked about this at trial, the woman said she could not recall this. The Chief Justice said this was an inconsistency, but said he was puzzled as to how it was material to the charge. He asked what the defence's supposition was as to what was behind this. "The overall theory we have is that after the sexual intercourse with the accused on the night of Jan 12, she spent the time between Jan 12 and Jan 18 deciding how best to concoct a story of rape and how to fabricate evidence of that thing that never happened, and part of that process involved her going to see a doctor, asking for a memo saying she had injuries and that she had been raped, but when she hit a wall with that, she asked for the record of the visit to be erased," said Mr Hadi. According to the defence, Panfilov thinks the most plausible explanation for what changed after the purportedly consensual sex was that the woman felt "ghosted" or ignored by him. CCTV FOOTAGE, MESSAGES The defence questioned aspects of the woman's account, including why she did not leave the apartment in the interval of about a minute when Panfilov left her fully clothed on the bed while he went to the bathroom to retrieve a condom. The woman had said she had tried twice to leave earlier but was unable to do so. The defence also pointed to closed-circuit television footage of the woman leaving Panfilov's lift lobby. "Not a hair was out of place," said the lawyer, noting that the footage showed someone using her phone and not visibly distressed. He initially did not push that point any further based on concerns of stereotyping how victims of sexual assault react, but the Chief Justice stepped in. Lawyers are cautioned against making arguments that amount to victim-blaming or questioning why victims may react a certain way, given that trauma responses can vary widely. However, Chief Justice Menon said this did not apply in this case. Instead, he said, analysing the CCTV footage was a matter of considering physical evidence, which was relevant to the case. The woman had said her hair was manhandled during the assault, but this did not appear to be the case in the footage. Chief Justice Menon also said he was troubled by the pair's exchange of text messages after the incident, as well as the fact that Panfilov appeared to be content for the woman to leave. "I mean, if what had just happened was a violent rape, one would've thought there'd be concerns, if the person who had apparently tried twice to flee, whether that person would go to the police," he said. The woman's evidence was that after she left Panfilov's flat, he texted her asking how everything was and whether she had arrived home safely. She responded positively. PROSECUTION QUESTIONED Mounting the case for the prosecution were Mr Sheldon Lim and Mr Han Ming Kuang, who had taken over the case from a different set of prosecutors. Mr Lim attempted several arguments about the victim's consistency, but was interjected at various points by questions from the three judges. On the discrepancy over whether the woman had screamed, Mr Lim said the woman's evidence was that the doctor may have misunderstood what she said about the scream. But Chief Justice Menon said he preferred the evidence of the doctor, who had taken verbatim and contemporaneous notes. When the prosecutor tried to say she could have misspoken because of tiredness or trauma, Chief Justice Menon said this was not the evidence the woman had given. When Mr Han took over arguments and said the woman was consistent about being terrified by Panfilov, Chief Justice Menon said Panfilov had been equally consistent by and large in his account of events. "So it doesn't tell us very much, which is why we descend into the granularity," he said. Justice Ang also raised concerns about the defence's cross-examination of the woman at trial over how she left the apartment. He described the questioning on whether she walked out of the room as "quite painful" and "very, very arduous". She had been shown walking in CCTV footage. "Because she was not willing to say that she walked, and then the counsel had to ask if she crawled, whether she moved, all of that ... the judge himself describes that she was being cagey," said Justice Ang. Chief Justice Menon added that if the woman was not dishevelled after an assault as violent as she described, one would expect an explanation as to why, such as perhaps she had gone to freshen up. However, if there was no explanation, then it was inconsistent, he said. Explaining the underwear, Mr Lim said it was clear from the evidence that the woman had forgotten about her underwear until her mother reminded her to take it to the police station. To this, Chief Justice Menon said it was difficult to understand how the woman could forget about it when she had broken down and cried at the sight of the bloodied underwear. On the interval of about a minute when Panfilov went to retrieve a condom, the prosecution argued that it was unreasonable to expect the woman to react within such a short period. Chief Justice Menon disagreed, saying it was possible for her to leave during that time. He said it did not stack up that a man who had sexually assaulted her violently would casually leave her there, go to the bathroom and retrieve the condom. The Court of Appeal reserved judgment. A decision will be given at a later, unspecified date. Panfilov was allowed some time to speak to his mother, girlfriend and a representative from an embassy. The penalties for rape and sexual assault by penetration are up to 20 years' jail, a fine, and caning. Molestation is punishable by up to two years' jail, a fine, caning, or any combination of these punishments.