Authors: Alex Josey
There was evidence to show that the motive
for the killing was jealousy and hatred for Jean’s unfaithfulness, said the
Judge. Karthigesu loved her children as his own and he was afraid she would
leave Klang (where she lived) with her children.
There was evidence too, that Karthigesu told
Jayatilake ‘worse come to the worse I will admit it and go in’, and ‘the bitch
did not deserve to live’. Although there was no evidence of what Karthigesu
really wanted to admit, the jury was entitled to infer that Karthigesu spoke
about admitting killing Jean as a result of harassment by the police. If that
was the meaning the jury was to attach to the words of Karthigesu then it would
amount to an extra-judicial confession. It could also mean that Karthigesu
became so frustrated because of police harassment that he said what he did, and
his words should not be taken literally. If the jury felt this was the case,
then the words used by Karthigesu would not amount to an extra-judicial
confession.
Justice Azmi added what Karthigesu said
could be considered an outburst by a person who was fed up of police
harassment. “It should be noted the accused never directly said to Jayatilake
that he killed Jean,” said the Judge.
The important circumstantial evidence which
connected the accused with the crime was the evidence of Dr S. Balakrishnan
(who examined Karthigesu at the Accident and Emergency unit of University
Hospital), of Dr Yahya Sofi (of the Department of Surgery), and of consultant
psychiatrist, Professor G. Devadass. Justice Azmi said: “If we accept their evidence
that the accused when found at the scene of the crime was malingering and was
not in fact knocked down unconscious by any assailant, and that his story about
the unknown assailants was a mere cover-up story, then you are entitled to
conclude, if you accept the other circumstantial evidence, that it was the
accused who inflicted the fatal injuries on Jean. If it is your finding that
the opinion of the two doctors and the professor cannot be relied upon then you
must return a verdict of ‘Not Guilty’ of any offence.”
Summing up the defence’s case, Justice Azmi
said Karthigesu had elected to give an unsworn statement from the dock. In a
criminal trial the law allowed the accused three alternatives. He could elect
to remain silent, make an unsworn statement from the dock, or give evidence on
oath. The Judge said no adverse inference should be made against the accused
merely because he elected to remain silent or to make an unsworn statement from
the dock. The Judge said the right of an accused in a criminal trial to make an
unsworn statement from the dock was not a procedural right but a substantive
right and accordingly did not depend on whether or not there was a specific
provision for it in the Criminal Procedure Code. “A statement from the dock is
not sworn evidence. You are entitled to attach to the statement such weight as
you think fit,” Justice Azmi added. “And it is your duty to take the statement
into consideration in deciding whether the prosecution has proved its case
beyond reasonable doubt.”
The Judge said the prosecution had contended
from circumstantial evidence that it was the accused who committed the crime
and that his story about third parties being responsible for the murder was
false. He told the jury to consider all the evidence including the medical
evidence of Dr Balakrishnan, and Dr Yahya Sofi and to decide whether the
evidence of Datuk Dr M. Mahadevan had raised a reasonable doubt in their mind
about the prosecution’s case. The Judge said an important factor for them to
consider was whether tenderness was found on Karthigesu’s head by Dr Yahya.
According to Datuk Mahadevan one could fake pain, but not tenderness although
tenderness could not be seen. The Judge reminded the jury that in his report Dr
Yahya had stated there was slight tenderness over both the occipital and
parietal regions. The judge said the prosecution’s stand was that Karthigesu
was not injured at all on the night in question, and that he was malingering.
“If you accept the existence of the slight tenderness over the head of the
accused and also the fact that the accused’s cranial nerves, one to 12, were
grossly intact as contained in Dr Yahya’s report, then it is clear from the
evidence of Dr Mahadevan that the accused could not have been malingering. This
was a matter for the jury to decide. They should also consider the evidence of
Acting Supt. A.R. Cornelius as there seemed to be a mystery why he was not told
of Jayatilake’s statement regarding what Karthigesu allegedly told him.
Cornelius had said the first time he heard of the statement was through the
Press during the preliminary inquiry.
Justice Azmi told the jury that in the case
of Jayatilake the cogent reason for their consideration was the mysterious
suppression of his statement-from Acting Supt. Cornelius, and the improbability
of a person confessing to a crime before a casual friend who was related to the
victim.
The Judge said it was for the jury to decide
whether Ng Kwai Yew was an independent witness although he did not approach the
police until the preliminary inquiry was over. “His evidence is very important
in the sense that the prosecution case will be totally destroyed if his
evidence is true, because his evidence will create a reasonable doubt in the
prosecution’s case which depended entirely on circumstantial evidence. What you
have to ask yourself is whether the defence story has raised a reasonable doubt
in the prosecution’s case.”
Referring to the amendment of the charge,
the Judge said no adverse inference should be made against the prosecution. The
prosecution is entitled to amend the charge at any time before closing their
case. “Indeed, it is the duty of the Court to amend the charge before calling
for the defence if the evidence discloses a prima facie case.”
In considering the defence’s case it was his
duty to warn the jury that an accused person was presumed innocent until
otherwise proven by the prosecution. The onus of proof must be on the
prosecution throughout the case. “If the defence raises a reasonable doubt in
your minds then the accused is entitled to an acquittal. The accused does not
have any evidence to convince you that he is telling the truth. It may well be
that you do not believe his story. Nevertheless, it is your duty to acquit the
accused if his story raises a genuine or reasonable doubt in your minds. You
have a very important duty and the discharge of this duty rests fairly and
squarely on your shoulders. You are not concerned with the sentence or
consequences of your verdict. You must give your verdict according to your own
conscience without bothering about the consequences and do not let your minds
be swayed by any sentiment or sympathy for the accused or for Jean. Your
verdict must be unanimous or by majority of six to one or five to two. Anything
less is not a verdict. I would like you to agree on a verdict or otherwise I
would have to order a retrial. If your verdict against the accused is ‘culpable
homicide not amounting to murder’, please state whether the act by which the
death was caused was done with the intention of causing death or of causing
bodily injury as was likely to cause death, or whether it was done merely with
the knowledge that it was likely to cause death but without any intention to
cause death or to cause such bodily injury as was likely to cause death. In
short, please state whether at the time of inflicting the injuries on the
victim, the accused had no intention to cause death but merely knew that the
injuries were likely to cause death. You do not have to give reasons for your
verdict. You merely have to say ‘guilty of murder’, or ‘guilty of culpable
homicide not amounting to murder’, or ‘not guilty of any offence’.”
The jury then retired. It returned a
five-two verdict of ‘Guilty’ after deliberating for four hours and 10 minutes.
Before passing sentence, the Judge said he
concurred with the finding of the jury. He said: “The sentence of this Court is
that you will be taken from this place to a lawful prison where you will suffer
death by hanging.”
A PSYCHIATRIST’S VIEW
What sort of man was S. Karthigesu?
Professor Devadass, a psychiatrist, described him as a man of average
intelligence “or even above average. My assessment was that basically there was
no serious abnormality and he could pass as a very normal person. Karthigesu
could feel emotions, had sufficient control of them and was not a garrulous
person. I did not feel he was obnoxious.”
Professor Devadass said during his interview
Karthigesu was tearful once and angry on two occasions, but his feelings were
very appropriate, ‘definitely not catastrophic’. Answering another question the
professor said men would not generally cry. “I wish they would cry a bit more.
It helps a lot.” Professor Devadass agreed that the fact Karthigesu was in
police custody made him sad because that was what kept him away from his
family.
Questioned by Mr Fernandez for the defence,
Professor Devadass said Karthigesu had hardly shown any emotional feeling when
describing the murder. The professor said he had expected Karthigesu to show
not his fear of looking at blood but the horror of the whole thing and the
sadness of losing somebody.
Mr Fernandez: Here is a man in love
with a woman who was killed in terrifying circumstances. He discovers she had
deceived him by reading love letters. He is arrested on suspicion of murder. He
is exposed to interrogation. Isn’t this likely to cause disorientation?
Professor Devadass: It need not.
He agreed it could have been upsetting for
Karthigesu if he was shown the love letters for the first time, letters written
to the woman he was going to marry. When counsel suggested that the letters
referred to sexual intercourse, in all its lurid details were reason enough to
make Karthigesu change his attitude towards Jean from ‘my Jean’ to ‘this
woman’, ‘that woman’, the professor said that would have been a factor.
Judge Azmi ruled that extracts from
Professor Devadass’ report on his conclusions after examining Karthigesu, be
expunged. All other evidence contained in the psychiatrist’s report, the rest
of the report, would be admissible. The Judge made this ruling when defence
counsel objected to the professor giving evidence on his conclusions regarding
the veracity of Karthigesu. The Judge, allowing the defence objection, said if
all findings of psychiatrists were allowed, it would be a trial by
psychiatrists, not a trial by jury.
The professor held the view that
Karthigesu’s story was full of contradictions.
There was a four-day trial within a trial to
determine whether evidence given by Karthigesu orally to a former police
officer, Mr Wong Wan Kong, was admissible. The judge ruled that it was not.
Karthigesu made the statement while he was in custody in the interrogation
room. “It is clear in my judgement the accused could not have made the
statement voluntarily, although I do not accept the evidence of the accused
regarding physical torture and mistreatment by Special Branch officers.” The
Judge noted that Karthigesu had refused to have his statement recorded.
On behalf of the defence, Mr Ponnudurai
submitted that apart from the fact that Karthigesu was found behind the car in
which Jean was killed, there was no other evidence to connect him with the
crime. The Court should direct the jury to return a verdict of ‘Not Guilty’
because the whole prosecution was ‘strewn with suspicion’. The prosecution had
only one witness, a relative of Jean’s. Karthigesu was alleged to have told
this witness (Bandhulananda Jayatilake) in front of his mother, that if the
worst came to the worst, he was prepared to admit and to go inside. Jayatilake
added that Karthigesu also said that Jean did not deserve to live.
Defence from the Dock
Making his defence from the dock
(where he was not subjected to cross-examination), Karthigesu explained why
Jean would not collect his locked car parked in Petaling Java. He said, “Jean
never would want to drive her car through the Jalan 222 junction traffic lights
because that was the spot where her late husband met with his fatal accident.
She always tells me when I pass that spot with her at night, she could see her
husband lying on the road.”
From the dock, Karthigesu, in a steady voice
described in detail, in a hushed Court, the vicious attack upon Jean.
“As we came towards the bypass I took the
under-pass because I wanted to urinate and as I stopped the car and opened the
door, another car came beside my car and three men pulled me out of the car. As
I was being pulled out, I noticed another man squeezed past me into the car. I
could hear Jean shouting: Selvam! Selvam!
These three men had weapons, one of which
was put near my hips. It was sharp and the other man holding my collar, held
something near my neck.”
At that time the car reversed and
Karthigesu, his head facing the left towards Klang, was dragged along with it.
He said: “I could see shadows of struggle inside the car and I struggled with
these people. I could hear Jean screaming. I was shocked. I was frightened. I
could not think or react because of this sudden change in what I had
experienced and what I was experiencing. I pleaded and at that time I used
abusive words. I was hit many times on my head by one of the men who was having
a crash helmet. There were a lot of cars passing that way and I was wondering
why none was stopping. Things were happening so fast but I can distinctly
remember the warning given to me that I should not tell the police what I saw
but just say that I was assaulted and that thereafter I knew nothing. They
warned me that if I tried to seek police help they would get Jean’s children,
my mother and finally me.