Authors: Alex Josey
Summing-up by the Judge
Judge Mohamed Azmi took one hour and
45 minutes to sum up. He told the all-male jury of seven not to speculate or
guess at any conclusion which is not supported by evidence. He reminded them of
their oaths to give a true, just and honest verdict. They should not allow
anything other than the evidence adduced in Court to influence them in any way.
“You are the sole judges of facts. This means that you have to form your own
opinions based on the evidence. You must not speculate or guess at any
conclusion which is not supported by the evidence. In the course of my summing
up I am entitled to express my views on the facts and to comment on the
witnesses, but you need not follow me if you disagree with me—
those being questions of fact.
But I am the sole judge of law and you must
accept my direction to you on questions of law.”
Karthigesu was not obliged to prove his
innocence. It was the duty of the prosecution to prove its case beyond
reasonable doubt. The jury had to start on the assumption that Karthigesu was
innocent and then consider the evidence produced by the prosecution.
“Reasonable doubt,” explained the Judge, “is not a flicker of doubt. It is not
any fanciful or imaginary doubt of the sort which arises in the mind of a
person who shrinks from arriving at a decision, nor does it mean any doubt that
you may be in to conjure up for the purpose of avoiding the making of an
unpleasant decision. Reasonable doubt means a real genuine doubt of the sort
which will make you hesitate in any important private affairs of your own.”
The jury should consider the defence only
after it was satisfied that the prosecution had proved its case beyond
reasonable doubt. The Judge said a killing became murder only when it was
committed with certain intentions.
“While we cannot see or feel what is going
on in the mind of any human being it is possible to deduce a person’s intention
from his conduct and all the surrounding circumstances.” These circumstances
include a person’s actions, what he said, what he did, the injury or injuries
inflicted on the victim and the type of weapon used, among other things.
Judge Azmi told the jury there was no direct
evidence implicating Karthigesu of the murder except for the evidence of
prosecution witness Bandhulananda Jayatilake which, if believed, would
constitute an extra-judicial confession.
Under the law, a person can be found guilty
on circumstantial evidence, but the circumstantial evidence must be such that
if it is believed, there is no reasonable alternative to the guilt of the
accused.
The Judge added: “If there is anything less,
there is no case at all and the accused is entitled to an acquittal.” There was
evidence to show that the motive for the killing was jealousy and hatred for
Jean’s unfaithfulness, the Judge said. 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 comes to the
worse I will admit it and go in’ and ‘the bitch did not deserve to live’.
Judge Azmi said 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 spoken by Karthigesu would not amount to an
extra-judicial confession.
Judge Azmi added what Karthigesu said could
be considered an outburst by a person fed up with police harassment. “It should
be noted the accused never directly said to Jayatilake that he killed Jean.”
The important circumstantial evidence which
connected the accused with the crime was the evidence of Dr S. Balakrishnan, Dr
Yahya Sofi and consultant psychiatrist Professor G. Devadass.
Judge 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, the Judge
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. 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
right of an accused in a criminal case to make an unsworn statement 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. 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.
The Judge told the jury to consider all the
evidence including the medical evidence of Dr S. Balakrishnan, 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. Judge Azmi 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 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. The jury must decide on this.”
The Judge told the jury 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. Acting Supt. Cornelius had said the first time he heard of
the statement was through the Press during the preliminary inquiry. The Judge
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 accountant 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.”
On 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.”
The Judge said 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 was 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 to produce 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
consequence 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 a majority of
six to one or five to two. Anything less is not a verdict. I would like you to
agree on a verdict. 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 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 deceased 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.”
Guilty of Murder
The jury retired and four hours and
10 minutes later returned a five to two verdict of ‘guilty of murder’.
Judge Azmi said he concurred with the
finding of the jury. To the accused 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.” That was on 1 August 1980.
A few days later on 5 August 1980 Karthigesu
filed notice of appeal against conviction and sentence. In March 1981 he was
granted an extension of eight weeks. Counsel told the High Court that the
appeal record was served on Karthigesu on 26 February. The trial had lasted 33
days and the recorded evidence consisted of two volumes totalling 672 pages.
Time was needed to study them. The court granted Karthigesu eight weeks.
The Amended Charge
Karthigesu at the end of the
prosecution’s case was charged with murdering Jean Sinnappa, 33, between 11:10
pm
and 11:40
pm
on 6 April 1979 at the lay-by at the 11th mile Federal
Highway near the underpass leading to Jalan Lapangan Terbang, Subang. Earlier
he had been charged with committing the murder between 11:00
pm
and 11:35
pm
at Pilmoor Estate, Subang. Karthigesu pleaded not guilty
to the amended charge.
KARTHIGESU’S APPEAL WAS DUE TO BE
HELD on 28 May 1981. In the morning his counsel, Mr R.R. Chelliah, appealed to
the Federal Court for permission to introduce new evidence. He said
Bandhulananda Jayatilake was prepared to give this fresh evidence. Two police
officers at Karthigesu’s trial (Supt. Cornelius and D.S.P Godwin Anthony) had
testified they never heard of Jayatilake’s allegations. Mr Chelliah said the
trial judge had placed considerable importance on Jayatilake’s evidence in his summing
up to the jury.
The DPP said the Court must consider whether
Jayatilake’s evidence taken with the other evidence would raise a doubt in the
jury’s mind. Mr Sambanthamurthi argued that Jayatilake would be a self-
confessed perjurer whose evidence would not be credible.
The Federal Court, comprising Justice Wan
Suleiman, Justice Abdul Hashim, and Justice Hashim Yeop Sani decided to allow
Mr Chelliah’s application. Justice Wan Suleiman said: “The general rule is that
this Court should be reluctant to allow fresh evidence to be adduced except in
the most exceptional of circumstances for obvious reasons. We have given this
application our best consideration and are satisfied that the circumstances
leading to the application bring it within the test applied.” The Federal
Court, however, ordered that Jayatilake’s evidence be confined to that of
paragraph three of his affidavit (which dealt with the evidence Jayatilake gave
at the trial). The same ruling applied in the cross-examination.
“We realize that serious allegations have
been made by Jayatilake to explain why he had testified as he had in the Court
below, but such allegations are irrelevant for the purposes of this appeal and
we make no comment on these allegations. These will if the need arises be a proper
subject of inquiry before a different tribunal,” added Justice Wan Suleiman.