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  Justice Azmi said Karthigesu was not obliged to prove his innocence. It was the duty of the prosecution to prove its case beyond reasonable doubt.

  The jury, he said, had to start on the assumption that Karthigesu was innocent and then consider the evidence produced by the prosecution. The prosecution must prove its case beyond all reasonable doubt. “Reasonable doubt 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 able 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 making a decision 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.

  Explaining what constituted murder, the judge said a killing became a 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 adduce a person’s intention from his conduct and all the surrounding circumstances.” Justice Azmi said these circumstances included a person’s actions, what he did, what he said, the injury or injuries inflicted on the victim and the type of weapon used, among other things.

  Justice 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. Added the Judge: “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, 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 senten
ce 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.

  They brought me towards the gate and asked me to lie down and when I did not do so they pushed me down and when I tried to get up the man with the crash helmet continued to hit me.

  After this I could only remember when the police vehicle took me to hospital. When I was in hospital I began to experience something which I have never experienced in my whole life. I could hear people asking me questions. I could remember answering some questions. The next morning I remember going back to Klang with Brian and James Ritchie. I categorically deny that I told anyone of them I was getting married to Jean on the 13th. Looking back from now, my Lord, I could have said all our plans of moving house before April 13 were shattered. I could have just mumbled these words.

  I attended the funeral and the feast in Kajang and it was on that day that I met Jayatilake but I have heard of his name mentioned by Mrs Perera (Jean’s mother) many times when I visited her in 1978 and 1979. Jean also mentioned his name and I was warned to be careful in my association with him.

  During the feast after the funeral, this Jayatilake came and talked very kindly to me and asked me to drink beer with him, but I told him it was a tradition in our family if anyone close passes away w
e go vegetarian for 31 days and abstain from taking any alcohol. Then on April 16, this Jayatilake came earlier than the detective. The detective told me that a police officer was coming to see me in the house that evening. After about 10 minutes the detective asked permission to use the phone. He told me the officer who was supposed to come was not in. Therefore he left. Jayatilake then told me his purpose in coming to see me. He wanted me to stand surety for a $3,000 loan that he wanted to take from MCIS. I told him I was not a member of MCIS, (Malaysian Co-operative Insurance Society) but he told me he would pay the entrance fee and two months’ subscription and all I had to do was to sign the form. I hesitated at first thinking of what Jean and her mother had told me about him but he looked very pathetic and desperate so I signed the form. He gave me some Coates Brothers diaries.

  As soon as he left I rang up Mrs Perera (Jean’s mother) in Kajang and told her what I had done for Jayatilake, and Mrs Perera told me that I was a fool for having signed the form because Jayatilake was owing money everywhere and that he would not hesitate to put anybody into trouble. I categorically deny having uttered all that Jayatilake alleged that I had uttered.

  As far as I am concerned Jayatilake is a total stranger to me and that was the first time he had come to my house. I treated him decently and obliged by signing the loan form.

  On 13 April, my Lord, a police party came to my house which included ASP Ramli, DSP Cornelius and a few detectives and they inspected the room where Jean was staying. They took possession of many of her belongings including the love letters from Dr Narada. I saw these letters for the first time together with ASP Ramli and DSP Cornelius. I therefore categorically deny, My Lord, that I took 15–16 letters to Kajang and showed them to Brian and his mother in December 1978. In fact on the 13th evening when I went to Kajang with my mother to attend the prayer service for Jean, I told Brian about the police findings. Brian then invited me out to a coffee shop to talk in more detail about these letters as there were many visitors in the house then. I was however unable to give him much detail because ASP Ramli did not allow me to read them. And when we came back from the coffee shop, Brian’s mother asked me what the secret was between me and Brian, and after some hesitation when I told her about it, Mrs Perera asked me why I had not destroyed the letters, why I had not made a search of the room before the police arrived and destroyed all such material because they would subsequently cause a lot of embarrassment for our families. Therefore, My Lord, I had no knowledge of Jean’s intimate love for Dr Narada before 13 April 1979.”