Blood Lust Page 26

  The DPP said the defence had produced witnesses to say that Karthigesu’s family was peaceful. Neighbours said it was a happy family. Members of the family were seen sitting in the garden and talking and Jean always kissed her mother-in-law on the forehead. But judging from the evidence Jean was a troubled person.

  There was also evidence that Karthigesu found out about Jean’s meeting with the doctor in the Apollo Hotel, and there were suspicions and quarrels.

  The DPP said that in a murder case the prosecution did not have to prove motive, and yet in this case it had proved motive. One of the letters from Dr Warnasurya said he could not divorce his wife, Ira, and the only alternative was for Jean to become his second wife. One way in which she could become the second wife was for Dr Warnasurya to become a Muslim and marry her. The DPP said Karthigesu did not want Jean to leave his house and take her children and her money with her. He knew that once Jean left the house he would no longer have control over her. The DPP said some of these things added up to his motive for killing her. The evidence pertaining to Karthigesu’s conduct should not be seen in isolation but they should be strung together. Karthigesu’s feelings were seen when he showed the love letters to Jean’s mother and her brother, and his outburst to prosecution witness, Bandhulananda Jayatilake.

  The DPP said Karthigesu deliberately locked his car with the key inside because he wanted to go out in Jean’s car that night. Karthigesu had said that the door had locked accidentally, but the prosecution had brought expert evidence to prove that Karthigesu’s car could not be locked accidentally.

  “If,” said the DPP, “the murder had been committed in his car he would have to do some explaining and his car would have been taken away as an exhibit. Karthigesu was wearing white pants and shoes and this in itself was preparation to committing the murder,” said the DPP.

  On Karthigesu’s statement from the dock, the DPP said what the prosecution had been telling the Court was that Karthigesu was the killer, and that he had been lying to the Court. The DPP said Karthigesu told the Press on 8 April 1979 that he did not know why Jean was killed because she had no enemies. Yet he handed to the police an anonymous letter which Jean had received.

  Karthigesu, in his statement from the dock told the Court that whatever he was telling was the truth and all his earlier stories were lies. He had to lie because the people who killed Jean threatened him and he was hit many times. “If the men killed Jean, and they did not wear masks, would they leave the accused alive for him subsequently to identify them? If they had ruthlessly hit him many times on the head why did they not kill him?”

  The DPP said the defence had told the Court Jean had not made any preparations to go to Sri Lanka but the fact that she intended to go there was clear in one of the love letters. The doctor suggested that she could stay at a hotel near the medical college and he would drop in and see her whenever he was free.

  The DPP said it was suggested the prosecution was suppressing evidence by not calling accountant Ng Kwai Yew and ASP Shingara Singh, but they were made available to the defence.

  “We don’t want to fall into traps set by anyone,” he said.

  Referring to the statement by Jayatilake and the fact that it was not shown to Acting Supt. Cornelius, the DPP said Karthigesu was an intelligent man and he visited the police station often to pick up bits and pieces. It was for this reason that the statement was ‘frozen’.

  The DPP said that the prosecution had adduced evidence to show that Jean had consumed a considerable amount of alcohol that evening and she would not have been alert. It would have been easy for anyone to kill her.

  On the positions in which Karthigesu was found at the scene, the DPP said he was first seen on the ground near a railway gate facing the Subang housing complex. Later he was found in the middle of the road facing Subang Jaya. When the police found him he was lying facing the airport. The two doctors who examined him at University Hospital said he did not suffer from concussion. He had no injury and he could not have been unconscious, Karthigesu did not rebut this evidence. The dental surgeon told the Court it was not possible for Karthigesu’s dentures to have fallen out of his mouth unless he received a very heavy blow which would have left an injury. Also, the dentures was not found where he first fell but in a different spot. Karthigesu did not offer any explanation. Neither did he explain how he came to be in various positions.

  At the hospital he did not explain what had happened to his wallet, identity card, driving licence and other personal belongings. It was the contention of the prosecution that the items were in the other set of clothes he used before he murdered Jean.

  The DPP said Karthigesu told the Court the people who killed Jean had held a sharp object at his neck and hip, and he had struggled, but there was no evidence of injury on him.

  In his statement Karthigesu said he went out with Jean socially in November 1978, but this was not true because her four love letters to him showed she was going out with him as early as June 1978.

  Commenting on Ng’s evidence, the DPP recalled that Ng told the Court he thought a robbery could be taking place. If that was true why did he not report it at the police post at the airport where he was going to fetch his wife? Ng was far from the civic-minded person the defence made him out to be. He was a highly irresponsible person and his story was concocted to get an acquittal for Karthigesu. His intention was to lead the prosecution astray.

  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 entit
led 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 t
he 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.

  The Perjurer

  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.