Authors: Alex Josey
Jayatilake took the stand. He was questioned
by Mr Chelliah. Witness said he remembered giving evidence at Karthigesu’s
trial in July 1980. He recalled telling the Court that he visited Karthigesu at
his house on 16 April 1979, 10 days after Jean’s death.
Mr Chelliah referred him to the evidence set
out in para three of his affidavit. Witness said Karthigesu did not say
anything which he (Jayatilake) had said he did.
Mr Chelliah: When you gave evidence in
the High Court you lied?
Jayatilake: Yes, my Lords.
Mr Chelliah: You know it is a serious
offence to lie in Court and you could be charged with perjury?
Jayatilake: Yes, my Lords.
Mr Chelliah: You know that you could be
sent to several years in prison if convicted for perjury?
Jayatilake: Yes, my Lords.
Mr Chelliah: Can you tell the Court why
you lied in Court that day?
Jayatilake: I was asked by Shingara
Singh a senior police officer, whom I did not know at that time, and the mother
of Jean to lie just because I went to Karthigesu’s house.
Mr Chelliah explained to the Court that the
two persons mentioned knew about Jayatilake’s visit to Karthigesu’s house and
used the occasion to improve the prosecution’s case.
Jayatilake told the Court that Jean’s
brother, Brian Perera, also told him to lie. Jayatilake said he was related to
the Pereras’ through his mother. He told the Court of the mental stress he went
through after losing his son in January 1978 and that he ‘did not take life the
normal way’.
Asked by Justice Wan Sulieman what that
meant, Jayatilake said he took to drinking to overcome his worries. He said he
agreed to collaborate to say whatever was posed to him.
Mr Chelliah: Having given evidence what
made you change your mind?
Jayatilake: As time went on I realised
my conscience was very uneasy. I realised that I had done something very
serious and I agreed to tell the truth.
Mr Chelliah: In order to get it off
your chest you went to see the lawyers concerned?
Jayatilake: Yes.
He added that another reason was that he was
being harassed by the police.
Cross-examined by the DPP, he admitted
giving evidence during the preliminary inquiry at the magistrate’s Court in
July 1979.
DPP: And you gave the same evidence at
the trial?
Jayatilake: Yes.
Answering another question he said his mind
was not at ease after he had given evidence at the magistrate’s court.
Later, Jayatilake denied the DPP’s
suggestion that the two police officers and Brian Perera did not persuade him
to perjure. He also denied that the words were his own concoction.
Questioned by Justice Wan Suleiman,
Jayatilake said except for the part about the doctor wanting to have Jean
converted into a Muslim (which was coached by Brian) the rest came from DSP
Shingara Singh.
Justice Hamid: When you gave evidence
at the preliminary inquiry you knew you were lying?
Jayatilake: Yes, my Lord.
Justice Hamid: You were fully aware you
were giving false evidence?
Jayatilake: Yes, my Lord.
Justice Hamid: And deliberately?
Jayatilake: Yes, my Lord.
When Justice Hamid asked whether the purpose
of his testimony was to lend weight to get Karthigesu acquitted, Jayatilake
replied that his purpose was to say that what he had said in the High Court was
not true.
Jayatilake’s Confession
The appeal proper was heard the next
day, on 30 May 1981.
The impact of Jayatilake’s confession that
he had lied at the trial, upon the judges hearing the appeal, caused Justice
Wan Suleiman to seek Mr Chelliah’s opinion as to whether he thought it would be
a just cause to order a retrial. Mr Chelliah said he thought it would be a
waste of time for there was no factual evidence against Karthigesu. Counsel
said the prosecution had relied its case on circumstantial evidence, in the
form of theories and opinion. The trial had taken more than 30 days. Mr
Chelliah said: “This is not a case where your Lordships should send for
retrial.”
Mr Chelliah argued that it would be most
unsafe and unsatis-factory to allow the verdict against Karthigesu to stand in
view of the additional evidence adduced before the Federal Court the previous
day, whereby Jayatilake admitted he had lied when he testified at Karthigesu’s
trial at the High Court on 18 July 1980. Jayatilake had said he lied when he
said: “He (Karthigesu) said worse come to worse he will admit it. During the
conversation Karthigesu said ‘the doctor from Sri Lanka wanted to convert Jean
to Muslim and marry her’. Karthigesu had said ‘worse come to worse I will admit
it and go in’. When the accused said this, his mother calmed him down. After
that he continued with me and said ‘the bitch did not deserve to live’. He then
went into his bedroom and came out a little later.”
In his submission, Mr Chelliah referred to
the trial judge’s direction to the jury on Jayatilake’s evidence and asked what
would have been the jury’s verdict without the evidence. The prosecution’s
case, Mr Chelliah said, depended on circumstantial evidence and Jayatilake’s
testimony was ‘a strong link in the chain’. Mr Chelliah wondered whether the jury
would have come to the same verdict if this link was taken away.
Mr Chelliah said another aspect for
consideration was what effect would Jayatilake’s false evidence have on the
jury. Jayatilake was presented to the jury as a witness for the prosecution.
The trial judge, Mr Chelliah said, had placed some importance on his evidence
in his summing up.
Mr Chelliah argued that if the jury had
accepted those words alleged by Jayatilake to have been said by Karthigesu as
an ‘extra-judicial confession’, it would have a tremendous prejudicial effect
on their mind. Mr Chelliah said it would be like “hammering a large nail into
the coffin of the appellant, particularly when the rest of the evidence was
circumstantial. We will never know what effect it had on the jury no matter how
long we sit to deliberate, but we cannot ignore the fact that it might have had
a persuasive effect on the jury in bringing about a verdict of guilty.”
Mr Chelliah submitted that it was ‘most
unsafe and unsatisfactory’ to let the verdict against Karthigesu stand in view
of the additional evidence adduced the previous day.
Justice Wan Suleiman asked Mr Chelliah
whether he thought it would be just to order a retrial. Counsel replied that
the prosecution’s case had depended on circumstantial evidence: there was not a
‘single point’ which pointed directly to Karthigesu. Mr Chelliah said any order
for a retrial would be a waste of time. Mr Chelliah went on to submit that
inadmissible evidence had been put before the jury; the summing up of the trial
judge, he said, carried a lot of misdirection. The trial judge erred in
admitting the evidence and report of Dr Devadass, a consultant psychiatrist who
examined Karthigesu a month after the incident. Even if the doctor’s opinions
had some relevance the trial judge should have held that its prejudicial effect
heavily overbalanced its probative value and should have refused the
prosecution permission to call such evidence. Having allowed the prosecution to
call such evidence, the trial judge failed to give the jury any, or sufficient,
help in his summing up as to how they should approach the difficult task of
understanding the evidence of a psychiatrist.
Mr Chelliah said the trial judge had also
erred in his direction to the jury in his summing-up and also on the various
evidence which should not have been admitted at the trial.
As for the love letters found in an unlocked
room they should not have been admitted as evidence. There was no proof that
the writing was Dr Warnasurya’s. The trial judge failed to ask the jury to draw
any inference favourable to the accused. Declared Mr Chelliah, the trial judge
never referred to the fact that not a single drop of blood was found on
Karthigesu who was wearing white trousers and white pair of shoes on the day of
the crime.
Sambanthamurthi, the DPP, urged the Court to
dismiss the appeal or alternatively, to order a retrial. The DPP said there was
no misdirection to the jury by the trial judge. There was no failure of justice
as the judge was fair in his summing-up. There was no trick by Professor
Devadass, who examined Karthigesu about a month after the incident. Karthigesu
himself had admitted that he used the opportunity of his meeting with the
professor to tell his story of police treatment.
As for the trial judge’s direction that it
could be inferred that Karthigesu was the last person to have the opportunity
of committing the crime, the DPP said there was no sworn evidence to the
contrary. No one was called that there were others, other than Jean and
Karthigesu in the car. Karthigesu was a jealous man and he had the motive, and
it was not denied that Karthigesu was with Jean.
As for the contention that there was
misdirection on the medical and circumstantial evidence which suggested that
Karthigesu was pretending after the incident, the DPP said there was no
misdirection.
On the love letters, it was unreasonable for
Karthigesu to say he
had no knowledge of
Jean’s relationship with Dr Narada Warnasurya.
The DPP held that without the evidence of
Jayatilake there was an avalanche of evidence to which the defence had no
answers.
Mr Chelliah argued that with the new
evidence from Jayatilake, Karthigesu’s conviction not only could not stand but
there was no room for a retrial. Mr Chelliah said that without Jayatilake’s
evidence and that of Professor Devadass, there would be little left for the jury
to consider.
Mr Chelliah said his client had gone through
a 38-day trial, and to give the prosecution a ‘second bite at the cherry’ was
not called for by the evidence.
The three judges deliberated for one hour
and 10 minutes. In delivering the oral judgement of the Federal Court, Justice
Wan Suleiman said: “We have heard the appeal and we have very carefully
considered the grounds put forward on behalf of the appellant in support of this
appeal. At the commencement of the hearing we allowed the motion for additional
evidence to be adduced for reasons we have already given. In considering the
appeal, we have considered not only the additional evidence, but also the other
grounds put forward by the appellant.
In the light of the additional evidence
given by Jayatilake, we have to decide whether in all probability Jayatilake
was telling the truth when he said he lied in the High Court. We are satisfied
that he had. As regards the other grounds submitted by the appellant we find
that some inadmissible evidence was admitted and placed before the jury and
this formed an important part of the summing up. The other complaint is that
the jury was invited to make inferences favourable to the prosecution, while
other inferences favourable to the defence which could have been drawn from
such evidence were not placed before the jury.
The totality of the effect of these various
grounds of complaint including the additional evidence of Jayatilake is that in
our considered view, no reasonable jury properly directed, would have found the
accused guilty. In the circumstances of this case the only course for us is to
allow the appeal, to quash conviction and set aside the sentence.”
Karthigesu hugged and kissed his counsel. He
shook hands with the Deputy Public Prosecutor, Mr T.S. Sambanthamurthi.
Karthigesu left the court a free man. He
told reporters he was very relieved that it was all over. “I have been in jail
for two years one month and four days. The treatment I received in prison has
been good.” He returned to the prison to sign relevant papers. He then went to
the temple for prayers. After that he went to a barber’s shop for a haircut and
shave. He had grown a beard while in prison.
For the first time in Malaysia’s legal
history a witness in a murder case was charged with perjury. No one openly
accused him of perjury. He confessed, and it was upon his own statements that
he was arrested and charged in court with a crime, in a capital punishment case,
which carried with it in certain circumstances the sentence of death.
Section 194 of the Penal Code states:
“Whoever gives or fabricates false evidence intending thereby to cause or
knowing it to be likely that he will thereby cause any person to be convicted
of an offence which is capital by this code, shall be punished with
imprisonment for a term which may extend to 20 years, and shall also be liable
to a fine, and if an innocent person shall be convicted and executed in
consequence of such false evidence, the person who shall give such evidence
shall be punished either with death or the punishment herein before described.”
The murder created a sensation. Wrote one
commentator: “Never in recent memory has a murder trial captured as much
attention as the one which resulted in the acquittal of Karthigesu. The bizarre
killing of the vivacious Philomena Jean Sinnappa, her throat slit and 10 stab
wounds on her seat-belt-strapped body, unfolded to the avid public a lurid tale
of sex and lust, passion and beauty, wealth and jealousy.”