Blood Lust

by 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 summ
ing-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.”

  Jayatilake was charged in the Sessions Court on 29 June 1981 with giving false evidence. He pleaded not guilty, but DPP Sheik Daud Ismail successfully applied for the case to be heard in the High Court. Jayatilake was allowed bail of $5,000 with two sureties. He appeared in the High Court on 16 July 1981 and pleaded guilty. From the witness box he testified that he lied during Karthigesu’s trial, and had been asked to do so by a senior police officer, Jean’s mother and Jean’s brother. He later approached Karthigesu’s lawyers to get the matter ‘off his chest’. He had also been harassed by the police.

  Jayatilake’s lawyer, Mr Y. Sivaloganathan, told the Court he had received a letter from Karthigesu in which Karthigesu said he bore no grudge against Jayatilake nor entertained any ill-will towards him. Karthigesu said he had been praying for Jayatilake ‘in the expectation that the Good Lord will grant him peace of mind’. Karthigesu said he would be ready to come to Court to plead for mercy if this would help.

  In mitigation, Mr Y. Sivaloganathan said in February Jayatilake lost his son, aged four, and Jayatilake took to drinking. He also had the added misery of being in financial shambles and he had approached Karthigesu at the time of Jean’s death to sign as guarantor for a personal loan of $3,000. Mr Y. Sivaloganathan said Jayatilake’s financial difficulties and drinking habits were well known among his circle of friends and he was aware that they might refuse to sign as guarantors. Counsel said it was Jean’s mother, Mrs Mabel Perera, who broached the subject of wanting Jayatilake to concoct a story about what happened when he was in Karthigesu’s house. He was subsequently coached by DSP Shingara Singh and Jean’s brother

  Brian. Jayatilake had a lot of useful years ahead of him. He was no longer the drunken, irresponsible man he once was. Mr Sivalo-ganathan urged the Court to give him a chance to return to society

  to lead a useful and meaningful life.

  The DPP said the allegations made against Mabel Perera, DSP Shingara Singh and Brian were not substantiated and the three persons named were not given an opportunity to defend themselves. The DPP submitted that in the context of the judicial system there was nothing more despicable than the offence of perjury. He submitted that anyone committing perjury should not be shown any mercy. He asked for a deterrant sentence to be imposed. He agreed with the defence counsel that this was the first case of its kind in Malaysia and he urged the Court to impose a sentence which would ensure that this case would be the one and only case in existence.

  Judge Ajaib Singh sentenced Jayatilake to 10 years. The Judge said that the offence of judicial perjury which Jayatilake had committed was of such a grave nature, involving the risk of human life, that public interest and justice must outweigh the mitigation plea which had been advanced on his behalf. “The evidence of the accused in the High Court was very material because it provided the main link in the largely circumstantial evidence which was adduced by the prosecution in the murder trial of Karthigesu.”

  “The accused was bound under oath to speak the truth. But he obviously had no intention whatsoever of respecting the sanctity of oath. Instead he deliberately perverted the cause of justice by deceiving and misleading the Judge and jury with his false evidence. His excuse, that he was under emotional strain when, he made the false statements, cannot be accepted. He is no ignoramus. He was well-educated and must be taken to be a man of responsibility, having a wife and t
hree children and a comfortable job. He must have known the damage which his false evidence was going to cause in the murder trial.”

  Saying that Jayatilake now says he ‘has found the courage to come forward and tell the truth’, the Judge added: “He should remain brave and take the consequences in his stride. By receiving punish-ment he will atone for his crime and find peace with himself, with his soul and with God.”

  On behalf of Jayatilake, Mr Sivaloganathan submitted that public interest and justice would be served if Jayatilake was not sent to prison, but released on a bond to be of good behaviour. The Judge thought otherwise. Jayatilake filed a notice of appeal. It was heard by the Federal Court two months later and dismissed.

  The punished perjurer had 10 long and lonely years to reflect upon the strange workings of Fate. He had unburdened his conscience. Karthigesu would not hang. The ironic truth was that Karthigesu might have been set free even had the perjurer kept silent and not confessed his crime. The Judges of Appeal had considered several other factors as well. Inadmissible evidence had been set before the jury. The words of the presiding Appeal Judge must have sounded hollow in Karthigesu’s ears. “No jury properly directed,” said the Judge, “would have found Karthigesu guilty.” The perjurer had 10 years to think about that.

  The Preliminary Inquiry

  What Dr Devadass Thought about Karthigesu’s Story of Four Assailants.

  What Jean Revealed in her Passionate Love Letter To Her Brother-in-Law.

  In Malaysia in a murder case Preliminary Inquiry is held in a Magistrate’s Court to determine whether the evidence justifies sending the accused for trial.