G Krishnasamy Naidu v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 21 September 2006
• Neutral Citation: [2006] SGCA 36
• Docket Number: Criminal Appeal No 2 of 2006
• Date: 21 September 2006
• Year: 2006
• Published date: 25 September 2006
• Plaintiff Counsel: Peter Keith Fernando (Leo Fernando) and Jeeva Joethy (Joethy & Co)
• Citation: [2006] SGCA 36
• Defendant Counsel: Lau Wing Yum and Jason Chan (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Diminished responsibility,Whether mental responsibility of appellant sufficiently diminished by abnormality of mind,Criminal Law,Whether such abnormality arising from condition of mind or illness,Whether appellant suffering from abnormality of mind,Whether limbs of inquiry under s 300 Exception 7 Penal Code to be considered separately or as whole,Section 300 Exception 7 Penal Code (Cap 224, 1985 Rev Ed),Special exceptions

21 September 2006 Judgment reserved.

Choo Han Teck J (delivering the judgment of the court):

1 The 43-year-old appellant killed his 39-year-old wife (“Chitra”) on 17 May 2004. He attacked her with a newly purchased chopping knife and caused numerous wounds. The pathologist, Dr Gilbert Lau, determined that six major wounds were inflicted and one of the incised wounds across Chitra’s neck resulted in her death. The appellant was variously a bus driver, a taxi driver, and a lorry attendant. Chitra worked as a factory hand. The couple married on 1 June 1985 and subsequently produced two children, a daughter born in 1986 and a son in 1989. Between those years, Chitra had an affair with one Murugan. The appellant discovered the affair and only the intervention of his mother stopped him from seeking a divorce then. The appellant forgave Chitra and their marriage continued uneventfully until 2000 when Chitra had an affair with a colleague named Jayaseelan. When the appellant found out about this affair on 28 March 2000, he beat her with a bamboo pole and fractured her hand. She admitted to being pregnant with Jayaseelan’s baby and the appellant took her to a clinic to have the foetus aborted. Eventually, Jayaseelan returned to India in October 2001, but still sent Chitra a Valentine’s Day card in 2002, which the appellant found and kept. He threatened to divorce Chitra but she pleaded with him not to.

2 By the end of 2001 it was Chitra who had decided to divorce the appellant and the divorce papers as well as an application for a personal protection order (“PPO”) were served on him on 28 November 2001, whereupon the appellant threatened to kill her if the application for the PPO was not withdrawn. In December 2001, Chitra had an affair with a man called Anan. She denied the appellant’s accusations of her infidelity with Anan, whereupon he beat her again with a bamboo pole. Shortly thereafter, on 10 January 2002, Chitra lodged a police report about the appellant’s assault on her. On 25 March 2002, the appellant was convicted of causing grievous hurt and sentenced to three months’ imprisonment. Chitra visited him in jail and when he was released on 25 May 2002, she asked for his forgiveness and he forgave her. The trial judge seemed to have accepted that from that time until February 2004 the appellant “had a normal relationship with Chitra”. By “normal”, we gather that the court meant uneventful. However, it appeared that Chitra had a relationship with a man called Michael Lee. The appellant seemed to be ignorant of this relationship.

3 In February 2004, Chitra befriended a man called Asokan s/o Muthu Suppiah (“Ashok”). He was a security guard in a nearby factory who took the same bus to work as Chitra. It was during the trips to work in February 2004 that Chitra got to know Ashok better. They befriended each other and exchanged stories of their personal lives. Ashok also invited Chitra to the Indian Association to listen to music. The trial judge noted that the appellant stayed away from home from February to 6 March 2004 after quarrelling with Chitra and his children, and so was unaware of the friendship between Ashok and Chitra at that time. However, the appellant remained in touch with Chitra. On 26 March 2004 he called to tell her that he would take her home after her night shift. At breakfast, she told him that she had a company barbecue that evening but she would be going there only after 9.00pm to avoid some people she did not like. She left home about 8.30pm, dressed in a sleeveless blouse and a long denim skirt. The appellant thought that that was inappropriate dressing for a barbeque, and as the evening wore on, he began to suspect more and more that Chitra was having an affair. He checked on her with the help of a friend and found no such chalet and no such barbecue as he had been led to believe. He called her on her mobile telephone and demanded that she return home. After that, the appellant telephoned Chitra every five or ten minutes out of suspicion but by that time Chitra had switched off her mobile telephone. When she finally returned home, the appellant thought that she looked dishevelled and inferred that she must have had sexual intercourse earlier on. The trial judge noted in great detail the appellant’s growing suspicion and increasing jealousy from that point up to 17 May 2004 when he killed her, including the appellant’s remand pending psychiatric assessment after he was charged in the District Court on 10 April 2004 for stabbing Chitra with a knife. He was released on bail on 7 May 2004 and went to stay with his mother, but his jealous preoccupation with Chitra was unabated, and on 17 May 2004, he killed her after approaching her on the pretext of asking her to sign papers for their divorce. The trial judge rejected his defence of diminished responsibility by reason of an abnormality of mind that substantially impaired his mental responsibility – the defence under Exception 7 to s 300 of the Penal Code (Cap 224, 1985 Rev Ed), and duly convicted the appellant of murder and sentenced him to death (see PP v G Krishnasamy Naidu [2006] 3 SLR 44). The appellant appealed on the ground that the trial judge erred in rejecting his defence.

4 The analysis of Exception 7 by the Court of Appeal in previous cases had a “three-stage test” as part of its analysis. In Tengku Jonaris Badlishah v PP [1999] 2 SLR 260 (“Tengku Jonaris Badlishah”) at [35], reference was made to Mansoor s/o Abdullah v PP [1998] 3 SLR 719 (“Mansoor”) and the court implicitly approved the view of the court in Mansoor that there were “three limbs” to the defence under Exception 7 as follows:

In Mansoor s/o Abdullah & Anor v PP [1998] 3 SLR 719, it was stated that there are three limbs to this defence. The accused must show on the balance of probabilities that

(i) he was suffering from an abnormality of mind at the time he caused the victim’s death;

(ii) his abnormality of mind arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury; and

(iii) his abnormality of mind substantially impaired his mental responsibility for his acts and omissions in causing the death.

We are of the view that the three-stage test remains a convenient way of drawing attention to the three critical aspects of the provision in many cases. Unfortunately, the three-stage test is a reference that sometimes admits of a misapplication of the law. We believe that that was what happened in this case. Exception 7 is not meant to be a three-stage provision. On the contrary, it is a composite clause that must be read and applied as a whole. This is what it says:

Culpable homicide is not murder if the offender was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in causing the death or being a party to causing the death.

Where Exception 7 is considered strictly in a three-stage fashion, the conclusion at one stage may be irreconcilable with another stage. This appears to be the result in this case.

5 The court below proceeded to determine whether Exception 7 applied in this case in a three-stage manner as it was stated in Mansoor above, namely, by first enquiring whether the appellant suffered from an abnormality of mind. After a detailed analysis of the evidence, it decided that the appellant was suffering from such an abnormality. The court then considered the second “stage”, namely whether such abnormality arose from a condition of the mind or some illness, and...