Nadunjalian v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 30 June 1993
• Neutral Citation: [1993] SGCA 46
• Date: 30 June 1993
• Subject Matter: Statement made under s 122(6) of Criminal Procedure Code,Criminal Procedure and Sentencing,Whether voir dire should have been reconvened,Voir dire,Objection to admissibility withdrawn during trial-within-a-trial,Testimony in defence raising further allegations of falsity of statement,Whether accused was deprived of full and fair trial
• Docket Number: Criminal Appeal No 18
• Published date: 19 September 2003
• Defendant Counsel: Seng Kwang Boon (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Peter Fernando and Suchitra Ragupathy (Leo Fernando)

This was an appeal from the decision of judicial commissioner Rubin wherein the appellant was found guilty of murder under s 300 of the Penal Code (Cap 224) and given the mandatory death sentence. The appeal was against conviction and sentence. At the end of the hearing, the appeal was unanimously dismissed. We now give our reasons.

The case for the prosecution

The appellant was charged as follows:

That you, Nadunjalian s/o Rajoo on or about 17 December 1990, at about 9 pm, at the car park beside Block 111, Serangoon North Avenue 1, Singapore, committed murder by causing the death of one Ambalagan s/o Rathanam, and you have thereby committed an offence punishable under s 302 of the Penal Code (Cap 224).

At the time of the offence the accused was 21 years of age and the deceased was 25. The deceased was a friend of the accused and they would often go for rides together on the deceased`s motorcycle. The three main eye-witnesses to the incident were Selvaraju s/o Sakkarapani (`Selvaraju`), Ravi Chandran s/o Mardum Mutu (`Ravi`) and Kajandran s/o Jeyabalan (`Kajandran`). These three persons were friends of the accused and the deceased and they would meet from time to time at a coffee shop at Block 107 Serangoon North Avenue 1 (`the coffee shop`) and share a few drinks together.

Sometime before the fateful day, the accused heard from one Ramesh that the deceased had called the accused `a fellow without testicles - a coward`. On the night of 17 December 1990, at about 6.30 pm or 7 pm the accused went to the coffee shop for a drink and a meal. The deceased joined him some time later. According to the accused, they chatted for a while before the accused asked the deceased whether he had said something `which is not true and something which is bad` about the accused, referring to what the accused had heard from Ramesh. The accused testified that the deceased replied abusively, saying `Elladah, thayoli` (`No-dah, mother fucker`).

Shortly thereafter, Ravi and Selvaraju joined them. The accused spoke to Ravi and Selvaraju but did not speak again to the deceased. After a short while, Kajandran joined them. When all five were seated at the table, the accused once again calmly asked the deceased about the abusive words the deceased had spoken. The deceased was silent, but a few seconds later he got up and addressed the accused and said, `Yekke I have to talk to you in private; come with me.` (Yekke was the accused`s nickname.) The accused asked, `What has happened to you?`. The deceased replied, `No, you just follow me.`.

The accused rose from the table, turned to the others and said, `Come with me.`. They followed at a distance. The deceased led the way followed by the accused about 12 ft behind. Some 30 to 35 ft behind the accused were the three eye-witnesses.

According to the evidence, the party of five walked from the coffee shop towards a PUB substation a little more than 100 m away. Surrounding the PUB substation were some tall bushes. The deceased and the accused were obscured from the sight of the three eye-witnesses by the tall bushes when they turned into the substation.

Evidence of the three eye-witnesses

The three eye-witnesses all gave similar accounts of what happened next. They testified that at first they heard nothing. Then the sound of a fight reached them. The three eye-witnesses ran towards the substation. When they arrived, they saw the deceased bleeding from his back. The accused was stabbing him. They held the accused back, one holding his left hand, the other his right hand, and the last his body. The accused tried to free himself from them, hurling abuses at them and telling them to leave him. The deceased walked away in pain. The accused then managed to free himself from the three eye-witnesses and ran after the deceased. He pushed the deceased to the ground, sat on him and continued stabbing him.

The three eye-witnesses then ran to the accused and pulled him away. They left the deceased lying on the ground and went their separate ways home.

Cause of death

The deceased was found with serious injuries and groaning in pain and was sent to Tan Tock Seng Hospital where he was pronounced dead at 10.25 pm that day. The forensic pathologist, Professor Chao Tzee Cheng, who performed the autopsy, testified that the deceased had suffered some 24 wounds all over his body, head and limbs. The cause of death was haemorrhage from multiple stab wounds. In particular, the fatal wounds were:

(1) A 2.5 cm long stab wound on the left chest to a depth of 11 cm. This went in through the second intercostal space and penetrated the lung. It was directed in a downward and medial direction towards the centre of the body.

(2) Three stab wounds 1.5 cm long each and a cut wound 4 cm long on the left side of the abdomen. Two of the stab wounds were penetrating horizontally inwards to a depth of 12 cm cutting into the posterior abdominal wall. These caused extensive internal bleeding.

Professor Chao said that considerable force appeared to have been used in causing the fatal wounds and that they were sufficient in the ordinary course of nature to cause death.

The accused`s s 122(6) statement

In the course of the prosecution`s case, a statement recorded from the accused under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`) was introduced by the DPP. Defence counsel took objection to the admissibility of the statement and a trial-within-a-trial was conducted. The investigating officer, Akbal Ahmad, gave evidence on the procedure he followed in recording the statement. He also testified that the statement was recorded by him without any threat, inducement or promise either by the interpreter or by himself before or during the recording of the statement. However, during the cross examination of this witness, defence counsel withdrew his objection to the admissibility of the statement. The statement was thus duly admitted and read in court.

On the basis of the evidence presented by the prosecution, the trial judge found that a case had been made out against the accused which, if unrebutted, would warrant his conviction. The accused was accordingly called upon to enter on his defence.

The defence

The accused testified that he was very close to his mother, particularly after the separation of his parents. He was very protective of her and loved her very much. As a Hindu, he regarded his mother as God. He knew the deceased and, although they were not very close, they had a good relationship. Prior to the incident, he had heard the deceased uttering vulgarity but had kept quiet. Then, there had been no vulgarity directed at the accused`s family.

On the night of the incident, the deceased had joined the accused at the coffee shop although they had not planned to do so. After the exchange of words already described, the deceased got up and asked the accused to follow him. The accused testified that he left the table without any weapons. He was wearing a pair of shorts and a T-shirt tucked into his shorts. As he was following the deceased towards the PUB substation, the accused heard him murmuring, `Fellow without testicles; son of cunt.` The deceased then turned around and glanced at the accused and said, `mayirandi` (`pubic hair fellow`). The accused said that he had not been incensed by all this because the deceased had not looked directly at him when he said those words. The deceased turned into the substation and the accused caught up with him. As they stood facing each other, however, the deceased pointed a finger at the accused and said, `Para punda maganai; para thevadiya magane.` (`Pariah son of a cunt; pariah son of a prostitute.`)

At these words the accused testified that he became incensed and punched the deceased. A fight ensued. The deceased took a few steps back, put his right hand behind his back and said that he had had sex with the accused`s mother. The deceased then said, `I will not leave you without killing you today` and thrust his right hand, which was wielding a knife, towards the chest of the accused. The accused managed to grab the knife from the deceased and started stabbing at the deceased in fury. The accused testified by then that he had lost his senses. He was furious because the deceased had insulted his mother by calling her a prostitute. He was reflecting on whether he was the son of a prostitute and whether the deceased had had sex with his mother. He said that he was feeling `uncomfortable` and demonstrated this on the stand by shaking and flapping his hands and his limbs. He claimed that he had lost his senses and no longer knew what was happening. When he finally regained his senses, the deceased was lying on the floor. He walked away and dropped the knife into a drain.

The s 122(6) statement and the...