Neville v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 06 December 1991
• Neutral Citation: [1991] SGCA 46
• Docket Number: Criminal Appeal No 27 of 1990
• Date: 06 December 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: Peter Fernando (Leo Fernando)
• Citation: [1991] SGCA 46
• Defendant Counsel: Christine Lee (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Murder,Criminal Procedure and Sentencing,Silence of judge did not mean defence not considered,Mens rea,s 300 Penal Code (Cap 224),Offences,Consideration of any exonerating evidence,Whether there was intention to kill,Appellant retracted his earlier unsworn statements at trial,Judge's duty,Criminal Law,Trials

Cur Adv Vult

This was an appeal against conviction and sentence on a charge of murder. The charge was that the appellant on or about 2 November 1984 at about 2.55pm at Apartment Block 62, Kallang Bahru, Singapore, caused the death of one LHH and thereby committed an offence punishable under s 302 of the Penal Code (Cap 224) (`the Code`).

We summarize below the facts as found by the trial judges on the evidence adduced before them, including (a) the oral testimonies of, among other witnesses, (i) the relatives, friends and the employer of LHH; (ii) an independent eye-witness, N; and (iii) three friends of the appellant, R, A and T, and (b) two voluntary written statements made by the appellant and his oral testimony in his own defence.

On 2 November 1984 at 2.29pm the police received a message that a girl had been found lying at the foot of Block 62, Kallang Bahru. The body was about 17ft away from the foot of the block. At the scene, a staff nurse examined her and pronounced her dead at 3.06pm. The cause of death, as later certified by the pathologist, was a ruptured heart caused by the fall. The deceased was later identified as LHH, an interior designer aged 19.

The appellant was 27 years of age and self-employed at the time of the incident. He met the deceased in 1984 at an interior decoration course which they were both attending. He rented and lived in a one-room flat, #10-3369 of Block 62, Kallang Bahru.

On 2 November at about 3pm, N was walking from Block 63 to Block 62, when he looked up at the 11th storey of Block 62 where his girlfriend lived. N saw what he initially thought was someone trying to hang out a pillow or bolster outside a window below the 11th floor. He then realized that what he was seeing was a bare-chested person, whom he later identified as the appellant, trying to put a partially unclothed female body out of the kitchen window. The body, later identified to be that of LHH, was being carried in a horizontal position with her head on top of his left hand and her legs over his right arm. N saw her struggling weakly before the man let go of her. N was then only 50ft from the foot of Block 62. The body landed on the grass verge adjacent to the block. The legs landed first and the body fell sideways towards his left. When he ran near to her, she said, `Help me, help me please` in English. He told her he did not know what to do and she repeated her pleas for help. The pathologist testified that LHH did not die on impact but a minute or so later, and was capable of uttering some words before she died. She was having great difficulty in breathing. N, who was then 15 years old, was crying by then. LHH died soon after. He was dazed with shock and, still crying, walked a little distance away where he retched. He saw a man covering the body with newspapers. N also testified that he had also seen the appellant with LHH at the foot of Block 62 two or three weeks before the incident.

The police recovered from the rubbish chute of Block 62 some items of clothing and accessories which were later identified to belong to LHH. Later that day, the appellant went to a pawnshop in Toa Payoh and pawned certain items of jewellery which were subsequently sold by the pawnbroker. He testified that his register showed that it was the appellant who had pawned the jewellery on the same day shortly after 3.40pm.

At about 8.15pm on the same day, the appellant met a friend, R. On the way to his flat in a taxi, the appellant asked R the best way to go to Malaysia. He stopped the taxi a block or two away from Block 62 and gave the keys to his flat to R so that R could change out of his work clothes and leave some things in the flat before they went out together for a drink. He told R that he owed rent and did not want to meet the landlord. The appellant waited at a coffeeshop. When R arrived at the flat, he was stopped by a police officer before he could open the door. He let the police in to search the flat. During the search, the telephone rang. It was the appellant: he wanted to know why R was taking so long. R replied that he would come soon. When questioned by the police, R told them about the exchange. When the telephone rang a second time, the police instructed R to arrange to meet the appellant downstairs. When they went downstairs, the appellant could not be found. R then gave a statement to the police. The keys to the flat were seized.

Two other friends of the appellant, A and T, testified that after the incident, he had talked to them, separately, about the incident. He gave to both of them substantially the same account, ie that he had slept with a girl who had been a virgin and that she had demanded he marry her, that he had told her he was a Muslim and had another girlfriend; that she had become very upset because her parents were strict and that she had accused him of having deceived her even though he had agreed to marry her; that she had gone to the kitchen to make hot drinks and when he looked up she had disappeared; that he looked out of the window and saw her body on the ground. Both his friends advised him to contact the police and explain to them what had happened. T managed to drive the appellant towards the CID but when T stopped to get a Malaysian car pass, the appellant disappeared. Later, he telephoned T and apologized for having left so suddenly; he said that he was trying to leave Singapore.

The appellant succeeded in leaving Singapore. But he was arrested in Malaysia on 28 February 1987. He had on him an identity card which did not belong to him. He was extradited to Singapore on 14 March 1987. On 17 March 1987, a s 122(6) statement was recorded from him. On 26 March 1987, a s 121 statement was recorded from him.

At the trial, the appellant elected to defend himself although counsel was available to defend him. He did not challenge the voluntariness of the two statements he had given to the police. The s 122(6) statement in whole and the s 121 statement, as to its material parts, were accordingly admitted in evidence.

The appellant gave his account of the incident in these two statements. On 1 November 1984, he met LHH as prearranged at about 7pm near Hoover Theatre, Balestier Road. They had dinner at the stalls nearby. After dinner, they went to his flat at Kallang Bahru at his suggestion to discuss, which they did, his interior design drawings. They also watched television for a while, then they talked about personal matters and eventually the appellant prevailed upon LHH to yield to his advances. They had sexual intercourse, after which they had a bath. As it was late, the appellant persuaded LHH to call home to say that she would not be home for the night. She telephone at about 1am. (Her brother, who took the call, testified that she sounded like she had just cried before and was choking, and that the call was cut off abruptly. The appellant admitted, in his testimony, that it was he who cut short the telephone conversation by pressing the extension button.)

LHH spent the night in the flat during which they made love again and had another bath. They woke up the next morning at about 10am, and had sex again. She then went to wash up and saw love-bites on her neck and chest and was upset because they would be visible. (The account in the s 121 statement was more elaborate, eg they then had a shower together, after which they had a cup of Milo and sat around; she then went to the dressing table and saw the love-bites.) The appellant tried to reassure her by telling her that he would be responsible for what had happened between them and was willing to marry her despite his having a girlfriend whom he loved. He also told her he was a Muslim and she would have to be a Muslim if they were to be married. She accused him of having deceived her by not disclosing these matters to her beforehand. He tried to reassure her again of his intentions. She wanted to dress. She tried to leave the flat. He prevented her and tried to calm her down but a struggle ensued.

The appellant`s s 122(6) statement gave this account of the struggle:

In the heat of the struggle, I punched and kicked her and choked her and stopped her from screaming. Her body went limp. I thought she was dead. I carried her body and pushed it off the window at the spur of the moment to make it look like a suicide. Then I took my things and my passport and left.

His s 121 statement gave a more elaborate account of the struggle, as follows:

... she became hysterical and started to yell and scream. There was a struggle between both of us as I was trying to prevent her from dressing up to leave. I then pushed her onto the mattress and punched and kicked her to prevent her from yelling. I cannot remember as to the parts of the body hit by me during the punching and kicking as I was very furious then. I also covered her mouth with my hands as she continued to struggle and scream. During this struggle, I might have even choked her. At this juncture, she suddenly became unconscious and motionless. I started to panic and thought that she was dead. I waited for about ten minutes in a daze, thinking what to do next. An idea struck my mind then and I thought I could get away if I made it look like a suicide by throwing her down. I then carried her on my shoulders and walked towards the kitchen to the window. She was facing downwards when I was carrying her on my right shoulder. Her head was facing my back whilst her legs were dangling in front of me. When I reached the window, I pushed her legs out the window first whilst the body was still resting on my shoulders. I am unable to say whether she was breathing or not then as I was in a state of panic. However, she was motionless. Once her legs were outside the window, I tossed the body over and out of the window. I did not see it falling as I was in a daze. I then returned back to the hall and sat for a while. I then took her slacks, shoes and hand-bag and threw them into the

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