Public Prosecutor v Gerardine Andrew

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 09 September 1998
• Neutral Citation: [1998] SGCA 56
• Docket Number: Criminal Appeal No 1 of 1998
• Date: 09 September 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Bala Reddy and Mavis Chionh (Deputy Public Prosecutors)
• Citation: [1998] SGCA 56
• Defendant Counsel: Christina Goh Siok Leng (Christina Goh & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether common intention to cause grevious hurt or serious injury to deceased,Whether accused actually present for purposes of s 34 when stabbing of deceased took place,s 34 Penal Code (Cap 224),Participation of accused in criminal act,Whether physical presence of accused at commission of offence necessary to constitute participation,Whether accused must be physically present at commission of offence to bailable under s 34 Penal Code (Cap 224),Whether common intention more than just to assault and rob deceased,Complicity,Common intention,Criminal Law,Whether participation in criminal act necessary for accused to be liable under s 34 Penal Code (Cap 224),Whether accused had knowledge of knife being brought to scene of crime

Judgment:

YONG PUNG HOW CJ

Cur Adv Vult

(delivering the judgment of the court): The respondent was convicted in the High Court by Kan Ting Chiu J on the following charge and sentenced to eight years` imprisonment:

That you, Andrew Gerardine

On 13 March 1997 between 8.30am and 9am at Block 804 King George`s Avenue #14-154, Singapore, together with one Mansoor s/o Abdullah, one Nazar bin Mohamed Kassim and one Kamala Rani d/o Balakrishnan and in furtherance of the common intention of you all, committed culpable homicide not amounting to murder by causing the death of one Sivapackiam d/o Veerappan Rengasamy, female aged 53 years, and you have thereby committed an offence under s 304(a) read with s 34 of the Penal Code (Cap 224).

The prosecution appealed against the trial judge`s decision. We heard their appeal on 3 August 1998 and reserved judgment.

2. The facts

The undisputed facts were as follows. The deceased was one Sivapackiam d/o Veerappan Rengasamy, female, 53 years old. At the time of her death on 13 March 1997, she was living in Block 804 King George Avenue #14-154 (the flat). Andrew Gerardine @ Maria (Gerardine) had been renting a room in the deceased`s flat since February 1997. Shortly before the deceased`s death, she was on bad terms with Gerardine. She had for example scolded Gerardine, called her a prostitute and used vulgarities on her.

3.The deceased was found dead in the flat. In his affidavit, Dr Gilbert Lau, a pathologist attached to the Institute of Science and Forensic Medicine stated:

5 I performed a post-mortem on the deceased`s body. I certified the cause of death to be due to severe haemorrhage, mainly arising from the severance of the right superior thyroid artery caused by a stab wound situated on the right anterolateral aspect of the deceased`s neck. I am of the opinion that the said severance of the right superior thyroid artery is sufficient in the ordinary course of nature to cause death.

4.At about 2am to 3am on 13 March 1997, Gerardine, Mansoor s/o Abdullah (Mansoor), Nazar bin Mohamed Kassim (Nazar), and Kamala Rani d/o Balakrishnan (Rani) were at Albert Court. There Gerardine told the other three about her problems with the deceased. She asked them to help her teach the deceased a lesson and to beat her up. She also told them that the deceased kept a lot of jewellery and money in the flat. After they agreed to help her, Gerardine went back to the flat to collect her bag. She arrived at the flat at about 7am. After collecting her bag she went back to Tekar market, where the other three were waiting.

5.While waiting for Gerardine to return, Nazar went to Farrer Park Stadium. He and Mansoor had been sleeping at Farrer Park Stadium for six months. He changed his clothes, took a ten centimetre long knife and returned to Tekar market to wait for Gerardine. After Gerardine met up with the other three at Tekar market at about 7.30am, the four of them proceeded to wait for a taxi. While waiting for the taxi, Nazar told Mansoor that he had a knife and made Mansoor touch the handle of the knife.

6.The taxi took them to the vicinity of the flat, where they had breakfast. This was about 8am. After breakfast, they sat at a bench near a coffee shop to wait for the deceased`s son to leave for work. Gerardine spotted the deceased walking back to the flat carrying a newspaper with her. She pointed out the deceased to Nazar, Mansoor and Rani. Nazar and Mansoor then told Gerardine that they wanted to take a walk. At about 8.20am, Gerardine spotted the deceased`s son leaving for work. She was aware that he usually left for work at around that time. At about 8.30am, Nazar and Mansoor returned. After they returned, Gerardine told them to follow her to the flat. Nazar asked Gerardine what they were to say when they arrived at the flat. She told them to tell the deceased that they wanted to rent a room.

7.The four of them proceeded to the lift-landing of the flat. Before entering the lift, Gerardine went to the nearby Prime Supermarket, bought a pair of gloves and gave one each to Mansoor and Nazar. While in the lift Gerardine asked Mansoor and Nazar what they would be using to beat the deceased. It was revealed that Mansoor would be using a chain that he was wearing. They took the lift to the 13th floor, and Mansoor and Nazar walked up the stairs to the 14th floor where the flat was, while Gerardine and Rani waited at the staircase of the 13th and 14th floor near the flat.

8.When they arrived at the flat, Mansoor called the deceased and told her that they wanted to rent a room. She then invited them to enter her house to view the room. They entered the house, and walked around to see the bedroom. While the deceased was showing them around, Mansoor took out a silver-coloured chain which he wore around his left wrist. He hooked the chain around her neck and started to strangle her with the chain. They pulled her into the bedroom located near the kitchen. The deceased struggled and screamed. In the ensuing struggle, Nazar joined in and stabbed the deceased at the right side of her neck several times. After the deceased was stabbed, Mansoor walked out and asked Gerardine and Rani to go into the flat. Gerardine and Rani followed Mansoor into the flat. She and Mansoor then made a futile search for the deceased`s jewellery and money. All four of them eventually left the flat without having taken any of the deceased`s valuables. The four were subsequently arrested. After their arrest, statements were recorded. The statements were admitted in evidence without challenge.

9.Rani pleaded guilty to a charge of culpable homicide not amounting to murder under s 304(a) of the Penal Code (Cap 224) and was sentenced to seven years` imprisonment. Mansoor, Nazar, and Gerardine were tried in the High Court for murder under s 302 read with s 34 of the Penal Code. Mansoor and Nazar were convicted of murder and sentenced to death.

10. Decision of the trial judge

The trial judge found that, although Gerardine had instigated the other three to assault and rob the deceased, she had not asked her friends to kill or to cause her serious injuries, and was not aware that Nazar had armed himself with a knife, neither did she assist or participate in or witness the stabbing. The trial judge therefore convicted her on the reduced charge of culpable homicide under s 304(a) read with s 34 of the Penal Code and sentenced her to eight years` imprisonment.

11. The appeal

The prosecution appealed against the decision of the trial judge and asked that Gerardine`s conviction under s 304(a) read with s 34 of the Penal Code be set aside and that she be convicted of the original charge of murder under s 302 read with s 34 of the Penal Code.

12. Evidence on knowledge of the knife

The prosecution submitted that the evidence showed that Gerardine knew that Nazar brought a knife along with him to the flat. At the court below, the trial judge had found that Gerardine was not aware that Nazar had armed himself with a knife.

13.The evidence which supported the trial judge`s finding that Gerardine did not know of the knife was as follows. First, in her statement to DSSgt Lim Song Chai (DSSgt Lim) on 18 March 1997, Gerardine denied knowledge of Nazar`s knife. She said:

I did not arm with any weapon. I also do not know whether `Mansoor`, `Nazar` and `Rani` was having any weapon. When we were taking the lift up to the flat. I asked `Mansoor` and `Nazar` what they intend to use to beat up `Auntie`. `Mansoor` took out a iron string around his neck and he told me that he will use the string to beat up Auntie. `Nazar` did not say anything. He only asked me what to say when they reach the house. I told him to pretend to rent a room from `Auntie.`

At the trial, Gerardine maintained her stand that she did not know of Nazar`s knife. Secondly, there was Nazar`s testimony in court that, while the four of them were at Albert Court, there was no discussion of what weapons were to be used to beat up the deceased and that he did not tell Gerardine about the knife. However, in his statement to DSSgt Lim on 19 May 1997 Nazar had given evidence contradictory to what he said in court. He said:

19 About five minutes later, I returned to the coffee shop. I went to Maria and asked her how. She told me that her house owner`s son had not leave the house. I then suggested to Maria to sit together at the shelter nearby but she refused. Maria asked me what I was using to hit her house owner. I told her that I was having a knife. Kamala Rani also heard that I was having a knife. I left her table and told Mansoor s/o Abdullah to sit at the shelter.

Further on in the same statement, Nazar said that he showed Maria the knife while they were inside the lift:

23 She asked Mansoor s/o Abdullah what he was using to hit her house owner. Mansoor s/o Abdullah showed us a silver-coloured chain around his left arm and said that he was using the chain to hit the house owner. Maria asked me the same question and I told them that I was using the knife and I took out the knife from my left booth and showed it to them. I placed the knife in my pant right front pocket and placed the glove in my left pocket.

Nazar subsequently retracted these statements in court. When cross-examined by the prosecution as to why he gave the wrong statement to DSSgt Lim he said that there was no reason for giving the wrong statement. When cross-examined by the prosecution as to why he should have refrained from telling the others about the knife, he said that he did not know why he did not show them. In the light of his failure to give any reason for his retractions, we do not think that much weight can be attached to Nazar`s testimony in court regarding Gerardine`s knowledge of the knife.

14.With regards to the evidence which showed that Gerardine was aware of the knife, there was, first, Nazar`s statement to DSSgt Lim as mentioned above. Secondly, it was the evidence of Nazar, Mansoor and...