Mr Coomaraswamy reminded the jury that, as the prosecution had freely acknowledged, the evidence against the accused was purely circumstantial and, correspondingly, the prosecution’s task and burden was greater. In other words, the prosecution must produce in seven ‘independent minds’ a degree of persuasion very much greater than it would have had to achieve had there been direct evidence of death and the mode by which death was achieved.
Counsel then cited a long passage from an authority on the assessment of circumstantial evidence, with the tendency of police officers to form a conclusion, and then seek out evidence to support that conclusion.
Counsel said that within two to three weeks of the alleged offence, accused was subjected to a long interrogation and he made a ‘full and frank statement’. Counsel submitted that the prosecution had all the evidence it wanted by October 1963, but it was not until 16 months later that the accused was arrested.
Mr Coomaraswamy said that it was always possible to place a suspicious interpretation, if one so wished, on any piece of evidence. For instance, the prosecution had asked the accused if he knew that Jenny treasured a ring, which was handed over to the Marine Police. Accused had admitted that he did. The interpretation sought to be placed on this admission was that this man, who had so professed his love for the girl, would have wanted to retain the ring as a memento. But if the accused had, in fact, retained the ring, he would have been described as an evil man who, not satisfied with the money he stood to collect from her death, also took the ring that belonged to the girl. “What the prosecution is going to ask you to do is to act on suspicion and speculation.”
Nevertheless, the prosecution had not yet tried to crystallize the speculation and theories so that the defence could meet them. One clue to the prosecution’s speculation was in crown counsel’s question to the accused, suggesting that after he had insured her heavily he took her out to Pulau Dua so that she could drown at sea, and so that he could collect the money.
Counsel said that the evidence should be examined to see how it fitted this theory. Jenny was a bar girl, who encountered a large number of men, each adopting different methods to win her favours. “To put it shortly, you must accept it that she was a worldly-wise girl,” said Mr Coomaraswamy. He submitted that Jenny wanted insurance for her own reasons. The jury must believe that there were limits to gullibility even for a bar girl.
Dealing with the question of the beneficiary under the insurance policy, defence counsel said that accused had said in his police statement that his mother, Madam Yeo Bee Neo, had been named beneficiary because he himself was a bankrupt.
With regard to the will, counsel said that it was difficult to conceive the circumstances in which an unwilling or uncooperative person would make one. He submitted that in this particular instance there was very good reason for a girl like Jenny to make a will. She was married and estranged from her husband, and in the event of her death the only person who could enforce any claims on what Jenny might have had would have been the estranged husband. “It is in my submission quite clear that Jenny knew exactly what the will was, knew the consequence of making it and knew its effect,” said Mr Coomaraswamy. The evidence was clear that she was a full and willing party to the making of this will.
Defence counsel also touched on the theory that the accused had designed an accident on the road to kill Jenny so that he could get the insurance money, but having failed in that had set up another device. “It is my submission that accused’s story of the accident is the correct one, that he was driving fast round this notorious bend,” said Mr Coomaraswamy. Another improbability of the prosecution theory on this was that the accused would design a serious motor accident with himself as the driver. “My submission is that the prosecution theory is as fanciful as the rest of their case.”
In his argument on the evidence regarding one of the flippers which was found, counsel said there were three possibilities: · the flipper was not cut when Jenny went down for her first dive; · the flipper was cut between the first and second dives; and · the flipper was not cut at all.
He asked the jury to dismiss the second possibility and to consider whether or not the flipper was cut before the first dive. If, as the prosecution alleged, it was the accused’s object to kill Jenny on her first dive, the accused could have tampered with either her aqualung, weight belt or flipper.
If the flipper had been cut the first time, Jenny would have discovered it, and the flipper would not have withstood the tensions applied to it while it was being put on. But she went into the water and came up again with no apparent sign of difficulty.
Counsel submitted that if the prosecution theory was true, the only possible assumption about the accused was that he was a calculating and cold-blooded killer. “Would accused have taken the risk of Jenny detecting the cut flippers?” he asked. “In the light of the evidence it is my submission that the evidence of this flipper is not enough and it is highly dangerous to act on it.”
Defence counsel said that the speculation in the case finally crystallized on the answers to two questions. The first was: is Jenny dead? “On this, you will have to disregard anything you have heard outside this court, and the views of all other persons,” he told the jury, “and you will have to come to a conclusion upon the hard facts of the evidence adduced before you.”
“It is not my task, nor that of my client, to explain the non-production of the body but the task of the prosecution to satisfy you that Jenny is, in fact, dead, although her body has not been found.”
He referred to the evidence of a witness, Yeo Tong Hock, who in November 1964 was willing to swear an affidavit that the person whom he knew to be Jenny was seen by him in late August 1963, in Penang, and subsequently in Alor Star. This was the only evidence available of whether Jenny was alive or not.
Mr Coomaraswamy said it was possible that Jenny was carried by currents, but did not find her air-tank unserviceable. The theory was not too far-fetched. It was strange that her body had not been found if, in fact, she was dead.
“In a case like this, you cannot act on evidence that maybe she is dead,” he submitted. “You cannot even act on evidence that allows you to say, ‘You may be pretty sure she is dead.’ You have to go beyond that and act only if you can be morally certain beyond reasonable doubt that she is dead.”
He submitted that the jury could not reach that conclusion on the evidence given. He reminded them that the accused was not being charged with fraud or telling lies, which carried penalties of imprisonment on conviction. Accused was charged with the most serious offence. The more serious and grave the punishment, the more careful they must be in making inferences.
If the jury came to the conclusion that Jenny was dead, they must reach a further conclusion. How did she come by her death? “Unless you come to the conclusion where you feel that the accused is responsible for her death, you cannot find him guilty of murder,” said counsel.
Even assuming for a moment that accused did cut Jenny’s flipper, could the jury say with moral certainty and beyond a reasonable doubt, after eliminating all other things that could have happened, that the accused was responsible for her death? “Can you, acting so that you are morally certain beyond a reasonable doubt, come to the conclusion that the accused did kill Jenny in the manner put forward by the prosecution?”
Mr Coomaraswamy concluded, “It is my submission that there are many explanations to the disappearance that are possible, and even on the assumption that she is dead, there are many ways in which she could have come to her death.”
Prosecution’s Closing Speech
In his closing speech, Mr Seow argued that it had been clearly established that, until Jenny met Ang, she did not know how to swim or scuba-dive. Ang had apparently taught her to do both in the short space of three months. “Do you think she could have possibly reached that degree of proficiency in scuba-diving to make it safe for her to dive in the channel between the Sisters Islands? Jenny was at best still a novice in scuba-diving, and Sunny Ang her instructor knew this.”