Quoting an example, defence counsel said the accused had in reply to a question by the judge said, ‘Sometimes I write things in my diary which, for the life of me, I do not know what they are’. That remark ‘for the life of me’ might have been unfortunate, but the trial judge’s reply was ‘Now you have to try, for the life of you’. Mr Coomaraswamy described the judge’s remark as an improper one in a capital charge, though it was said on the spur of the moment.
Mr Kirpal Singh took over the submission at this point and said that the trial judge had left the jury in doubt as to which particular act or acts had caused death. He said this was tantamount to a misdirection of the law.
During the proceedings, additional grounds of appeal to amend those already submitted were put forward. · The learned trial judge had erred in law in failing to direct the jury that it was a matter for them to decide whether the Pedas collision was accidental or deliberately designed. If they came to the conclusion that it was accidental and not deliberately designed, to disregard the matter entirely; and if they came to the conclusion that it was deliberately designed, to utilize the evidence thereon for its proper purpose and not as evidence that because the appellant did a thing once he was likely to do it again. · The learned trial judge had erred in law in not directing the jury to ignore inadmissible hearsay evidence. · The learned trial judge had erred in law in failing to withdraw the case from the jury at the end of the prosecution case. ·
The learned trial judge had erred in law in failing to direct the jury adequately on the quantum of proof necessary before they accept an allegation of the prosecution, and on the quantum of proof necessary before they accept an explanation offered by the appellant.
Mr Kirpal Singh believed that if the trial judge had properly directed the jury it was possible that the verdict might have been an acquittal on the charge of murder. Or the jury might have found Ang guilty of the lesser charge of culpable homicide not amounting to murder. Mr Kirpal Singh submitted that Justice Buttrose, in his definition of murder, had omitted three vital words which would have made it clear that murder was the unlawful killing or causing of the death of one human being by another ‘by an act’ with the intention of doing so. If these three words had been used as required by law, the jury would have been prompted to ask what was the act alleged to have caused death.
Counsel submitted that the trial judge did not think that the cutting of the flipper worn by Jenny was the act. He said, “We are not clear as to what is the cause of death. There is no firm clear answer which particular act caused death. We do not know.” There was evidence, and it was overwhelming, to the effect that the waters in and around the Sisters Islands were dangerous even for expert swimmers. It could be said on evidence that Jenny was not an experienced swimmer or diver. Therefore, it could be said to be a reasonable inference that the combination of these two factors (dangerous waters and inexperienced swimmer) caused her death. It might even be said that the accused was aware of both these factors and presumably, before setting out for Sisters Islands, he might have told Jenny they were going into the water. Telling her ‘we are going into the water’ would be the act within the meaning of the law. The question was whether it would be proper to place it within the first limb of Section 299 (doing an act with the intention of causing death), or the third limb (doing an act with the knowledge that he was likely, by such act, to cause death). Counsel argued that the accused was entitled to a direction to the jury under the third limb. Had this been done, a possible verdict would be acquittal or culpable homicide not amounting to murder.
Justice Chua said, “Taking a novice to dangerous waters. Is that not an act within the meaning of the law?” Mr Kirpal Singh replied it was not.
“If he had told her to dive in?” asked “the Acting Chief Justice.
“Yes, an act would have been clear,” said Mr Kirpal Singh.
On the fifth day of the appeal, the defence submitted that Justice Buttrose had treated some of the evidence for the defence with scepticism and scorn. Defence counsel also alleged that some of the judge’s remarks were an outright direction to the jury to disbelieve. While surveying the defence, the judge had presented the case for the prosecution over again.
Mr Coomaraswamy referred to the two pairs of gloves which had been left at the police station by Ang. In the course of his evidence Ang had been shown two pairs of gloves and asked if he agreed that they were very new. He said they smelt new. Counsel said that 21 months after the gloves were supposed to have been surrendered to the police they still smelt new. He submitted that the judge should have commented on this.
The Acting Chief Justice, “The idea is that they might not have been the very gloves? The police might have substituted new gloves?”
“That is so,” said Mr Coomaraswamy.
Counsel said there was no evidence to show that the books on scuba-diving seized from Ang in December 1964 had been in his possession before 27 August 1963. The judge, he said, had repeatedly referred to these books, and ‘very much play made’, he said, of a passage in the book which warned that a little nick in the flipper might lead to an incident with disastrous results.
As for the green flipper that Jenny wore, Mr Coomaraswamy said it was his submission that the jury should not have been deprived of the opportunity to find, if they wanted to, that the flipper was, in fact, tampered with after Henderson found it.
Counsel described Justice Buttrose’s summing up as ‘extremely partial’ and ‘grossly unfair to the accused’. In fact, ‘he did not put his defence to the jury’.
Mr Francis Seow began his reply on the sixth day of the appeal. He submitted that Sunny Ang had a lust for money and tried through an ‘accidental death’ to gain $400,000.
Dealing with the road accident involving Ang and his passenger Jenny, Mr Seow quoted from a manual on evidence, ‘Previous attempt to commit a crime is akin to preparation. It is also closely allied to the preparation for the commission of an offence.”
Counsel argued that Sunny Ang himself had closed the door to a defence open to him at his trial. He had excluded from his defence the question of fraud and conspiracy between him and Jenny against the insurance companies. Ang, Mr Seow said, could not now be heard on his counsel’s argument that there might have been a possibility that Ang did not intend the death of Jenny, but had conspired with her to share in the insurance money he could collect after she had gone into hiding. Mr Francis Seow said, “This was not a defence raised by counsel though it was a defence open to him at the trial. It was, in fact, not explored, nor developed.” He said Ang had tried to get $900,000 worth of insurance on Jenny, and at the time of her disappearance she was carrying accident coverage of $450,000.
Continuing his arguments on the eighth day of the appeal, Mr Seow described the defence suggestion of an alternative or lesser verdict as ‘grotesque’.
Referring to the two pairs of gloves found in Ang’s bag, crown counsel submitted that at no stage did Ang deny they were his gloves. Mr Coomaraswamy’s suggestion that they could have been substituted by the police was monstrous.
Mr Seow said the essence of the case was that the victim must die and the victim must die by accident. “If she dies a natural death, Ang or his mother cannot possibly stand to gain anything. So she must die by accident whether under the guise of a road accident, or accident at sea, or an accident in the air. I submit that the facts which we have adduced show that Ang directed his mind to the accomplishment of that aim. It was cunningly contrived, and carried out with consummate coolness. In achieving that objective he must kill.” Crown counsel argued that the judge’s summing up was favourable to Ang.