During the next two weeks, from 10 to 27 February, defence counsel made their submissions. On 5 March, Crown Counsel concluded his address to the jury. Then Judge Buttrose began his summing up.
The Summing Up
“You have been told,” observed the Judge, “that it was better that 10 guilty men should go free rather than one innocent man should be convicted. Of course it would be better, but that is not good enough. It is our duty to see that such a situation does not arise. That such a situation should be allowed to exist and to grow and to develop in stature would, in my opinion, constitute a grave reflection on the administration of the criminal jurisprudence of any civilized country. It is, gentlemen of the jury, more than ever necessary in this present day and age that the rule of law should be proclaimed aloud for all to hear: that those who offend against it shall be punished; and those who observe and obey it shall be allowed to live in freedom and security under it.” He reminded them that ‘it is on the evidence and the evidence alone, given before you and nothing else, that you must decide this case’. He told them to dismiss from their minds entirely the question of some of the accused going sick and holding up the proceedings. The accused, ‘having been certified as fit, the trial proceeded and the incident closed. It had nothing to do with the issues with which you are concerned-namely whether the 58 accused are guilty or not guilty of these three charges of murder’.
He explained that there were four main elements of the charge. First, that all the accused were members of an unlawful assembly. Second, that the common objects of that unlawful assembly were to cause the death of Dutton, Singham, Tan Kok Hian, Cartoon, Chia Teck Whee, and others, and to cause the destruction of Pulau Senang. The third is that while these 58 were members of that unlawful assembly, one or more members of the assembly committed murder by causing the death of Dutton, Singham and Tan Kok Hian. The fourth ingredient is that murder was an offence, which the members of that unlawful assembly knew to be likely to be committed in the prosecution of the common objects of that assembly.
The Judge gave an illustration of a common object of an unlawful assembly. “Supposing two persons go out one night to steal a bicycle which they found on the side of the road and, as they were taking it away in the furtherance of their common object to steal, the owner suddenly appears and endeavours to prevent them, and one of them suddenly pulls a gun from his pocket and shoots the owner through the heart and kills him-and you will assume, for the purposes of this illustration that the agreement between the two accused was simply to steal the bicycle and nothing more. Well, then the man who pulled out the gun and shot the owner through the heart would have been exceeding the common intention of the two, which was merely to steal the bicycle. One, therefore would not be guilty of murder, unless it could be shown that they had agreed beforehand that should the owner resist they were prepared to kill him, and had weapons with them to do so.
“What was the common object of this unlawful assembly? Was it merely to riot, attack the prison staff, knock them about, damage a building or two? Or was it rather to wipe Pulau Senang off the map and all it stood for, including those in authority and anyone else who thwarted or opposed this unlawful assembly in achieving this common object, this end? Or was it perhaps, as Major James told us, an act of open and deliberate defiance against the Singapore Government to show that Pulau Senang, and those in authority there, could not contain these police detainees?
What is murder? Murder is committed if the act which caused death is done firstly with the intention of causing death, or secondly with the intention of causing such bodily injury as the accused knew to be likely to cause death, or thirdly with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. Murder may therefore be simply defined as the unlawful killing of one human being by another human being with any of these three intentions-the intention to kill, the intention of causing such bodily injury which the accused knew to be likely to kill, or was sufficient in the ordinary cause of nature to kill.
Every person is presumed to intend the natural and probable consequences of his acts: in other words that he intends to do what in fact he does. If a person for example, deliberately and intentionally slashes at another with a parang, or an axe or a cangkul, on the face or the head or the neck or the chest, or any other vital part of the human body, or fires a pistol at point-blank range at another man’s chest, or pours petrol over someone and sets it alight, you may, I think without difficulty and not unreasonably, arrive at the conclusion that he intended to kill him, or to cause him such bodily injury as he knew to be likely to kill, or was sufficient in the ordinary course of nature to kill him. And if in fact the victim dies, then murder has been committed.”
The Judge emphasised the importance of the fourth ingredient of the charge: that murder was an offence which the members of the unlawful assembly knew to be likely to be committed. The expression ‘knew to be likely to be committed’ connoted a knowledge based upon facts known to all members of the unlawful assembly at the time that murder was likely to be committed.
“If in this case the offence of murder was one which the accused knew to be likely to be committed by one or more of them, then it may fairly and properly be imputed to all of them. So it matters not in this case who of these 58 accused struck the blow or blows which killed Dutton, Singham, Tan Kok Hian. If, while they were members of this unlawful assembly, in the prosecution of its common object, Dutton, Singham and Tan Kok Hian were murdered by a member, or members of that unlawful assembly then, if it can be shown that they knew that it was likely that the deaths of these three persons might result, that they were likely to be murdered, then all are equally liable for this offence-all these offences-although they may not have struck a single blow themselves. That is the law, and it constitutes what we call constructive murder, and you must accept my direction on it without question. It is not for you to question the wisdom or otherwise of any provision of the law. You must accept it as I direct you.” The Judge added that what the prosecution had to prove was that there was an unlawful assembly, that the accused were members of it, that they joined this unlawful assembly intentionally, that murder was committed by a member or members of this unlawful assembly while the accused were members of it, and that murder was an offence which the members of this unlawful assembly knew to be likely to be committed in the prosecution of the common objects of the assembly. He reminded the jury that the sole and ultimate responsibility on all questions of fact was theirs and theirs alone. “You, gentlemen of the jury, are as sovereign and supreme in the realm of fact as I am in the realm of law.”
In this case, as in every criminal case, the onus or burden of proof was upon the prosecution to establish the guilt of the accused. “It is an onus or burden which never shifts throughout the whole case. It is never for the accused or any of them to prove their innocence. They are presumed innocent until proved guilty. The prosecution must prove that guilt… ” The degree of proof required was the proof to the satisfaction of a jury beyond reasonable doubt.