Regina v Kaliyanda [2007] NSWSC 393

New South Wales Supreme Court

CITATION : Regina v Kaliyanda [2007] NSWSC 393

HEARING DATE(S) : 31/01/07 - 05/03/07

JUDGMENT DATE : 27 April 2007

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : Prisoner sentenced.

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - MURDER - CONVICTION AFTER TRIAL - TEN YEAR DELAY BETWEEN OFFENCE AND TRIAL - SENTENCE

PARTIES : Regina v Madappa Kaliyanda

FILE NUMBER(S) : SC 2004/2627

COUNSEL : J. Kiely SC (Crown) C. Jeffreys (Prisoner)

SOLICITORS : Solicitor Public Prosecutions (Crown) Clive Jeffreys (Prisoner)

LOWER COURT DATE OF DECISION : N/A

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 27 April 2007

2004/2627 REGINA v MADAPPA KALIYANDA

SENTENCE

1 HIS HONOUR: Madappa Kaliyanda, you have been found guilty by the jury of the murder of Asha Khanna. I am aware, of course, that you continue to dispute the finding of guilt and you maintain, as you said to police when interviewed in December 1999 that they had arrested the wrong person. At that time you were told that you would be charged with offences relating to the fraudulent accessing of Miss Khanna's bank account. I shall later relate some chronology leading to your being charged with murder. 2 It is now my duty to make findings and impose sentences consistent with the verdict of the jury. 3 Asha Khanna was witnessed to leave her place of work at Liverpool Hospital at about 11.30 pm on 22 August 1997. Shortly after 4 am on 23 August two attempts were made at an ATM to access her bank account by use of a keycard or mastercard. It will suffice if I simply refer to a card. The attempts were unsuccessful. About half an hour later a withdrawal was made when the correct PIN was keyed in. I find that Asha Khanna died between 11.30 pm and 4 am just mentioned. She died as a result of asphyxiation, achieved either by her being smothered or strangled with a soft ligature. In harmony with the verdict, I find that you were her killer. 4 After the killing, Ms Khanna's body was enclosed in its upper portions by a plastic bag which bore markings showing that it came from a Spotlight retail store. The body was then further enclosed in plastic garbage bags, one from the head pulled towards the lower body, the other from the feet towards the upper part. Thus fully enclosed, it was then tied by an encircling cord which had been taken from a dressing gown which was hanging in a rack in the deceased's apartment. 5 The body, wrapped as I have described, was placed on a bed and covered with a doona or quilt. The door to the bedroom was closed and a towel laid against the gap of the door. These steps were obviously taken to delay the discovery of the body by inhibiting emanation of odours from its anticipated decay. 6 On 23 August, a telephone call was made to Liverpool Hospital falsely stating that Ms Khanna had travelled to India for family reasons. 7 The body was not discovered until 9 September. Police were unable to enter the apartment and the landlord's agent discovered that his key would not release a deadlock on the front door. The lock was drilled out and Ms Khanna's body was found as I have described. 8 Although other causes of death were canvassed at the hearing they were clearly rejected by the jury and, whilst it suffices in a sense for me to make the simple finding that Ms Khanna died as a result of your act of smothering or strangulation which unarguably would have been accompanied by an intention to kill or do grievous bodily harm, I should make some reference to the evidence as a result of which you were identified as the killer. 9 Investigations showed that after her death Ms Khanna's bank account had been emptied of funds to the extent of a little over $13,000 by a series of ATM transactions. The bank machinery recorded the times and other details and, at some machines, CCTV cameras photographed the person who was making the withdrawal. Significant among the transactions were those conducted at machines located in clubs namely Liverpool RSL Club (also known as the John Edmondson VC Memorial Club), Auburn RSL Club, Fairfield RSL Club and Mt Pritchard Community Club. These locations were significant because the Crown was able to demonstrate your presence on the bulk of these occasions at the particular club when withdrawals were made by cross referencing the various records including temporary membership or visitor's books and signatures for jackpots or cancelled credits on poker machines which you had been playing. 10 You were a shift worker and ordinarily finished work after midnight and possibly even later after overtime. This explains your attendances at clubs during the early hours of the morning. 11 Following an observation of you by a police officer, you were under suspicion from very soon after the body of the deceased had been found. Surveillance photographs were taken and no doubt compared to the product of the CCTV cameras which were located near some of the ATMs. The evidence is imprecise but it can be deduced from questions put to you at formal police interview that there had been some publication of an identikit or like image about which there was discussion concerning its similarity to yourself. Pursuant to warrant, a listening device was placed in your home for about six weeks spanning November 1997. No incriminating conversation was recorded and it was acknowledged that (after translation from the language in which you were speaking) you and your wife had said words to the effect of wondering why you and she might be under suspicion because neither of you had ever been to the deceased's flat. 12 Police interviewed your wife on 12 November 1997. She informed them that she was acquainted with the deceased to the extent that they attended on occasions at a prayer meeting which was held in a school. She knew of only one encounter between you and Asha Khanna which was at your home when you were introduced. 13 Police did not seek to interview you until 23 December 1999 after which you were charged with the fraud offences abovementioned. You were not charged with the murder until 2004. 14 On 27 November 1997 an anonymous letter was received by police purporting to detail events on 22 and 23 August and identifying the deceased's former husband Chaman Lal Khanna as the killer and the author of a letter as being the person who extracted funds from her bank account. The author claimed to have fled to India by reason of his perceived similarity to a police sketch which had been shown on TV and fear of retribution for not reporting what he knew. The letter identified the deceased's card and PIN being used to draw money at Liverpool RSL, Mt Pritchard Club, Fairfield RSL, Auburn RSL and local ATMs at Liverpool. It is true that the writing which makes the reference to Fairfield RSL is unclear but it was not suggested that I should not conclude accordingly and I do so. 15 I am satisfied that it was you who used the card at those locations. 16 I recognize that there are also details in the letter, prominent among them the very existence of Chaman Lal Khanna, of which the evidence does not disclose how you did or could have become aware. The evidence shows that the deceased was an almost obsessively private person who revealed little about herself to anyone and it is surprising that you could have some of the knowledge displayed in the content of the letter. The conclusions that could be drawn from the possession of specific knowledge on the one hand and the absence of likely knowledge on the other were debated at length before the jury. 17 Your authorship of the letter is not something of which it is necessary to be satisfied beyond reasonable doubt as an ingredient of or an essential element of proof of your commission of the crime of murder. I do not speculate upon the conclusion which the jury may have reached. I find it highly probable that you were the author of the letter which was designed to divert attention from yourself as a suspect. 18 Be that as it may, I am, however, satisfied beyond reasonable doubt that Chaman Lal Khanna had nothing whatever to do with the killing of his former wife. I am also so satisfied to the same effect concerning Richard Naidu whose suggested identification by a police officer I find was mistaken. 19 I accept that there was no evidence that you were sighted anywhere near the deceased's flat at a time that could be relevant or at all; that there was no evidence of forced entry nor was there within the flat any forensic evidence such as fingerprints or deposited DNA which could be associated with you. The flat showed no signs of theft or ransacking although I shall refer in a moment to a matter concerning the deceased's camera. 20 In a practical sense there was no issue at trial other than the identification of you as the killer. Setting aside the rejected hypotheses as to cause of death as I do, the proof that Ms Khanna had been murdered by someone was overwhelming. 21 In the absence of direct evidence, it was the Crown case that you, the person who stole her bank funds, were the killer. The strength of the Crown proof of identification was perceptible in a combination of matters. There is the visual correspondence between the CCTV photographs of the person accessing the deceased's account by means of her card and surveillance photographs taken shortly after the finding of her body, your physical appearance depicted as well on a photograph taken when you were arrested for an offence of driving with the prescribed concentration of alcohol and on the video tape of your interview with police. Second, there were the accumulating and unexplained coincidences of your presence at the very clubs at the very times that the account was accessed. Third, there was your possession of a camera identifiable as having been owned by the deceased, which you sold to the Cash Converters business. 22 Of course it is not individual factors but the conclusion of your identity as the perpetrator of the killing which required proof and, as I have said, I am so satisfied. It was of course necessary for the jury to find, if it was satisfied that you were the person who had taken the funds, that you were the killer. It was argued on your behalf that the facts and circumstances were equally consistent with your coming upon the body of the deceased already murdered and then making a decision to take her money. That hypothesis was obviously rejected by the jury and I also reject it. 23 I find subjective matters in your favour. You are a man of mature years, born in 1956, and have no prior convictions of any relevance. I discard completely the conviction for driving with the prescribed concentration of alcohol as a matter of no weight detracting from your previous good character. I observe that you claimed to Mr Aitkin, the Probation and Parole officer that you were "set up" for that offence so that police could obtain your photograph and fingerprints. The police were in possession of photographs of you taken in 1997 in any event and, to the extent revealed in the trial evidence, there were no fingerprints found in the deceased's flat in respect of which comparison was being sought. 24 It is clear that you have been a devoted and caring husband and father. I accept the attestations of your general good character, generosity and community spirit set out in the bundle of references which have been tendered. Although not expressly stated I infer that the authors of those documents are aware of your current circumstances and the reason for them. 25 There is undoubted validity in Mr Aitkin's observation that it is difficult to reconcile your background of stable and strong family relationships and solid employment history with your involvement in the serious offence for which you stand convicted. 26 The Crown submits that this crime is either in the category of the worst case or on the borderline thereof. In short, the submission is founded upon a contention that by preying on a person who trusted you, you killed her to fulfil the desire to take her money. This desire was carried into effect by careful planning. 27 Your counsel submits that the indications relied upon by the Crown, principally the bagging of the body and sealing the room as well as the use of the card to access the funds, were as consistent with decisions made after the killings as motives for it. 28 There are many aspects of this case which it is impossible for me to know. I do not know how you came to be in the flat where I am satisfied the killing took place. I do not know how you ascertained the PIN in order to access the account. I do not know whether you brought the garbage bags with you or located them within the flat. I do not know, on the probability that you were the author of the anonymous letter above referred to, how you could have acquired an amount of the information set out therein. The evidence that Ms Khanna stated that she was desperate to have the next day off after receiving a telephone call at work on the evening of her death – which call cannot be associated with you – constitutes another matter which remains a mystery. 29 Nevertheless it was conceded that the particular submission left a vacuum, as it were, in which murder by smothering or strangulation by soft ligature took place. In terms of culpability the contrast is between killing for the purpose of obtaining money and killing for some unknown reason and then deciding to rob the deceased. 30 Whilst I consider that there is considerable persuasive evidence to establish the probability of the first alternative, I recognize the extensive gaps in the completeness in available knowledge and I therefore approach the question of sentence in accordance with the latter, that is to say, that for reasons unknown you killed Ms Khanna and then decided to disguise what you had done and avail yourself of the contents of her bank account. I do not find that your crime is in the worst category of murder thereby possibly attracting an indeterminate sentence. 31 In assessing sentence, I take into account and weigh in your favour two specific matters in addition to matters previously mentioned. 32 I accept the evidence of Dr Krishnan concerning your diabetes status and the diagnosis of depression advanced by Mr Diment. Your poor health will make the incidents of imprisonment more onerous than would be the case if you were in more robust condition. It is also relevant, particularly in terms of supervision and treatment, to consider this matter when setting a proportion between non parole period and total sentence. 33 The second matter is an appreciation of the effects of delay in your being brought to trial. Although, as I have said, you were a suspect within weeks of the killing in August 1997, the trial did not take place until 2007. No challenge was offered to the chronology advanced by your counsel nor the evidence of your wife that although she was interviewed in November 1997, you were not interviewed until December 1999. Of course, in the interim there was obviously a significant amount of painstaking detective work undertaken as revealed by the tracing of the use of the card on the ATMs, your presence when it was being used on occasions and the disposal by you of a camera which had been owned by the deceased. As I have mentioned, however, in December 1999 you were charged only with fraud offences. 34 From December 1999 to December 2003 you were required to attend court on between twenty and thirty occasions. The adjournments were sought by the prosecution and eventually the court (presumably the Local Court) was informed that no charge of murder would be preferred by the Director of Public Prosecutions. However, the fraud charges were not proceeded with pending the holding of an inquest into the death of Ms Khanna. This took place in December 2003 and subsequently in about August 2004 an ex officio indictment for murder was presented against you. 35 You were on bail until I committed you to custody on 5 March 2007 following the jury verdict. Nevertheless this long delay was not of your making and it is appropriate to take into account the situation of uncertain suspense in which you must have been for an uncommonly lengthy period. 36 Before imposing a term of sentence I should acknowledge and recognize the content of the victim impact statement presented by the deceased's brother Vishba Srivastava. 37 As you are being sentenced almost ten years after the commission of your crime, you are entitled in law to be sentenced in accordance with any recognizable sentencing pattern which existed at the time of your offence. I should record that in this regard I have derived great assistance from the monograph on homicide sentences published by the Judicial Commission which for reference I indicate is Series 23 of January 2004. To enable you to understand what use I am making of published statistics I note that the median sentence for all murderers with no prior convictions in the survey period between 1994 and 2001 (214 convicts) was a head sentence of eighteen years with a non parole period of 13.25 years. The range of head sentences extended between ten years and life. Bare statistics do not of course indicate the likely huge differences in objective and subjective circumstances taken into account in individual sentences. There are published of course other figures relevant to persons with prior convictions and persons being dealt with for multiple offences. The median that I have mentioned reflects a person in your position, that is to say a person who has committed a single offence who has no prior convictions. 38 The figures are of course available only as a guide and it is necessary for me to make an assessment which I consider appropriate to the whole of the circumstances in this particular case. 39 As above intimated, I will adjust the proportion of non parole period to overall sentence to reflect a finding of special circumstances but I do not consider that this should result in a great reduction of non parole period in this particular case. 40 Irrespective of the exact circumstances in which you came to perpetrate this killing, your conduct manifested a callous indifference to what you did and to what you had done. Your continued protestations of innocence prevent you from seeking mitigation of sentence by reason of the demonstration of any remorse or contrition. 41 Madappa Kaliyanda, for the murder of Asha Khanna, you are sentenced to imprisonment consisting of a non parole period of fourteen years commencing on 5 March 2007 and expiring on 4 March 2021 together with a balance term of six years. The total sentence is effectively a term of twenty years. The earliest date of eligibility for release to parole is specified as 4 March 2021. **********