State v Kulavere [1993] FJHC 34; Haa0027j.92s (6 April 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION

CASE NO. 27 OF 1992

STATE

v

KITIONE KULAVERE

Mr. I.F. Wikramanayake and
Miss Salote Kaimacuata: For the State
Mr. Q.B. Bale and Mr. A. Seru: For the Accused

Date of Hearing: 6th April 1993
Date of Judgment: 6th April 1993

JUDGMENT

The Accused appears on two charges relating to the death of one Sailasa Koroi on 1st November 1991. The first charge is manslaughter contrary to Section 198 of the Penal Code, Cap.17 and alleges that the Accused on 1st November 1991 at Suva, by an unlawful act, caused the death of Sailasa Koroi. The second charge is an alternative to the first and alleges criminal recklessness contrary to Section 237(b) of the Penal Code. The second charge is that the Accused on 1st November 1991 navigated a vessel, namely an outboard powered fibre-glass punt, in a manner so rash or negligent that it caused harm to Sailasa Koroi.

The Accused pleaded guilty to the charge of manslaughter and consequently the Learned State Prosecutor stated that he would not proceed with the second count.

I was informed by counsel for the Accused that there are two reasons why he has pleaded guilty to the first and more serious charge which is a felony and carries a maximum penalty of life imprisonment and not the second charge which is a misdemeanour and carries a maximum penalty of two years imprisonment. These are that because of the events of 1st November 1991 in which the Accused was involved a person died and secondly that the charge under Section 237 implies a certain degree of mens rea or conscious conduct on the part of the Accused. I have been told that the Defence is very reluctant to accept the allegation of recklessness required by that section because if taken to its natural conclusion the Accused might be tacitly admitting malice aforethought as defined in Section 202 of the Code.

FACTS

I take the following summary of the facts from the statement provided by the Prosecutors and from the submission of counsel for the Accused.

Shortly after midday on 1st November 1991 the Accused who is a Policeman by occupation and also an Amateur Diver was off duty and was returning from a diving trip and going up the river at Vatuwaqa in his own twenty-three feet fibre-glass boat which was powered by a 30 h.p. engine. The deceased Sailasa Koroi who was aged 42 at the time of his death had a punt with an outboard motor and was a fisherman although his full-time occupation was given to me as that of a Catechist. The river was almost at high tide and the Accused was alone in his punt. He entered the Vatuwaqa River on his left side at the usual entry point to the estuary of that river and crossed under the Fletcher Road Bridge. Immediately after the bridge there was a sharp blind bend in the river. He continued to travel on his left side because in the centre of the river to his right there was shallow water and a number of rock boulders strewn across the river to his right and a number of other boats and punts anchored for safety reasons.

The Accused states that immediately before reaching the bridge he was travelling at approximately 20 m.p.h. but when he reached the bridge he reduced speed as he continued up the river.

The deceased Mr. Koroi was coming down river at a leisurely pace hugging the mangrove swamp on his side. The Accused was also hugging the same mangrove swamp which was to his left.

About ten yards beyond the bridge the Accused came to the sharp left bend which was on his left but at this bend and towards the right bank of the river was approximately thirty metres of navigable water.

I was informed and accept that if another person travelling down stream was also hugging the same side of the river as that of the Accused neither the Accused nor any other person coming down stream could have seen each other. I was told that the Accused lives in and fishes in the area I have described and takes punts out at times. This was not the first time he had manoeuvred a boat in this way.

He says, and I accept, that the common practice of persons navigating this river is that when they come to the sharp blind turn if coming down stream they normally move to the centre of the river because that portion of it is navigable and they thus have a vantage point so as to see down stream.

I was told that a mariner coming up stream has no choice but to hug the left bank of the river as the Accused did because of the obstructions to his right. It appears that this has been the practice observed by many fishermen who have used the Vatuwaqa River at this point over the years. The consequence of two mariners travelling in opposite directions on the river at the scene of the accident involving the deceased is that both mariners would be on a collision course and that this situation would be aggravated by the sharp bend obstructing visibility.

The Accused says that, as a result, any person such as himself coming up stream has no choice but to stay on his left side whereas any person coming down stream enjoys a choice of whether to move to the centre of the river and a more navigable part where his view would be clear of any up-stream traffic.

The Accused says that just before the two boats crashed into each other the Accused could not hear any other boat coming down stream because of the sound of the engine on his punt and similarly unless a person was coming down stream in a boat not powered by an engine he also would not hear any person travelling up stream.

Just before the impact the Accused says that he heard an unusual sound from his outboard motor as though something had struck the shaft of the motor. He looked quickly towards his motor but realised that it was by then clear and so he looked up again. When he did so he saw the deceased's punt right in front of him. Because of the direction of travel of both boats the deceased's boat was directly across the Accused's punt at the point of impact.

Realising that a collision was imminent and unavoidable the Accused stopped his engine immediately but by then, and no doubt due to momentum, the front of the Accused's punt collided with and mounted the punt driven by the deceased near its bow, causing the Accused's punt to slide back to the rear of the deceased's punt.

From where the Accused was sitting in the centre of the stern of his punt he did not actually see the deceased being hit by the Accused's punt as it slid back towards the stern of the deceased's punt.

Everything happened so quickly that the Accused himself was stunned and shocked and did not even see the deceased fall into the river at first but immediately afterwards the Accused stood up and saw the deceased's punt beginning to fill with water. The deceased Mr. Koroi was leaning against his outboard motor partly in the water.

The Accused immediately dived and swam towards the deceased's punt which was by then about ten yards away. When he reached Mr. Koroi he immediately lifted him away from his own punt which was by then sinking and, helped by other persons who had then arrived at the scene, the deceased was taken ashore and thence to the Colonial War Memorial Hospital where he died seven days later from injuries to the skull and brain which he sustained in the collision.

The course adopted by counsel for the Accused was somewhat unusual in that normally when a person pleads guilty to an offence the Court then proceeds to convict him. In this case however counsel asked me to consider his submission on the facts and other circumstances before deciding whether I should convict the Accused. The Learned counsel for the State did not oppose my doing so.

Counsel for the Accused has emphasised that the Accused has pleaded guilty to manslaughter because he accepts that as a result of the event in which he was involved on 1st November 1991 a person Sailasa Koroi died. That is all the Accused admits for the purposes of the first charge.

It is then submitted that on the basis of the facts which I have now outlined the deceased was at least equally if not wholly at fault in causing the accident.

It is said that if the speed at which the Accused was travelling was more than it should have been then I should find that the deceased was equally at fault in coming down stream in a manner contrary to the practice in the area. It is submitted that Mr. Koroi could have been more to be blamed when one takes into account the fact that he had more navigable area to his left side than the Accused and therefore, if he had followed the normal practice and gone to mid-river so as to have a clear view before the sharp bend, the Accused would not be in Court today.

There is no evidence as to whether the deceased was familiar with the area or as familiar as was the Accused. All that the Court has been told is that Mr. Koroi came from Vutia Village in Rewa where he lived with his family. He was a Catholic Catechist by occupation with a wife and family of nine children ranging in age from 23 years to two.

PERSONAL PARTICULARS OF THE ACCUSED

He is aged 40, married with three children the youngest of which is aged three and the eldest eight years. He is a practising Methodist and Choir Master of his local church. He comes from Kadavu and joined the Fiji Police Force in 1971. He resigned in 1984 for personal reasons but was recalled to the Force in 1988. He has served throughout in the Criminal Investigation Department at the Central Police Station, Raiwaqa and Samabula where he is presently based. He still holds the rank of Constable but I am told that this is because of having rejoined the Force in 1989 he has had to virtually begin his passage through the ranks again.

He has been awarded fifteen commendations from the Commissioner of Police for excellent detective work in serious crime in the Suva area. Until the present proceedings he has totally a clear record, free of any convictions.

I was told that the Police had some difficulty in dealing with the Accused because of the special circumstances of this case and took nine months before finally charging him.

Obviously as an indication of the faith his superiors have in him they have found it prudent to keep him employed and not suspend him. I agree that it would be difficult enough for any person outside the Police Force to be so employed and, I suspect, even the normal member of the Force if charged with manslaughter.

Obviously there was no element of intention or knowledge on the part of the Accused. Neither he nor the deceased knew of each other's presence in the area immediately before the collision occurred. He was the first to go to the assistance of Mr. Koroi and I was told, and accept, that thus there was no prior hostility towards the deceased as frequently occurs in charges of manslaughter.

It is therefore submitted to me that it would be more than just if the Court recognised not only the death of the deceased, as it must, but also the predicament or agony of the moment in which the Accused himself was on 1st November 1991. I am informed that there is no hostility between the widow of the deceased and her family and the Accused which is most commendable and charitable.

The Accused also offered to pay the deceased's widow the sum of Five Thousand Dollars as compensation recognising the fact that as her husband was self-employed she would have no claim under the Workmen's Compensation Act.

I am invited to avail myself of the provisions of Section 44(1) of the Penal Code Cap. 17 in deciding what punishment to impose on the Accused.

So far as relevant this section provides that where a Court before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law such as manslaughter, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, without proceeding to conviction, make an order discharging him absolutely, or, if it thinks fit, discharging him subject to the condition that he commits no offence during a period not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of compensation, as may be specified in the order.

I have been informed by counsel that there has been no previous reported case to their knowledge in which an accused person has been discharged without conviction having pleaded guilty to manslaughter and that if I do so in this case I would be setting a precedent.

In the present case I do not resile from doing so because I have received considerable assistance from the Learned State Prosecutor who supports the submission on behalf of the Accused that I should discharge without conviction.

This is in the best traditions of the Office of the State Prosecutor whose function, as I remarked in a judgment earlier this year, is not to endeavour to obtain a conviction but simply to ensure that justice is done between the State and an accused person.

Mr. Wikramanayake submits that I would be justified in not proceeding to a conviction of the Accused in this case because the difference in doing and not doing so is of grave importance to the Accused because he is not self-employed.

Being a Policeman, a conviction would entail an almost automatic dismissal from the Force, which Mr. Wikramanayake says in his view is not warranted in this case.

He further agrees that the amount of compensation suggested by the Accused is quite large by the standards of the deceased and his family.

I have considered all these submissions and am satisfied that in this case there is good reason on the facts for acceding to the plea by the Accused not to convict him. I am very conscious of the fact that a person has died as a result of the incident in which the Accused was very much involved and that if there were nothing more this would justify the Court convicting and imposing a term of imprisonment on the Accused. However for reasons advanced by both the Learned State Prosecutor and Defence Counsel I consider no good purpose would be served by convicting the Accused in this case.

I am certain that there must have been times since the accident when he has agonised over it and this in itself is a form of punishment. I therefore shall make the following orders:

(1) Acting under Section 44(1) of the Penal Code I discharge the Accused, the Court not proceeding to a conviction, subject to the conditions first that he commits no offence for a period of twelve months from the date of this order and to the further condition that he pay to the Public Trustee on behalf of the widow of the deceased, Sailasa Koroi, namely Kelerayani Waucu Koroi the sum of Five Thousand Dollars ($5,000.00) to be invested by the Public Trustee on behalf of the said widow and any children of the deceased under the age of sixteen years in such manner as the Public Trustee deems fit.

(2) The said sum of Five Thousand Dollars is to be paid as follows:

The sum of Two Thousand Dollars to be paid within one month of today's date, namely by 6th May 1993 and thereafter over the five following months until 6th October 1993 the balance of Three Thousand Dollars in equal monthly instalments.

There will be liberty to apply in respect of the terms of this order if this should be necessary.

JOHN E. BYRNE
J U D G E

HAA0027J.92S