State v Darshani [2006] FJHC 36; HAC0007J.2005 (31 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION HAC0007.2005

THE STATE

V

PRIYA DARSHANI

Gates J

Mr A. Rayawa, and Ms Puamau for the State
Ms. B. Malimali and Mr Maitava for the Accused

31 January 2006

JUDGMENT

All 3 Assessors present

[1] The assessors have returned their opinions to me. Two are of opinion that murder is proved, whilst one is of opinion that the lesser offence of manslaughter is proven. Those opinions have caused me to reflect further on the matter.

[2] I refer to my summing up and to my directions. As for the initial elements of proof I have no difficulty. I find that the victim known as Anil, that is Richard Anil Kumar Singh died on the night of 25th January 2005.

[3] He met his death as a result of knife wounds inflicted to his head and neck by the Accused on the same night. These blows were unlawful acts committed without justification. The Accused acted with malice aforethought and she inflicted the blows intending to kill the victim, her de facto husband. I accept the evidence of Dr Kailawakoro and Dr Samberker as to the cause of death. All of these matters, either or both, by admission and by proof, I find proved to the standard beyond reasonable doubt.

[4] It is the final element, namely, that the Accused was not acting as a result of having been provoked when she struck the blows that presents the litigation issue and the difficulty in this case. The defence have properly and sufficiently raised this defence and therefore the burden is placed upon the prosecution to prove the absence of provocation. This burden must be discharged beyond reasonable doubt.

Was there provocation?

[5] The first issue to consider is whether there was provocation and whether there was any collusion undermining its genuineness.

[6] The Accused said her relationship with the deceased was good to start with, and that he used to show love towards her children. This was a remark that was to be typical of the Accused. Through her distress, yet she was able to be fair to the deceased and not to forget his good points. This occurred again and significantly later on in the story, when she testified that on the day of his death, he had been kind and generous to her in the morning. This was an indication that her account had not been embroidered to us to make the deceased appear more of a monster. It tended to bolster her credibility.

[7] But the deceased did not tell her the truth about his other family. He drank far too much, and on a daily basis, which meant that he could not, and did not, look after them. He avoided paying the rent and did not provide enough groceries. They had a harassing time, constantly moving from house to house as a result. Worse, he became bad tempered and aggressive when drunk, and took to assaulting both the Accused and all three of her children. He sexually interfered with the two daughters, and assaulted them. He used to swear at and beat the small son aged 11 years.

[8] He threatened the Accused when she complained that he would kill them if she reported these incidents. He treated the Accused like a sexual slave making her sit before him half naked when the children were about. She was shamed and humiliated in front of her children but she was not able to come to a decision as to what to do. She was also beaten regularly. The deceased was 6 feet tall. She was always worried how she could support her children if she moved out. He did not allow her to go out to work.

[9] He failed to send the children to school, or provide bus fares or uniforms. The eldest daughter had to leave school.

[10] All of this amounted to provocation which could have had a cumulative effect on the Accused prior to the day in question.

[11] Certainly the neighbours from their statements in the agreed bundle could confirm the constant quarrelling when the couple lived in Vuci Road, their final home. Sunila Devi confirmed the frequent drinking and swearing at the Accused.

[12] The Accused’s children all gave evidence. The middle child Alisha said they used to be punched and kicked by the deceased. He would not send them to school. She confirmed the sexual indignity occurring to the mother, about which she felt bad. She told of the daily drinking and of her having to sit on his lap, his coming in to her room at night and of touching her on the breasts. He punched and kicked the small boy over his education. She too suffered and eventually left home. The elder sister Jyotishna told of what happened to her. It was a tale of similar abuses and ill-treatment.

[13] Krishneel gave evidence. He is now 12 years old and stays with his grandmother. This boy I found to be a very straightforward witness. He told of the same plight of the family at the deceased’s hands. He said the deceased had been good to start with. Then he said "He was not nice to me." He told of the assaulting, the swearing, chasing out of the house, kicking, slapping, and what happened to his sister and mother, and of the improper activity with his sister in the bedroom. I find there was no collusion amongst the children, and I accept their evidence without reserve.

[14] Krishneel said that on the day in question he came back from school. The deceased was drinking, and told his mother to wear her bra and panties in front of him. The boy was very distressed at this point in his evidence. He went on to say the deceased assaulted his mother. The deceased went out to meet his son and returned.

[15] Krishneel and his mother stayed back in the house. On his return, the deceased threatened to burn the house. His mother sent him out to call the neighbour Dulai Chand for help. The deceased was yelling on the road accusing his mother of being in the guesthouse and saying he had brought her back from the guesthouse. He was swearing at the Accused. When Krishneel slipped out the deceased tried to assault him. He said he was hit. He was saved by another man who came in between the deceased and Krishneel. He confirmed that he left the house after Anil had broken the louvre blades.

[16] This evidence confirmed the various inflammatory incidents that day at the house, the breaking of the louvres, the striking at him by the deceased (which other witnesses had also testified to in their statements), and the swearing at the mother.

[17] The Accused had testified that when she would not accompany him that evening to see his son, he had accused her of having plenty of boyfriends to visit. He returned within half an hour and was belligerent straightaway. From this point on, the incident escalated. The deceased broke the louvres on the porch side, and was yelling at the top of his voice, insulting her with wild accusations of infidelity. These accusations continued when they were both on the road and she then asked him as to which guesthouse she had been in that morning and from where he had, he said, collected her. He refused to answer her.

[18] All of these incidents on the night could have amounted to provocation, and I find they were provocative. There was a short gap of time between when the Accused picked up the cane knife from the house to when she followed the deceased onto the road, questioning him about the guesthouse. I do not find that her passion had any reason to be subdued by this continuing flow of taunts and abuse.

[19] I find that the assault on her small son was a cause of great provocation also. The deceased had accused her of wanting to bring boyfriends if he were away, of having a man in the house whilst he went to see his son, and of going to a guesthouse with another man in the morning. It was a litany of shameful insults shouted out to all the neighbours. It came on top of all of the other abuses, assaults, and ill-treatment, meted out to her and to her children over the past 4 years. I accept that she snapped and therefore acted without control, strangely and irrationally.

[20] The first sign of irrational behaviour was when the Accused broke the louvres on the side windows. She said she would have made her escape from the first floor of the building if the deceased had carried out his threat to come in and assault them. She panicked. If she and the son had jumped, they would have sustained serious injury. But her thinking and actions showed that her state of arousal was high, a condition referred to as typical by Dr Antico of someone suffering trauma. Dr Antico testified that she believed the Accused had been so suffering at the time.

[21] The Accused had acted strangely also in striking with the knife for the third and fourth time, she said to make sure he was dead. She returned to the house, and acted again strangely. She first drank some water, then gathered up her jewellery in her purse and gave it to her son. She knew the police would arrive shortly she said. She placed the knife beside the flowers. Then she changed her dress, locked the door, and gave the key to her son. She stood in the compound waiting for the police to arrive.

[22] She went to the police on their arrival, went back to the station, and told them exactly what had happened. Nothing is or was disputed in that interview. She told the police that if Anil had not been taken to hospital she would have cut off his head and brought it down to the police station. Much of this behaviour was not rational.

[23] She appeared calm at first to Dr Kailawakoro. Two days later the doctor noted that she was "mildly in a state of shock with some elements of fear and anxiety." She referred to the past years of physical, emotional, and psychological abuse, of what had happened in front of her children and that she could no longer resist the torments.

[24] Ishu Lal was a Crisis Interventionist from the Women’s Crisis Centre. She had been working with cases there for 15 years. She had not known the Accused before this incident, only afterwards. She had no credentials other than her significant experience with domestic violence cases, and some in-house training. She considered this was a case that fitted into the battered wife syndrome category, and she said why, based upon her experience.

[25] Dr Antico a psychiatrist at St. Giles Hospital, also only saw the Accused after the incident. She considered the Accused’s circumstances fitted into the intimate partner syndrome because of the history of abuse, neglect, and violence. It was a condition of something more than post traumatic stress disorder. After a long period of abuse, a person may suddenly snap. She said the Accused could have been in survival mode. It would have been a common feature for her to be triumphant, such as threatening to go to hospital to finish him off, after reacting to the last provocation.

[26] I found the medical evidence of assistance in confirming typical symptoms, which I find were present in this case. I find on the evidence the Accused was suffering intimate partner violence syndrome, and that she snapped after the final provocation on the day, acting irrationally thereafter.

Conclusion

[27] I find that the Accused killed the deceased in the heat of passion, having been provoked by the long history of their lives together by the deceased’s conduct towards the Accused and her family and by what occurred to her and her son that night. Her act was an explosion of pent-up rage and frustration, a loss of self-control, caused by the provocation.

[28] I also find that an ordinary person in her shoes might well have been caused to lose the power of self-control also. At the very least there must remain formidable doubts on the absence of provocation.

[29] These circumstances do not remove liability for the crime entirely. They lessen it. I find the Accused therefore to be not guilty of murder but guilty of manslaughter.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused: Legal Aid Commission, Suva.