State v Mudaliar [2006] FJHC 46; HAC015J.05S (16 May 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC 015.05S

THE STATE

V

SACHIDA NAND MUDALIAR

Fiji High Court, Suva
16th May 2006
Gates J

JUDGMENT

Counsel:
Mr R. Gibson with Ms H. Tabete for the State
Mr M. Raza for the Accused

[1] The three assessors have delivered their unanimous opinions that the Accused is guilty of the single count on the information of manslaughter.

[2] I direct myself in accordance with my summing up. This has been a long and in many ways complex case. The assessors appeared to have followed the case with patience, concentration, and alertness.

[3] I shall review the two bases upon which the State has put its charge. The first involved an allegation that an illegal act namely an abortion, had been performed on the victim Poonam, a USP student, by the Accused as a result of which she died. The second basis was that the Accused had been guilty of gross negligence, again as a result of which the victim died.

[4] The fact of the death formed part of the agreed facts of the case. That element therefore required no further proof in the trial.

[5] But was there an abortion carried out? I accept Dr Hazaratwala’s evidence when she said that the girl who consulted her on the Wednesday 19th March 2003 had said she was pregnant and did not want the child. I also accept that she referred that girl, who was clearly Poonam, to other doctors one of whom was Dr Mudaliar. Poonam went straight on by appointment to see the Accused later that day. Abhikesh confirmed this. I also accept Dr Hazaratwala’s evidence that from her examination she estimated the term of the pregnancy at between 18-20 weeks.

[6] The other doctors who examined the uterus and the pathologist Dr Prashant came to the conclusion the term was 20 weeks or more. These witnesses were not shaken in those estimates. In spite of the lack of a bulging stomach, and the facts and arguments advanced by the Accused in his unsworn statement, I am not persuaded the other doctors were inaccurate.

[7] I found Abhikesh, who was Poonam’s boyfriend, to be an honest witness. It was clearly painful for him to relive the moments when he lost his fiancé so suddenly. I do not accept that he had decided to make it worse for the Accused because he was angry with him for the loss of Poonam whilst in his care. Nor do I believe he wished to please the police to bring a case against Dr Mudaliar, and was prepared to say an abortion was to be carried out, when he knew it was merely a procedure for evacuation of remnants following a miscarriage.

[8] I believe he was shocked and dismayed at first, worried too about stigma from his community, but that ultimately he came to tell the truth about these events.

[9] Abhikesh confirmed that it was to Dr Hazaratwala’s surgery in Raojibhai Patel Street that they first went on the Wednesday.

[10] I do not accept that the condition that Poonam was suffering from was a missed abortion, a natural miscarriage. There was no such evidence from Dr Hazaratwala she having carried out an examination. On the same Wednesday after consulting the Accused Abhikesh and Poonam knew they had to obtain $950 for the procedure which was booked to take place on Friday afternoon.

[11] In view of Dr Hazaratwala’s evidence that could not have been a procedure to evacuate remants after a miscarriage. The Accused knew what procedure he was going to carry out on the Friday, after the Wednesday consultation. So did Poonam and Abhikesh who then had to find the money for Friday.

[12] I accept Abhikesh’s account of having discussed what was going to happen, what the abortion entailed. There was a discussion with the Accused about the procedure. I also accept that Abhikesh tried to obtain a reduction in the fee because they were still students.

[13] I also accept Abhikesh’s account of visiting Poonam in the Accused’s surgery on the Friday evening and his description of her then state, namely unconscious. I also accept his account of seeing the blood covering her top and undergarments. I find that she was seriously ill at that time and should have been evacuated to the hospital without delay.

[14] I accept Abhikesh’s account of what the Accused said as to why Poonam was not ready to come home before 11 pm on the Friday. Why was she not ready? From the evidence of the pathologist, it is clear she had lost a considerable amount of blood, reflected in a high level of pallor, which in turn led to death from shock.

[15] Blood was present on Poonam’s clothing and on the resting room bed. I accept ASP Rokobera’s account of what assailed his nose when he entered the room where she lay. I conclude that she had bled considerably. I also accept the doctors opinions that this blood, though not found in quantity in the uterus would have flowed out through the vagina. The pad and the panty, as well as the blood on the bed and clothing tend to support that.

[16] The two receptionists working for the Accused said they assisted Poonam across from room 1 to the resting room. One of them Shereen said she did not notice any blood on Poonam’s bed or clothing. I cannot accept that evidence. She must have seen both and is not being truthful in this part of her evidence.

[17] I disregard the Accused’s comment to the police at first that the victim had complained of cold and ’flu. I accept he said Poonam had had a miscarriage. But I also accept he told Abhikesh to maintain that story also and in doing so he acted deliberately and from a sense of consciousness of guilt. He knew that he had performed an abortion and this was not a miscarriage.

[18] I accept Dr Prashant’s account of the injuries to the uterus. These could only have occurred during the recent procedure carried out by the Accused. It was most likely the tear on the left side of the uterus and the laceration of the cervix were caused during an abortion and not an evacuation of remnants procedure. This issue was addressed by Dr Whittaker, Dr Baravilala, and Dr Nainoca. I accept their reasoning for these conclusions. I have set them out in the summing up and will not repeat their arguments. I do not accept that these injuries were caused naturally by a miscarriage.

[19] I find that the injuries to the cervix and uterus damaged the blood supply to the uterus and led to massive bleeding. The Accused was responsible for these injuries caused during the course of an unlawful act. As a result of that act the victim suffered shock which had a significant contribution to her death.

[20] I accept Dr Baravilala’s evidence that the presence of giant cells was not significant. These cells shown as the presence of some infection, and the contributing cause of air embolism, do not take away the significant contributory effect of blood loss and shock from the cause of death. Whatever the ultimate truth of percentages of the final causes of death, I find the effect of the blood loss and shock from the injuries are not cancelled out.

[21] On the first basis I find beyond reasonable doubt that the State has proved its case, that the Accused committed an unlawful act on the deceased and as a result she died. I concur with the opinions of the assessors and convict the Accused of manslaughter.

[22] On the second basis I also find the Accused guilty as charged. He had a duty towards his patient Poonam to exercise a proper standard of care towards her. He breached that duty. The breach, consisting of several gross failures, made a significant contribution towards her death.

[23] I accept the opinions of the assessors that the doctor’s conduct was so grossly negligent that it deserved the sanction of the criminal law.

[24] To carry out an abortion or even an evacuation procedure where complications arise are incidents involving a dangerous risk.

[25] On the Friday afternoon Poonam was already seriously ill and should have been referred to the Intensive Care Section of the CWM Hospital so that the specialised services of that unit could deal with all necessities. The Accused had no medical assistants or nurses. Who would assist him if she stopped breathing and needed resuscitation? The surgery was neither an operating theatre nor an intensive care unit.

[26] To abandon such a dangerously ill patient overnight in an unattended surgery on her own was grossly negligent and showed a disregard for the life and safety of his patient.

[27] What if the patient were to be rushed to hospital? There were no notes on the history, procedure, tests, prescriptions or sedation. This was highly irregular and in such a case grossly insufficient and unprofessional

[28] On the second basis, I am satisfied beyond reasonable doubt that the sanction of the criminal law for such conduct is both necessary and inevitable. I convict him on the second basis.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs M. Raza & Associates, Suva