State v Radininausori [2007] FJHC 53; HAC015J.2006S (8 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 015 of 2006

STATE

v.

RO LIVINI RADININAUSORI

Hearing: 30th July – 8th August 2007
Judgment: 8th August 2007

Counsel: Mr. A. Rayawa for State
Ms R. Senikuraciri for Accused

JUDGMENT

The Assessors have given their opinions that the Accused is guilty of murder. Their decision is justified on the facts on the basis that she admitted to the police, on the 26th of July 2004, that she decided to kill her baby and to throw it away, when she first realized she was pregnant. It must also be based on the evidence of Dr. S. Narayan that the Accused was suffering from no mental illness or disorder when he examined her or at the time of childbirth.

This case is a clear example of the inadequacy of our laws relating to the killing of babies by their mothers. The law of infanticide requires evidence of post-natal mental illness. Experience tells us that many such cases arise not as a result of mental illness, but as a result of social failure – failure to accept mothers who give birth out of wedlock, failure to provide care to such mothers and babies, and failure to ensure that the fathers of such babies take equal responsibility for the birth and upbringing of their children. The killing of babies by their mothers, sadly common in Fiji, is an indictment on society. I have said before and I will continue to say, that the law should be reformed to define the offence of infanticide and murder to include the defence of diminished responsibility. That has been the step taken in other jurisdictions as a result of the injustice which results from the restricted definition of infanticide.

In this case, the psychiatrist has ruled out mental illness. The assessors clearly accept that the Accused intended to kill the baby throughout the pregnancy and that it was for this reason that she concealed the pregnancy. On these facts, neither manslaughter nor infanticide is available to the Accused.

I therefore accept the opinions of the assessors and find the Accused guilty of murder as charged. I accept that she caused the death of her child unlawfully and with malice aforethought. I convict her accordingly.

Nazhat Shameem
JUDGE

At Suva
8th August 2007