State v Seniloli [2010] FJHC 176; HAC022.2008 (26 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 022 of 2008
CRIMINAL CASE NO:

BETWEEN:

STATE
PROSECUTION

AND:

EPI BOLAWAQATABU SENILOLI
ACCUSED PERSON

Counsel: State - Mr. L Savou and Mr. Kaisamy
Accused Person - Mr. Lee

Date of Hearing: 17, 18, 19, 20, 24, 25 May 2010
Date of Summing Up: 26th May, 2010

SUMMING UP

Madam Assessors and gentleman Assessor.

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

The Counsels for the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused’s guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.

Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

Your duty is to find the facts based on the evidence apply the Law to those facts.

The accused is charged with the offence of manslaughter by an unlawful act. Manslaughter is the killing of someone by an unlawful act. In this case the prosecution alleges that the unlawful act was rolling or throwing a stone which struck the head of the deceased. The information alleges that on 11th of July 2008 at Somosomo, Taveuni the accused unlawfully killed Jone Saumaibulu Lewenilovo.

An unlawful act is an act which is not justified by law. Where the unlawful act, at the same time if it is a dangerous act, that is an act which is likely to injure another person and quite inadvertently the doer of the act causes the death of that other person by that act he is guilty of manslaughter. For such a verdict (guilty of manslaughter) the unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.

The written agreed facts are before you. In this case there is no dispute that a stone which was rolled down the hill by the accused struck the left side of the head of the deceased. Therefore the prosecution alleges that the unlawful act was one of dangerous and one of gross negligence in rolling the stone down the slope while the children were playing.

The elements of the offence the prosecution must prove beyond reasonable doubt are;

1. The accused;

2. Had a duty of care towards the deceased;

3. Was in breach of that duty;

4. That breach was grossly negligent;

5. That breach was the significant or operating cause of death of Jone Saumaibulu.

What is duty of care? Whether the accused had a duty of care towards the deceased? The rule that you are to love your neighbor becomes in law, you must not injure your neighbour. You must take reasonable care to avoid acts which you can reasonably foresee would be likely to injure your neighbor.

Then who is your neighbour? The answer is persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts which are called in question.
When you decide on the existence of a duty of care on the accused to the deceased you have to consider all the circumstances existed. In this case the evidence is that the children were playing in a slope which was situated in the school premises and while they were playing the accused rolled a stone towards the children who were down below the slope. The stone struck the deceased’s head. So you have to consider all the circumstances including the age of the accused and when deciding the existence of the duty of care.

In assessing whether or not the accused was in breach of his duty of care, you must ask yourself what a reasonable man (considering the sex and age, in this case male juvenile of 14 years of age) would have done in his shoes, faced with the situation he found himself in. And, even if you find that the accused was in breach of his duty and should have exercised greater care, you need to go on to ask whether his conduct was so grossly negligent, whether it was such an unacceptable departure from the proper and reasonable standard of care, that it deserves the sanction of the criminal law.

On the act of negligence you must ask yourselves whether the conduct of the accused was so grossly negligent, and therefore a crime. It is for you to decide whether having regard to the risk involved the accused’s conduct was so bad in all circumstances as to amount to a criminal act.

In relation to the final element, that is of causation, this term is defined by the law as meaning that the accused was responsible for the substantial or immediate cause of death.

The law states the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed without common knowledge or skill. In this, treatment may tantamount to non treatment as well.

The defence suggests that proper treatment was not given to the deceased when he was brought to the hospital in the morning and it caused the death of the deceased.

You heard witnesses giving evidence on the treatments given to the victim in the morning as well as in the evening. It is for you to decide whether the act of accused caused the significant or operating cause of death or whether the non treatment or wrong treatment caused the death and it was not employed in good faith or was so employed without common knowledge or skill.

If you are not satisfied that the prosecution has proved any one of the above elements beyond reasonable doubt you must find the accused not guilty. If you are satisfied that the prosecution has proved all the elements beyond reasonable doubt you may find the accused guilty of manslaughter.

On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed.

These are my directions on the law. Now I turn to the facts.

The Evidence

The 1st witness called to give evidence for the prosecution was Sakiusa Tamaniravua.

On the day of the incident after the exam paper he had gone to the slope to play with his friends Jone, Samu, Sitiveni and Loma. School is located in a hill and there is a slope of about 45 degrees.

In the middle of the slope they were spearing cevuga. Epi then appeared from the top, and then he said the bell rang to go to the classroom. Epi started rolling stones he said. When Epi picked up stone they ran back. 1st two stones they dogged he said then the bell rang. Epi disappeared. Then when they were coming up to go to the classroom Epi appeared again rolled another stone which they dogged. He said the 4th stone hit Jone’s head and Jone rolled down. Head was bleeding and Jone was shaking.

Epi came running and touched the blood in Jones head and then he touched the coconut beside Jone and he had said that coconut hit Jone’s head.

Witness further said he didn’t see the coconut hitting Jone but the stone hit Jone.

In cross-examination he said when Epi came, there were other children on top and the two groups on top of the slope and down below played.

In cross-examination again he said when Epi rolled the stones, the bell had already rung. Further he said he didn’t see a stone beside Jone when Jone was seated after he was hit but he saw a coconut beside Jone. When he was asked he never told Master Siga what happened.

The next witness was Corporal Tavite Savou. He was detailed to draw the sketch and the sketch of the scene drawn by him was marked and produced in evidence as Exhibit (P1).

Then called the witness No. 3 Niadera Stolz to give evidence. She was the police officer who took photographs at the scene and at the post mortem. On the instructions given to her by the Crime Officer she took the photographs which was marked and produced in evidence as exhibit (P2).

Further she has uplifted the coconut from the scene which was produced as exhibit P3 and the stone which was marked as (P4).

In cross-examination she said at the crime scene she saw only 2 stones other than what were piled up under a mango tree on top of the slope.

Next witness was the police officer Saiyasi Seganavanua. He said Crime Officer Peter Brown interviewed the accused and he charged the accused. Original charge statement and the English translation done by him was marked and produced as P5 (a) and P5 (b). It was read in evidence before you.

The next witness was Samuela Foster who was another student of the school. He had been in the slope with Sakiusa and Jone standing at the bottom of the slope. Only 3 of them had been spearing cevuga up. Students on the top had been Sitiveni and Peni.

When the bell rang and when before he and Sakiusa went up Epi had come with holding the stones. They ran back to Jone to the slope. Then he saw a stone rolling down. Epi rolled the stone and it came towards Jone and hit him some where on the face. He can’t exactly say where the stone hit Jone. Jone fell backwards. He said he wanted Sakiusa to look after Jone as Jone was unconscious and went to tell the teachers. Then students came and took Jone to the classroom.

In cross-examination he said they have been playing in this slope for a long time during school days. They used to play wrestling some times.

He said Epi rolled one stone and that stone hit Jone. Further he said when Epi appeared with two stones in his hand they ran back, they were laughing as a part of the game they were playing.

The next witness was Siga Rara Maisamoa who was a teacher. His evidence was even during the recess he was in class 8 for the students to finish their test.

Sakiusa came and told him that Jone was lying down on the hill. Students and two parents who were selling sweets were carrying Jone to the classroom and Jone was put on few desks put together.

Ms Mareta Ciba had been there. He called the head teacher and Jone was taken to the hospital. He saw blood coming out of Jone’s head. Jone looked weak.

After Jone was taken to hospital he asked Sakiusa, Epi, Samuela and Sitiveni as to what happened. Sakiusa had told him Epi threw stone and Jone was hit by a stone thrown by Epi. Samuela had told that Epi threw a stone at Jone.

In cross-examination he said before Jone was taken to hospital when he asked Sakiusa what happened he had told Jone was lying down the hill injured by a stone.

He said he has seen children playing in the slope and he had warned students not to play in the slope.

Prosecution then called Mareta Ciba Seru who was a class teacher. After the test she had gone home which is in the same school compound and on her way back Sakiusa had come running and had told her that Jone was injured and some one threw some thing. She saw Duncan, Vili and Epi carrying Jone to the classroom. Jone was put on desks and she brought a wet cloth and sponged him. Jone was lying saying nothing, opened his eyes once and closed. He called Jone by name but didn’t respond. Head teacher who was her mother was informed and Jone was sent to hospital in a vehicle.

In cross-examination she said Sakiusa didn’t inform him that Jone was hit with a stone before Jone was taken to hospital but he said that after Jone was taken to hospital.

The next witness was Duncan Thomas Madden. He had been a student in class 8. He was in the verandah with Viliame during the recess and when he was going back to the classroom he heard students saying Jone was been thrown at. They ran down. Epi and other students were pulling Jone. He lifted Jone to the classroom. He corroborated the other witnesses evidence as to how Jone was taken to the classroom and to hospital.

In cross-examination he said Jone walked to the vehicle and he was holding him. Further he denied that children always play on the slope and he said they were told by teachers not to play on the slope.

Next witness was Peni Qioniwasa another student of class 7. While he was playing in the ground with Seru, Sakiusa, Jone and Sitiveni, Jone had called them to go down the slope to play with flowers. He had been on the top of the slope and Jone had been at the bottom. Epi then came and rolled a stone and it hit Jone. When the stone hit Jone, Jone rolled down the slope. He ran down to the place where Jone was lying motionless. They took Jone to the school. He said the stone hit Jone on the back of his head. He told how Jone was taken to hospital.

In cross-examination he said he saw Epi rolling only one stone. Then he and Sitiveni had been on the top. He said Epi also came down and Epi said nothing and Epi helped to take Jone up.

The next witness was Inspector Peter Brown who recorded the caution interview statement of the accused. He said accused’s rights were given as a Juvenile when his interview was recorded.

Caution interview statement and the English translation was marked and produced as evidence and the translation was read over in court.

In cross-examination he said the accused was not cooperative earlier and after his uncle persuaded him he was cooperative.

Answering the question put to him by court he said although in question 97 of the caution interview statement he put to the accused that Peni said that the accused threw both the stones directly at Ratu Jone and the rest in his statement to police, he admitted that Peni has not said so in his statement to police.

Prosecution called the father of the deceased Jone, Ratu Jone Saumaibulu to give evidence. When the teachers were on the way to hospital the witness father had met them on the way. Then he got into the vehicle and he had felt that they were not taking much head and he had taken over the child Jone. Teachers have got off the vehicle. Jone was taken to hospital and according to him a nurse had put medicine to the wound on the head. No doctor had seen the child and prescription was given by the nurse.

Afternoon Jone’s body was getting cold and Jone’s mother and elder sister have taken Jone back to the hospital and he got to know that Jone has passed away.

In cross-examination he said that the teacher only told him that Epi threw at Jone. In hospital when sister asked what happened he had said there was an incident at school.

He said he didn’t ask Mrs Seru what hit Jone. There had been no power supply at hospital at that time and the nurse and the sister had observed the wound by a light of a torch.

The next witness was Poonam Sami the nurse in the hospital. The sister had received Jone and brought to the nurse. Sister had informed her that Jone had head injury from school. She said the injury was just a superficial cut and bleeding had stopped, cut was about 1cm long. Blood pressure was normal but pulse had been low. She has followed Doctors orders and did the dressing of the wound.

She said Doctor applied the glasco coma scale. After dressing, Doctor has taken the patient to the examination room.

Doctor was Dr. Salome.

Child’s father had been waiting outside and only after the examination she saw the father she said. Same day the patient was brought by the mother in the evening. Mother had told her that he was hit on the head by a fellow student with a stone or a coconut which she was not sure. She had called Dr. Salome again. When she brought a stretcher down to take the patient to the ward, patient was restless she said. She said prescriptions are written only by the doctors and she never saw the prescription.

In cross-examination she said patient was brought to the General Outpatients Department but serious cases are seen in the Accident and Emergency Department.

Prosecution called Dr Salome Muavono to give evidence. She is a qualified Medical Officer and on 11.7.2008 she had been working at the General Outpatient Department of Taveuni Hospital. In the treatment room she had seen Jone. She had got the history from Jone as there had not been an adult with him. Jone has said "I was probably thrown at" and when she asked "with what" Jone had said "probably a stone". She examined the injury with a torch as there was no electricity. There was no active bleeding and there had been a superficial scalp laceration which was less than 1cm long. She advised the nurse to clear the wound and prescribed antibiotics and panadol.

In the evening the mother and sister had brought Jone again complaining headache and vomiting and being restless. When inquired about the history of injury, mother had said that a student told her that someone threw a coconut on the patient. She made an assessment using the glascow coma scale and it was 8 out of 15 which showed severe brain injury. The patient was shaking. She gave oxygen injected medicine and transferred him to the main Hospital High Dependency Unit.

She said Taveuni Hospital didn’t have the necessary equipment to handle severe head injury and those patients are sent to either Labasa or CWM Hospital.

In cross-examination she said she did the glasco coma scale test on the patient in the morning as well and in the morning the reading was 15 out of 15.

She admitted that she didn’t tell the police in her statement that she did the glass cow coma scale test in the morning and on that she said she told the police that the patient was stable and didn’t explain further.

She further said she wrote the prescription and left it on the table and advised nurse to give it to the patient in the morning. Further she said she did everything possible to save Jone’s life.

The next witness was Dr Ilaitia Petero. On 11/7/2008 about 4p.m. Dr Salome discussed with him about the patient who was admitted at High Dependency Unit and explained it to him how the patient was brought in the morning and again in the evening.

He made his own assessment after his taking the history and his observations, and from the patient’s folder. He said after assessment he knew that it was a complication arising from internal injury. He did the glasco coma scale test and it was less than 8 of 15 which showed a severe head injury. He discussed with his superior Sub-Divisional Medical Officer and as the condition of the patient was unstable they could not move him. Patient was kept under observation.

In cross-examination he said with his 3 years experience as a doctor, history of being thrown a coconut or a stone is not adequate to make a clinical decision.

He said whether the patient was conscious and if so for how long, other associated symptoms, the size of the object which was thrown at has to be considered and in this case he said the resources they had in the hospital also will have to be depended on.

The next witness was Dr.Abha Gupta, the pathologist who conducted the post mortem on the body of the deceased. Her qualifications and the experience as a pathologist was not challenged. The post mortem report was marked and produced in evidence. The cause of death was Intra cranial hematoma due to head injury and it was explained to you. She said the head injury can be caused by fall, by a motor vehicle accident, physical assault or it can cause by a stone hitting the head.

In cross examination she said that when writing the cause of death she wrote (accidental) because of the history given by the police and if the history given to her by the police was wrong that word (accidental) can be wrong.

On answering the questions on the treatment on head injuries she said that every department has its own protocall and they follow that.

The next witness was Asivelli Loloma who was another student in class 7. He had been playing on the slope spearing with cevuga plants. Jone, Sakiusa and him had been at the bottom and others at the top. When the bell rang he wanted to go up but as the students up were spearing at him he ran back to Jone and Sakiusa. Then Epi rolled one stone and he dodged. They told Epi not to roll stones as some one would get injured. They continued to play. After Epi rolled the second stone he ran up and students chased him with cevuga. Students were still playing and he stood up on top. Epi picked up a stone and rolled down. Jone was kneeling down at the bottom and when Jone looked up the stone hit him and he fell backward and rolled. Then Sakusa, Samu came running and epi also came running and Jone was carried to the classroom.

In cross examination he said the boys rolled coconuts and they were dodging and playing and having fun. When Epi rolled stones they told him not to.

The next witness was Viliame Mosase. He was a class 8 student. On the day of the incident. He had been outside the classroom during recess when he heard someone calling that Jone was lying down on the slope. When he ran down Samu,Sakiusa, Asireli and Epi were trying to take Jone up. He wiped the froth which was coming out from Jone’s mouth and Jone was taken to the class 8 classroom and from there taken to hospital.

The next witness was Detective Inspector William Lomani. On 11.07.2008 when he was a detective sergeant at Tavuini Police station Dr. Illaitia and SDMO Taviuni has come and informed about the death of the school boy. He had visited the hospital and the scene. Following morning he directed corporal Savou to draw the sketch and woman constable Niadera to take photographs. A dry coconut was picked from the scene and after recording the statements of witnesses as discovered further search was conducted and a stone was recovered. He witnessed the charge statement. He was in charge of the investigation until police officers came from Labasa.

In cross examination he said that he visited the scene and as school children had been playing there for several days they have pressed down all the bushes in the slope.

At the end of the prosecution case you heard me explain several options to the accused. He had these options because the prosecution at all times has the burden of proving his guilt. He doesn’t have to prove anything and he could have remained silent. He chose to give sworn evidence and to subject himself to cross examination. You must give his evidence careful consideration.

He said that he finished his English paper before the recess and went to play on the slope. That was the 2nd day they played in the slope. He said on the slope they play wrestling, spearing and rolling coconuts. He said normally Sakiusa, Jone, Asiveli, Loloma with some girls play on the slope. On the day of the incident he joined the boys on top of the slope and they were Setefano, Isimeli and Anare. Some girls were wrestling. He was spearing at those standing at the bottom. Sakiusa, Samuela, Asireli and Ratu Jone had been there at the bottom. He was spearing and rolling coconuts at Sakiusa. When they were rolling coconuts and spearing they had been enjoying and laughing.

After sometime he picked a coconut and a stone. After the bell rang he rolled the coconut and the stone towards where Sakiusa was. Samuela was running away from him. At that point he didn’t see anybody at the bottom other than Sakiusa and Samuela. After rolling the coconut and the stone he ran to the school. Then he heard someone calling Jone was injured. He ran down back to the slope where Jone was lying. Jone was shaking and froth coming out of his mouth. He got scared when he saw blood coming out.

He denied having said anything to Sakiusa. Then Jone was taken to class room and then to hospital.

In cross examination he said there is a notice on a board on a tree saying not to play on the slope and still they played. He said earlier Jone was there at the bottom of the slope but he had disappeared at the time he rolled the stone and the coconut. He said that he didn’t know that the students below would get injured when he rolled the stone. But on questioning on the answers he had given at the caution interview statement he admitted he knew. Further he said he rolled two stones and that it was the 2nd stone that he rolled with the coconut. Further he said that he didn’t know that Jone would get injured when he rolled the stone.

The written agreed facts are before you. Those facts are agreed by both sides and you may accept them as if you have heard them led in evidence from the witness box

Madam assessors and gentleman assessor, you heard the evidence of many witnesses for several days on behalf of the prosecution and the evidence of the accused. If I did not mention a particular witness or a particular piece of evidence that does not mean it’s unimportant. You should consider and evaluate all the evidence in coming to your decision.

Which version you are going to accept whether it is the prosecution version or the accused’s version is a matter for you.

You must decide which witnesses are reliable and which are not.

You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.

Prosecution says that the accused is guilty of manslaughter. The defence says that he is not and the act of rolling the stone is not an act of gross negligence which amounts to a crime in the given circumstances as the children were playing.

The questions for you in this case are whether the state has proved beyond reasonable doubt that the accused was so negligent which amounts to a criminal act when he rolled the stone and that his act was unlawful.

The next question is whether the act of accused was the significant or operating cause of death of Jone Saumaibulu.

You may use your commonsense when deciding on the facts.

If you are satisfied that the prosecution has proved all elements which I explained beyond reasonable doubt you may find the accused guilty of the charge. If you are not satisfied that the prosecution has proved beyond reasonable doubt any one of the elements which I explained you must find the accused not guilty of the charge.

I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charge against the accused has been proved.

Your possible opinions are either;

1. Guilty of manslaughter; or

2. Not Guilty of manslaughter.

Madam assessors Gentleman assessor, this concludes my summing up of the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

You may retire to consider your opinions.

Priyantha Fernando
Puisne Judge

At Labasa
26th May 2010