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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 42 of 2009
BETWEEN:
STATE
PROSECUTION
AND:
MEREWALESI BALEINIUSILADI
ACCUSED PERSON
Counsel: Ms. L. Tabuakuro. Later Ms N. Tikoisuva - For State
Mr. T. Terere - For Accused-Person
Dates of Trial: 17th and 18th, August 2010
Date of Summing Up: 19th August, 2010
SUMMING UP
Madam Assessors and Gentleman Assessor:
1. Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively as it enables you to form your individual opinion as to facts based on the evidence in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinion, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
2. In my summing-up of the case to you, I will direct you on matters of law, which you must accept as correct and act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge on law who has to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
3. In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts; and, please bear in mind that you and you alone are the sole judges of facts. Therefore, you yourself will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you and no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case.
4. Your duty, therefore, is a noble task and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged, or of any other offence, on which I will deal with shortly.
5. Let me explain a little how your role is so important. Each one of you has attained a certain standard in life and society and possesses a wide experience. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do because what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of conduct of the people or members of the community, of which you are presumed to have a better opportunity and ability of assessing and appreciating.
6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard that and you must form your own opinions without being influenced by such an occurrence. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion of facts of this case.
7. Counsel for the State and Counsel for the defence have both made submissions to you as to how you should find the facts of the case. They have done so in accordance with their duties as counsel for the respective parties on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by counsel.
8. 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 must have heard about this case, outside this courtroom. You may have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.
9. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an incident of loss of life of an infant who was just born. This certainly shocks the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human beings are blessed. You may perhaps have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to in the present day society that we live in. I will deal with the law as it is applicable to the offence in a short while.
10. Before doing so, I must tell you about a very important matter of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused person is entitled to in law. The effect of the presumption is that the accused-person is presumed to be innocent until she is proved 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law she is presumed to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence. Your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
11. The presumption of innocence, which is always in favour of an accused person, brings into force another very important point of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of the accused-person having committed the offence of murder. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the State. To put it simply, the burden of proof of the case against the accused-person fairly and squarely rests always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person.
13. In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond all reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond all reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond all reasonable doubt.
14. Ladies and gentleman, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.
15. Proof beyond reasonable doubt means that, before you find the accused-person guilty of the offence charged or any other offence, you must be satisfied in your mind that you are sure of her guilt. If something puzzles in your mind as to her guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged or any other offence by the accused-person. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that she is not guilty.
16. I will now deal with the elements of the offence.
The Accused is charged with the offence of murder. Murder is the unlawful killing of someone with malice aforethought. The elements of the offence of murder, which the prosecution must prove beyond reasonable doubt, are:
(i) The accused did an unlawful act;
(ii) That unlawful act caused the death of the deceased; and,
(iii) That the accused acted with malice aforethought.
17. I will now explain these three elements to you. An unlawful act is one which is done with no lawful excuse. The second element of the offence of murder is that the unlawful act caused the death of the victim-the new born infant in this case. The law requires a link between the unlawful act and the death. Usually unlawful act causes some specific injury to the victim and that particular injury causes the victim's death. Usually, the unlawful act causes an injury which could be the sole cause of death or it could be a combination of other factors resulted from the unlawful act. But, it is also sufficient if the act or the conduct of the person concerned has contributed to cause the death or such act or conduct is substantial in its degree in the circumstances to cause the death.
Thirdly, the accused should have acted or conducted herself with malice aforethought. Malice aforethought in law is to have thought about the act or conduct in question and planned it before its execution.
18. Ladies and gentleman, the first two things are called the physical elements of the offence, while the third is called the mental element. You have to always bear in mind that all three elements should be established by the prosecution at all times together for it to succeed in the charge of murder. It must be absolutely clear in your mind that the act or conduct of the accused person was occasioned or accompanied by malice aforethought, which is the necessary mental state or the faulty intention to complete the offence of murder. You must remember if the accused-person did not have the malice aforethought or in simple language the intention to cause the death or any bodily harm which could cause death, then the accused person cannot be found guilty for murder. Because, without malice aforethought the offence of murder cannot be committed. You must be clear on this.
19. Malice aforethought, therefore, is a legal term which describes a particular intention or state of mind. It is an intention in this case to cause the death or grievous harm to the new-born infant. Grievous harm means any bodily hurt which seriously or permanently injures health, or which is likely to seriously or permanently injure health. Possibility of causing harm and grievous harm is dependent on the circumstances and sufficiency of circumstances is a matter for you to decide.
20. You must also bear in mind that a person's intentions are locked up in mind. They are not often spoken out. The intent, therefore, cannot be physically observed. However this intent can be proved by what one tells others, or it can be inferred from one's conduct prior to, during and subsequent to the act or conduct in question.
21. It is now time for me to tell you about the nature of evidence that can be offered in a case. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived by his own senses. That is called direct evidence. However, in certain circumstances court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field. The consultant-psychiatrist gave evidence and his expertise was not challenged, and therefore his opinions are admissible and you can be guided by his opinions when you assess the facts of the case. An opinion of a witness cannot be accepted as evidence unless the witness is an expert in a particular field. If he is, then opinions can be accepted after court being satisfied about his expertise. Please remember that you are entitled to form your own opinion as to facts after considering the opinion of the expert, if you feel fit to give weight to the expert's opinion.
22. As a matter of law I must direct you on circumstantial evidence. In this case, the prosecution relies on circumstantial evidence. In circumstantial evidence, you are asked to piece the story together from witnesses who did not actually see the crime being committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
23. I cite the following situation as an example for circumstantial evidence. In a silent night, you hear cries of a man from a neighboring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbor 'Y' lying fallen with injuries. Here you don't see "X' committing any act on 'Y'. The two independent things you saw were the circumstances of a given situation. You can connect the two things that you saw, and draw certain inferences. An inference you may draw would be that X caused the injury on Y. In drawing that inference you must make sure that it is the only inference that could be drawn, and no other inferences that could have been possibly drawn from the said circumstances. That should be the inescapable inference that could be drawn against X in the circumstances. Further in evidence one witness may prove one thing, and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime.
24. You must consider all direct evidence - that is what witnesses saw, heard or perceived by their senses, as well as circumstantial evidence.
25. Circumstances are not made of by mere speculation or guesswork. They must be established beyond reasonable doubt and the proved circumstances must only be consistent with the accused having committed the crime. To find her guilty, you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the circumstances proved. It must be an inference that satisfies you beyond reasonable doubt that the accused committed the crime and that inference should be irresistible and inescapable on the evidence. Before you can draw any reasonable inference, you must first be satisfied beyond reasonable doubt, that the evidence given by each witness relating to the circumstances giving rise to the issues of fact to be proved is credible and truthful.
26. Before you started hearing evidence, you may recall that you read and examined the exhibit (1) in this case as presented by the prosecution and the defence as agreed facts. They were agreed by the parties and I set out below the facts as agreed by parties. Facts agreed were:
(i) That the Accused Merewalesi Baleiniusiladi is single and has a daughter from a previous relationship.
(ii) That the Accused became pregnant to one Esiromi Rokotakala sometime in 2008.
(iii) That the Accused became aware of her pregnancy sometime in June, 2008.
(iv) That from the time she discovered she was pregnant until the birth of her child, the Accused did not undergo any pre natal check up or medical attention.
(v) That during the first week of February, 2009, the Accused was living with her uncle Ame and aunty Litia Nacokotu at 53 Musuniwai Street, Rifle Range, Lautoka.
(vi) That the Accused stayed at 53 Musuniwai Street, Rifle Range, Lautoka for about a month.
(vii) That the accused gave birth to her second child on the 26th of February, 2009 at about 2.30am to 3am.
(viii) That the Accused gave birth to a baby boy.
(ix) That the child was alive during birth.
(x) That she wrapped the child with a wrap around sulu from his head to his feet.
(xi) That the child died as a result of the tightly wrapped sulu around his head which suffocated him.
(xii) That the Accused knew that her child died after she had finished wrapping him.
27. The legal effect of the agreed facts is that those facts need not be proved by way of placing evidence before court. Therefore following admissions were crucially important to this case.
(a) That she wrapped the child with a wrap around sulu from his head to his feet.
(b) That the child died as a result of the tightly wrapped sulu around his head which suffocated him.
(c) That the Accused knew that her child died after she had finished wrapping him.
They are now before you as facts proved even without evidence. The agreed bundle of documents also refers to the Post-Mortem Report, which establishes the death of an infant, which was in a highly decomposed state at the examination.
28. Some of the facts in this case are in dispute. The crucial facts in dispute are whether the accused has had the malice aforethought when she did the impugned act or when she conducted herself in the manner in question. And, whether, she was imbalanced or disturbed in her mind resultant from child birth. You have to decide the case on those disputed facts on the basis of the evidence. I now propose to sum-up the evidence of the witnesses.
1. PW-1:LITIA NOCOKOTU-A woman married to Ame Nocokotu and with two children. She knew the accused from her childhood as she was a niece of her husband. The accused had come to stay with them.
Witness recalled 26.02.1009 as the accused came home. She appeared to be 7 month pregnant. Witness asked the accused whether she was going to clinics and she said 'no'. Witness said that she had to go to clinics and that if there is no place 'she could give birth to the child at her place' as she had already visited two places.
The witness woke up around 6.00 a.m. and saw the accused had already got up. As the witness went to the kitchen to make breakfast for her children, the witness saw the mat was very wet and upon being asked from the accused, she said that the water had spilt as she wanted to boil some water.
Witness told the accused to prepare things to go to the hospital as she was worried because the accused had complained of stomach-ache. Witness gave her the bus-fare to go to hospital and found that she was not at home when the witness returned around 1.00 p.m.
Witness said that the accused returned around 9.00 p.m. or after. As the accused went to the washroom, witness too followed her as she spent longer time in the washroom. Witness saw that there was blood on the floor. Witness felt angry as the accused was bleeding and because she had not gone to the hospital even though she was given the money by the witness. She said that she would give birth in Suva.
On 27.02.2009, she was awake early in the morning. The accused said that she would give birth in Suva and the witness had said that she would give her the fare. The accused had gone to Suva after 2-3.00 p.m. after her bus-fare was given.
The witness had found that the floor of her second kitchen was wet. She said that she felt something different with the accused as he woke-up in the mornings of 26th and 27th of Feb, 2009. Witness said that the accused was not sharing her problems with her.
Answering cross-examination, witness said that she saw the accused was sitting and staring on 26th and 27th. Feb. 2009. Witness saw a changed behaviour on those days. The accused had not told her who the father of the child-to-be born was.
2. PW-2: TARUSILA TABOTE. She was at Musuniwai in Feb. 2009 with her uncle Ame. Witness was pregnant at that time and she was waiting to give birth. She used to go for medical check-ups. She also went to Fijian lady for stomach massages. The accused, who was to give birth shortly also went to the lady for massages.
On 26.02.2009, someone knocked on her door around 4.00 a.m. in the morning and it was the accused. She sad:
'I asked her what happened and she said that she had a pain the stomach. I wanted her to wake up my aunt but she did not want to. Then she went to sleep again. By looking at the stomach of the accused, she had guessed that she was 9 months pregnant but did not see anything different. When I opened up the door and went inside the big kitchen I saw that the mat was left outside and it was wet.'
The accused said that she had spilt the water as she wanted to boil some water. The accused was then lying on the settee.
On 27.02.2009, the accused was feeling weak; but, she did not tell the witness anything to her.
Answering cross-examination the witness said that the accused did not discuss any personal problems. The accused was looking different after giving birth. Witness had been staying for three months and after giving birth to her child, she went to Yasawa. The accused had not told the witness that she was scared of her parents.
3. PW-5: DR S NARAYAN. A doctor specialised in mental health attached to St Giles Hospital in Suva. Qualified in Auckland, New Zealand in 1994, Master's Degree from Wollongond university in Australia in 1998. The doctor has been in this field of health from 1986. He was the Consultant-Psychiatrist and the Medical Superintendent of the Hospital. His job involved assessing people under stress showing signs of illness, diagnosing them, planning treatment and follow-up action after initiation of treatment.
Dr Narayan had seen the accused and a report dated 09.04.2009 was submitted, which was marked as 'Exhibit-2' after the Magistrate had submitted the accused for psychiatric examination on 17.03.2009. The doctor said that, the accused was not diagnosed with any mental disorder.
The doctor described what hallucinations, delusions were and said that mental distress could lead to mental disorder but distress itself was not metal disorder. It was the evidence of the doctor that the accused did not have any symptoms of mental disorders from 13.03.2009-09.04.2009.
Post-partum depression symptoms were similar to those of depression. He said common symptoms were disturbances in sleep, poor appetite, isolation, lack of communication, loss of energy, feelings of helplessness and hopelessness, suicidal thoughts. Depression sometimes resolves on its own. However, if not treated, it could linger on many years. The doctor said that in the 4th or 5th month post-partum depression set in. The accused, however, did not have those symptoms.
Pre-natal depression symptoms could have been present for 2 weeks before diagnosis is made. Under the international classifications, the doctor said that, if symptoms are present only for 2 days, patients are not diagnosed with depression. The doctor said that he had questioned the accused and her aunt and found that there was family support for the accused. The accused had said that she was worried about what she had done and worried about the consequences.
Dr Narayan further said that depression was different from frustration and lay-people would have difficulty in distinguishing the two.
Answering cross-examination, the doctor said that his examination was based on the condition of the accused between 31.03.2009-09.04.2009. He said that pre-natal stress is occasioned by the pregnancy itself whether planned or unplanned. If it is unplanned there could be an added risk, according to the doctor. Withdrawal of the support of the father in a planned pregnancy would increase the risk of pre-natal depression and that the balance of the mother would be disturbed.
The doctor said that the accused was scared of her father as he had warned not to get pregnant outside wedlock as she had already got a child from a previous relationship.
4. PW-3: ILISAPECI VEGA She knew the accused as she was her niece. She came to her home at 10.00 a.m. on 26.02.2009 for a visit and requested for a blanket as she was feeling cold. Her house was close to Litia's house. She wanted to visit the wash-room. The accused was carrying a bag. As the witness visited the wash-room, she could see blood. The accused was just lying down and she went to Litia's room after dinner, which was close-by.
5. PW-5: ILIESA RAIVITI Witness said that she was staying with my sister. The accused, who was a cousin of the witness, visited her place and requested a blanket. She was feeling cold but did not look different. The accused left after dinner. She was carrying a white bag. The witness took the bag and carried it when she was leaving his house. The accused said that the bag be carried properly as there was something good in it. The witness had given her the bag back and returned.
6. PW 6: SALOTE RAQATO The witness had gone to find bait for shipping with one Salote. As they were walking along the beach they had found a sac. As they opened the sac they had seen a bucket in it, which was full of blood. There were clothes and a baby inside the bucket. They had left it there.
7. PW 8 WDC 3843 AKISI Charge-statement was marked as Exhibits 4 and 4(a).
8. PW 9: WDCPL. ANA NAI. She was the investigating officer and she was responsible for the cautioned-interview of the accused. The statement was given without a threat, oppression or an inducement, having explained the rights available to the accused.
Q-80, 99, 125, 133, 134, 135,141 referred to and read-out in evidence, which were agreed to by the accused as being true and correct.
The witness said that the cautioned-interview was given voluntarily, which was marked along with agreed facts as Exhibit (1).
In cross examination Q 40, 43, 44, 45, 46, 109 referred to.
Questions and answers referred to and the entire interview are before you. They, in view of the unqualified admissions, by the accused form part of evidence inn the case. They are before you and you can consider if you consider worth considering.
The case for the prosecution was closed with the evidence of those witnesses and exhibits marked as Exhibits (1)–(4)(a), which are before you. You must consider those exhibits before you your opinions.
29. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that that the exercise of my power under law as requiring the accused to answer the charges and that she should prove her innocence. There is no such compulsion but the accused on her own free will came forward and gave evidence. That evidence too should be considered. She said:
'I am 30 years old. Not yet married. I am from Nacula, Yasawa. Six in my family and I am the eldest. My brothers/sisters are in Suva. Sister in Lautoka and other 3 are in the village. My parents are in the village. I am unemployed. I left my village in 2005. I was in Suva with my uncle. I was in relationship with another person – a boyfriend. He was Esiromi. I had a child before meeting Esiromi. The child was 7 years old when I met Esiromi. Child is with my parents. He is brought up by my parents. The father of that child is a cousin of mine in the village. I was not legally married to have a child. My parents were very upset, especially my father when I was conceived out of wedlock. He didn't like and I also promise that I will get married before having another child.
In 2005, I was in Suva until 2008. I had a relationship with Esiromi. I met him at school. We went to the same school. I had been having that from school and continued up until 2008. I was planning to get married to him. I was in a serious relationship with him. I found that I was pregnant. When I told him that he informed that he was already married. I did not know that he was married. He said that he was not able to look after the child as he had already got his children. I did not accept what Esiromi told me.
He knew that I had a child of 7 years of age. When I was 3 to 4 months pregnant, I told Esiromi. I was very upset after I promised my father. I promised my parents that I will not have a child outside wedlock. I was very angry of what he had told me. I left Suva and came to Lautoka. I was scared to tell my parents because I had already promised them. I was not in contact with Esiromi after I came to Lautoka.
In Lautoka, I was at Pickering Place with my uncle. The relationship was not good because of the aunt. She ill-treated me at home. She impolitely talked to me. I decided to go to my cousin's place, who was a pastor. I did not share my problem as I was scared. I went there and my relationship was not good with my cousin's wife. She gossiped and said things about me to other people. They were at Kashmir. I was there for about 3 months.'
I used to go and visit my Aunt Litia at 53 Musuniwai Street, Lautoka. I stayed there for 1 month. When I was there, relationship was very good but I did not expect what I had gone through previously. She did not ask what I had gone through. She knew that I was pregnant.
On 26/02/2009 around 1.00 a.m., I felt that my stomach was paining. I went to the kitchen to boil some water. I came down the sitting room. I laid down. After that I went back to the kitchen. I continuously felt pain in the stomach. Around 2.00am, I could not take the pain and I was also scared to call Aunty Litia. I lied down in the kitchen. I could feel that the baby was coming out in the kitchen. I was lying down for some time. I was very weak. After I knew that the baby has come out and looked out for kitchen knife which was in the cupboard to cut off the umbilical cord. I was lying down for sometime. I stood up and went to the room and took a piece of cloth which I used to wrap the baby. I was very scared at the time and I was not in a right state of mind as there was none. I wrapped the baby with the cloth because I did not want the child to go through problems that I had gone through.
I cleared up the place where I gave birth and removed all bloodstains. A healthy baby which was already wrapped put inside a plastic. I took it outside with the sulu which was outside that also had bloodstains. When I put the plastic bag which the child was in and a piece of cloth to the place, where we put rubbish. And came back to the house, I cleaned all bloodstains. I went outside where there was a mango tree and sat down there for a while. I did feel that blood was flowing and I was very weak.
I was confused. Firstly, I was scared of my father because I knew of giving birth outside wedlock. Secondly, the father of the child did not accept. Also, I did not want the child to hear words especially in Fijian community. I did not want the child to go through what I had gone through. Especially for the children before/outside mother's married life. I did not want the child to be stigmatized.
From 4.00am on 26/02/2009, I knocked the door and Tarusila opened the door for me. I went inside the house, and laid down in the room until the rest of family members to wake up. When they woke up, Litia asked why was the mat put outside. I was scared, I told Litia that I spilt water in the kitchen. I was still confused and I was starving. When she saw me, she told me to go to the hospital.
I did not go to the hospital. I was scared.
Answer to Court: By then I had already delivered the child.
Before birth, I had not visited doctors. I never went. I did not go to hospital. After that I went to Aunt Ilisapeci Vega. When reached there, I was just lying in the house there. I was there until I came back after dinner.
Before I left, there was no one at home, I was scared. I took the bag with me and the child was inside the bag. I came back after dinner on that day to Litia. The child was inside the bag. I was scared because there was no one at home and someone might see the baby.
I came home and slept. Next day, Litia was questioning me. She asked me whether I had gone to the hospital. I said "NO". She scolded me and she told me that she would give me bus fare for me to go to Suva. I went to Suva on 27/02/2009.
After breakfast, Litia came to town with Tarusila and I was at home with small Jojo. I had just burnt clothes outside. Whilst going out of the house, I found the bucket, I brought the child and put it inside the bucket and closed. I put the bucket inside a sac and tied the mouth of the sac. There was a small stream close to Litia's house and put the sac there. I had my shower, whilst I was waiting for Litia to return. I met Litia on her return; she gave me the fare, told me to go to Suva.
I was still confused and scared when I put the baby into the bucket.
I went to Suva after that. When I was in Suva, police came and arrested me in March 2009. I was taken to Nabua Police Station and I was escorted to Lautoka Police Station. I was interviewed and charged. I told Police what happened and gave answers before the interrogation including the charge'.
30. In cross-examination she said:
'Q: You did not go to his house?
A: No.
Q: Why?
A: I was at Lautoka then.
Q: Were you angry about what he said?
A: Yes.
Q: Reason why you came from Suva to Lautoka was that you were ashamed of what happened?
A: Yes.
Q: And you were ashamed for yourself for being pregnant by a married man?
A: Yes.
Q: And you stayed at Pickering Place?
A: Yes.
Q: You had a bad relationship with your uncle's wife?
A: Yes.
Q: She was not polite to you?
A: Yes.
Q: And you did not like that and you went to live at your cousin place?
A: Yes.
Q: They gossiped about you?
A: Yes.
Q: And you did not like that and moved to Litia's place?
A: Yes.
Q: And you told her you were pregnant. She was very supportive?
A: Yes.
Q: You told your mother that you were pregnant?
A: No.
Q: Did Litia tell your mother?
A: Yes.
Q: And your mother told you to keep the baby and return to the village after delivery?
A: Yes.
Q: Your mother was very supportive?
A: It was only through telephone.
Q: There was no reason for you to be scared as you had your family support?
A: I was afraid of my father.
Q: You had a child of 7 years old?
A: Yes.
Q: Your father said not to have any more babies before getting married?
A: Yes.
Q: You did not?
A: I did not directly tell my father but my uncle who directly told my father.
Q: Your father did not speak to you directly?
A: After he was angry I then went to him. That was when I spoke and promised him that I would not have a child before getting married.
Q: And you did not like Esiromi telling about his marriage life?
A: Yes.
Q: You did not like the impoliteness of your uncle's wife?
A: Yes.
Q: And you also did not like your cousin's place?
A: Yes.
Q: Do you know what your cousins tell about you?
A: She would gossip for being pregnant before getting married.
Q: That was the truth. Isn't it?
A: Yes.
Q: Why did not you not like when she said things which were really true?
A: I knew that I was not accepted at all the places that I was staying.
Q: You were accepted at Pickering Place but it was you who went away?
A: She was impolite at times and I could not accept that.
Q: So, it was Litia, who accepted you?
A: Yes.
Q: You stayed with them during your last month of pregnancy?
A: Yes.
Q: Aunt Litia knew of your pregnancy and that she did not ask about it?
A: Yes.
Q: That was in 2001?
A: Yes.
Q: You went to work at a hotel?
A: Yes.
Q: That was in 2003?
A: Yes.
Q: And you lived in Suva through 2008?
A: Yes.
Q: Seven (7) years after you spoken to your father?
A: Yes.
Q: Aunty Litia, she gave you bus fare to go to the hospital?
A: Yes.
Q: You lied to her about giving birth?
A: Yes.
Q: Even after she was good to you and supportive?
A: Yes.
Q: Only reason you did that was because that you were scared of your father?
A: No.
Q: There was no reason to be scared of your father because it was seven years ago?
A: I promised.
Q: It was your self -interest that you made you to do what you did to this child?
A: No.
Q: And this was not the first time you delivered the baby?
A: Yes.
Q: And you were in Kashmir, you never thought of Aunty Litia who was helping all this time?
A: I was scared to call her.
Q: And you were in pain, you knew that you were going to deliver?
A: Pain I received was not as same as what I received at first delivery.
Q: What did you think it was?
A: I thought that the child is moving inside the womb. I did not expect to give birth.
Q: You went to the kitchen, you spread the cloth on the floor of the kitchen?
A: Yes.
Q: Reason for doing that the baby was coming out?
A: Yes.
Q: You delivered your baby and pushed the baby out?
A: Yes.
Q: You started to reach kitchen knife?
A: Yes.
Q: You were sitting or standing up?
A: I was sitting.
Q: And when you got the knife, you knew you had to cut the umbilical cord?
A: Yes.
Q: Reason that you did that was that you knew that you were giving birth?
A: Yes.
Q: When you were in the kitchen, you were accessible to the kitchen knife?
A: Yes.
Q: After you did that baby bag come out?
A: Yes.
Q: And when the baby came out, you saw that the baby was alive?
A: Yes.
Q: And you quickly got a cloth and tightly wrapped the baby?
A: Yes.
Q: Reason you did that were that you did not want the baby to make any noise and wanted to kill the baby?
A: Yes.
Q: That is why you tightly wrapped the child with the cloth and that is put the baby in the plastic bag?
A: Yes.
Q: And after that you cleaned the kitchen?
A: Yes.
Q: You wanted to no one to know what happened?
A: Yes.
Q: Then you wanted to have a rest?
A: Yes.
Q: And you came back early in the morning and thought about how you were going to dispose the body?
A: Yes.
Q: Did you realize that the baby died after the baby was tightly wrapped?
A: Yes.
Q: Did you realize that immediately after the baby was so tightly wrapped?
A: Yes.
Q: You cleaned the house and had breakfast?
A: Yes.
Q: You wrapped the baby nicely and put it in a bag?
A: Yes.
Q: And you went to Aunty Ilisapeci's house?
A: Yes.
Q: Because you were scared of being caught?
A: Yes.
Q: You had whole day until you had lunch?
A: Yes.
Q: You had dinner?
A: Yes.
Q: Then you went home again?
A: Yes.
Q: The next day she told you to go to hospital?
A: On 26/02/2009 after breakfast.
Q: The morning you delivered the baby?
A: Yes.
Q: And you lied to her that you were going to deliver in Suva?
A: Yes.
Q: By then you had already delivered your baby?
A: Yes.
Q: So it was the next day you were cleaning the house after Litia and Tarusila went to town?
A: Yes.
Q: Reason for doing so was that you wanted to dispose of the baby?
A: Yes.
Q: You managed to burn clothes and the piles of rubbish collected?
A: Yes.
Q: You walked around the house and you found this bucket?
A: Yes.
Q: That was where you wanted to put the baby inside?
A: Yes.
Q: You closed it tightly?
A: Yes.
Q: And you put the sac already in it?
A: Yes.
Q: You closed it tightly and put the bucket in the river next to the house?
A: Yes.
Q: And you made sure that it drifted away?
A: Yes.
Q: All this time you father was not with you?
A: No.
Q: You did not speak to your further of what happened?
A: No.
Q: You were only remembering words said 7 years before?
A: Yes.
Q: And you were only worried about yourself and consequence of what you have done and killing of your own baby?
A: Yes.
Q: All this time, no one was pressing you to kill your baby?
A: No.
Re-examination
Q: Asked about you being angry on Esiromi, why were you really angry?
A: After Esiromi informed that he was married that he had children and that he did not accept what I told him.
Q: Basically, you feel like being betrayed by him?
A: Yes.
Q: He never told you that he was married?
A: Yes.
Q: You were going from house to house?
A: Yes.
Q: Because you felt that you were not well accepted?
A: Yes.
Q: Reason why you wanted to end the life of baby?
A: Firstly, I was scared of my father because I knew that the baby was without getting married. Secondly, when Esiromi told me when he was married and also he did not accept what I told him. I was also not accepted by my relatives. They gossiped. Also, I did not like the child to go through what I had gone through.'
I have summarized all the evidence before you. But, still I might have missed some evidence. That is not because they are unimportant but due to an oversight. You heard every item of evidence and you should reminded yourself of all that evidence and form you opinion on facts.
31. It is not in dispute that the accused gave birth to her child on 26.02.2009 and that she wrapped the baby tightly with a piece of cloth and that she left the baby at a stream after putting him inside a bucket covered with the lid according to the accused's own evidence. But, you have to consider that whether it was so or not and decide by yourself.
32. However, what is sought to be disputed is that the Accused did the act or conducted herself with malice aforethought. Malice aforethought is the mental element required to be proved in the offence of murder. As I said earlier, it requires proof of either:
33. If you find beyond reasonable doubt that what the accused did was an unlawful act or her conduct itself was unlawful, then you should consider whether such act/s or conduct was accompanied with malice aforethought beyond reasonable doubt. If you can come to a conclusion after such consideration, then only you can form the opinion that the accused is guilty of murder.
34. If you find that the act of the accused or the conduct in issue was not accompanied by malice aforethought and that she could have only the knowledge of a possible death of the infant on account of her acts or conduct beyond reasonable doubt, then you cannot find the accused guilty of murder. Instead, you can find the accused guilty only of manslaughter, which is an offence less in gravity than the murder.
35. There is one more offence which is very close in nexus in a case such as this. I must explain that too. That is infanticide as defined in Section 205 of the Penal Code. This is a legal provision where women are exempted from criminal liability from murder in a case associated with child-birth.
36. You all know that giving birth to a child involves lots of mental and physical changes in a woman's person. As a result, there could be situations where a woman cannot perceive any rational thought because of the stress or depression that may set in with the onset of labour thereafter. As a result, a woman could be disturbed or imbalanced in her mind. Therefore, killing of an infant upon delivery or thereafter within 12 months can attract less liability than in the case of murder even though the act or the conduct was accompanied with malice aforethought. But you must be satisfied that the accused was subject to such imbalance. Here, please bear in mind that accused has no burden to prove that. All what is necessary is the presence of some evidence to show that such a fact existed at the time of the wrongful act/conduct.
37. Infanticide is defined by our Penal Code. Section 205 provides that:
'where a woman, by a willful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from childbirth, then even where the evidence amounts to murder, she is guilty of the lesser offence of infanticide.'
38. The onus is on the prosecution to prove all the elements of the offence beyond reasonable doubt. If you are satisfied beyond reasonable doubt that the act or the conduct of the accused was due to her suffering from the after-effects of the childbirth and while the balance of her mind was disturbed as a result of childbirth, then you can find her 'not guilty of murder or manslaughter but guilty of infanticide'.
39. Manslaughter is the killing of a person without malice aforethought. If you are of the view that the accused killed her child at the time of giving birth or thereafter but she was not imbalanced or disturbed in her mind and that she could still have knowledge about the possible death of the child pursuant to her acts and the conduct, then you can find her guilty of the lesser offence of manslaughter.
40. If you are of the view that the accused killed her child at the time of giving birth or thereafter but she was not imbalanced or disturbed in her mind after child birth and that she had the malice aforethought or intention of killing the new-born by her acts and the conduct, then you can find her guilty of murder.
41. If you are of the view that the Accused did nothing unlawful by her acts or conducts or you have a reasonable doubt about that, then you must find the Accused not guilty of any offence.
42. Remember that the onus of proving the Accused's guilt rests on the prosecution at all times.
43. In summary the prosecution says that the unlawful act committed by the accused and her conduct was with malice aforethought to cause the death of her new born child. Defence says that the delivery of the child and her pregnancy had disturbed her mind and lost balance when she committed the act and the conducted herself in the manner in question and she did not have the malice aforethought.
44. In considering what to accept you must look at the evidence objectively and not to be swayed by emotion. This is indeed a tragic case, and says more about the shortcomings of society than it does about the accused.
45. However the first question for you is whether the accused killed her baby, not by accident or mistake, but by an unlawful act, with intent to kill, or recklessly knowing that death or serious injury was likely. If you are satisfied so that you are sure that she killed her baby with malice aforethought and not by accident, and not while suffering from post-natal or post-partum depression, you can find her guilty of murder.
46. If you are satisfied beyond reasonable doubt that she could not have the intention but only the knowledge of the death of the child as a result of her act or conduct then you can find the accused guilty only of manslaughter.
47. If you are satisfied beyond reasonable doubt, that the accused acted with malice aforethought and intended to kill the baby or to cause him serious harm but she was confused and irrational, that she could not form any such intention and that If you think that she could not form such intention and she did not have knowledge due to the imbalance in her mind after child birth, which I explained fully before, or if you have a reasonable doubt about it, then you can find her not guilty of murder or manslaughter but guilty of infanticide.
48. I will reiterate that if you are satisfied beyond reasonable doubt that the accused had malice aforethought, you must consider whether at the time of the incident the balance of her mind was disturbed by her not having fully recovered from childbirth. If you think she was suffering from such mental instability or have a reasonable doubt about it, you must find her not guilty of murder or manslaughter but guilty of the lesser offence of infanticide. It is not for the defence to prove that the accused was suffering from post-natal depression. It is for the prosecution to prove that she was not. What evidence may help you to decide this? The evidence of the Consultant Psychiatrist Dr S. Narayan of St Giles Hospital, that her mind could have got affected, and that it would have been possible that it caused a mental imbalance. On the whole of the evidence in the case, including the evidence on the circumstances under which she delivered the baby, and her own evidence. After considering all that do you consider that she was suffering from post-natal depression and killed her baby as a result? That is entirely a matter for each one of you to decide.
49. Remember that the burden of proving the accused's guilt rested on the prosecution at all times.
50. If you find that the act or conduct of the accused involved no any unlawful act, then you can find her not guilty of anyone of the above.
51. Your possible opinions are:
52. Madam assessors and 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 charge 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.
I thank you for your patient hearing to my summing-up.
You may retire to consider your opinions now.
Priyantha Nawana
Puisne Judge
At Lautoka
19 August 2010
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URL: http://www.paclii.org/fj/cases/FJHC/2010/350.html