State v Drau [2012] FJHC 983; HAC030.2009 (23 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 030 of 2009

BETWEEN:

STATE
PROSECUTION

AND:

EPELI ULUIKAVORO DRAU
ACCUSED-PERSON

Counsel: Ms Shelyn Swastika Kiran: For State
Mr. T. Terere : For Accused

Dates of Trial : 19-21 March 2012
Date of Summing-up : 23 March 2012
Date of Judgment : 23 March 2012

JUDGMENT

1. The accused stood charged in count No. (1) for having committed the offence of 'Manslaughter' on 13 March 2009. The accused also stood charged for committing offences of 'Robbery with Violence', 'Assault Occasioning Actual Bodily Harm' and 'Resisting Arrest' under counts (2), (3) and (4) respectively, according to the information filed by the Director of Public Prosecutions dated 19 March 2012.
   
2. After considering the evidence in relation to count Nos. (2) - (4) at the close of the prosecution case, court came to a finding that there was no sufficient evidence in relation to those three counts and acquitted the accused of the charges therein without calling for defence. At that stage, court decided to proceed with the charge in respect of 'Manslaughter' in count No. (1) and called for accused's defence. The accused remained silent and tendered his cautioned-interview statement marked as DE-1 in support of his case.
   
3. Evidence revealed that the accused was allowed into the house of the deceased-Prem Narayan, 50, when the latter was having a drinking session of grog with his sons Salesh Narayan, Vikash Narayan, neighbour-Sanjiv Mani and friend-Rajendra Prasad around 10.00 p.m. on 13 March 2009. The accused then got into acts of snatching cigarettes and asking for money from the deceased-Prem Narayan inside the shop, which was located adjacent to the house. In the process, the accused, who appeared to have been drunk at the time, pushed deceased-Prem Narayan and threw two punches on the face and the chest of the deceased. The deceased, upon receipt of the punches, fell backwards on the floor inside the shop. He became motionless and produced no heartbeat or pulses; and, was found to have been dead instantaneously.
   
4. Doctor K. D. Gounder, who conducted the post-mortem on the deceased-Prem Narayan, found lacerations in and around the mouth and bruises on the chin, the right maxillary area and on the right forehead. The doctor also observed internally sub-scalpular hemorrhage in the left tempero-parietal area, subdural and sub-arachnoid hemorrhages. The doctor opined that the external injuries were consistent with a blunt force, while the internal head injuries could have been caused by a forceful impact on a hard surface. At the autopsy, the doctor also observed that the deceased had an enlarged heart, which according to the doctor's opinion, was due to a long standing ailment in the heart.
   
5. The accused did not dispute the fact that he visited the place of the deceased on the date of the incident at the relevant time. Nor did he dispute snatching cigarettes or asking for money from the deceased inside the shop. Instead, the accused sought to establish that the deceased suffered a heart-attack in the course of the encounter he had with him [the deceased] and fell on the floor.
   
6. The doctor, in his expert analysis of the findings at the post-mortem examination, said that he did not observe that the reason for the death of the deceased was a failure of the heart. Instead, he was of the opinion that the immediate cause of death was the injuries caused to the head and the resultant extensive internal bleeding inside the brain.
   
7. It is in light of these findings that the evidence of the witnesses relating to the offence of manslaughter became to be considered by the assessors in this case. Upon consideration of the evidence, it was open for the assessors to form opinions that the unlawful acts of assault by the accused contributed to cause the death of the deceased having resulted in extensive internal bleeding inside the brain.
   
8. I have considered the evidence and my summing-up and find that the assessors were right in their opinions that all elements of the offence of manslaughter were proved beyond doubt on the basis of testimonies placed before court. In the circumstances, I agree with the unanimous opinions of the assessors. I accordingly convict the accused of the offence of manslaughter punishable under section 198 read with Section 201 of the Penal Code.
   

Priyantha Nāwāna
Judge
High Court
Lautoka
23 March 2012