State v Nath [2013] FJHC 65; HAC58.2012 (22 February 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 58 of 2012

BETWEEN:

THE STATE

AND:

JAGAN HATH

Counsel: Mr. M. Maitava for State
Ms M. Lemaki [Duty Solicitor] for Accused

Date of Hearing: 17 – 18 January 2013
Date of Judgment & Sentence: 22 February 2013

JUDGMENT & SENTENCE

[1] Jagan Nath (the Accused) is charged with the following offences:

FIRST COUNT

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

JAGAN NATH on the 17th day of September 2012 at Vunivau, Labasa in the Northern Division, murdered AMRA WATI.

SECOND COUNT

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

JAGAN NATH on the 17th day of September 2012 at Vunivau, Labasa in the Northern Division, murdered MADHO.

THIRD COUNT

Statement of Offence

ATTEMPTED MURDER: Contrary to sections 44 and 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

JAGAN NATH on the 17th day of September 2012 at Vunivau, Labasa in the Northern Division, attempted to murder GYATRI DEVI.

[2] On 17 January 2013, the Accused appeared in person, and pleaded guilty to the charges. Since the Accused was unrepresented, the Court advised him of the consequences of pleading guilty to murder. The case was stood down for the Accused to obtain independent advice from the duty solicitor at the Legal Aid Commission.

[3] When the case was later called in Court, Ms Lemaki appeared on behalf of the Accused and advised the Court that the Accused maintained his guilty pleas. The Court then ascertained from the Accused whether he was freely and voluntarily pleading guilty to the charges. The Accused advised the Court that he understood his rights and that the decision to plead guilty was his own.

[4] Plea was re-taken. The Accused pleaded guilty to all three counts. Facts were tendered and read out by counsel for the State. The Accused admitted the facts after doing minor alterations.

[5] Ms Lemaki requested the Court for an adjournment until the next morning to prepare and present the mitigation on behalf of the Accused.

[6] On 18 January 2013, Ms Lemaki applied to the Court to vacate the guilty pleas on the ground that the defence of provocation was available to the Accused.

[7] When the Court explained the law on provocation to counsel and tried to ascertain how the defence of provocation was available on the admitted facts, the Accused advised me that he wanted to have a word with his lawyer.

[8] The Court acceded to the request and stood down the case. When the case was re-called, Ms Lemaki withdrew her application to vacate the guilty pleas.

[9] The Court advised counsel that her application would be considered after I have heard the mitigation.

[10] The Court also received sworn evidence on victim impact from Gyatri Devi. Counsel for the State submitted the post mortem reports of the two deceased and the medical report of Gyatri. Ms Lemaki after consulting the Accused told the Court that the Accused had no objection for the Court to read and consider his caution interview.

[11] The case was adjourned to take the matter of leave to withdraw the application to vacate the guilty pleas under consideration. The Court advised the Accused that if leave to withdraw his application to vacate his guilty pleas is allowed, the Court would proceed to sentence him.

[12] The Court no doubt has discretion to vacate a guilty plea anytime before sentence (R v Marylebone Justices (1971) 1 All E.R. 1025). The principles governing the exercise of that discretion are settled. A plea of guilty must be unequivocal and entered with a full understanding of the charges (Mohammed Khalil v Reginam 24 FLR 78). For the guilty plea to be valid it must be a genuine consciousness of guilt voluntarily made without any form of pressure, promise or inducement to plead and is entered in the exercise of a free choice (Nalave v State [2008] FJCA 56; AAU0004.2006; AAU0005.2006 (24 October 2008).

[13] It is also recognized that a guilty plea should not be accepted if there is some basis to suggest the accused may have a defence. In Rajendra Samy v The State Criminal Appeal No.AAU0019 of 2007, the Court of Appeal adopted a passage from Blackstone 2011 at par D12.93, which I find relevant to the issue in this case:

"If an accused purports to enter a plea of guilty but, either at the time he pleads or subsequently in mitigation, qualifies it with words that suggest he may have a defence (e.g. 'Guilty, but it was an accident or Guilty, but I was going to give it back'), then the court must not proceed to sentence on the basis of the plea but should explain the relevant law and seek to ascertain whether he genuinely intends to plead guilty."

[14] The Court has no difficulty in accepting that the Accused's decision to plead guilty was made freely and voluntarily. Further, the Accused appreciates the nature of the charges and the consequences of his guilty pleas. The facts tendered in support of the charges and admitted by the Accused lead this Court to conclude that the pleas are unequivocal. The issue is whether the defence of provocation is available to him.

[15] Section 242 (1) of the Crimes Decree provides:

"When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in sub-section (2), and before there is time for the passion to cool, he or she is guilty of manslaughter only.

[16] Section 242(2) states that the term "provocation" means "any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him or her of the power of self-control and to induce him or her to commit an assault of the kind which the person charged committed upon the person whom the act or insult is done or offered".

[17] Clearly, provocation is not a complete defence. Its effect is to reduce murder to manslaughter. Provocation is not available on the charge of attempted murder that the Accused is charged in count 3.

[18] Moreover, provocation operates only when the act causing death is done in the heat of passion caused by sudden provocation, that is, before there is time for such passion to cool.

[19] The facts are that the Accused married the deceased, Amra Wati on 19 October 2005. Both, the Accused and the deceased were previously married. When the Accused married her, she was a widow with grown up children. The second deceased, Madho was Amra's father-in-law from her first marriage. The third victim, Gyatri Devi was Amra's daughter from her first marriage. Apparently, the Accused and Amra did not have any children of their own. At the time of the murder and attempted murder, Madho and Gyatri lived with Amra at Vunivau Temple Road, Labasa.

[20] When the charges arose, the Accused was 57 years of age and a retired maintenance technician. Amra was 52 years of age, Madho was 92 years old and Gyatri was 23 years old. The Accused is originally from Vunivau, Labasa. He has lived and worked in USA for 22 years. Counsel for the Accused informs the Court that he is diabetic.

[21] After getting married to Amra, the couple settled on a long distance relationship accompanied by frequent visits to each other's place of domicile in Fiji and USA. It was not to long after marriage the Accused became suspicious about Amra's faithfulness towards him. The suspicion was based on rumours regarding Amra having extra-marital affairs with two other men when the Accused was in USA. In addition, Amra had brought her father-in-law and daughter from her first marriage to reside with her in her home in Vunivau. According to the Accused, the house was a matrimonial home after he cleared the mortgage that existed over the property when he got married to Amra. The Accused felt betrayed and unappreciated when on one occasion Amra's son from her first marriage threatened to kill him. All these frustrations and anger led the Accused to hatch a plan to kill Amra, Madho and Gyatri. The Accused felt that these three people were living off his earnings but were not loyal and faithful to him.

[22] A day before the killings, the Accused had left two axes inside the living room. One axe had a metal handle and the other had a wooden handle. At around 1 am, he went outside his house and switched off the main electricity. When he returned inside his home he locked up the doors. Amra was sleeping on her matrimonial bed in her bedroom. Madho and Gyatri were sharing one bedroom. Amra was attacked first. After striking Amra with the wooden handle axe, the Accused stood by her body to make sure she was dead. When he realized she was motionless, he grabbed the metal handle axe and walked towards Madho and Gyatri's bedroom.

[23] By this time, Gyatri had woken up and was heading towards the kitchen. The Accused saw Gyatri walked out of her bedroom. The Accused entered Madho's bedroom and struck him several times with the axe. After striking Madho the Accused made his way to the kitchen. After entering the kitchen, the Accused without hesitation struck Gyatri several times with an axe. Gyatri fell down on the floor. The Accused thought she was dead. He then made his way to the hand basin near the washroom to wash his hands. As he was about to reach the basin, he heard of someone opening the front main door of the house which he had locked earlier. He realized that Gyatri was alive. He ran after her, but by that time Gyatri was outside and managed to raise alarm by screaming for help. A quick response by two male relatives who lived next door saved Gyatri. The relatives overpowered the Accused and snatched the axe from him.

[24] On the facts admitted by the Accused there was a lot of thought put in by the Accused to execute the killings. There is no evidence of any wrongful act or insult done by Amra or Madho to cause the Accused to react in a heat of passion. Madho was an elderly man cared by her relative. He did not do any provocative act to cause the Accused to react the way he did on the night in question. The Accused suspected Amra was unfaithful but there is no suggestion that the Accused walked into his bedroom and caught his wife with another man. In his caution interview the Accused told the police the reason he killed his wife:

Q260. Mr. Jagan Nath, now can you tell the police as to why you killed your wife Amra Wati by striking with an axe?

A260. I reached the boiling point inside me and it was the time to explode.

Q261. What do you mean by saying "boiling point" and "explode"?

A261. Because of the two affairs my wife was having with two men.

Q262. What kind of affairs are you meaning now?

A262. Like a social affairs. A married woman socializing with another married man whilst the womans husband is away to the other side of the world.

Q263. So how this social affairs affect you and your wife?

A263. This applies to my wife whilst I was away in US.

Q264. How can you say that your wife was having affairs outside?

A264. Some times this year, one H C of the same settlement informed me that my wife was seen around with one J G... whilst I was away to US.

...

Q270. What else do you wish to say about the affairs of your wife?

A270. After questioning my wife, she also revealed once R S had called her to come and see him personally. I don't know why. That was the time I knew that something fishy is going around and I started to suspect my wife having affairs with him.

Q271. Was this the main reason behind you killing Amra Wati?

A271. Yes, when I felt suspicious of her having affairs that made me angry and lose my temper. It created volcano inside me and that made by mind to kill her and that's what I did. There was nothing short inside the house, food, clothing, paid bills on time, fed the family and despite that she was having affairs when I used to be away which angered me and made me kill her. Additionally I bought a private car for my wife to use.

[25] Given what the Accused told the police, it is fair to conclude that an ordinary person of the sex and age of the Accused, of the same cultural background and of the same upbringing and education as the Accused would not have killed on rumours and suspicion about his spouse being unfaithful in his absence. Even a "last straw" limb of provocation does not apply to killing based on rumours and suspicion. It is clear from the facts of this case that the Accused planned the attack in revenge for Amra being unfaithful based on suspicion and that he had not suffered a sudden loss of self-control as a result of a wrongful act or insult either by Amra or Madho.

[26] For these reasons, I grant leave to the Accused to withdraw his application to vacate his guilty pleas. I convict the Accused on each count and I now proceed to pronounce sentence.

[27] The maximum sentence for murder and attempted murder is life imprisonment. Section 18 of the Sentencing and Penalties Decree permits the Court to fix a period during which the offender is not eligible to be released on parole.

[28] In the Accused's favour are his early guilty pleas, previous good character and personal circumstances. He has been in custody on remand since 17 September 2012 which this Court takes into account.

[29] On the other hand, there are serious aggravating factors present. The attack on the victims was ferocious as revealed by the post mortem reports of Amra and Madho and the medical report of Gyatri. Weapon, namely an axe was used to inflict the injuries. I adopt what is stated in the medical reports.

[30] Post mortem report of Amra Wati states:

EXTERNAL EXAMINATION:

Brief Clinical History: Assaulted during sleep. Right side of face was deformed and covered with blood.

Clothing: Body was wrapped in white sheet, soaked in blood.

Marks of violence, or identification, e.g. tattoo marks, old scars. Body was soaked in blood and blood clots.

1.Well nourished female of good built.

2.Right side of face was deformed.

3.Blood was coming out from mouth and nostrils and Right ear.

4.A large lacerated wound on Right cheek, transverse 8 x 3 x 4.5 am.

5.Right ear lacerated at ear lobe 2.5 x 0.5cm transverse.

6.A lacerated wound n Right side below angle of mouth, 2cm below, transverse 2cm x 1cm, muscle deep.

7.Number 4 wound – exposed bones, fractured maxilla in multiple pieces, Right upper jaw fractured from middle, mandible ramus fractured maxilla in multiple pieces, Right upper jaw fractured from middle, mandible ramus fractured after 2 teeth from midline.

- All tissue was crushed at this wound.

Bones reveal crackle sound.

INTERNAL EXAMINATION:

Scalp, Skull, Brain: (weight, g) Subdral haemorrhage at Left occipital and parietal region and base of skull and on brain stem. Base of skull was fractured. Anterior and middle cranial fossa on Right side were fractured in multiple pieces including sella turcika and middle cranial fossa on Left side (junction of anterior and middle fossa).

Cause of death was:-

(a) Multiple fracture-base of skull, right side of maxilla and mandible.

[31] Post mortem report of Madho states:

EXTERNAL EXAMINATION:

Marks of violence, or identification, e.g. tattoo marks, old scars:

Shirt was cut Corresponds with injuries

1. Elbow collar on left side
2. Cut in front of chest below manubrium
3. Cut an stretched on left side abdomen
4. Soaked in blood
   

Lacerated wounds

1. Left hand cut completely at wrist joint.
2. Left arm cut on lateral side 5cm x 2cm – Radius and ulna bones.
3. Left side chest above costo-chondral margin 10 x 2cm incised wound 0.7cm deep in the middle, oblique.
4. Front of chest, middle and right side 11 x 4.5 x 6cm up to heart.
5. Base of neck and front 12 x 5cm trans verse, up to muscle.
6. Base of jaw 14 x 3 x 12cm deep. Vertebral column was cut, piece of mandible on right side with lower edge.
   

Jaw incised wound – (6) external injuries. All the vessels were cut on both sides except right internal carotid and Left carotid C 4 – 5 separated apart, fractured at arch. Only skin and part of muscles left. This injury was in continuation with injuries number 7 – 8.

INTERNAL EXAMINATION:

Cardio Vascular System:

Pericardium: Reveals 8 x 6cm laceration obliquely and vertically.

Heart: (grm) Pale

Chest incised wound: Right side 3rdrib, sternum, 4th, 5th ribs on left side were incised obliquely along with incised wound number 4.

Aorta: Was completely excised along with pulmonary trunk (partially) and incised wound on Right atrium 3 cm vertically long and 1cm on lower side of Right ventricle. Piece of rib was found in pulmonary trunk.

Cause of death was:-

(a) Hypovolemic shock due to multiple Incised injuries

(b) Vertebral column and Spinal cord incised.

[32] Medical Report of Gyatri Devi states:

This patient was admitted to our hospital on 17/9/12 after been assaulted with a sharp object (axe).

These were the injuries sustained:

1. 7cm long laceration above the forehead with a dirty fractured skull and intra-cerebral haematorma.
2. Deep laceration upper back mid-line 12cm deep and 7cm wide.
3. Superficial laceration anterior upper chest wall approximately 6cm long.
4. Deep laceration right forearm posteriorly approximately 6cm with open fracture lna.
5. Deep laceration left forearm posteriorly approximately 6cm long 4cm deep.
6. Laceration of second finger intensly at Zone II with severed flexor tendons.
7. Superficial laceration right of umbilicus approximately 5cm long, ½ cm deep.
8. Deep laceration right mid thigh about 6cm long severed vastus anterior and 7cm deep.
9. Deep laceration right knee approximately 7cm with fractured patella over knee joint.
10. Deep laceration right ankle approximately 7cm with fracture medical mallelus and severed tibialiss anterior.
11. Superficial laceration left knee approximately 6cm long and ½ cm deep.
    

The patient was rushed to hospital with a massive loss of blood, hypervolumesa and was resuscitated first before being planned for OT. All the bleeding were well controlled but she slowly deteriorated and patient showed clinical evidence of hemetorma in her brain. Gyatri was then treated in the intensive care unit and rushed to the operating room for emergency craniotomy and washout and closure of her wounds after a CT scan.

In the operation room the loose skull bone over her wound was mangled and dirty, very difficult to save some but carniectomy of the remaining area done to exposed part of the brain and a massive clot 4cm x 4cm was removed. A thorough washout was done and the patient was deteriorating further. Decision to urgently remove clots and wiring of ankle was made with another surgeon and rush her back to ICU.

Gyatri improved in ICU and the decision then to have the patella with tension band wire and fixed the flexor tendons of the hand index finger.

Gyatri underwent multiple operations to clean her wound and finally closed them. She underwent extensive physiotherapy to try and mobilise her and was sent home with appropriate medication on 24/10/12.

She continued to attend our clinic and physiotherapy but still complain of pain in the right knee and left finger.

[33] Gyatri also gave evidence of victim impact at the sentencing hearing. The injuries have left permanent scares on her forehead and body. She now requires full time care. Her mobility is limited. She walks with support and she is unable to sleep well at night.

[34] The Accused no doubt was in a position of trust and under moral duty to protect the members of his household. He breached that trust and duty by slaying his wife and father-in-law with an axe. He intended to kill his step-daughter, Gyatri, but fortunately she survived, but to live with the horror and scars of the attack on her. The Court has a duty to pass a sentence that denounces and deters crimes of this nature.

[35] Ms Lemaki refers to the case of Waqanivalu v State Criminal Appeal No. CAV 0005 of 2007 (27 February 2008) for guideline to fix a non-parole period. In that case, the offender pleaded guilty to five counts of murder and one count of attempted murder. The victims were young lovers. The offender repeatedly bashed them with a heavy stone or iron bar. A non-parole period of 19 years was fixed, to be served consecutively with a pre-existing sentence of 10 years imprisonment for unrelated offences. In effect, the total sentence was 29 years imprisonment. The Supreme Court upheld the sentence on appeal.

[36] In Waqanivalu, the offender was a serial killer. The Accused in the present case is not a serial killer. This is not to say that the Accused's culpability is any less because of the less number of victims. What is relevant in assessing the criminality of the Accused is that the killings in the present case were cold-blooded like in Waqanivalu.

[37] In all circumstances of this case, 18 years is a just non-parole period and fairly reflects the criminality involved.

[38] Jagan Nath, please stand up:

For the murder of Amra Wati, I sentence you to life imprisonment.

For the murder of Madho, I sentence you to life imprisonment.

For the attempted murder of Gyatri Devi, I sentence you to life imprisonment.

[39] I fix one head non-parole period of 18 years for the three offences. This means that you may apply for parole after 22 February 2031.

[40] You may appeal against your sentence to the Court of Appeal with the leave of that Court within 30 days.

Daniel Goundar
Judge

At Labasa
Friday 22nd February 2013

Solicitors:

Office of the Director of Public Prosecutions, Labasa for State
Office of the Legal Aid Commission, Labasa for Accused