State v Senimoli [2014] FJHC 944; HAC161.2012S (19 December 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 161 OF 2012S

STATE

vs

ASENA SENIMOLI

Counsels : Ms. A. Vavadakua for State
Mr. S. Waqainabete for Accused
Hearings : 15, 16, 17 and 18 December, 2014
Summing Up : 19 December, 2014

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.
   
6. Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   
   • (i) Did the accused, on 19 April 2012, at Wainimala Naitasiri, in the Central Division, murder her newborn child?
     

5. THE OFFENCE AND IT'S ELEMENTS

9. "Murder", as a criminal offence, has three essential elements. For the accused to be found guilty of "murder", the prosecution must prove beyond reasonable doubt, the following elements:

(i) that the accused did a wilful act; and

(ii) that wilful act caused the death of the deceased; and

(iii) at the time of the wilful act, the accused either;

(a) intended to cause the death of the deceased; or
(b) is reckless as to causing the death of the deceased.

10. On the first element of murder, a "wilful act" is a voluntary act by the accused. It is a feeling of strong determination to do something that she wanted to do. It is what she wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, A did a "wilful act". Likewise, if A wants to drown B in the river water. When A drowns B in the river water, A did a "wilful act" to B, by drowning her.

11. On the second element of murder, "the wilful act must cause the death of the deceased". This simply meant that the accused's wilful act, substantially contributed to the death of the deceased. The accused's wilful act must be a substantial contributor to the death of the deceased. In other words, the accused's wilful act was a substantial cause of the deceased's death. Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A's shooting B in the heart (wilful act) was a substantial cause of B's death. Likewise, when A drowns B in the river water, B couldn't breath and consequently, died. A, by drowning B in the river water (wilful act), set in motion a chain of events that led to B's death and as such, was a substantial cause of B's death.

12. The third element of murder concerned its fault element. There are two fault elements for murder, as described in paragraphs 9(iii)(a) and 9(iii)(b). In this case, the prosecution is running its case on the fault element in paragraph 9(iii)(a), that is, the accused "intended to cause the death of the deceased". We will therefore concentrate on this fault element, rather than the other. As a matter of common sense, it is not possible to look into a person's brain, to find out her intention, at the time, she did the physical element of murder. In other words, in the context of this case, it is not possible to look into the accused's brain, to find out her intention, at the time she drowned the deceased. However, throughout the centuries, the courts have often resolved this problem, by closely examining the accused's physical actions at the time, what she said, and the surrounding circumstances, to draw inferences of fact, as to her intentions. In other words, you must put yourselves in the shoes of the accused, and from her physical actions, spoken words and the surrounding circumstances, you should be able to find out her intentions, at the time she drowned the deceased. Continuing from the above examples, when A points a gun at B and shoots B in the heart, leading to severe injuries and the death of B, it could be inferred from the above facts that A intended to kill B. Likewise, when A drowned baby B in the river water, thereby stopping her breathing and B's resultant death, it could be inferred from the above facts that A intended to kill B. So, if you find, on the facts of the case that, all the above three elements of murder, are proven by the prosecution beyond a reasonable doubt, you must find the accused guilty as charged. If its otherwise, then you must find her not guilty as charged.

13. If you find on the evidence that, the accused is guilty of murder, you must then pause, and consider what the defence raised in their closing submission. They are asking you for a guilty verdict on the offence of "infanticide". "Infanticide" is a partial defence to the offence of murder. Even if the prosecution succeeds in establishing the offence of murder in this case beyond a reasonable doubt, if the defence succeeds in establishing "infanticide" on the balance of probabilities, the accused shall not be guilty of murder, but guilty of infanticide. In other words, if the defence succeeds on "infanticide" as a defence, it reduces murder to the lesser offence of infanticide. The offence of "infanticide", is contained in section 244(1) of the Crimes Decree 2009, which reads as follows:

"...(1) A woman commits...infanticide if:

(a) she, by any wilful act...causes the death of her child; and;

(b) the child is under the age of 12 months, and

(c) at the time of the act...the balance of her mind was disturbed by reason of:

• (i) her not having fully recovered from the effect of giving birth to the child; or
  
• (ii) the effect of lactation consequent upon the birth of the child; or
  
• (iii) any other matter, condition, state of mind or experience associated with her pregnancy, delivery or post-natal state that is proved to the satisfaction of the court..."
  

The burden to prove the matters mentioned in section 244(1)(c) above is on the defence, on the balance of probabilities. If you find, on the facts that, the case fulfilled the requirements of section 244 abovementioned, you may find the accused not guilty of murder, but guilty of infanticide, although she was not formally charged with the same. In fact, the defence invites you to find the accused guilty of infanticide. It is for the prosecution to disprove infanticide in this case, and in their closing submission, they say, infanticide does not apply.

F. THE PROSECUTION'S CASE
14. The prosecution's case were as follows. On 19 April 2012, the accused was 26 years old. She was brought up by her grandfather (PW4) in a village in Naitasiri. The grandfather looked after her through primary and secondary schools, and provided all material and emotional needs. She didn't know her biological father until she was in Form 6. According to her grandfather the accused was a good granddaughter. Sometime in December 2011, the accused went to live with her mother and step-father in Nadi. The couple had two sons and daughters.

15. At the age of 23 years, the accused had her first child. The child was again taken to her grandfather to look after. While in Nadi, the accused complained that her mother and step-father treated her more as a house girl than as a daughter. According to her, she did all the domestic chores. She found a boyfriend and went out with him for 2 years. A child was conceived out of this relationship. At the time, she was working as an office girl at Nadi Fiji Post. In January or February 2012, she was already 6 months pregnant. She didn't tell anyone that she was pregnant.

16. Sometime in early 2012, her grandfather (PW4) came to Nadi and took the accused to the village to look after him, and her grandmother. Her grandmother was sickly. She never told her grandparents that she was pregnant. On 19 April 2012, at about 3am in the early morning, the accused began to experience severe labour pains. She went down to the Wainimala river, sat near a rock and sand beside the river, and gave birth to a baby daughter. Thereafter she walked into the river to where it was knee deep. She placed the child's umbilical cord on a stone protruding the river's water surface, and cut the same by knocking another stone on the same. The umbilical cord was cut. She later held the child, sought forgiveness from her, kissed her, and put her into the water. She later returned to her home.

17. In the morning, the child's dead body was found by villagers floating in the river. It was taken to the village nursing station. An investigation was carried. The accused was located. She was caution interviewed by police on 20 April 2012, at Vunidawa Police Station. She was later charged for the murder of her new born baby. According to the prosecution, she intentionally killed the child by drowning her at the material time and asks you, as assessors and judges of fact, to find her guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE
18. On 15 December 2014, the first day of the trial, the information was put to the accused, in the presence of her counsel. She pleaded not guilty to the charge. In other words, she denied the murder allegation against her. When a prima facie, case was found against her at the end of the prosecution's case, wherein she was put to her defence, she choose to give evidence and call two witnesses, in her defence. That was her right.

19. In her sworn evidence, she admitted she drown her new born child, at the material time. She did not challenged her police caution interview statements, which were tendered as Prosecutions Exhibits No. 1(a) – hand written i-taukei version; 1(b) – typed i-taukei version and 1(c) – typed English version. In Questions and Answers 47 to 51 of Prosecution Exhibit 1(c), she confirmed drowning her baby. In their closing submission, defence counsel said that they are not disputing element no. 1 and 2 of murder, as described in paragraph 9(i) and 9(ii) hereof, that is, they admit the accused drowned her baby at the material time, and that caused her death.

20. However, they dispute the accused intended to cause her death. They said, the accused is guilty of infanticide and invite you to find her guilty of infanticide. They appear to say that the accused, when drowning the baby at the material time, had not fully recovered from the effect of giving birth to the child and she was extremely stressed and depressed given the circumstances surrounding her pregnancy. The defence appear to say that at the time she drowned the baby, the balance of her mind was disturbed because of the abovementioned factors. Because of the above, they are asking you, as assessors and judges of fact, to find the accused not guilty of murder, but guilty of infanticide. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
(a) Introduction
21. In analysing the evidence, we will first consider the accused's alleged confessions in her police caution interview statements, then we will examine the three elements of murder as described in paragraph 9(i), 9(ii) and 9(iii)(a) hereof, and whether or not the prosecution had proved those elements beyond a reasonable doubt, and last we will look at the partial defence of infanticide and whether or not it is available to the defence.

(b) Accused's Police Caution Interview Statements: Prosecution Exhibit 1(a) – handwritten i-taukei version; 1(b) – typed i-taukei version, and 1(c) – typed English version:
22. On 20 April 2012 – a day after the alleged murder – the accused was caution interviewed by police at Vunidawa Police Station. She was given the standard caution, her right to counsel, and the standard meal and rest breaks. She was asked a total of 63 questions and she gave 63 answers. In questions and answers 61, 62 and 63, she said she gave her statements to the police voluntarily and out of her own free will. The defence did not challenge the admissibility of her statements in a "trial within a trial". So, if you are sure that the accused gave her caution interview statements voluntarily and out of her own free will, you may use her statements as evidence against her, or for her, if you accept that she is telling the truth.

23. From questions and answers 7 to 31, in Prosecution Exhibit 1(c), the accused described her background, and what she did before she gave birth on 19 April 2012. Consider these statements carefully because they are relevant to the defence's argument that the accused was guilty of infanticide. Remember, in examining her "balance of mind" at the time she drowned the baby, her "conditions and experiences associated with her pregnancy" are relevant as to why her "balance of mind" was disturbed, at the relevant time. Furthermore, from questions 32 to 51 of Prosecution Exhibit No. 1(c), the accused admitted giving birth to a female child, at the material time, and thereafter drowning her in the river. You must consider these statements carefully, because they are both relevant to the allegation of murder, and the defence's argument on "infanticide". For murder, the accused's statements are relevant to the three essential elements of murder as described in paragraph 9(i), 9(ii) and 9(iii)(a) hereof. They are also relevant to the elements of "infanticide" as described in paragraph 13 hereof, as reasons for her "balance of mind to be disturbed", at the material time.

(c) First Element of Murder – Accused did a wilful act [Paragraph 9(i) hereof]:
24. It is the prosecution's case that the accused drowned her newly born baby in the Wainimala river, at the material time. The defence does not dispute the prosecution's case on this issue. In fact, the accused, in her sworn evidence, admitted the above. She also admitted the above when caution interviewed by police. So, the prosecution's case that the accused did a wilful act (ie. drowning her baby) at the material time, appeared satisfied beyond a reasonable doubt. However, it is a matter entirely for you.

(d) Second Element of Murder – Accused's Wilful Act Caused the deceased's death [paragraph 9(ii) hereof]:
25. It is the prosecution's case that, the accused's wilful act of drowning the baby at the Wainimala river at the material time, was a substantial cause of the baby's death. The prosecution submitted the baby's post-mortem report as Prosecution Exhibit No. 3. In the report, Doctor R. P. S Gounder (PW6), the pathologist who conducted the baby's post-mortem, said the cause of the baby's death was asphyxia due to drowning, on 19 April 2012. The defence does not dispute the prosecution's theory on this issue. They said so, in their closing submission. So, the prosecution's case that the baby's drowning by the accused was a substantial cause of her death (wilful act caused deceased's death), appeared proven beyond a reasonable doubt. However, it is a matter entirely for you.

(e) Third Element of Murder – Accused, at the time of drowning the baby, intended to cause her death [paragraph 9(iii)(a) hereof]:
26. It is the prosecution's case that when the accused drown the baby, at the material time, she intended to cause her death. When dealing with this issue, you must take on board what I told you in paragraphs 9(iii)(a) and 12 hereof. As we have discussed in paragraph 12 hereof, we cannot cut open the accused's head and examine her brain to find out her intentions, at the material time. We will have to look at what she did and said, at the material time, and the surrounding circumstances, to make inferences of fact as to her intention at the material time. In the 9 months of her pregnancy, the accused had kept the same a secret from her family and boyfriend. When she had labour pains on 19 April 2012 at about 3am, she walked alone to the Wainimala river, which was beside her village. She sat near the river, pushed once and gave birth to a female child. She walked to the river, placed the child's umbilical cord on a protruding stone, and cut the same by smashing another stone on the same. Then, according to her, she stoop up with the child, step forward into the river, kissed the baby and apologized to her. She said, she told the baby that she would throw her into the river. Then, in her police statement, she said, she asked the Lord for forgiveness. Then she placed the child in the water. She had kept this pregnancy a secret from everyone, and did not consult the medical authorities at any time whatsoever. In my view, the above facts strongly point to the inference that the accused intended to kill the baby, at the time she drowned her. This is so, despite the defence arguing otherwise. However, it is a matter entirely for you.

(f) The defence of Infanticide – an alternative to murder:
27. In their closing submission, the defence asked you to find the accused guilty of the offence of "infanticide", rather than "murder". In considering this matter, you must take on board what I said in paragraph 13 hereof. The purpose of the legislation concerning "infanticide", as expressed in section 244 of the Crimes Decree 2009, was to "afford women mitigation from the consequences of murder where the balance of their minds had been disturbed through childbirth".

28. Even if you have found her guilty of murder, you have to ask the following questions: At the time she drowned the baby, was the balance of her mind disturbed? If so, was it because she had not fully recovered from the effect of giving birth to the child? Or, was it because of the effect of lactation consequent upon the birth of the child? Or, was it for any other matter, condition, state of mind or experience associated with her pregnancy, delivery or post-natal state? As I have said before, you will have to consider and answer these questions, even if you have reached the conclusion that the State had proven the three elements of murder described in paragraph 9(i), 9(ii) and 9(iii)(a) hereof, beyond a reasonable doubt. Your enquiry will involve looking at the fact as it unfold on 19 April 2012 from 3am, when she experienced extreme labour pains to when she returned home after drowning the baby. Then you will have to look at the surrounding circumstances regarding her life, from birth until she experienced the labour pains at 3am on 19 April 2012. Then you will have to consider her conditions and state of mind after the alleged offence. What we are looking to see and discover was whether or not the above factors, individually or collectively, had disturbed the balance of her mind, at the time she drowned the baby. What she did may be wrong or naïve from a reasonable person's point of view, but it is crucial that the above factors must disturb her balance of mind, at the time she drowned her baby. If you find that her balance of mind was disturbed as a result of the factors mentioned above, you must find her not guilty of murder, but guilty of infanticide. If its otherwise, then you may find her guilty of murder, if you have already reached that conclusion. In any event, it is a matter entirely for you.

I. SUMMARY
29. Remember, the burden to prove the accused's guilt beyond a reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

30. Your possible opinions are as follows:

(i) Murder : Accused : Guilty or Not Guilty

Alternative of Infanticide if not guilty of Murder

Infanticide : Accused : Guilty or Not Guilty

31. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.