State v Miramira - Summing Up [2015] FJHC 766; HAC62.2015 (12 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 62 OF 2015

STATE

V

VILIVE MIRAMIRA

Counsel : Mr. S. Babitu with Ms. W. Uce for State
Mr. K.Tunidau for Defence

Date of Trial : 05th October – 07thOctober 2015
Date of Summing Up: 12thOctober, 2015

SUMMING UP

1. Ladies and Gentleman Assessors, it is my duty to sum up to you. The object or purpose of a summing-up is to help you in forming your opinion of this case. You and I are trying this case together and your opinions will weigh heavily with me when I make my final decision. In my summing up 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 Counsel have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as Counsel 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 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 but it would be desirable if you could agree on them.

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 innocent until he is proved guilty.

5. The standard of proof in a criminal trial is one that 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.

7 In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth.

8. Agreed Facts

1. It is agreed that Vilive Miramira is the accused in this case.

2. It is agreed that Lora Nai is the deceased in this case.

3. It is agreed that deceased and the accused were in a de-facto relationship.

4. It is agreed that the deceased and the accused had started a relationship in 2014 and since then accused brought the deceased to live with him in his village in Dalomo in Yasawa.

5. It is agreed that on the 14th of March 2015, the deceased was taken to Teci Nursing Station and she was examined by a staff nurse by the name of Shalini Lata.

6. It is agreed that on the 14th of March 2015, accused came to the nurse and informed the staff nurse Shalini Lata that deceased was experiencing severe headaches

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

The charge against the Accused is:

Statement of Offence

MANSLAUGHTER: Contrary to Section 239 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VILIVE MIRAMIRA on the 27th day of March 2015, at Yasawa in the Western Division, unlawfully killed Lora Nai.

10. Let me now deal in more detail with the charge or information in this case. Ladies and gentleman Assessors, on a charge of Manslaughter the Prosecution must prove or establish three elements or ingredients beyond all reasonable doubt.

Those are:

First that the accused Vilive Miramira committed an 'unlawful act' upon the deceased Lora Nai i.e. an act committed without any excuse or reason which would render it lawful for example if the act was committed in self-defence;

Secondly the prosecution must also establish that the 'unlawful act' was a substantial cause of the death of Lora Nai; and

Thirdly, that the accused Vilive Miramira was aware or must have known or recognised that his 'unlawful act' was likely to subject the deceased Lora Nai to the risk of serious harm.

11. An unlawful act is simply an act not justified in law, for example punching, stabbing, strangling, suffocating are all unlawful acts. This is the physical element of the offence of Manslaughter. In this case, the Prosecution says Lora Nai's death was ultimately caused by an act of the Accused that is punching on the head.

12. The second element the State must prove is that the unlawful act caused the death. This simply meant that the unlawful act, substantially contributed to the death of the deceased. The pathologist said that Lora Nai died from Meningitis and Pneumonia and those conditions would almost certainly have been caused by an infection after blunt trauma. State must prove that infection was the ultimate result of punching on the head as is alleged.

13. Thirdly the Prosecution must prove that the accused has been reckless as to whether his conduct will cause serious harm to the victim. In Manslaughter, the accused must intend to cause serious harm, or was reckless as to causing serious harm to the deceased.

Case for the Prosecution

14. Let me now deal with the prosecution's evidence. First witness for the Prosecution was father of the deceased Tomasi Katakata. He said that her 17 year old daughter, Lora Nai was living with the Accused as husband and wife for seven months. On 14th March, 2015 he received a message that her daughter had been taken to a hospital. He went to see Lora at Teci village Hospital on Saturday. Lora complained of headache. She was then transferred to Lautoka hospital on Sunday.

15. Next witness for the Prosecution was Ame Tuidamu. He said he was a farmer and the Village Headman of Teci village. When he was at home, Vilive brought Lora to his house around 2 a.m. on 14th March 2015, because she was sick. Then Vilive took Lora to a nurse at Teci Nursing Centre and came back with nurse Lata. Nurse had examined Lora and found no boil on her head. Nurse Lata wanted him to inquire from them whether they had a fight. They admitted having had an argument and the Accused admitted that he punched Lora. Lora said the area he punched was paining. Tuidamu said that he did not observe a boil on Lora's head when she visited him twice that morning.

16. Under cross examination, Tuidamu said that it was Vilive who first confessed that he punched Lora on her head. Uponbeing questioned referring to the statement he had given to Police on 10th April 2015, he admitted that nowhere in the statement is it recorded that Vilive had admitted punching Lora on her head. Tuidamu later admitted having stated to Police that it was Lora who told him, not Vilive, that she was punched by Vilive three weeks ago.

17. Next witness for the Prosecution was Akosita Rokomatu, mother of the Accused. She said that she was residing in Dalomo village with her son Vilive. When she was asked if anybody else was residing with her she mentioned only Joseva's name. She first denied that Vilive was in a relationship with anyone. When she was asked whether Lora was also staying with them in 2014, she admitted and said Lora was living together with Vilive in a de- facto relationship.

18. She said relationship between Lora and Vilive was very good and she could not recall anything that had happened between them during 2014. Then she was shown the statement she had given to Police. She admitted her signature therein. At that stage, an application was made,in your absence, by the Prosecutor to make the witness hostile to the Prosecution and sought permission to cross examine her. Court allowed the application of the Prosecution and granted permission to cross examine its own witness.

19. Under cross examination, Akosita admitted a rule having been issued by Villive preventing Lora from smoking and drinking grog. She also admitted that Lora had breached that rule. However, she denied that Vilive had punched Lora when she disobeyed that rule. Akosita admitted the incident of Lora going to drink grog at night and returning home with one Adi while Villive was away. She admitted that Vilive had hit Lora on her body and legs with a broom stick when he found out that Lora had gone out drinking Grog. However, she denied Vilive punching Lora on her head at any time. She also denied Vilive assaulting Lora with a coconut stem on her body and head.

20. Next witness for the Prosecution was Taione Momo. He said that he was the Village Headman of Dalomo village during early part of 2015. He described an incident he witnessed during the month of February 2015 when he was sitting under a Mulomulo tree in his compound. He said that he saw Lora was being beaten up by her boyfriend Vilive with a coconut stem in front of his house. Vilive's mother was standing at the door step at that time. He saw Vilive hitting Lora on her back and shoulders. He went to Vilive and asked him to stop. Lora's brother came and took her to her uncle's house. He further said that it was not the first time that he had seen Lora was being beaten up by Vilive. On the next day, both Lora and Vilive came to his house seeking forgiveness since he and Lora's father are brothers.

21. Under cross examination, describing the nature of the whacks, Momo said that it was full swings with a green coconut stem without leaves about six inches wide and about two meter long. He said he saw five whacks being dealt on her back and shoulders.

22. The next witness was Shalini Lata, the nurse based at Teci Nursing Station. She said that on 13thMarch, 2015, around midnight, Lora came with her de facto husband Villie, two villages, Tulia and Livinai, and complained of severe headache.

23. Tulia and Livinai said that Lora is having a boil on her head. But she only noticed a swelling on back of her head. After consulting the medical officer she gave procaine penicillin and paracetamol. Paracetamol was given for headache and penicillin as a safeguard from infection as Lora had complained of an abscess. After giving medication she sent the patient back home.

24. She called Lora again next morning for a review as she was still having the headache. She noticed only a swelling on head this time also. She suspected of a blunt trauma of recent origin and asked Lora whether she had a fall or had hit her head somewhere. First she denied. When Ame Tudama asked her again she had admitted that she had been assaulted by Vilive on Sunday. Then she called Lora to the sitting room and asked her whether what Ame said was true. Lora admitted that she was assaulted by Vilive on Sunday. Then she called Vileve and asked him how he assaulted Lora. Vilive told her that he used his hands to punch Lora on her head.

25. Lora started bleeding from her vagina and her pulse rate and blood pressure were dropping below the normal rate. Lora also started developing restricted head and shoulder movements. Then Nurse, Lata consulted the surgical team in Lautoka Hospital and transferred the patient on Sunday to Lautoka Hospital by a chopper as her condition was deteriorating. Before Lora was air lifted she was injected Maxalon as she showed signs of nausea.

26. Under cross examination, Nurse Lata said that she examined Lora's head using a diving torch to ascertain whether she had a boil on her head. She also palpated her head. But she could not see or feel any boil but only saw a mild swelling of 4-5 cm. big. Then she examined her neck and shoulders and found nothing abnormal. Lora did not initially complain of any pain in her neck, shoulders or back. When she lifted Lora's top dress up to examine her vertebral column she did not see any injuries on her back.

27. She said that a swelling can be caused by a hematoma, collection of blood underneath the skin, due to injury or trauma.

28. Nurse Lata denied making up a story about Vilive's admission of punching Lora on her head and being persistent in asking about the history of pain from her when she was abnormal with her health condition.

29. Last witness for the Prosecution was Pathologist James Kalounivaki. He had received his double degree in 2007 from the Fiji School of Medicine and had obtained a post graduate Diploma from the Fiji National University. He had conducted more than seven hundred autopsies. He recognised the Post Mortem Report he had prepared after examining the body of Lora Nai on 31st March 2015 and tendered it evidence marked PE.1.

30. Referring to the brief history the Doctor said that deceased had had history of assault. Describing his finding on external examination, Doctor said that the mouth of the deceased was full of froth at the time of examination. He related this phenomenon to formation of excessive amount of fluids in lungs due to bacterial infection. On the posterior neck he had found an extensive septic carbuncle- like lesion extending into the inner surface of the skin.

31. There were extensive boils infections of the layers of the skin over the scalp and few areas of bruising over the left part of the scalp. The boils covered the back of the neck and extending up to the head. Doctor said that possible cause of boils on Lora's neck and scalp could be severe bacterial infection. He further said that bacteria basically enter the layers of the skin through breached skin area. He said that a recent trauma can bring about a possibility of breaching of the skin barrier that leads to infection by bacteria into the layers of the skin causing widespread infections.

32. He had noted in the brain purulent exudation and cloudy appearance consistent with meningitis. He said that meningitis is caused by infections of bacteria, viruses or parasites breaking through the barrier of the meninges.

33. Doctor had noted in the lungs a lot of boils, pus, and pulmonary haemorrhage consistent with bronchopneumonia, also caused by bacterial infections.

34. Doctor opined that Lora's immediate causes of death were severe bilateral bronchopneumonia and meningitis.

35. Under cross examination, Doctor said that the brief history referred to in his report was basically obtained from the Police investigating officer. He further said that he was not aware of the treatments given to Lora during her hospitalisation for four days in the Lautoka Hospital except for the information gathered from the CT scan report. Doctor denied the assertion that his source of brief history was totally dependent on Police investigating officer and said that he could not rule out possibility of receiving information from medical reports maintained at hospital as well.

That Madam and Gentleman was the end of the prosecution case.

36. You heard me explain to the Accused what his rights were in defence and how he could remain silent and say that the State had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined. As you know the Accused elected to give sworn evidence.

37. Now I must tell you that the fact that an accused gives evidence in his own defence does not relieve the State of the burden to prove their case to you beyond reasonable doubt. Even if you don't believe a word an Accused person says, you must still be sure that he is guilty of the crime that he is charged with.

Case for the Defence

38. Accused Vilive Miramira said that he was living in Dalomo village with the deceased, Lora Nai in a de facto relationship for nearly one year prior to her death on 27th March 2015.
39. Vilive said that he was in a good relationship with Lora and denied assaulting her at any time. However, when he was shown a broom with a stick (taufale) by his Counsel he admitted assaulting Lora on two occasions when she was found smoking and drinking grog disobeyed his words. But he denied using his hands to punch or slap her at any time and said he had maintained the same position when he was interviewed by police.

41. Lora was suffering from headaches a many times because of the stress of work overlord. She was used to carry fire wood on her back every week causing her severe headaches.

42. In cross examination, Vilive admitted chasing after Lora with a coconut stem in his hands. But he denied assaulting her with it. He said that even before Lora came to live with him she had developed this condition of regular headaches.

43. He said that he did not notice or became aware of a swelling when Lora first saw the Nurse Lata at Teci. He denied Nurse Lata's assertion that he had admitted punching on Lora's head.

Analysis

44. Prosecution says that Vilive punched Lora on her head causing a blunt trauma and swelling, headache, carbuncle, infection and other medical conditions she developed after that as a result of that trauma ultimately led or substantially contributed to Lora's death.

45. According to pathologist's evidence, primary causes of Lora's death were severe bilateral bronchopneumonia and purulent meningitis. To develop such medical conditions, bacteria or any other microorganism he described must have entered Lora's body or blood stream through a breach in the skin. Pathologist, in his external examination, had discovered only one such breach in Lora's body where such microorganism could possibly have entered. That is the carbuncle-like lesion found in her posterior neck extending superiorly into the scalp. Scalp is the skin covering the top and back of the head.

46. So, you have to be first satisfied that Prosecution had proved beyond reasonable doubt that Vilive had assaulted or punched Lora on that area during the period she was developing such symptoms.

47. Prosecution in this regard substantially relies on evidence generated through three witnesses. Namely, Ame Tuidamu, Taione Momo and the nurse, Shalini Lata.

48. I have summarised briefly the important parts of their evidence. Tuidamu told us that he did not notice any boil on Lora's head when she visited him on two occasions on 14th March 2015.He only believed what Nurse Lata had told him that Lora did not have a boil on her head. He also told us what he heard from Vilive, Lora and nurse Lata. Vilive had told him that he had had an argument with Lora and, two weeks after that argument, he had punched Lora. Lora had told him that the area Vilive had punched was paining.

49. In cross examination, Tuidamu admitted that what he told in court is contradictory to his previous statement to Police. What he had told the Police is this "Lora then spoke up saying that Vilive had punched her at the back of her head three weeks ago". He admitted that what he told Police is correct and said that he could not, at the time of giving evidence, recall who told him about the punching on the head.

50. Vilive in his evidence denied the version of Tuidamu that he admitted having punched on Lora's head.

52. I highlighted those parts of evidence for you to assess the credibility of Tuidamu's evidence. If you find the contradiction that the Defence Counsel highlighted is not material so as to affect the credibility or Tuidamu's explanation in that regard is satisfactory, and also if his evidence is corroborated by Lata's evidence you can safely act upon his evidence.

53. Then I turn to Lata's evidence. She told us that Vilive had admitted that he punched Lora on her head.

Q: And did you ask Vilive?

A: I did ask Vilive

Q: Then what did he tell you?

A: Vilive told me that he used his hands to punch Lora Nai.

Q: Did he tell you anything else?

A: He just told me he punched Lora Nai on the head.

54. She also said that after Tuidamu had translated to her what Lora had told him she herself asked Lora and got Tuidamu's version confirmed.

Q: And what did she say?

A: My patient Lora Nai did agree stating that she was assaulted by her de facto husband Vilive.

Q: Did she tell you when she was assaulted?

A: She stated that she was assaulted on Sunday.

Q: When she was assaulted her on Sunday did you know whether she was trying to get assistance?

A: Lora Nai did try to get assistance from me on Monday but she did not state that she was assaulted; she just stated she is having chest pain, she wanted treatment without coming to the Nursing Station.

Q: How did she contact you on Monday?

A She used a mobile phone.

Q: After gathering that information from Lora Nai, what did you do?

A: I advised her she needs to come and see me in my station as I do not treat patients without assessing them.

55. Vilive denied that he had made such an admission to Nurse, Lata on that day. Lora Nai is not among the living now to verify whether she in fact had made such a statement to Lata. You have to use your common sense and satisfy yourself whether Lata's evidence is credible before you coming to your own conclusion.

56. If you believe the evidence of Tuidamu and Lata, then you are sure that Vilive had made an admission to the effect that he had punched Lora on her head.

57. Then I turn to evidence of Taione Memo. He is an eye witness in this case. He described an incident he witnessed in February 2015 where Lora was being beaten up by Vilive with a coconut stem in front of his house. Accused denied having assaulted Lora on that day with a coconut stem. You consider whether Memo's evidence is believable and acceptable to you. If you believe Memo's evidence, then you consider whether that incident has anything to do with Lora's death. That particular incident had happened in February 2015. Momo had not seen any whack being dealt on Lora's neck or head. All the five blows he had seen had been dealt on her back and shoulders. Lora had not reported this incident to nurse Lata or Tuidamu on 14th March 2015 when she complained of her headache. Lata had not observed any injury on Lora's back or shoulders. Lora had only related an incident of punching on the head.

58. Akosita, mother of the Accused was declared a hostile witness to the Prosecution. Prosecution was allowed to cross examine her. She denied having seeing any incident of punching on Lora's head during her stay in Dalomo. She described the relationship between Lora and Vilive as 'very good'. Momo on the other hand, said that she was present when the beating took place in February 2015. You consider what weight you attach to her evidence.

59. If after considering all of the evidence you are not sure or have a reasonable doubt as to whether or not the accused committed an 'unlawful act' on the deceased then that would be the end of the case and the accused would be not guilty.

60. But if you are sure that the accused committed an 'unlawful act' on the deceased in punching on her head then you will go on to consider the second element, namely, whether the deceased LoraNai died as a result of the accused's 'unlawful act' or through some other unrelated cause. You have to be sure that the Vilive's act substantially contributed to Lora's death.

61. In deciding cause of death, you will find the Pathologist's evidence helpful. The doctor in this case, came before Court as an expert witness. Expert evidence is not accepted blindly. You will have to decide the cause of death of Lora by yourself and you can make use of pathologist's opinion, if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting pathologist's opinion, you must take into account the rest of the evidence led in the case.

62. Pathologist said that he obtained the history primarily from the investigating Police officer. Investigating Police officer did not come and give evidence in this case. The doctors who treated Lora at the Lautoka Hospital also did not give evidence. Pathologist had only examined Lora's dead body on 31st March 2015. You decide what weight you attached to Pathologist's evidence.

63. According to the Doctor's evidence, Lora's primary causes of death were severe bilateral bronchopneumonia and meningitis. Both causes are linked to infections.He opined that a recent trauma can bring about a possibility of breaching of the skin barrier leading to infiltration of bacteria, causing widespread infections. If you are satisfied beyond reasonable doubt that the alleged act of Vilive significantly and substantially contributed to Lora's death you can find him guilty. On the other hand, if you have a doubt in your mind you must give the benefit of that doubt to the Accused.

64. Pathologist talked about a recent trauma. He did not give a specific time period to describe word 'recent'. You have to be satisfied that the alleged unlawful act is of recent origin. The incident described by Taione Momo had happened in February 2015. If you believe nurse Lata's evidence to be truthful, Lora had told her that the assault took place on Sunday. Lora had first visited the Nursing Centre on the 14th March, 2015. It was a Saturday. Lora was admitted to Lautoka hospital on the 15thMarch 2015. She had been discharged from the hospital after four days. Lora died in Vilive's sister's home on 27th March 2014. It is for you to decide whether or not Lora's death was caused as a result of Vilive's unlawful Act.

65. Finally you have to be satisfied that the third element of the offence has been proved. So in this case you must find proved that Vilive engaged in a conduct that caused the death and that he knew that there was a risk that what he was doing might cause serious harm to Lora and also that he was not justified in taking that risk. If you find that Vilive was reckless as to causing serious harm to the deceased and that the evidence satisfy the elements of Manslaughter, and you are sure of the same, then you are entitled to find the Accused guilty of the offence of Manslaughter.

66. The Accused elected to give evidence. His position was that he never punched Lora on her head at any time. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version accused should be discharged. Even if you reject his version still the prosecution should prove its case beyond reasonable doubt.

67. I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

68. If you accept the Prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt you must find him guilty for the charge. 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.

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

Any re-directions?

Aruna Aluthge
JUDGE

At Lautoka
12th October, 2015

Solicitors: Office of the Director of Public Prosecutions for State
Kevueli Tunidau Lawyers for Accused