State v Miramira [2015] FJHC 776; HAC62.2015 (15 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 Summing Up: 12thOctober, 2015
Date of Judgment: 15th October,2015

JUDGMENT

1. The Accused was charged with the following Count and was tried before three Assessors.

Statement of offence

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

Particulars of Offence

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

2. Assessors unanimously found the Accused guilty of Manslaughter as charged.

3. I direct myself in accordance with my own Summing Up and review the evidence called in the trial. I pronounce my judgment as follows.

4. To find the Accused guilty of Manslaughter 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 recognized that his 'unlawful act' was likely to subject the deceased Lora Nai to the risk of serious harm.

5. In this case, Prosecution was running its case on the basis that Lora Nai's death was ultimately caused by an unlawful act of the Accused, namely punching on her posterior head.

6. 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 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.

7. So, to establish the first element of the offence, the Prosecution must prove, beyond reasonable doubt, that Vilive had assaulted or punched Lora on that area (posterior neck or head) during the period she was developing symptoms.

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

9. First I turn to Taione Momo's evidence. He is the only 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 (leaf stalk) in front of his house. He had seen Vilive whacking five times on Lora's back and shoulders. According to him, it was not the first time he had seen Lora being beaten up by Vilive.

10. Momo is an independent witness. He was the Village Headman or Turaga ni Koro of Dalomo village. Accused conceded that Momo was residing in Dalomo at the relevant time and that he did not hold out any ill feeling towards him. Accused even used to call him 'father'. There is no reason why Momo should fabricate a story to put the Vilive in trouble.

11. Accused, in his evidence, did not completely deny Momo's story. Accused admitted part of his evidence and admitted having given a chase after Lora with a coconut stem in his hand. Facts relating to commotion ensued and gathering of villages to witness this incident were also admitted. I find Momo's evidence credible and plausible although his expression of events would be somewhat exaggerated.

12. However, due to following reasons, I am unable to find any nexus between this incident and the medical condition Lora had developed later, culminating in her death. This incident had taken place somewhere in February 2015. Lora had visited the Nursing Station in Teci for medical treatments on 14th March, 2015. There is considerable time gap between two events.

13. In February incident, Momo had not seen any of the whacks being landed on Lora's head or neck. Nor had she sustained any noticeable injury in that area. According to Lata's evidence, the punching from which Lora is suspected to have developed her headache and swelling is linked to an incident that had taken place on Sunday prior to her visit to Teci Nursing Station on 14th Saturday, March 2015. Lora had not reported this incident to Lata or Tuidamu when she went for medical treatments. Lora had only related an incident of punching on her head with hands.

14. Although the February incident Momo described is not immediately linked to the medical condition Lora had later developed, his evidence is much relevant for this Court to form an idea about Vilive's conduct and his attitude towards Lora during the relevant period. His evidence necessarily strengthened the Prosecution version that Lora was not in good relationship with Vilive at the relevant time and that she was habitually beaten up by Vilive.

15. Prosecution heavily relies on the admission alleged to have been made by Vilive to Lata and Tuidamu on 14thMarch 2015. It also relies on the purported declaration of Lora on the same day which had implicated Vilive for punching on her head. If the Prosecution is found to be successful in its attempt to prove those statements, this Court has no difficulty in finding that the first element of the offence, that is unlawful act of punching on the head, has been proved.

16. To prove those statements of Lora and Vilive, Prosecution called Tuidamu and Lata as witnesses. Both of them were independent witnesses. Tuidamu was the Turaga ni Koro at that time. Lata was the nurse attached to the Teci Nursing Station. Both Lata and Tuidamu were in agreement in their evidence and corroborated each other when they said that Vilive had admitted punching Lora on her head. They also said that Lora had admitted that Vilive had punched on her head.

17. Vilive had told Tuidamu that he was in 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. In cross examination, Tuidamu admitted that what he told in court is contradictory to his previous statement to Police. What he had told Police is this

"Lora then spoke up saying that Vilive had punched her at the back of her head".

Tuidamu admitted that what he had told Police would have been correct and said that he could not, at the time of giving evidence, recall who told him about the punching on Lora's head.

18. I find that the explanation advanced by the witness with regard to the contradiction is satisfactory. Tuidamu's evidence is also corroborated by Lata's unshaken evidence. The Court can safely act upon Tuidamu's evidence.

19. Then I turn to Lata's evidence, she stated 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.

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

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.

21. Lata said that Lora was reluctant to answer the questions and was looking at Vilive's face whenever she asked her about the history of swelling and headache. Lata had opened up and come with the answers I highlighted above only when Vilive was not around.

22. Lata was consistent and confident in her evidence. No contradiction was highlighted with her previous statements. Her evidence was corroborated by Tuidamu. I have no difficulty in relying on her testimony.

23. After considering all of the evidence I am sure that Vilive had punched Lora on her head and committed an 'unlawful act' on the deceased.

24. Defence failed to create any doubt in the Prosecution case. Accused's evidence is not appealing to me. Vilive completely denied that he had punched Lora at any time on her head. He also denied making an admission to that effect to Lata and Tuidamu. I find his evidence to be inconsistent and implausible.

25. 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 (taufale) by his Counsel he admitted assaulting Lora on two occasions when she had failed to listen to him and also when she was found smoking and drinking grog. This admission was in contrast to his earlier denial of any sort of assault on her.

Relevant extract of evidence-in-chief led by the Defence Counsel is as follows:

Q: During these arguments had you at any time assaulted your wife.

A: No my Lord.

Q: Do you understand my question, that you at any time assaulted your wife, beat her?

A: No my Lord.

When he was shown a broom (taufale) by his Counsel.....

Q: A broom with a handle and coconut broom in the end. You recall at any time you beat your wife with a taufale?

A: Yes, my Lord.

26. Under cross examination, Vilive admitted giving a chase after Lora with a coconut stem in his hands. But he denied assaulting her with it. However, he admitted that Lora had run outside the house and was seated crying when villages flocked to witness the incident. Akosita, mother of the Vilive also confirmed that Vilive assaulted Lora on number of occasions.

27. When Vilive was questioned about his alleged admission to Lata, he first denied having talked to the nurse. After a short while he admitted talking to nurse about the headache. In the same way he first denied meeting with Ame Tuidamu and Lora at his house. After a short while he admitted he went to Ame's house with Lora.

28. I reject the evidence of the Accused with regard to his purported good relationship with Lora and his denial of punching on her head.

29. Then I will go on to consider the second element, namely, whether the deceased, Lora Nai, died as a result of the Accused's 'unlawful act' or through some other unrelated cause. Both nurse Lata's and pathologist's evidence is crucial to resolve this issue.

30. Lata had not observed any boil or abscess on Lora's head when she first examined her. She had observed only a mild swelling on Lora's posterior head. With her eight years' experience as a nurse in Lautoka and Nadi Hospitals and also with her qualification as a public nurse, she had suspected that swelling on Lora's head to have been caused by a recent blunt trauma or similar impact. She had opined that swelling would have been caused by a hematoma, collection of blood underneath the skin, due to injury or trauma. That suspicion prompted her to visit Lora at Momo's house to get the history reconfirmed by the patient before proceeding with further treatments. The history later related by Lora confirmed that her suspicion was well founded. As an experienced nurse, Lata must have been in a better position to differentiate between symptoms of abscess and that of blunt trauma.

31. I find Lata's finding in respect of swelling on Lora's head is logical. She had taken all necessary matters into consideration and had blended them with her long term experience as a nurse before coming to her opinion. I am satisfied with Lata's finding that punching on Lora's head by Vilive had caused a blunt trauma.

32. The Pathologist then connected Lata's finding in a logical and scientific manner to the cause of death of Lora. According to Pathologist'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 could bring about a possibility of breaching of the skin barrier leading to infiltration of bacteria into the layers of the skin causing widespread infections. The blunt trauma had opened up the scalp the bacteria to enter the brain and the blood stream. Pathologist's evidence is convincing and acceptable. He had not totally dependent on the history related by the Police Investigating Officer. His evidence established beyond reasonable doubt that the act of Vilive had significantly and substantially contributed to Lora's death.

33. There is no evidence available to find that any intervenient cause is responsible for Lora's death. Lora had already been tested for allergies when Lata administered Penicillin on her. Defence had failed to create any doubt to the effect that bedsore, or side effects of medication had caused Lora's death.

34. Finally the Court has to be satisfied that the third element of the offence had been proved. Prosecution must prove that Vilive had 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.

35. To justify a conviction of manslaughter the unlawful act relied upon must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least the risk of some harm resulting therefrom, albeit not serious harm.[see: Philip Vijay Anand V. Reginam (1972) 18 FLR 32 6 Apr 1972].

36. Whether the act was objectively dangerous was to be judged according to the circumstances as they were known to the defendant. Accordingly, unless there were circumstances which would have given the bystander foresight that the defendant's unlawful act might cause relevant harm, death will not have been "caused" by and unlawful and dangerous act. [See: Dawson (1985) 81 Cr App R150; Carey (2006) EWCA Crim 604].

37. Vilive had been reckless as to causing serious harm to the deceased. He had punched on the Lora's posterior head, the most vulnerable part of the body, causing her severe headaches, and eventually dying either of meningitis or pneumonia.

38. In cases of unlawful act manslaughter the co-existence of the unlawful act and the death of the victim will not be enough unless some harm was foreseeable risk on the facts as they were known to the defendant [Church[1965] EWCA Crim 1; (1966) 1 QB 59].

39. It was within Vilive's knowledge that Lora was especially vulnerable person as far as her head is concerned. According to Vilive's own account Lora was a woman lived with headaches and was often on Panadol. She had often developed headaches due to stress of work overload. Even before she came to live with Vilive she had this problem of headaches. Vilive should have known that if he punched Lora's posterior head she would suffer a serious harm.

40. I am not inclined to interfere with the unanimous finding of the Assessors. I am convinced that the Assessors were justified in coming to an opinion of guilty to the Count of Manslaughter. It is open for them to reach such a conclusion on the evidence led in the trial.

41. I accept the opinions of the Assessors. Accused is convicted of Manslaughter.

42. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
15th October, 2015

Solicitors: Office of the Director of Public Prosecution for State
Mr. K. Tunidau for Accused