State v Kilaiverata - Judgment [2016] FJHC 1005; HAC149.2015 (1 November 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 149 of 2015

STATE

v.

USAIA KILAIVERATA

Counsel: Mr Delaney M. and Mr Kumar R. for State
Ms. Vaniqi S. for Accused

Hearing: 24^th, 25^th, 26^th October 2016
Summing Up: 28^th October 2016
Judgment: 01^st November 2016

JUDGMENT

1. The accused is charged with 1 count of Murder.
   

Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

USAIA KILAIVERATA on the 4^th day of April, 2015, at Suva in the Central Division, murdered LOSANA McGOWAN.

2. After trial 3 assessors unanimously opined that the accused is guilty of murder as charged. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. To find the accused guilty of murder, the prosecution has to prove the following elements beyond reasonable doubt.
   
   1. The accused;
   2. engaged in a conduct,
   3. That conduct caused the death of the deceased,
   4. Accused intended to cause the death of the deceased Losana, or

that the accused was reckless as to causing the death of Losana by the conduct.

4. Parties had agreed to the following facts.
   
   1. The accused, Usaia Kilaiverata, and the deceased, Losana McGowan, lived together in a defacto relationship at Flat No. 3 Yatu Lau Apartment, Amy Street, Toorak, Suva.
      
      2. On 4 April 2015, the accused assaulted the deceased at Flat No. 3 Yatu Lau Apartment, Amy Street, Toorak, Suva.
         
      3. The deceased suffered extensive subarachnoid and subdural haemorrhage due to a severe traumatic head injury.
         
      4. The accused voluntarily surrendered himself to Totogo Police Station at about 7am on 4 April 2015.
         
      5. The admissibility of the accused’s Record of Interview is not disputed.
         
      6. The authenticity, admissibility and contents of the following documents are not in dispute and will be tendered in evidence by consent:
         
         1. Post Mortem Examination Repprt of Losana McGowan prepared by Dr. James Kalougivaki, dated 14 April 2015;
            
         2. Rough and fair sketches of Murder case at Lot 3, Toorak Road, Suva by SC 2959 Anasa, witnessed by D/IP Loli, dated 4 April 2015; and
            
         100. Photographic booklet of photographs taken at Flat No. 3, Yatu Lau Apartment, Amy Street, Toorak vide Totogo Police Station Report No.: 103-04/15 CSIU Photo Job No. 170/15 by WPC 4486 Maraia.
              
5. Four witnesses were called by the prosecution to give evidence. They were Winston Hill who was the neighbour of the accused and the deceased, A/Sgt. 2660 Apisai who recorded the caution interview statement of the accused, Dr. James Kalougivaki who conducted the post mortem on the body of the deceased and Sgt. Petero Loli who inspected the crime scene.
   
6. The witness Winston Hill had been living in the apartment above the apartment that the accused was living with her partner the deceased. On 04/04/2015 early hours he had heard Usaia (the accused) calling out to open the main door and he has seen the door being opened and let Usaia in. He had heard Usaia and his partner arguing. Voice of the deceased had been high. He then had heard a loud bang, a thudding sound like a heavy drop on the wooded floor.
   
7. Thereafter he had also heard consistent thudding sounds like someone hitting the wall about 5-6 times. Then it had gone quiet and he had gone to sleep.
   
8. Sgt. Apisai had recorded the caution interview statement of the accused. He said that the accused made the statement voluntarily. At the reconstruction of the crime scene, he said that the accused told him that the deceased fell down the steps and hit the gas tank. However, he had not written that in the statement but had noted it in a piece of paper.
   
9. According to the post mortem report admitted by parties the deceased had injuries on her head, chest, neck, side of the head above the ear, on upper and lower lips. All injuries are constant with blunt trauma according to the doctor.
   
10. Accused took up the defence of intoxication. In his caution interview statement the accused had said that he with the deceased had lot of alcohol that evening until early hours in the morning. They had had 5 draft beers, then dinner at Holiday Inn, then 3 draft beers and also 16 jugs of mixed drinks of tribe and rum and cola.
    
11. The doctor testified that the BAC (Blood Alcohol Concentration) level would depend on the person.
    
12. In his caution interview statement that was admitted by the defence without any challenge, the accused had said in answer to Question 40 that although he was drunk after taking lot of alcohol he could still recall what happened and what he did.
    
13. According to his own caution interview statement, the accused had said that after he assaulted the deceased the deceased was bleeding from her mouth and he tried to revive her. He then had applied mouth to mouth (CPR) trying to revive but it was too late he had said.
    
14. This shows that the accused was aware of what he was doing and that he was in a state to form the necessary intention to commit the crime when he assaulted the deceased
    
15. In his caution interview statement the accused had admitted that he punched the deceased on her cheek and that she fell down facing downwards with blood coming out from her mouth. When she fell down, again he had kicked her face on the floor (Question and Answer 53). His conduct, that he punched the deceased and also kicked the deceased after she fell down, the injuries caused to the deceased on her head, neck, chest and face are sufficient to conclude that the accused intended to kill the deceased when he assaulted her. Intention can be formed on the spur-of-the-moment.
16. Although the police officer Apisai said that the accused told him that the deceased fell on to the gas tank when he punched, the accused had not said that in his statement. Nor the police officer had taken it down in a notebook. Police officer says that he wrote it down in a piece of paper and has put it somewhere, and that he cannot produce that piece of paper in court.
    
17. The doctor in his evidence clearly said that all the injuries taken together cannot be caused by a single fall. The cause of death is:
    

(A) Disease or condition directly leading to death:

(a) Extensive Subarachnoid and Subdural Haemorrhage

(B) Antecedent causes;

(b) Severe Traumatic Head Injury
(c) Multiple Traumatic Head Injury
(d) Assault – Blunt Force Trauma

Multiple blunt force trauma is consistent with the assault caused by the accused as admitted in his own caution interview statement. I find that it was far from the truth that the deceased fell on the gas tank. Accused had never said that in his statement which was admitted by the defence. Obviously, assessors have not believed the defence story that the deceased fell on the gas tank and that it was an accident. Accused had clearly admitted that after punching the deceased she fell on the floor and that he further kicked her on the face. It is sufficient for the prosecution to prove that the conduct of the accused contributed significantly to the death, it need not be the sole or principal cause of death.

18. I find that the prosecution has proved beyond reasonable doubt that the conduct of the accused caused death of the deceased and that he intended to cause death of the deceased. I find that the prosecution has proved all the elements of the offence of Murder beyond reasonable doubt.
    
19. Hence, I agree with the unanimous opinion of the assessors and find the accused guilty of Murder as charged and convict him accordingly.
    

Priyantha Fernando
Judge

At Suva
01^st November 2016

Solicitors
Office of the Director of the Public Prosecutions for State.
Vaniqi Lawyers for Accused.