Regan v Reginam [1967] FJLawRp 43; [1967] 13 FLR 156 (18 July 1967)

(1967) 13 FLR 156

COURT OF APPEAL OF FIJI

JAJAY REGAN

v

REGINAM

[COF APPEAL, 1967 (Gould V.P., Marsack J.A., Bodilly J.A.), 10th, 11th, 18th July]

Criminal Jurisdiction

Criminal law-homicide-mental illness-no defence of insanity-whether possibility of manslaughter on ground of lack of intent should have been left to assessors.

Criminal law-defence withdrawal of consideration of manslaughter from assessors-question of mental illness in relation to intent.

The two appellants were convicted of the murder of their infant child in circumstances which arose from an alleged suicide pact between the two appellants. All three were immersed in the waters of the Rewa river but the two appellants emerged safely whereas the infant was drowned. There was evidence that Jay Regan, the female appellant, was suffering from a degree of schizophrenia, had been under mental treatment in a hospital shortly before the incident in question, and was at the time of the incident taking tablets to keep her under a degree of sedation. On the appeal it was argued that, although the defence of insanity had not been raised, the trial judge should have left to the assessors the issue of manslaughter, on the basis that by reason of mental infirmity the female appellant might not have been capable of forming the necessary intent to commit murder.

Held: On60;On the factevidence, wce, while the female appellant's illness might have played a part in formulating in her mind an intention to solve her domestic difficulties in ay shght, it was abundabundantly clear that it was her intentionntion not only to dispose of herself in the manner attempted but also to take her child with her. There was no evidence upon which the assessors, properly directed, could have arrived at the opinion that the female appellant might not have been capable of forming an intent.

Case referred to: R. v. Lenchitsky¾ [1954] Crim. L.R. 216.

Appeal from convictions of murder; reported only on the question of manslaughter in relation t appellant Jay Regan.

D. J. Whippy for the appellaenisa Seduadeduadua.J. N. Falvey and S. yaT. U. Tuivaga for the respondent.

The facts sufficientlear fhe jut of thof the court. Judgment of the Court (prepared by BODILLY J.A.): [18th July July, 196, 1967]-

In this case two appeals heen heard together as a matter of convenience and with the the consent of Counsel for both appellants. The appeals are numbered, No. 18 of 1967 in respect of the appellant Jay Regan, alias Jaywanti Naresh, and No. 21 of 1967 in respect of Apenisa Seduadua.

These appeals are against conviction on the 9th June, 1967, of the two appellants for murder, by Mills-Owens C.J.,' sitting 'in the first instance at Suva. The appellants were jointly charged with the murder of a nine months old child arising out of an alleged pact between them to commit suicide by drowning in which they involved the child. The pact failed in the event as regards the deaths of themselves but the child was unfortunately drowned in the attempt. The attempt took place on the night of 14.1.67. The main facts of the case are quite clear and are primarily to be derived, in the case of the male appellant, Apenisa, from his various statements made to the police, the contents of which are not challenged, and in the case of the female appellant Jay Regan, from evidence which she gave on her own behalf at the trial and also various statements made by her to the police, the contents of which are also not challenged. Very briefly the story which emerges is as follows-

Jay Regan was at all material times a married woman living apart from her husband, one Naresh. While in this state she became intimate with the appellant Apenisa, set up house with him and lived with him to all intents and purposes as man and wife. By Apenisa, in due course, she bore a child who became the victim of the drowning in question in this case. The household was not entirely impecunious for the female appellant, Jay Regan, derived an income of about £25 per month from certain family property, but the male appellant Apenisa was out of work and the two of them had fallen into arrears with the rent and had received notice to quit the flat which they occupied at the address, 36 Tubou Street, Samabula. Both had reason to be worried about financial matters and future accommodation after they must quit the flat at Tubou Street. It is not in dispute that the female appellant was at this time suffering from a degree of schizophrenia and was under mental treatment in St. Giles Hospital from the 26th November, 1966 until the 23rd December, 1966 when, subject to further examination on the 28th December, she was released on trial. At the time of this incident, on the 14th January, 1967, she was still taking "Largactil" tablets to keep her under a degree of sedation. In their separate statements to the police and in the evidence of Jay Regan at the trial, Apenisa blamed Jay Regan and she blamed Apenisa for what took place on the 14th January, 1967. But wherever the blame for instigating the action may lie, it is quite clear from their respective statements and evidence what happened on that unfortunate night. Shortly after 9 p.m. on the evening of the 14th January, Apenisa engaged a taxi and he and the female appellant, Jay Regan, set off together to go to a bridge over the Rewa River which is a wide and deep flowing river near Nausori.

They had with them in the taxi Apenisa's young brother, aged 13. They also had with them in that taxi a basket containing iron weights, and a coil of thin wire, which the appellant Apenisa carried, and the child, which the appellant Jay Regan, carried. Before reaching the bridge over the Rewa River they stopped the taxi and set down Apenisa's young brother at a suitable point from which he could walk to his home and Apenisa gave him £2 towards his fare to attend a party to which he had been invited for the following day. They then went on to the bridge where Apenisa paid off the taxi after a short bargaining as to the price. Apenisa, carrying the weights, and Jay Regan, carrying the child, then walked out together on to the bridge until they were over deep water and there they each climbed on to the bridge railing and sat on the top facing outwards towards the river. Apenisa attached the weights to the wire and then put the wire round his neck. There is, on the evidence, some doubt as to whether at this stage Jay Regan snatched the loose end of the wire and looped it round her own neck or whether it was actually Apenisa who put it round her neck himself. However that may be, they both then plunged into the river, Jay Regan taking the child with her. The child was drowned in the river but both principals surfaced and made their way to a pylon of the bridge from which they were taken off shortly afterwards by some youths in a punt.

Neither of the appellants mentioned the loss of the child to the youths who rescued them, nor did they report to the police at Nausori, notwithstanding that the Police station was only a short distance from the bridge. Only indirectly did the appellant Apenisa mention the fate of the child to his father to whose house they went that night after being helped up from the river. It was not until the following day that they reported the matter to the police and that was at the suggestion of Apenisa's father.

When the matter was first reported story to the Police both appellants told a story to the effect that they had been sitting on the bridge and that Jay had accidentally fallen into the river, followed by Apenisa who fell in while trying to save her. This story both appellants subsequently admitted to be untrue and they then made their several statements setting out in substance the facts outlined above.

On those facts the learned Chief Justice convicted each of the appellants of murder.

For the male appellant Apenisa, six grounds of appeal have been advanced before this court: and for the female appellant, Jay Regan, nine.

We will deal firstly with the appeal of the appellant, Apenisa. It is not necessary to set out the grounds in detail. The first ground alleges that the verdict is unreasonable and cannot be supported by the evidence. We find no substance in this ground of appeal. There was in our view ample evidence upon which the assessors could advise as they did and the Chief Justice find as he did. By the next two grounds of appeal, namely grounds 2 and 3 , it is alleged that the learned trial judge erred in not specifically drawing the attention of the assessors in his summing up to a number of minor items of evidence. We have considered carefully the summing up and we consider it fair and adequate. The fourth ground of appeal suggests that the Chief Justice fell into error in his summing up in the course of a passage in which he advised the assessors that in so far as the appellant Jay Regan in her statements and evidence endeavoured to put the blame onto the appellant Apenisa, they should not take those passages into account against him. The passage in the summing up to which objection was taken reads as follows -

"I ought to tell you, as a matter of law, it is open to you to find him (Apenisa) guilty on her (Jay Regan’s) evidence alone as a matter of law it is open to you to do so - but it would be dangerous. My advice to you in respect of the 1st Accused (Apenisa) - is -

(1) disregard her evidence in so far as she seeks to put the blame on him;

(2) find him guilty only if you are driven irresistibly to the conclusion - beyond a reasonable doubt - that he was a party to the suicide pact."

It was suggested in argument that that advice was wrong and amounted to asking the assessors to accept only the evidence in favour of the prosecution's side while rejecting the remainder. We can see no objection whatever to the learned Chief Justice's advice.

The fifth ground of appeal suggests that the trial judge erred on the evidence in finding that the appellant Apenisa joined the suicide pact also with the intention of causing the death of the child. We can find no substance in this ground. On the facts, the appellant Apenisa must either, as a reasonable man, have intended the death of the child as well as his own or else must have known that the death of the child would in all probability result, and we can find no fault with the judge's conclusions as to that.

Finally, in ground six, it is alleged that the trial judge erred in failing to leave the issue of manslaughter to the consideration of the assessors. As far as the appellant Apenisa's part in the incident was concerned we are in entire agreement with the learned judge that there was no evidence whatsoever upon which an issue of manslaughter could arise and that he was right in not placing such an issue before the assessors.

The appeal in respect of the appellant Apenisa is, for the above reasons, dismissed.

Turning now to the appeal of the female appellant, Jay Ragan. The first and third grounds of appeal were abandoned before this court. The 2nd, 4th, 5th, 6th and 7th were argued by Mr. Koya and the 8th and 9th by Mr. Falvey. We saw no reason to call upon the Crown in respect of any of the grounds for argument by Mr. Koya. We find no substance in them. The second and fourth grounds of appeal are substantially to the same effect as the fourth ground in the case of the appellant Apenisa, namely that the learned trial judge indicated to the assessors that the evidence of the appellant, Jay Ragan, was divisible, and he thereby debarred himself and the assessors from considering the whole of her evidence in a fair light. We have already indicated that we find no substance in that ground of appeal when considering the case of the appellant Apenisa and we also find no substance in that point when considering the case of Jay Ragan. The fifth ground of appeal alleges that the learned Chief Justice did not take into account-

(a) the degree of compulsion under which the appellant acted on the night of the 14th January;

(b) the evidential effect of the injuries caused by the wire to the appellant's neck; and

(c) the medical evidence regarding the state of her mental health.

We can find no substance in this ground. It is clear from the summing up and the judgment that these matters were properly considered, together with the rest of the relevant evidence.

Ground six is to the effect that the learned Chief Justice did not take into account the extent to which the appellant Jay Regan acted under compulsion. In this connection section 16 of the Penal Code res follows-

"16. A 6. A person is not criminally responsible for an offence if it is committed by two or more offendend ifact is done or omor omitted only because during the whole of the time in which it is being eing done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence."

We can find nothing in the evidence to indicate compulsion of the nature or degree envisaged in that section.

Ground seven alleges that the learned Chief Justice erred in finding that the facts in the case were incapable of any reasonable explanation other than a joint guilt on the part of both appellants. In so far as the learned judge came to the conclusion that there was no other explanation than the joint participation and guilt of both appellants we feel that we can only agree with him. We do not consider that the facts could reasonably warrant any other conclusion.

The 8th and 9th grounds of appeal may be considered together and indeed were so argued by Mr. Falvey. These grounds concern the mental condition of the appellant, Jay Ragan, at the time when the offence was committed and allege that the learned Chief Justice was wrong in not leaving the issue of manslaughter to the assessors' opinion. It was argued strongly by Mr. Falvey on the basis of R. v.hitsky (190;(1954 Cr. L. Rev. 216) 216) that if by reason of mental infirmity the appellant might not have been capable of forming the necessary intention to commit murder, the offencht beced to manslaughtaughter, although the defence of insanity nity was not raised, and that this issue ought to have been left to the assessors as a question of fact. The passage in the learned Chief Justice's summing up to which Mr. Falvey takes exception reads as follows-

"Now the next matter which I ought to endeavour to make clear is the matter of possible verdicts. Now there is no evidence of insanity in this case. The 2nd Accused (Jay Regan), as you have heard, has had some history of mental illness but there is no defence of insanity. Secondly, there is no room for any verdict of which is called infanticide, that is where a woman causes the death of her very young child while she is still suffering from the effects of childbirth - there is no suggestion that this case is one of infanticide. Thirdly, in the circumstances of this case, I think it would be wrong of me to leave open to you a possible verdict or verdicts of manslaughter against either or both. In the result I would direct you, as a matter of law, there is no case for bringing in a verdict of insanity; or a verdict of infanticide; there is no case for bringing in a verdict of manslaughter. It is plainly - in the case of both of them or one of them - Murder or Not Guilty."

There the learned Chief Justice was clearly withdrawing from the assessors any consideration of manslaughter. We have carefully studied the record and have given particular attention to the history of mental illness in the case of the appellant, Jay Ragan. There appears to be no reason at all for assessors or a court to think on the evidence that she was not fully cognizant of what she was doing and fully capable of forming the intention to commit the acts which she did and also fully capable of appreciating the natural and probable consequences as regards the child. Indeed it appears abundantly clear, on the evidence as a whole, that it was the intention of the appellant, Jay Ragan, not only to dispose of herself in the manner attempted but also to take her child with her. The degree of mental illness from which she had recently suffered, and which she was indeed still taking largactil tablets to control, may have played a part in formulating in her mind an intention to solve her domestic difficulties in the way she sought, and agreed with the appellant Apenisa, but in our view that is as far as the evidence in this case take the matter. Having considered carefully the record of the evidence, medical and otherwise, we are satisfied that there was none upon which the assessors, properly directed, could have arrived at the opinion that the appellant Jay Regan might not have been capable of forming an intent. Accordingly we are of opinion that the learned Chief Justice acted correctly in withdrawing the issue of manslaughter from the assessors.

For these reasons the appeal in the case of Jay Regan is also dismissed.

ENDNOTES:

* From this judgment the Privy Council refused special leave to appeal.