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State v Mudaliar [2006] FJHC 45; HAC015S.2005S (15 May 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC 015.05S

THE STATE

V

SACHIDA NAND MUDALIAR

Fiji High Court, Suva
15th May 2006
Gates J

SUMMING UP

Counsel:
Mr R. Gibson with Ms H. Tabete for the State
Mr M. Raza for the Accused

All 3 Assessors present

[1] Lady and Gentlemen assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to give a decision on the facts applying those directions of law and to give me your opinions as to the accused’s guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I shall not refer to all of the evidence, and as a result I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You must feel free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall weigh carefully and place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused which is enshrined in the Constitution. The State brings the charge against the accused. Therefore it is for the State to prove the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused does not have to prove anything.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of his guilt beyond reasonable doubt. The test is not, doubt, or slightest doubt, or any doubt. The test is reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty. Only if you are satisfied beyond reasonable doubt that the State has proved the case against the Accused, should you give your opinion that he is guilty.

[6] You must decide this case from the evidence that has been presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which have not.

[7] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against the accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[8] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[9] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the photographs, the surgery diary, the chemist’s prescription, the vodafone records, the caution interview statement, and the DNA table.

[10] You should also consider as evidence the statements tendered by agreement of counsel. Some were read out to you. Our Criminal Procedure Code provides for the agreement of facts or evidence. This procedure saves witnesses being called and saves time. Be aware of these statements and remember what counsel has said in connection with them. Concentrate on what is disputed and what you have to decide. I shall deal with this further on.

[11] Neither speculation nor theories of one’s own constitute evidence. Media coverage, which in this case has not always been sufficiently accurate, idle talk, rumours or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have heard, or read in the newspapers or seen on the television about this matter. You are to focus solely upon whether the prosecution have produced sufficient and cogent evidence to prove the charge beyond reasonable doubt. Have regard in your deliberations only to the evidence which you have seen, heard, or examined in this court.

[12] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[13] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence or proof for what is suggested.

[14] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[15] If you have formed a moral opinion on the conduct alleged in this case put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the accused has been proved before you, proved with evidence sufficient for the charge to the extent that I have already indicated.

[16] I turn now to deal with what the prosecution must prove. The Accused is charged with a single count in the information, that is of manslaughter, an offence in our Penal Code. It is alleged that between 21st and 22nd of March 2003 the Accused unlawfully caused the death of Poonam Pritika Kumar.

[17] The State puts its case on two bases. First it alleges the Accused had performed an unlawful act, an abortion, upon the deceased as a result of which she died. Second it is said the overall medical treatment, care, and management of the deceased was grossly negligent such that the Accused should be held criminally responsible for her death.

[18] The first basis is that the Accused performed an unlawful act upon the victim, that act being the abortion. On this allegation the State must prove:

(a) that Poonam had died;

(b) that the Accused had carried out an unlawful act on the deceased, namely an abortion;

and

(c) that such an act had made a significant contribution towards Poonam’s death.

[19] You will see from the Agreed Facts that it is accepted by both sides here that Poonam was found deceased in the resting room of the Accused’s medical practice at 8.15 am on 22nd March 2003. The 22nd was a Saturday. So the first element of proof is accepted and need not detain you.

[20] The State and the defence are in dispute on the other two elements to be proved, that is whether an abortion had been performed by the Accused, and whether that abortion procedure had had a significant contribution towards Poonam’s death.

[21] To kill an unborn child whilst it does not have an existence independent of its mother is a felony offence in Fiji, if it is an act not done in good faith to preserve the life of the mother [section 221 PC]. But under another section of the Code attempts to procure an abortion, or a miscarriage, irrespective of whether the mother is still or is not with child is also a felony [section 172 PC]. So if there is an abortion of an already dead foetus, an unlawful act is still committed. For such an offence the State does not have to prove the foetus was alive at the time of the attempted abortion.

[22] Two further sections of our Penal Code are relevant:

Section 234 provides:

"234. A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case."

and Section 221(1):

"221. (1) Any person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes a child to die before it has an existence independent of its mother, is guilty of the felony of child destruction, and is liable to imprisonment for life:

Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose of preserving the life of the mother."

[23] It is not part of the defence case that the Accused made any attempt to bring on a miscarriage or to carry out an abortion, so you are not concerned to consider whether such operations were done in good faith or in the interests of the health and life of Poonam.

[24] Lastly section 212 imposes the following duty:

"212. It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to observe or perform that duty."

[25] So you could easily conclude that if an abortion had been performed on Poonam for the reason that it was not convenient for her to have the baby whilst Poonam was still an undergraduate, that would not be a lawful reason for termination of her pregnancy. If an abortion had been performed here it would therefore have been an illegal act. But was an abortion carried out?

[26] Although the prosecution called the victim’s boyfriend Abhikesh Kumar to testify first, he was stood down whilst the police photographer gave his evidence. Through the photographer, the bundle of photographs was tendered. D/Cpl Patemosi went with his Scenes of Crime superior ASP Rokobera and with the forensic pathologist Dr Samberkar Prashant to the Accused’s surgery on the Kings Road at Nabua.

[27] Mr Raza was critical of this joint procedure as also of Dr Prashant’s working with the police on the car and house search. He said it showed a lack of independence. The car and house search produced nothing of any assistance to this case. Those searches cannot assist the prosecution or the defence. They were conducted far too late on after the event and nothing was found. However you can consider the manner in which Dr Prashant gave his evidence in considering whether he had lost a proper professional independence. It would be natural for a medical expert in a case such as this to guide the police photograher, for instance on what machinery, equipment and evidence of significance in the surgery ought to have been photographed. His overall role you may think was unremarkable. But the issue is for you to decide whether the pathologist had lost objectivity, and if so whether this affected the accuracy and reliability of his evidence.

[28] It was clear from what the photographer and ASP Rokobera said that the police investigators were considering, almost immediately after the crime officer was informed of the suspicious death, that this was to be an abortion inquiry and that the suspect was Dr Mudaliar.

[29] Abhikesh returned to the stand and told us how he had been Poonam’s classmate and how they became boyfriend and girlfriend. He said "we were very close to each other." He had even told his mother about their relationship and he and Poonam had discussed marriage. They became engaged. This developed into an intimate relationship. By March 2003 she told him that she had not had her period for 2 months.

[30] She wanted to consult a doctor. Abhikesh must have been concerned for he went with her to a surgery in Raojibhai Patel Street. He could not remember the name of the doctor. From other evidence it is clear this was Dr Appana Hazaratwala. Poonam reported back to Abhikesh, since he did not go with her inside the consulting room, that she was pregnant and was having some internal bleeding. He said she was asked to see Dr Mudaliar. They went to Dr Mudaliar’s together the same day. When she came out from seeing Dr Mudaliar, she told Abhikesh that she was 20 weeks pregnant. The doctor had made an appointment for her for the Friday, that was 21st March 2003. He would be charging $950 for an abortion. It would be done on the Friday.

[31] She was given a prescription. That was exhibited by consent. The Accused said in his unsworn statement that he gave this prescription because he had diagnosed intra-uterine foetal death, a missed abortion, and that she was in the process of aborting. He advised antibiotics as well as microlax to relieve constipation. He had advised her to return to him if there was any bleeding, pain or fever in the next 2 or 3 days.

[32] Abhikesh said Poonam seemed fine that Wednesday. They got the prescription down below at the chemist and returned to the campus.

[33] Abhikesh said he tried to stop Poonam from having the abortion. But she insisted. She needed $950 for it. He agreed to pay and withdrew that amount from his ANZ account on the Friday before lunch. They went together in the afternoon to the Accused’s surgery. They went to the receptionist who noted down details in pencil.

[34] Abhikesh said he went into the doctor’s room also. He said he wanted to know about the abortion, to inquire about it. He had some questions to ask of the Accused. The doctor told him it would take 6-7 hours and be finished by 8 pm. The cost was also discussed. Abhikesh wanted a discount, since they were still students. Do you believe him when he told you that? If you do, that may help you in deciding whether Abhikesh and the Accused did talk on the Friday afternoon. He also asked how safe the procedure was. He said he asked if he should wait, but the Accused told him he could leave because it would take some time.

[35] In his statement in court, the Accused said Abhikesh came into his room when Poonam went to the toilet. He admits Abhikesh asked him how long it would take, but says he asked him to wait in the reception room. The Accused specifically denied discussing fees, denied saying he was going to carry out an abortion, and denied saying he had said anything to Abhikesh at that time.

[36] Abhikesh said he left the surgery at 3 pm to return to USP. He spoke to the receptionist, who said Dr Mudaliar would call him. She also gave him Dr Mudaliar’s mobile number. He said he rang the Accused, not having received any feedback and eventually reached him. The Accused told him to come at 8 pm. Around 8.45 pm the Accused let him in. He was taken to where Poonam was lying. Abhikesh said she was unconscious. He tried but could not talk to her. Her eyes were closed. She was wearing a top and undergarments, which were covered with blood. The Accused denied Poonam was unconscious or covered with blood. This is a significant divergence in accounts and you will have to resolve it. Bearing in mind that it is for the prosecution to prove its case, do you accept that Abhikesh was truthful and accurate in this part of his evidence. If he was, Poonam was seriously ill at that time and needed immediate skilled care and monitoring.

[37] The Accused told Abhikesh he had to go somewhere and asked if Abhikesh could stay with Poonam for 2 hours. He said the procedure was not finished yet.

[38] Abhikesh said nothing about talking to Poonam or about hugging her, two incidents which the Accused said he had observed. There was a variation between the two accounts also as to why Poonam had to be left in the surgery overnight and alone. The Accused said he had asked Abhikesh to take her home. On the doctor’s account this would have been at around 9 pm or a little earlier.

[39] The Accused told you Abhikesh panicked and protested, saying the hostel was closed and that he could not take her there. The Accused asked him to take her to Abhikesh’s room at USP. Abhikesh, the Accused said, told him he could not do so. He said he then asked Abhikesh to stay with her. Abhikesh refused, saying he had to go home. The Accused said "I was stuck and could not send this young girl out at the eleventh hour when her boyfriend had abandoned her. Abhikesh then left after I said "ok pick her up in the morning." Mr Gibson commented that at 9 pm it would still have been possible to enter Poonam’s hostel. The Bethany Hostel closed at 11 pm, not 9 pm.

[40] Abhikesh explained that he could not stand the sight of blood, that the Accused had said the procedure would take till 11 pm and he knew the hostel closed at 11 pm. Lastly the Accused told him she could stay the night. Are you satisfied that Abhikesh’s account is correct? On the Accused’s account Poonam was quite well, if resting. She had taken water, walked to his consulting room and had talked. From the Accused’s account she was well enough to go home. Do you accept Abhikesh’s account that the Accused said she would in effect still not be ready till 11 pm? Why would Abhikesh not take her back to the hostel at 9 pm? If she were well, and since the hostel was still open, there would be no difficulty?

[41] Before I go on to deal with other differences between what these two say, I need to give you two directions. First, your approach to Abhikesh as a witness. At the outset, you should ask yourself whether he has told you the truth. We know that the Director of Public Prosecutions granted him immunity from prosecution. That letter was not exhibited, but both counsel read it to you. No doubt this immunity was in connection with whether Abhikesh might have aided and abetted the commission of an unlawful act, the abortion, upon Poonam.

[42] It was never suggested to Abhikesh that he had been pressed by the police to deny that this was a case of miscarriage and a removal of remnants procedure. Nor was it suggested that they had said he was only to have immunity from prosecution if he kept to the story that the Accused had performed an abortion. Ask yourselves had Abhikesh come and told you the plain truth or was he sticking to some story so as to avoid getting himself into trouble with the police. Abhikesh answered Mr Raza in cross-examination by saying he did not wish to depart from his police statement and that he wanted to tell the truth. The condition for the immunity in the letter was for him to tell the truth. Of course if the couple had only gone to the Accused because of a miscarriage which had already occurred, and for removal of remnants, why would they need to deny it? Neither Poonam nor Abhikesh would have done anything unlawful or wrong.

[43] My direction to you is to scrutinize the evidence of Abhikesh with care. Approach it with caution. Look for items of evidence independent from his own evidence that would confirm parts of his account. Although it is not entirely clear how his position would be improved by saying it was an abortion procedure rather than an attendance to a miscarriage, it is possible he may have wished to please the police rather than to tell the truth.

[44] There is some confirmation in the vodafone records evidence of the vodafone calls made which support Abhikesh’s own account of making the calls to the Accused at the times he said. Those records cannot confirm his account of the conversations, the actual words said, only the fact that he did indeed make the calls to the Accused. His withdrawal of money on the Friday 21st March from the ANZ Bank was confirmed by the extract from the passbook statement and by the bank officer. $950 was a large sum of money you may think for a student. Did evidence of that withdrawal show some consistency in his account? Remember the bank officer’s evidence only proves the withdrawal. It does not establish or confirm to whom Abhikesh gave the money, or for what purpose. The receipt and the amount of such a fee has not been challenged. No receipt appears to have been issued.

[45] My second direction to you when considering whether you accept Abhikesh’s account or that of the Accused is in connection with the form in which the Accused related his account to you. I have already told you that the Accused carries no burden. He does not have to prove his account is the correct one. He may prove to you his innocence or you may have a reasonable doubt as to the validity of the prosecution case. In both of these cases, you should acquit him.

[46] In this case the Accused elected to give an unsworn statement from the dock. That was his right and no adverse inference can be drawn from that choice. This statement is something which the law requires you to take into consideration together with the evidence, but it is not in itself evidence in the same sense as the statement of a witness given upon oath. It has not been tested or proved in any way by cross-examination. But it remains material which you must consider. Similarly in his police interview the Accused chose to answer some questions and not others. That also was his right and no adverse conclusion can be drawn from the exercise of that right.

[47] Returning to Abhikesh’s evidence, he told you that on 22nd March, the Saturday morning at 7 am he rang the Accused on his mobile. The Accused told him that he had finished the process and he could come at 8 am. Abhikesh arrived at the surgery at that time and it was closed. He rang again. He was told to wait for the receptionist. When he went in, Poonam was not responding.

[48] When the Accused did arrive, he told Abhikesh that Poonam had passed away because of some complication. The accused also told Abhikesh that the police had to be called and to tell them that Poonam had had a miscarriage. Abhikesh said he was completely shocked and was crying. Later he called Poonam’s cousin.

[49] He told the police what the Accused had advised him to say. The police appear not to have believed that account and gave him a slap. Abhikesh then admitted that an abortion was what was being carried out. Thereafter he made a full statement to the police.

[50] Dr Appana Hazaratwala gave evidence of having seen a female patient. She was at times vague and evasive. She said in her practice in Raojibhai Patel Street it was the doctor who made out the patient’s card. She did not make out a card in this case because she was not in a position to help her, and would not be seeing her again. Her receptionist remembered a young Indian girl 18-20 years old coming in with similar age Indian boyfriend. Significantly Dr Hazaratwala remembered the girl saying that she was pregnant and did not want the child. Dr Hazaratwala told her that she could not help her. The doctor made a brief examination. She said in cross-examination "An experienced doctor only has to put the hand up and can come to the conclusion, say of 18-20 weeks." This is the term of the pregnancy that she concluded.

[51] In cross-examination also, she conceded the stomach would be quite bulging at that term, and that she did not make an internal examination or measure the stomach, which she regarded as unnecessary at that stage. Dr Hazaratwala denied seeing any bleeding. This part conflicted with what Abhikesh said Poonam had reported back to him of the consultation.

[52] She was asked about the keeping of records of examinations. She said she would only make cards or keep records of examinations if the person was a patient of hers. By that presumably she meant a regular or repeat patient. After the Wednesday appointment, the Accused’s receptionist, Sarita apparently did not record the follow-up appointment for the Friday afternoon. This was not explained clearly you may think.

[53] Sarita Devi Nand and Shereen Vinita Lal were both receptionists working for the Accused. They were receptionists, not trained nurses. Sarita has worked at Dr Mudaliar’s for 4 years and still works for Dr Mudaliar. She said they were asked to move Poonam on the Friday afternoon from the surgery or Room 1 to the resting room. Sarita said Shereen had to wake up Poonam who had been sleeping. Poonam then walked by herself. Shereen assisted Sarita. Sarita checked Poonam again before leaving that afternoon, and she was sleeping again. Sarita must have woken Poonam up or Poonam woke up herself when she checked, for she said Poonam asked for a glass of water. Sarita locked up the surgery at 6.30 pm whilst Poonam remained in the resting room unattended. When she left, Poonam was a bit drowsy. She said she had not made any notes on this patient.

[54] Sarita said she had noted down Poonam’s name for the Wednesday appointment. Later when shown the diary from the practice, she said there was no entry for Poonam for either 19th or 21st March the Wednesday or the Friday. She said they also wrote down the patient’s name and address in a register, one page per date. She said she tore off the Friday 21st entry and gave it to the doctor before he left.

[55] Shereen said she did not enter Poonam’s name in the diary. She said she would only write the name of the patient on the instruction of the doctor. She wrote her name and age on a piece of paper which she subsequently threw away. She did not give this piece of paper to the doctor.

[56] Whilst Poonam was being attended to on the Friday afternoon, she said the boy took a note of the doctor’s mobile number and left the surgery. Shereen was the receptionist who opened the surgery on the Saturday morning after 8.15 am or so. She said she was shocked when she realised Abhikesh had come to collect Poonam. She did not know she was there overnight.

[57] Shereen said she did the sweeping and cleaning in the surgery. None was done on the Friday or any wiping. She also said she saw no blood, she did not notice the panty nor could she smell any blood. This conflicts with what Abhikesh told you and also what was noticed prominently by ASP Rokobera from the Scenes of Crime Unit, the Unit charged with noting precisely what is significant at a crime scene. She might have missed the panty but it is unlikely she would have missed the blood on the bed and on Poonam’s clothing.

[58] Cpl Ajay Singh gave evidence of a telephone call from the Accused reporting the death of a USP student in his surgery. Cpl Singh said that the caller told him this young female came to the surgery the day before suffering from cold and ’flu. Cpl Singh and another officer, PC Pita, left the Nabua Police Station to attend the report a short distance away. They saw the Accused in his room. They talked of the circumstances of the death and Dr Mudaliar repeated that the deceased had complained of a cold and ’flu. He did not mention he had seen her on the Wednesday. When they viewed the body Cpl Singh said he noticed blood stains on the skin of her back, and on her top. When these were mentioned to the Accused he said the deceased had had a miscarriage. These circumstances made Cpl Singh suspicious as to the cause of death.

[59] A similar account to that of Cpl Singh was given by PC Pita. He said they saw the dried blood stains on the top first and then Cpl Singh lifted the top whereupon they could see dried blood on her back.

[60] I must now give you a direction in relation to possible lies told either out of court or before you in court. The State says Dr Mudaliar lied when he told the police officers at first that the deceased had suffered from cold and ’flu. It goes on to urge on you that that lie was uttered out of a sense of guilt. The Accused in his statement to you does not deal specifically with that, but says he told Cpl Singh that Poonam had a miscarriage.

[61] First you would have to be certain beyond reasonable doubt that the Accused did make that statement about the cold and ’flu. Second you need to be sure it was made deliberately. Third, it must relate to a material issue. In this case, it was material. Fourthly, the motive for the lie must be a realisation by the Accused of his guilt and a fear of the truth. You should bear in mind people sometimes panic and say things they do not mean. They tell needless lies even if they have a just cause. Lastly, the lie must be shown to be a lie by other evidence. Dr Hazaratwala nor any of the receptionists spoke of the deceased presenting with cold and ’flu symptoms. Nor did Abhikesh. Nor did the Catholic sister at the hostel or her real sister Ashwin.

[62] Only if you accept what the police officers said of the Accused’s first explanation can you consider this statement. Navin Nitesh Chand’s statement was read to you by consent. Poonam was his cousin sister he said. He came to the surgery on the Saturday morning at Abhikesh’s request since he said Poonam was very sick. He confirms that Abhikesh was very upset and crying. He asked the doctor what had happened and the Accused replied that she had had a miscarriage. This explanation was given prior to the arrival of the police he stated.

[63] Whether an abortion or a miscarriage had occurred is the chief issue in the case you may think. The statement that she complained of cold and ’flu was unlikely to put off a police investigation. If said, you may regard it as a statement made in panic rather than a deliberate and calculating lie because of a consciousness of guilt.

[64] There are other pieces of evidence that fall into the same category. You should follow the same steps to ascertain if the statement was a lie and if so whether the Accused had lied for a non-innocent reason. Only then could the lie, if proven, support the prosecution case. For instance, when the Accused went to the Nabua Police Station, he told you that he mentioned to Sgt Dewan Chand "it seems that air embolism was the cause of death." Did the Accused have enough information to arrive at that early diagnosis prior to the post mortem and medical analysis? Sgt Dewan denied that the Accused had suggested this cause of death.

[65] Similarly the Accused said there had been no talk with Abhikesh on reducing the fees or any discussion with him about the nature of the procedure to be carried out. The State says these were deliberate lies told to avoid having to admit what was to be performed, namely an abortion. Again, go through the same steps to ascertain if a lie had been told by the Accused, and the reason for it, if you so conclude.

[66] ASP Rokobera gave evidence of his visit to the surgery on the Saturday morning. He also noticed the deceased’s top was stained red and he said the room smelt heavily of dry blood. He arrived at that opinion of the smell from his long experience of having to smell blood at crime scenes. Other red stained items were a panty drying on a window, a chair, and a pad in the bathroom bin. On the second day of his examination ASP Rokobera found red stains underneath the mattress of the examination table. He worked with Lorima Seru, the forensic officer, who took samples.

[67] I turn next to the expert evidence. This was the evidence of the doctors called by the State. Part of what the Accused told you concerned the facts, but some of his unsworn statement amounted to expert opinion on medical procedures. You should consider all of the opinions of the doctors and of Dr Mudaliar in helping you to arrive at the correct facts. All of these persons were clearly highly qualified, skilled and experienced, Dr Mudaliar included. It is for you to evaluate that evidence and to give it the appropriate weight. The evidence is not more sound solely because of the number of eminent doctors who testify. You must decide whose evidence you can rely on when considering it against all the other circumstances.

[68] The forensic pathologist Dr Samberkar Prashant carried out a post mortem on Poonam. Before that he had visited the scene. He observed that her lower shirt was blood stained as also, upper part of her trousers, and her wrist and Holy string. Rigor mortis had already set in to the body. He noticed the blood stained mattress and its underpart. He checked what drugs and equipment were available in the surgery for monitoring, resuscitation, and for emergency procedures.

[69] He looked for patient records and did not find any. Nor any consents for surgery. If complex and sometimes dangerous procedures would be carried out by an experienced and skilled practitioner in his surgery you might expect to have a system of detailed patient records. How might a patient be referred to a hospital if there were no detailed history and medical records available? Was it all dependent on Dr Mudaliar’s memory? A patient might walk in to a doctor’s surgery and have a one-off consultation about a minor ailment such as cold and ’flu. But would there not need to be notes and a file opened for a patient who was to have an examination after a miscarriage, sedation and other tests? Where are the records of the various body readings, the blood pressure, the temperatures and the other significant symptoms, the pallor and the vaginal discharge? Where are the drugs noted, and the prescriptions? Could this simply be remembered for all the patients?

[70] Dr Prasant observed significantly two contusions or bruises, one on the lower half of the abdomen in the midline. The other was on the lower half of the genitalia or vulva. He noticed Poonam was pale with pallor up to 3 +++. He concluded she had lost a great deal of blood. The Accused criticised Dr Prashant for not conducting haemoglobin or packed cell tests to establish more accurately the true extent of blood loss.

[71] There were air bubbles in the covering of the brain. Because of this Dr Prashant tested a section of the heart under water and confirmed his additional diagnosis of air embolism as a cause of death.

[72] He found the vaginal wall was roughened suggesting surgical trauma. He separated the uterus for further examination by a team of obstetricians and gynaecologists. He took various samples for analysis. Some were delivered by Sgt Dewan to Dr Drummer in Melbourne. There was to be a toxicology as well as a histo-pathological study. Dr Prashant concluded that Poonam died as a result of haemorrhage. That haemorrhage involved the entire thickness of the muscle of the uterus. For this reason he concluded an evacuation procedure had been carried out.

[73] It was difficult at the PM stage he said to ascertain whether it had been a miscarriage or an abortion. This is why he consulted the senior medical officers, the gynaecologists. He was of course certain that an iatrogenic procedure had been carried out. Iatrogenic you will remember meant a condition resulting from treatment. Some procedure had been carried out. What was it? He accepted that a baby was well formed at 20 weeks. He said he found a tear extending from the cervix on the left side going right up the left side of the uterus.

[74] Dr Prashant said he would not have expected such a tear if the procedure carried out was removal of remnants after a miscarriage. He explained this was because the expulsion of the foetus by miscarriage would have caused sufficient dilatation of the cervix. The dilatation or enlargement of the cervix would have meant that there was less likelihood of a tear in that area.

[75] Dr Prashant explained to you how a termination might be effected by preparatory procedures to soften and dilate the cervix. The risks involved were air embolism, haemorrhage, and post-partem sepsis.

[76] Dr Prashant illustrated his findings with the photographs, pointing at the roughening of the vagina inside, the blood and haemorrhaging, the bruising to the abdomen. He also pointed out the air bubbles in the heart and the brain. He said the haemorrhage was present almost through the entire thickness of the muscle wall of the uterus. There was mild infection which he associated with inflammatory cells at the site of surgery.

[77] Dr Prashant explained in cross-examination how he arrived at the gestation period and the tests or examinations he performed to calculate it. He did not accept that there was any mucous or blood in the vulva. He accepted that if there were a forceful removal of foetus there could be a tear of the cervix. Some of the matters Mr Raza put to him Dr Prashant admitted should have been recorded at the time of the post mortem. Dr Prashant admitted the histological report from Melbourne did not answer all of his questions, nor did he himself do any culture. But he said the uterus did not show the presence of any infection in relation to multi-nucleated giant cells.

[78] There was some criticism of the methodology used by Dr Prashant, some of which I have already indicated. Consider them and decide whether they influence you in accepting or not accepting Dr Prashant’s conclusions on the cause of death.

[79] Dr Prashant said that he found a laceration of the cervix and a tear in the posterior fornix, that is around the back of the cervix of the uterus. He did not record these in the PM report nor mention them at the preliminary inquiry. He admitted he was only now mentioning them. He explained that he noticed the injuries at the time of conducting the post mortem but he awaited the opinions of the gynaecologists. Mr Raza pointed out this inconsistency to you. Does this effect the pathologist’s credibility? Consider this point along with the testimony of the other doctors who testified on this issue.

[80] Dr Whittaker was a gynaecological oncologist from New Zealand. His evidence was interposed so that he could return to his duties in New Zealand. His evidence was by way of opinion commentary having read relevant statements, reports and material submitted to him. He was not present at the post mortem, nor did he personally examine the uterus.

[81] From this material, Dr Whittaker concluded the cause of death arose from the damage to the cervix of the uterus. This had led to haemorrhaging and then shock. The injury to the cervix was not normal for an examination after miscarriage. It must have been caused by considerable force. He said evacuation after miscarriage was not an urgent matter unless there was bleeding or infection. The uterus would contract and expel these products naturally.

[82] Dr Whittaker explained how he would have removed a foetus at 4-5 months. He referred to the use of drugs and equipment to dilate the uterus gradually. Forceful dilatation was risky and could lead to tearing of the cervix which he believed had happened here leading to acute bleeding. There was a huge blood supply to the uterus, and if it bled the condition could become life threatening. The tearing of the cervix was the ultimate bad outcome. It was rare and not necessary he said. Risks increased with the lateness of termination. Very few terminations were done in New Zealand now after 13 weeks.

[83] Dr Whittaker concluded that the deceased had a late termination by forceful dilatation of the cervix which had injured the cervix leading to major blood loss and death from shock. This rate of bleeding would probably vary and might slow. Death would not necessarily occur within 2 hours. Dr Whittaker also said massaging of the stomach of a pregnant woman was not recommended since it could lead to miscarriage or bleeding. He said you would expect to see blood in the vagina if there had been massive bleeding. But strong compression of the uterus could cause the blood to flow out of the vagina.

[84] Dr Whittaker explained why if the measurement was 30 cms then the term of the pregnancy was over 20 weeks. He explained how he would have performed the termination in those circumstances.

[85] Dr Drummer, who you may remember, gave his evidence by video link from Melbourne told us of his tests for particular drugs on Dr Prashant’s samples. Those drugs were found. Pethidine for instance was related to morphine and was a drug used for pain control. Others found were used for either pain control, to free anxiety or for muscle relaxation. Dr Drummer said the presence of these drugs was a common combination. Pethidine was effective for 3 to 4 hours and it would take the body half a day to clear. Diazepan would take at least a day or longer to clear.

[86] Dr Baravilala said he had been asked to review the cause of death. He said it was not very common for a tear to be caused by itself, a patient’s miscarriage. A tear was much more likely from the insertion of surgical instruments for dilatation purposes. Dilatation was not necessary for the evacuation of remnants. He considered bleeding would be more likely in cases of spontaneous miscarriage or where some procedure has been done to the patient.

[87] Dr Baravilala did not regard the presence of the giant cells as anything special. He said once the placenta was removed the white cells would fight off the infection.

[88] He wrote his report independently of Dr Whittaker and of Dr Nainoca. Minor editing was done by Mr Allan of the DPP’s office which Dr Baravilala approved.

[89] Dr Nainoca gave evidence next. He is Head of the Department of Obstetrics and Gynaecology at the CWM Hospital. He was one of the team of doctors who examined Poonam’s uterus after the post mortem. The cervix canal was dilated up to 2 cms. He noticed the superficial tear on the posterior fornix, the tear behind the cervix. There were signs of bruising into the tissues. On the inner surface of the uterus there was a deep defect over the internal os or mouth. Dr Nainoca said this was closely related to the left uterine artery, the main blood supply to the uterus. There was evidence of seepage of blood into the surrounding area where the defect was and there was a blood clot inside the vessel.

[90] His opinion was that this woman had been 20 weeks or more pregnant. He concluded that the diameter had been forcibly opened because of the injury to the internal os. He said there would have been no need for dilatation of cervix if there had been a miscarriage. The products would have been naturally expressed. Ordinary bleeding could have been managed by manual compression. The bruising to the posterior fornix and also to the abdomen were not what you would expect to find for evacuation. He concluded there had been lots of bleeding around the artery, which he felt had been damaged. He agreed with Dr Baravilala in his conclusion.

[91] They opened the vessel and found blood clots. The body, he said, had been making some attempt to stop the bleeding. The blood would have escaped through the defect into the uterus and out through the vagina. He did not see any mucous present in the cervix. He concluded the defect was not an incident you would see in the normal process of miscarriage.

[92] The third element to be proved is that the Accused’s unlawful act made a significant contribution to the death of Poonam. It is not necessary that the abortion if it were carried out, was the sole or even the main cause of death provided it made a significant contribution to the death. If you accept that the Accused was carrying out a lawful procedure as he told you, the evacuation of the remnants, or you have a reasonable doubt about the abortion allegation, on this first basis of the charge you should acquit him. If you concluded he had carried out an abortion and in doing so had caused the haemorrhaging you could also conclude that the bleeding was a significant contribution in her death. Whether there was sepsis or air embolism caused in an unrelated way, you could still so conclude since the bleeding on the evidence was a significant contributing cause.

[93] Whether or not you are satisfied that there had been an abortion, you should go on to consider the second basis for the charge. This is that the Accused was guilty by virtue of the mismanagement of the deceased’s medical care and treatment since it was grossly negligent.

[94] First it must be proved that there existed a duty of care towards the victim to exercise a proper standard of care towards her. If a patient is accepted for treatment by a doctor, and he treats that patient, a duty of care will exist obliging the doctor to exercise proper care.

[95] Second you must be satisfied that there has been a breach of that duty. You heard what the various doctors had to say about that level of care. Do you accept what they say as to competent management of such a patient and the reasons they gave for those standards?

[96] Thirdly you have to be sure that that failure to accord the care and competence, which amounted to the breach of duty, made a significant contribution towards her death. Remember it was said amongst other things that the failure to transfer her to the Intensive Care Unit of the CWM to stem the bleeding was a failure of treatment and the abandonment of a seriously ill patient unattended in the surgery overnight compromised her recovery. Mr Gibson summarised the evidence of the doctors as to why that was so.

[97] Besides the death which is admitted here, gross negligence must be shown. That is, not ordinary negligence but an unacceptable departure from the proper standard of care. Such departure must involve a risk of death, and the conduct of the Accused must be so bad that in all the circumstances the conduct amounts to a criminal act or omission. The opinions of the doctors may assist you here. But you as members of the public sitting as assessors must feel the conduct to be so bad, so culpable, and as deserving of the sanction of the criminal law, that the Accused must be found guilty. This is the second basis of the charge of manslaughter for you to consider.

[98] You have heard what the Accused told you as to his approach to his patient. Has the State proved to you that he was grossly negligent in his decisions made and steps taken in treating this patient?

[99] Mr Gibson was critical of Mr Raza for not always putting a matter to one of the prosecution witnesses which later formed part of the defence case. Sometimes this happens because of inadvertence. It is always fair as well as useful if a witness has a chance to deal with an issue which is in contention. If this is not done less weight may attach to a later assertion that was not put.

[100] Mr Raza raised the amount of the fee, the $950 and told you it was irrelevant. $950 might well have been a reasonable charge for a surgical operation such as an evacuation of remnants. There was no evidence on current levels of fees for such procedure. You have to decide as a preliminary matter what was the procedure being performed. The level of fee for the two procedures might not be greatly different. The amount of the fee therefore may not assist you in tipping the balance towards either procedure.

[101] Mr Raza urged on you the fact that Poonam did not look pregnant and this pointed to the inference that she may not have been 20 weeks pregnant but more like 13 weeks which was the Accused’s diagnosis. The Accused gave his explanation as to why he considered air embolism the cause of death. He did not say how the laceration and the defect were caused. Of course that is for the State to show to you and to prove to you that it was the Accused who cause those injuries in the course of an unlawful procedure.

[102] Consider both bases of the State’s case. Consider first whether the Accused did carry out an unlawful procedure, and then consider the allegation of gross negligence both bases alleging that such acts or omissions caused Poonam’s death.

Please now retire and consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs M. Raza & Associates, Suva