IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 117 OF 2012

STATE

vs

SAMUELA LEDUA

Counsel: Mr. S. Babitu with Ms. W. Elo for State
Ms. J. Lagi for Accused

Date of Trial : 11th August – 13th August 2015
Date of Summing Up : 17th August, 2015
Date of Judgment : 19th August, 2015

JUDGMENT

1.	The Accused was charged with the following Counts and was tried before three Assessors only for the Second Count as he pleaded guilty to the First Count. 

FIRST COUNT
Statement of Offence

Assault Occasioning Actual Bodily Harm: Contrary to Section 275 of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Samuela Ledua, on the 8th day of September 2012 at Nadi in the Western Division, unlawfully and repeatedly slapped Viliame Baranage also known as Viliame Satala, an infant, on the cheeks, which caused bruises to form on the said Viliame Baranage also known as Viliame Satala's cheeks.

SECOND COUNT
Statement of Offence

Murder: Contrary to Section 237 of the Crimes Decree, No. 44 of 2009.
Particulars of Offence

Samuela Ledua, on the 8th day of September 2012 at Nadi in the Western Division, being reckless as to whether death would occur or not, suffocated Viliame Baranage also known as Viliame Satala, an infant, which act caused Viliame Baranage also known as Viliame Satala's death.

2.	Assessors unanimously found the Accused not guilty of Murder as charged and found him guilty of lesser Count of Manslaughter.

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.	The Prosecution case was substantially based upon the evidence of the eye witness Varanisese, Pathologist, Dr. Gounder, and the cautioned interview statement of the Accused.

5.	Having heard the evidence in trial, I directed the Assessors in my Summing –up as follows.

"In law, a person may be found guilty of a lesser offence, although he was not formally charged with the same. In this case, I am talking about the offence of Manslaughter. Manslaughter has the same first two elements of Murder; that is to say that the accused engages in conduct which caused the death of another, but instead of the recklessness as to causing the death by his conduct, he just has to be reckless as to whether his conduct will cause serious harm to the victim".

"In murder, the accused must intend to cause the deceased's death, or was reckless in causing the same. In Manslaughter, the accused must intend to cause serious harm, not death, or was reckless as to causing serious harm, not death to the deceased. If you find 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 alternative lesser offence of Manslaughter"

6.	The only eye witness in this case was Varanisese. She said in her evidence that Samuela slapped baby Viliame with his hand on the cheeks when he was crying. After that Samuela carried the baby. Baby stopped breathing. Samuela asked her to bring some water. He made the baby drink water. But baby Viliame did not drink. He had stopped breathing.

7.	She also said that when Samuela was cooking in the kitchen baby Viliame fell from the settee and hit back of his head on the floor. She said she saw everything happened on that day. She was straightforward in her evidence and did not encounter much challenge when she was crossed examined. I find that Varanisese's evidence was probable, consistent and believable. Assessors had ample reasons to believe her. 

8.	Doctor explained in detail the five abrasions, 1 to 5 in the external examination section of the report. He said that an abrasion can be caused by applying pressure over the skin or applying heavy force like hitting with a blunt object or even by falling on to a hard surface. He ruled out any possibility of two abrasions on either side of the face having been being caused by slapping. He also ruled out the possibility of those abrasions having been caused by a fall from a settee. He opined that those abrasions could have been caused by a heavy pressure or force applied in the form of a finger or hand itself over the mouth.

9.	Police photographer Josetaki, tendering sketch he had prepared and the photographs taken, described the set-up of the crime scene on reconstruction, including the height of the settee. 

10.	On the day prior to baby Viliame's death, Jolame Vuluma had not seen any injury on Viliame's face when he was playing with baby Viliame. Soon after the death Jolame sees reddish bruises on baby Viliame's face. Doctor discovers, at the post mortem examination, five external abrasions on different places of baby Viliame's body, not compatible with a fall from a settee. According to Varanisese evidence, only person who had handled Viliame in between was the Accused. But Varanisese said she saw only slapping. 

11.	I directed the Assessors on circumstantial evidence. I asked the Assessors to consider, in light of evidence elicited by different witnesses, whether it is the only inescapable inference that the abrasions seen on baby Viliame's body were caused by the Accused. In view of all the evidence led in the trial, especially those of the Doctor, I am convinced beyond reasonable doubt that the fatal act of squeezing was inflicted by the Accused. Assessors were justified in coming to that conclusion. 

12.	Having explained the internal examination section of the post mortem report, the Doctor attributed the death of baby Viliame to asphyxia caused by smothering. He agreed that smothering or suffocating the mouth of a child by an adult could cause asphyxia. In cross examination, he ruled out any possibility of asphyxia being caused by slapping on the mouth.

13.	Dr. Gounder is an associate professor of pathology at the Pathology Department of College of Medicine. He had been a Pathologist since 1975 and had conducted more than 5000 post mortem examinations. His reasons are convincing and acceptable. He had reached his opinion logically and scientifically considering all necessary matters. His opinion was consistent with rest of the evidence led in the trial. Assessors had no reason not rely upon his opinion and come to the conclusion that asphyxia is the direct consequence of the unlawful act of the Accused.

14. 	Most difficult question that arose was whether the evidence was sufficient to find the Accused guilty of Murder as charged. The prosecution was running its case not on the basis that the Accused intended to kill baby Viliame but he was reckless as to causing his death. In other words, the Prosecution is saying that Samuela was not necessarily intending to kill baby Viliame but they say in the alternative, that he was nevertheless reckless in causing his death. 

15.	A person is reckless with respect to causing death if he is aware of a substantial risk that death will occur by his actions and having regard to the circumstances known to him, it is unjustifiable to take that risk. So, it must be proved beyond reasonable doubt that Samuela knew that there was a risk that what he was doing might kill baby Viliame and also that he was not justified in taking that risk.

16.	Giving evidence in Court, Accused admitted slapping baby Viliame on the cheeks but denied throwing him on to the bed or blocking his mouth with hands. He had however admitted, in his cautioned interview statement, that he blocked baby Viliame's mouth to prevent him from crying. Samuela said in Court that he was in a shock during the cautioned interview and did not answer the questions voluntarily. He said he did it only to stop him from crying. 

17.	Counsel for the Prosecution, in his re-examination, asked these two questions.

Q:	Do you know Samuela that if you block someone's for example a one year old child, if you block his mouth, do you know that it can lead to his death?
A:	I have no idea.

Q:	Would you agree with me that if you block a child's nose or mouth for some time a child can die?
A:	Yes. 

18.	Varanisese said in her evidence that the Accused slapped on baby Viliame's mouth. There is no evidence, other than the cautioned interview statement, to prove that the Accused had blocked baby Viliame's mouth. Cautioned interview statement is not consistent with eye witness account in that regard.

19.	Even if the Assessors had believed that the cautioned interview statement to be truthful there is no evidence that the Accused had blocked the nose of baby Viliame. He had admitted blocking only the mouth in the cautioned interview statement. He said in re-examination that he had no idea whether death would occur if he blocked the mouth of one year old child. He had told the Police that he was on medicine suffering from blood pressure and at that time his pressure was really high. When baby Viliame continued crying, he did not know what to do to stop him from crying, he had told the Police.

20.	I have doubts in my mind, as to whether the Accused, having regard to the circumstances known to him, was aware of a substantial risk or/and, given his medical condition, was in proper mental condition to assess that death will occur by his action (blocking baby Viliame's mouth). The doubt created in my mind must be given to the Accused.

21.	Accused had conceded in his cautioned interview statement that slapping a twelve months old baby and throwing him on the bed could cause him injuries. I find that the Accused had engaged himself in a conduct which had caused the death of baby Viliame, but instead of being reckless as to causing the death by his conduct, he had just been reckless as to causing serious harm to the victim. 

22.	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 not guilty to the Count of Murder and finding the Accused guilty of alternative lesser count of Manslaughter. It is open for them to reach such a conclusion on the evidence led in the trial.

23.	I accept the opinions of the Assessors. Accused is acquitted and discharged on the Count of Murder as charged. I convict the Accused on lesser count of Manslaughter.

24. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
19th of August 2015 

Solicitors: Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused