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State v Rarawa - Judgment [2015] FJHC 749; HAC29.2014 (7 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 29 of 2014

STATE

V

ALIPATE RARAWA

Counsel: Mr. Y Prasad with Ms. S. Naibe for the State
Ms. P. Chand (L.A.C.) for the accused.

Dates of trial: 5,6, 7 October 2015
Dates of Judgment:7 October 2015

JUDGMENT

[1] Alipate Rarawa has been charged with the following offence:

FIRST COUNT
Statement of Offence'

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

Particulars of Offence

Alipate Rarawa, on the 12th day of January, 2014 at Maumi, Bau, Tailevu in the Central Division murdered DulcieLouisa William by deliberately kicking a burning stove towards Dulcie Louisa William intending to cause or being reckless as to causing the death of Dulcie Louisa William.

[2] After trial three assessors have returned with unanimous opinions that the accused is not guilty of murder but guilty of the alternative offence of manslaughter.

[3] The evidence disclosed in the prosecution case was that on the evening in question the accused visited his sister and mother with a grudge that they had offended his perception of a continued alienation from his father's family members. There had been a family feud between the maternal and paternal relatives for over 20 years.

[4] On arrival arguments developed in which his sister (the deceased), swore at him and said words that doubted his application to work and his use to both society and to his family. The accused become irate and approached his sister who was sitting cooking over a hot fry-pan in the kitchen. He upturned the pan which contained hot oil on to his sister's stomach and legs. He later kicked a lit kerosene stove which landed on his sister and the fuel (kerosene) mixed with the hot oil set her and her clothing alight. The sister was taken to hospital and died 6 days later, her body being burnt over 70% of its surface.

[5] In an interview under caution the accused attested to his anger and to the acts which led to his sister's death.

[6] The pathologist said that the cause of death was first degree burns over 70% of the body.

[7] The accused gave sworn evidence. In doing so he attempted to resile from his statement in the interview that he kicked the lit kerosene stove onto his sister. He said in evidence that after the fry-pan incident in which she was burnt she went outside. Still angry, he kicked the kerosene and at the same time as he did that the deceased was coming in the back door unseen to him. She was hit by the stove.

[8] The two main issues at trial were these:

(1) Did the deceased go outside and come in unbeknown to the accused when he kicked the stove?

(2) Was the defence of provocation available to him?

[9] PW1 the young daughter of the deceased said that her mother had never gone outside when she was first burnt by the oil. She just ran around in the kitchen trying to remove her burning clothes. The accused and his mother (DW2) both said that the deceased had gone outside.

[10] The Court prefers the evidence of the daughter. She was a competent and compelling witness and was obviously doing her best to paint a true picture of what happened that evening.

[11] The accused's witness (his mother) was far less convincing. Apart from saying that the deceased had ran outside she was not able to tell the Court what had happened in the kitchen. She said she was not able to see.

[12] I found that the mother was not an independent witness and that she could have easily been told what to say.

[13] The Court finds that the true version of what happened is that as soon as the hot oil from the frying pan was tipped over the deceased, the kerosene stove was kicked over her, this setting her alight. This is more consistent with the accused's answers in the caution interview and with the major burns being on her stomach and thighs.

[14] I find that the defence of provocation has been made out. The words used and the situation he faced of perceived treachery of a long held desire to alienate his father's side of the family would incense an itaukei male of his age.

[15] The defence of the accused (he didn't know the deceased was there) is disbelieved and his actions therefore are so reckless that they amount to murder.

[16] The prosecution has not been able to disprove the defence of provocation. The result therefore is that what would be a clear case of murder is reduced to manslaughter.

[17] I accept the unanimous verdict of the three assessors and I find the accused guilty of the lesser offence of manslaughter. He is convicted accordingly.

[18] That is the judgment of the Court.

P.K. Madigan
Judge

At Suva
7 October, 2015