IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 049 OF 2021

STATE

V

VERAMU DIKIDIKILATI NAVUSO

Counsel: Ms S Tivao & Ms N Ali for the State
       Mr K Chang for the Accused

Date of Hearing:14 & 16 March 2022
Date of Judgment:	28 March 2022

JUDGMENT

[1]	The accused is charged with arson contrary to section 362 (a) of the Crimes Act. The charge alleges that the accused on 4 February 2021 wilfully and unlawfully set fire to the St Giles Hospital reception area. 

[2]	The accused has entered a not guilty plea to the charge by reason of mental impairment pursuant to section 28 of the Crimes Act.  Mental impairment is akin to the common law defence of insanity established in McNaghten’s Case (1843) 8 ER 718.

[3]	Section 28 of the Crimes Act provides:

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that — 
(a) the person did not know the nature and quality of the conduct; or 
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or 
(c) the person was unable to control the conduct. 

(2) 	The question whether the person was suffering from a mental impairment is one of fact. 
(3) 	A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment. 
(4) 	The prosecution can only rely on this section if the court gives leave. 
(5) 	The court must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment. 
(6) 	A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility. 
(7) 	If the court is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence. 
(8) 	In this section — 
"mental impairment" includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. 
(9) 	The reference in sub-section (8) to mental illness is a reference to an underlying pathological infirmity of the mind (whether of long or short duration and whether permanent or temporary), but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. 
(10) 	A condition that results from the reaction of a healthy mind to extraordinary external stimuli may be evidence of a mental illness if it involves some abnormality and is prone to recur. 

[4]	Other than in respect of the defence of mental impairment, the prosecution carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything. In respect of mental impairment, the accused bears the burden of proof to the standard of on the balance of probabilities. 

[5]	The accused exercised his right to remain silence. The fact that he did not give evidence has no significance and has not played any role in this judgment even in respect of matters which he bore the burden of proof. 

[6]	To prove the charge of arson it is necessary for the prosecution to prove beyond reasonable doubt that the accused engaged in a conduct of setting fire to a building and that that conduct was unlawful and wilful. An unlawful conduct is one that is not justified by law. A wilful conduct is a voluntary and deliberate act.

[7]	The first issue that must be determined is whether the prosecution has proved beyond reasonable doubt that the accused set fire to the reception area of St Giles Hospital as alleged. If that is proven, it is then necessary to consider whether the accused is criminally responsible, that is, whether the accused has established on the balance of probabilities that he was suffering from a mental impairment that had one of the effects set out in section 28 of the Crimes Act. 

[8]	If either one of the effects of mental impairment on an accused  provided by section 28 of the Crimes Act is established, then the Court must enter a special finding of not guilty by reason of mental impairment. If that is not established, then the balance of the elements of arson and any other available defence must be considered.

[9]	The facts are not in dispute. 

[10]	The prosecution led evidence from five witnesses. The defence led evidence from the Medical Superintendent of St Giles Hospital, Dr Kiran Gaikwad. 

[11]	The accused is an Itaukei male. His date of birth is 23 September 1982. 

[12]	On 4 February 2021, at about midday, the accused walked to the St Giles Hospital holding a gallon of kerosene and a knife. He went straight to the reception area inside the building and lit the area using a bottle bomb which he brought with him. The bottle was a long neck beer bottle. At the time staff nurse Shyal Ram was present at the reception area. Before she could escape, the bottle bomb exploded and Shyal’s clothes caught fire. She ran outside and was rescued by other staff. She sustained second degree burns to her body and was hospitalized for two months. 

[13]	When Dr Priya Murari came out of the pharmacy after hearing screams, the accused lurched at her and said ‘I told you people’. The doctor ran and locked herself inside the pharmacy. Other medical staff who witnessed the incident was staff nurse Manish Kumar and Dr Sheetal Kumar.

[14]	DC Dakuna arrested the accused shortly after the incident from Reservoir Road where he was detained by some members of the public.  

[15]	Dr Gaikwad has provided a psychiatric evaluation report on the accused. The accused has been diagnosed with severe mental illness, namely paranoid schizophrenia. He displays symptoms of psychosis such as auditory hallucinations.  Before the alleged incident he has had sixteen admissions in the hospital for treatment of his mental illness. He was discharged from the hospital on 1 February 2021 after his symptoms were in remission.  

[16]	The accused was reviewed for psychiatric evaluation on 16 March 2021, 13 April 2021 and 4 May 2021. After assessing the psychiatric state of the accused Dr Gaikwad compiled a report dated 25 May 2021 (DE 1).  During his interview, the accused admitted setting fire to the reception area of St Giles Hospital. He said that he had stopped taking medications two or three days before the incident. He said that he was hearing voices telling him to so something bad. 

[17]	Dr Gaikwad noted that the accused had persecutory ideas against the doctors and staff of St Giles Hospital. The accused was angry and irritated towards the hospital staff thinking he was being given wrong medications. He said that the voices were irritating him and telling him to burn the hospital. 

[18]	Dr Gaikwad said that when the accused set fire to the hospital building, he was aware of what he was doing but he was not able to control his conduct due to the voices he was hearing. Dr Gaikwad could not tell why the accused’s symptoms of auditory hallucinations relapsed on 4 February 2021, three days after he was discharged from the hospital. 

[19]	I am not bound to accept the medical opinion of Dr Gaikwad, but in cases where mental impairment or insanity is pleaded, I am not entitled to disregard the persuasive force of expert medical evidence capriciously (R v Matheson (1958) 42 Cr App R 145). 

[20]	The accused has had a history of mental illness, namely schizophrenia. On 4 February 2021, his symptoms relapsed after being discharged from the hospital on 1 February 2021. Dr Gaikwad’s medical opinion is that when the accused set fire to the hospital building, he was not able to control his conduct due to auditory hallucination. Dr Gaikwad said that the accused is a chronic patient and pose a threat to the hospital staff and public if his mental illness is not managed properly.  

[21]	The prosecution did not dispute the expert medical evidence on the psychiatric state of the accused on the day of the alleged arson. I have independently assessed all the evidence, including the expert medical evidence. I do not consider that there are any facts which would entitle me to reject or differ from the medical opinion that the accused was not able to control his conduct due to auditory hallucination when he set fire to the St Giles Hospital building.  

[22]	The accused has established and discharged his burden of proof in relation to the defence of mental impairment. I am satisfied that it is more likely than not that  on 4 February 2021 the accused was suffering from a mental illness, namely schizophrenia, and that he was not able to control his conduct when he set fire to the hospital building. 

Special Verdict
[23]	On the charge of arson, the accused is not guilty by reason of mental impairment contrary to section 28 of the Crimes Act. 

[24]	I will now hear parties regarding appropriate orders for the accused under the Mental Health Act. 

	
. …………………………………….
Hon. Mr Justice Daniel Goundar

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