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R v Afele [1997] TVHC 1 (2 June 1997)

IN THE HIGH COURT OF TUVALU
(CRIMINAL JURISDICTION)

R

v

AFELE

DONNE, C.J. (ORALLY).

The accused is charged with the murder of his wife Vaiese on the 2nd June 1997. He is also charged with the alternative charge of manslaughter.

I have considered the evidence adduced and am indebted to Counsel whose submissions have been helpful.

I am satisfied on the evidence and the following facts are established.

The accused and his wife to whom he had been married for about 20 years were at the time of the wife's death living in their house at Nanumaga. They had lived there for about two years. His wife was Head Teacher of the local school. The accused was unemployed, but, also considered himself to be a doctor concerned with herbal remedies.

The marriage was not a happy one. The accused blamed his wife's father for the sad state of the marriage preceding the time of his wife's death, but, I do not accept that. The prime cause of the unhappiness was the accused's relationship with one of his patients, a woman to whom he was, inter-alia, administering herbal treatment. The woman became pregnant by him. He had a few years prior to this a similar liaison whether genuinely or merely for expediency, he promised that woman he would divorce his wife and marry her.

For some days prior to her death, the wife Vaiese was obviously very unhappy and two witnesses deposed as to this.

On the evening of the 1^st June 1997, the accused and the deceased visited the home of an adopted child, had a meal with the adoptive parent and returned to their home. Their daughter, Silvania, who normally lived with her parents on this evening, did not go to the house for the night. Her mother had asked her to. She was at Suena's place. She did not go back home because she did not want to hear or see any quarrel such as were always occurring between her mother and father whose temper, she said, was very bad - a characteristic to which the accused has agreed he possessed.

The evidence as to what happened at the accused's house that night after he and his wife returned home comes only from the accused who, I am satisfied, was the survivor of a bad confrontation he had with his wife. I do not propose to elaborate greatly on his version of what happened, as I have no doubt that he is an untruthful witness. His version briefly was that his wife joined him in bed wrapped in the white sheet in which her body was ultimately found, she started crying over the relationship he had with her father, also about a proposed change of home and the problems associated with that. She then resorted to unusual behaviour such as scratching herself and moaning ending up finally with kissing him. He went to sleep, woke up found her not lying beside him and, on his making a search for her, he found her lying outside the main door of the residence obviously dead. She was still in her white sheet. He carried her partly inside and then went to Mini to get help.

As I have said, I am satisfied he is lying. I have no doubt there was a very serious physical confrontation between the accused and his wife. What was described by one witness as a “mess” was evident in the bedroom where he had been with his wife. He ended up with several scratches on his face and in the course of the fight he hit his wife with the wooden pillow produced in evidence causing a wound which was described by the nurse and doctor who gave evidence. The accused’s confession established this. The accused daughter, Silvania, gave convincing evidence which I accept. The accused told her he hit her mother with the pillow. He asked for pity. I am equally satisfied that a confession to Sgt. Saaga Talu was properly made. The Sergeant was told by Dr. Tekaai that the accused wanted to see him when he was in the cells. The Sgt. went to see the accused who without any prompting related what had happened. He said he hit Vaese with the pillow on the left side and on her shoulder. He hit her on the jaw.

The accused had previously been cautioned in the proper way by the Police. I am satisfied he knew his rights and his statement to the Sergeant was a voluntary one. Likewise I am satisfied his conversation at Funafuti was voluntary and admissible.

I would add, I do not overlook that in his evidence the accused in essence admits that he confessed but said that he did so because he wanted to be taken away from the Island as he was in fear of his safety.

That explanation I find completely untenable. I certainly do not accept that the accused believed he had to confess because that was the only way he felt he could be safe. That is, I think, nonsense. He confessed because what he did and confessed to was true.

Apart from the untruthful version of the accused, there is no direct evidence of what happened to the deceased after the fight which took place.

There are, however, blood stains and marks which have been deposed to by the police witnesses. A plan has been produced which shows significant bloodstains (four in number) from the house towards the Wash House. There was a container with bloodstains which, appeared to have fingerprints thereon. There had been significant quantities of blood shed at the water tank.

It was clear from the Nurse's evidence that the area on the deceased's head where it was wounded and the hair had been washed with water and the condition of the diluted blood on the head and the coagulated blood suggested the area had been washed after the infliction of the wound.

From this, I consider it can be inferred that the bloodstains came from the head while the deceased's body, heavy as it was, was being dragged to the Wash House. This being so, there could be no doubt that the body would be marked by the soil over which it was dragged. There is no doubt that what was done to the deceased's body was done by the accused. There is no evidence of anyone else being in the premises at the time other than he.

The fact that the body shown to the Nurse and the Police was wrapped in a clean white sheet would suggest that the body had been cleaned up and laid in that condition when it was found.

I am satisfied on the evidence of the Nurse who saw the blood on the accused's legs that this blood was from his wife's body and that the accused was responsible for the cleaning of the body and the wrapping of it in the sheet. He is lying when he in his evidence says that his wife wore the sheet when she came to bed.

I am satisfied therefore that the body was subject to treatment by the accused after he had assaulted her, in a manner which would have greatly exacerbated her condition and inevitably caused shock following the assault.

Turning to the cause of death, the evidence on this is not satisfactory. Dr. Tekaai's examination and Report concluded that death was caused by loss of blood. He was closely examined by Mr. Duckworth and the end result is that he conceded death may have been caused by internal bleeding in the area of the brain. The Doctor quite fairly concedes that he could not be certain as to the cause of death. He had recommended to his superior in the Health Service that there be an autopsy and, even the pathologist, Dr. Green, whose report is in evidence stresses that an autopsy could have settled the issue. It is unfortunate, and indeed a most serious situation that there apparently is no equipment in Tuvalu with which to perform an autopsy. In the result, I have the Prosecution evidence and the report and examination by written questions and answer of Professor Michael Green of Sheffield England who is accepted by the Crown and Defence as an eminent pathologist of wide experience.

I have read and studied closely the exhaustive brief settled as a result of queries by both Crown and Defence Counsel. I do not propose to record my complete analysis of this evidence, save as to say, it is abundantly clear that the cause of death cannot be established beyond reasonable doubt. I am satisfied with and accept the opinion of the Professor expressed in paragraph 10 of page 14 of the examination fairly sets out the probable cause of death in this case. I also accept his opinion expressed in answer to question 10 on page 19.

However, I am completely satisfied that such injuries sustained by the deceased woman together with the treatment of her subsequent to those injuries at the hands of the accused, significantly contributed to the condition which ultimately caused her death. The fact is that the evidence establishes that Vaiese was in good health and spirit when she came home to her house with the accused. All witnesses who saw her testify to this. It is established to my satisfaction that she was horribly and brutally assaulted, she was disgustingly handled by the accused and she died within (at the most) four hours after going to bed.

In law, if it can be shown that the injury inflicted could be found to be a significant contribution to the death as opposed to the sole or main cause of it, the perpetrator of the injury is culpable. It is, I consider, a proper conclusion to draw from the evidence in this case, that such shocking treatment of the deceased undoubtedly would contribute significantly to her death and I so hold the accused to be culpable therefor.

The next question is whether the accused's known contribution to his wife's death, is murder.

In that respect, I accept the opinion of Professor Green who is of the view that, on the evidence, it could not be said that the head wound alone was a fatal one.

The evidence does establish that the fight between the accused and his wife must have been vigorous. But it is necessary for more evidence than we have, to hold that when the accused inflicted the injuries, he intended to kill his wife. I find this ingredient to be not proven. The accused is therefore found not guilty of murder but guilty of manslaughter.

DONNE, C.J.