IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0008 OF 1995

STATE

-v-

APOLOSI WAQALAIVI

CHARGE: Manslaughter - Contrary to Section 198 of the Penal Code, Cap. 17.

Elizabeth Rice for the State
E. Veretawatini for the Accused

Date of Hearing: 1st August 1996
Date of Judgment: 2nd August 1996

JUDGMENT

The accused has pleaded guilty to a charge of manslaughter under Section 198 of the Penal Code, Cap. 17 in that on the 5th of December 1994 at Nakorolevu, Namara he unlawfully caused the death of SAMUELA SERU a boy aged eight. I find him guilty as charged. The facts are fairly brief. On the 5th of December 1994 at about 5.45 p.m. the accused who is aged 48 years and a villager and the Turaga-ni-Koro recklessly navigated his fibre-glass outboard motor boat which was powered with a 40 horse power engine and collided with the deceased causing him severe injuries from which he died a week later at the C.W.M. Hospital.

At the time the deceased was struck by the accused's motor boat he was having a swim in the sea at the village beach with a number of other young people and adults. Witnesses stated 	that the accused approached them at a very high speed in a zig-zag manner, that is from his left side to his right side. Witnesses stated that on seeing the accused's boat approaching them they all became scared thinking that the boat would run over them. When it was about 4 to 5 yards away the boat suddenly swerved towards the right side where the deceased was standing. The accused did not reduce speed and after he had passed the group they realised that SAMUELA SERU was not among them. One of the group, Tavaita Wati saw the boy on the surface, rushed back to him and noticed that he had been injured and then carried him towards the shore noticing that he had suffered severe injuries to the stomach. The boy was then conveyed to the Namara Dispensary where the Staff Nurse and the accused accompanied him to the Nausori Hospital and then to the CWM Hospital where he was treated and later admitted to the Intensive Care Unit. He died a week later from chest and abdominal injuries.

Following his death the accused was charged with manslaughter and was released on bail to the Nausori Court on the 24th of April 1995. Ever since he has remained on bail.

I was told by his counsel that the accused is married and has six children ranging in age from 21 to 2 years. Three of the children are still at school. He is a Headman of his village and is the son of the Chief of the village. The mother of the deceased is a cousin of the accused and the deceased was born out of wedlock. After his birth he was brought up by the accused's family and I was told the deceased always addressed the accused as "uncle". I was told also by counsel that before the death of the deceased his mother lived with and was being cared for by the accused but when the mother Viniana Tora gave evidence she stated that she left the deceased and her three children with the accused and his father after her parents died. I was also told by counsel that all the funeral and medical expenses of the deceased were paid by the accused but as to this again Viniana Tora was not certain. She said the accused could have given some money towards payment of her son's funeral but she did not know.

I accept that the accused did not intend to kill the deceased but, by virtue of his plea I am satisfied that he showed a reckless indifference to the risk of causing at least serious injury to any of those who were swimming in the area and of whose presence the accused was aware.

I also accept that the accused did not know the deceased was among the swimmers nor that he was so close to his boat.

I have no doubt that he has suffered mentally as a result of this tragedy and will continue to suffer some mental distress in the years to come. He is a man of good character and was educated to Class 8. He worked for Morris Hedstrom in Lautoka for four years and for fourteen years for Fiji Sugar Corporation until 1992 when he returned to the village. He has no previous convictions and has presented his apology by way of Fijian custom to the family members of the deceased.

The law has always regarded the taking of human life with gravity. In the present case the deceased SAMUELA SERU had barely reached the age of reason. He had his whole life ahead of him and could look forward to love, happiness, growing-up, and the joys and mysteries of adolescence; he could also look forward to marriage and having a family and even probably to the pleasures of old age. His mother stated that she had high hopes for the boy. He was doing well at school and she was hoping that he would have a high education and be successful in life.

As a result of the accused's conduct the boy has been denied these pleasures and the reason why I deferred passing sentence immediately yesterday was because I wanted to seriously consider whether I should accede to the plea of his counsel and give the accused a suspended sentence or whether I should conclude that his negligence in driving his motor boat was so great and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment in the form of imprisonment, to para-phrase the remarks of Hewart L.C.J. in Percy Bateman (1925) 19 Cr. App. R.8 at pp. 11-12.

I am also conscious of the fact that Fiji is an Island Nation where boating both for pleasure and reward is more common than in other larger and more land-locked countries. Consequently a warning must go out to all boat users not to drive their boats recklessly at the risk of endangering human life as has occurred here. In the end I have come to the conclusion that although this crime carries a maximum penalty of life imprisonment justice will be done if I impose a suspended sentence on the accused. As an indication of the seriousness with which I regard the accused's conduct I sentence him to a term of two years imprisonment, suspended for three years and I so order.

JOHN E. BYRNE
JUDGE

Legislation and case referred to in judgment:

Penal Code Cap. 17 Sections 29, 30 and 198.
R. v. Percy Bateman (1925) 19 Cr. App. R. 8.

Additional case referred to in argument:

State v. Kitione Kulavere No. 7 of 1992 - unreported judgment of Byrne J. of 6th April 1993.

HAC0008J.95S