IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 15 of 2006

STATE

v.

RO LIVINI RADININAUSORI

Hearing: 30th July 2007 – 8th August 2007
Summing Up: 8th August 2007

Counsel: Mr. A. Rayawa for State
Ms R. Senikuraciri for Accused

SUMMING UP

Madam and Gentlemen Assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act upon. As far as the facts of the case are concerned however, which witnesses to believe and which version of the facts to accept, this is entirely a matter for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so, it is entirely a matter for you whether you accept what I say, or form opinions for yourselves. In other words, you are the masters of fact.

Counsel for the State and counsel for the defence have both made submissions to you about how you should find the facts of the case. They have done so in accordance with their duties as counsel. However you do not have to accept what they say. If what they have said appeal to your common sense and judgment, then it is a matter for you and you may accept it. You are the representatives of the community at this trial, and it is for you to decide what really happened in the early hours of the 22nd of July 2004 at Viria Village, Naitasiri.

As a matter of law, in a criminal trial, the accused person is presumed to be innocent until she is proved guilty. The burden of proving her guilt rests on the prosecution and never shifts. She does not have to prove anything.

The standard of proof is that of proof beyond all reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of her guilt. If you have any reasonable doubt about her guilt, you must express an opinion that she is not guilty.

The Accused is charged with the offence of murder. Murder is the unlawful killing of someone with malice aforethought. The elements of the offence of murder which the prosecution must prove beyond reasonable doubt are –

1. The Accused did an unlawful act.
2. Which caused the death of the deceased.
3. With malice aforethought.

An unlawful act is one which is done with no lawful excuse. In this case the Accused disputes this element of the offence, saying that she gave birth by accident and that she did nothing unlawful. So you need to ask yourselves whether you are satisfied beyond reasonable doubt that the Accused did an unlawful act when she was in the pit toilet at Viria. The law is that where a person does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent that if the belief was true. So if the Accused honestly and reasonably believed that she was not having labour pains but was suffering from diarrhorea then she is not guilty of any offence because she did not know that she was about to deliver the baby. The question of what she believed and whether her belief was reasonable in all the circumstances given her state of mind during labour is a matter for you to decide.

It is not in dispute that by giving birth in the pit toilet, the Accused caused the death of her baby so this element is not in dispute.

However, it is in dispute that the Accused acted with malice aforethought. Malice aforethought is the mental element required to be proved in the offence of murder. It requires proof of either:

1. Intention to cause death or grievous bodily harm; or
2. Knowledge that death or grievous bodily harm is likely to be caused and taking the risk anyway.

I will come back to malice aforethought later in my summing up. However the Accused denies intending any harm to her baby, saying that the death of the baby was accidental and that her state of mind was confused and irrational as a result of childbirth.

What the Accused is saying is that either the incident was an accident, or that she is guilty of the lesser offence of manslaughter or of infanticide. Infanticide is defined by our Penal Code. Section 205 provides that where a woman, by a willful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from childbirth, then even where the evidence amounts to murder, she is guilty of the lesser offence of infanticide.

Since the Accused has raised the issue of infanticide, the onus is on the prosecution to prove all the elements of the offence beyond reasonable doubt. If you are satisfied beyond reasonable doubt that the Accused killed her child while suffering from the after effects of childbirth and while the balance of her mind was disturbed as a result of childbirth, then you may find her not guilty of murder, but guilty of infanticide.

Manslaughter is the killing of a person without malice aforethought. If you are of the view that the Accused killed her child not by accident but that at the time of giving birth, she was incapable of forming an intention to kill or cause grievous harm, then you may find her guilty of the lesser offence of manslaughter.

If you are of the view that the Accused did nothing unlawful, that she went to the toilet and the child was born accidentally, and that therefore, there was no unlawful act or you have a reasonable doubt about this, then you must find the Accused not guilty of any offence.

Remember that the onus of proving the Accused’s guilt rests on the prosecution at all times.

The facts

Some of the facts in this case are not in dispute by the defence. Ro Livini Radininausori, is a single mother of an 8 year old boy. She lives with her parents, siblings and her sister’s two children as well as her own child, in Viria, Naitasiri. She is not married.

At the end of 2003 she became pregnant. She said that the father of the child was Samisoni Baukari, but he has denied it. According to the prosecution case, she concealed her pregnancy from her relatives. On the 22nd of July 2004 at about 1.30 or 2am her labour pains started. She went to the pit toilet near the house of Tevita Biu, and there she gave birth to a full-term infant. The baby was heard to cry before it died.

The evidence of the post mortem result is not in dispute. Dr. Sambekar Prashant gave evidence that the child was 9 months old and that it died of asphyxiation due to obstruction to its air passage by faecal matter. He said that the baby had been born alive. There were scratch marks on the baby’s chest, right cheek and upper lip. The doctor said that the faecal matter he found in the nasal passages and in the stomach, was consistent with the baby suffocating on the contents of a pit toilet, whilst trying to breathe. He was unable to say whether the umbilical cord was cut or torn, but said that it was 72cms long. He said that the placenta could not have fallen into the pit toilet after the baby because the placenta can only be removed by pressure being applied consistently on the umbilical cord.

After giving birth the Accused went to the house of her cousin Nina Kulamailagi and told her that she had had an abortion. The defence say that the Fijian word used, could also mean a miscarriage. The Accused was taken to the Naqali Health Centre where she was seen by Dr. Lusiana Naikawakawasi. She told Dr. Lusiana that she was bleeding from the vagina, that she was 5 months pregnant and that she could be having a miscarriage. She had low blood pressure and a high pulse rate. The doctor was of the opinion that the Accused had had an incomplete abortion and that left over products namely parts of the placenta or membrane were still in her uterus. She was weak, unstable and needed medical treatment. She was not co-operative and reluctant to talk about what had happened although she said she was having a miscarriage. She said that she was unable to assess whether the Accused was suffering from post-natal depression but it did not appear to be so from her conversation with the Accused. Now, Dr. Lusiana is not a psychiatrist and did not specifically examine the Accused for mental illness. You need to take that into account when considering this part of the evidence.

The Accused was transferred to the CWM Hospital after 6pm where she remained until the 25th of July 2004. She underwent a surgical procedure called a D&C which was to clear out the remains of childbirth from her uterus.

On the 26th of July, at the Vunidawa Police Station she was interviewed by Sgt. Ifereimi, in the presence of WPC Susana. The prosecution relies on the evidence of this interview to show what the Accused did and what her state of mind was on the 22nd of July 2004. The defence however says that the Accused was still weak from her medical treatment, she was confused and that the police officer Sgt. Ifereimi made up parts of the interview. What weight you put on this interview is a matter for you. If you think that the interview was made up by the police and that the Accused signed a statement she did not make, you can’t put any weight on it at all. However, if you accept the interview as a record of what the Accused told the police just a few days after she gave birth, you may think that it provides important evidence about what occurred in the pit toilet, and about what the Accused’s intentions were. In that statement the Accused is said to have told the police that she had sexual intercourse with Samisoni in November 2003 and told Nina that she was pregnant when she was 8 months pregnant. She said she had not told anyone else about it because she wanted to conceal her pregnancy. On the 22nd of July 2004 she woke up with a severe stomach ache at about 2am. She said she knew she was having labour pains and she went to the toilet. She said that all the time she was pregnant she had in mind to throw away and kill the baby. She went to the toilet to give birth and to leave the baby in the toilet pit. She said the umbilical cord and placenta also fell in. She said in answer to Q.51 that she wanted the baby to die and the villagers not to know that she was pregnant. She then came back to Nina’s house and lay down. She told her that she had aborted or miscarried the infant. She was then taken to the Naqali Health Centre.

She was not charged until the 3rd of May 2006. In her charge statement she said –

"I wish to say that I accidentally drop the infant while I was visiting the toilet. I did not give birth inside the toilet nor did I use my hand. I was sitting on the toilet pen and was breathing so hard while I was shitting that was why the infant baby was dropped in the toilet pit."

On the 3rd of August 2004, the Accused was seen by the consultant psychiatrist at the St. Giles Hospital Dr. Narayan. He said that he interviewed her for an hour in the presence of the investigating officer and that in his opinion the Accused was not suffering from post-natal depression nor any form of mental illness. He defined post-partum depression to us and said that it normally set in 3 days or later, after childbirth and in a small number of cases led to suicide or homicide of the baby. He said that the condition is not well-understood and if left untreated by medication could lead to serious mental illness. He differentiated post-partum depression to the more common "maternity blues" cases, the latter being mere temporary and more likely to resolve itself. He described the symptoms of post-partum depression as including a failure to care for the child, lack of communication and unkempt grooming. His report is available for your perusal.

That was the case for the prosecution.

The Accused gave evidence. At the end of the prosecution case you heard me explain several options to the Accused. She could have remained silent, or given sworn evidence, or make an unsworn statement. She had these options because she did not have to prove anything. The burden remains on the prosecution at all times to prove her guilt.

She chose to give sworn evidence and you must carefully consider her evidence. She said that she has lived at Viria Village all her life and has been the caregiver for her sickly mother (now deceased) and her sister’s children since 2001. When she became pregnant with her first child, she was accepted by her parents but her mother and brother told her never to become pregnant out of wedlock again. She said that her brother was angry with her and used to punch her. Clearly her life was one of drudgery and hard work to find food and money. She became involved with Samisoni Baukari and they had sexual intercourse. In November 2003 they had sexual intercourse for the last time. Thereafter he left for Suva and got "married" to another woman. She discovered that she was pregnant either in December 2003 or when she was 6 months pregnant. She did not tell her family but when Nina asked her if she was pregnant, she admitted it.

On the 22nd of July, her stomach began to ache. She thought that the pain was a diarrhorea pain because she had suffered from diarrhorea the day before. She went to the pit toilet nearby and sat on the toilet. The baby accidentally came out and fell inside. She was suffering from pain and loss of blood. She could not get up but she crawled to Nina’s house and called for help. Nina helped her to lie down and they went in a carrier to the Naqali Health Centre. She said she felt weak and felt nothing. She had told Nina and the doctor that she had a miscarriage. She was taken to the CWM Hospital where she was admitted and given medication.

On her discharge she was taken by two police officers to the Central Police Station. She waited for an hour for transport to Vunidawa and was given juice and a piece of cake.

At Vunidawa Police Station she was interviewed from 2pm to 3pm. She said she has been given no other food and still felt weak. She said Cpl. Ifereimi rushed the interview and that she did not make the admissions recorded about intending to kill the baby in the toilet. She said that her intention had been to look after the baby and bring it up herself.

Under cross-examination, she agreed that when her first child was born she experienced labour pains, that the contraction started far apart but became closer just before birth. She agreed that the pain was severe and that she had to push to get the baby through the birth canal.

She said that she agreed with some parts of the interview but not with other parts and that she had never said that she would kill the child.

Also giving evidence was a relative who said she had seen the Accused and Samisoni Baukari talking and thought they were seeing each other. This evidence was not in dispute. That was the defence case.

Summary

In summary the prosecution says that the Accused became pregnant at the end of 2003 and decided to kill the child at birth. The prosecution says that it is for this reason that the Accused concealed her pregnancy and it is for this reason that she chose to give birth in the pit toilet. The prosecution invites you to rely on the Accused’s statement to the police, saying that it was fairly obtained and is consistent with the evidence of the pathologist.

The prosecution says that the death of this child was no accident, but a planned murder, committed to conceal the Accused’s pregnancy out of wedlock, and that at the time of the birth the Accused was of sound mind and not suffering from depression. The prosecution points to the evidence of Dr. Lusiana and Dr. Narayan to show that there is no evidence of post-natal depression. The prosecution asks you to convict the Accused of murder.

The defence says that the Accused did not plan the birth or the death of her baby and that its death was an accident. In any event, the defence says that at the time of childbirth the Accused was so confused and irrational that her mental state was affected and she had no intention to kill or to cause her baby grievous harm. The defence says that you should disregard the evidence of the Accused’s interview to the police, taken shortly after the Accused was discharged from hospital when she was still weak from childbirth, and taken as a result of the fabrication of parts of the interview by Cpl. Ifereimi Savou.

The defence says that the Accused went to the pit toilet to defecate thinking she had diarrhorea. There she gave birth, the baby fell into the pit toilet and died, and the Accused was too confused and mentally unstable at the time to do anything about it. The defence asks you to take into account, in assessing the Accused’s mental condition, her life of drudgery and dependence on her family and her family’s dependence on her, her ignorance of her own state and condition, the lack of support available to her in the village, and the pain she undoubtedly suffered during childbirth.

The defence invites you to either acquit the Accused altogether on the basis that the whole episode was a tragic accident, or to find her guilty of manslaughter on the ground that she had no malice aforethought, or of infanticide on the ground that she was mentally unstable as a result of childbirth.

The issues

In considering what to accept you must look at the evidence objectively and not be swayed by emotion. This is indeed a tragic case, and says more about the shortcomings of society than it does about the Accused. However the issues for you are threefold.

1. 	Was the death of the baby an accident which the Accused committed by an honest and reasonable mistake of fact? If you think that this was an accident or have a reasonable doubt about it, then you must find the Accused not guilty of any offence.

2. 	If you are satisfied beyond reasonable doubt that this was not an accident, then the next issue is whether she acted with malice aforethought. Did she intend to kill the baby or to cause it serious harm? Or was she so confused and irrational, that she could not form any such intention? If you think that she did not have such intention or if you have a reasonable doubt about it, then you may find her not guilty of murder, but guilty of manslaughter.

3. 	If you are satisfied beyond reasonable doubt that the Accused had malice aforethought and did not kill her baby accidentally, you must consider whether at the time of the incident the balance of her mind was disturbed by her not having fully recovered from childbirth. If you think she was suffering from such mental instability or have a reasonable doubt about it, you must find her not guilty of murder but guilty of the lesser offence of infanticide.

Remember that the burden of proving the Accused’s guilt rests on the prosecution at all times.

Your possible opinions are:

1. Guilty of murder; or
2. Guilty of manslaughter; or
3. Guilty of infanticide.

You may now retire.

Nazhat Shameem
JUDGE

At Suva
8th August 2007