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State v Rakavono [2023] FJHC 50; HAC86.2019 (23 January 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 86 of 2019


BETWEEN : THE STATE


AND : ASENA RAKAVONO


Counsel : Ms. Tamanikaiyaroi, U for the State
: Ms. Prakash, A for the Accused


Judgment : 23 January 2023


JUDGMENT

The charge

  1. The Accused is charged with the murder of her husband, Nathaniel Khan, on 2nd March, 2019, as follows:

Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Act 2009.


Particulars of Offence

ASENA RAKAVONO, between the 2nd day of March, 2019 and the 3rd day of March, 2019 at Suva, in the Central Division, murdered NATHANIEL KHAN by hitting him with a 4 x 2 piece of timber.


  1. She pleaded not guilty and the matter proceeded to trial.

Burden and standard of proof

  1. The Prosecution bears a legal burden of proving every element of the offence relevant to the guilt of the Accused. (Section 57 (1), Crimes Act 2009)
  2. Section 57 (2) provides that the Prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.
  3. A legal burden of proof on the Prosecution must be discharged beyond reasonable doubt unless the law creating the offence specifies a different standard of proof. (Section 58 (1) (2)).

Elements of murder

  1. To prove murder, the Prosecution must prove each of the following elements beyond reasonable doubt:
  2. In the context of the charge against the Accused therefore, the Prosecution must prove beyond reasonable doubt that

Admitted facts

  1. The following facts are agreed between the Prosecution and the Defence under the provisions of section 135 of the Criminal Procedure Act:
    1. The name of the person charged is Asena Rakavono [“Asena”].
    2. The name of the deceased is Nathaniel Roytesh Elahie Khan [“the deceased”].
    1. There was a domestic relationship between the parties namely that Asena was the de-facto partner of the deceased.
    1. On or before 3rd March 2019, Asena and the deceased lived in the same house at Muanikoso Settlement.
    2. On 2nd March 2019, Asena and the deceased had consumed liquor at their home in Muanikoso Settlement.
    3. On 3rd March 2019, Asena called the deceased’s brother namely Duke Khan [“Duke”] on her telephone and asked him to come to their residence to check on the deceased.
    4. On 3rd March 2019, Asena and Duke took the deceased to Bhanabhai Health Centre.
    5. On 3rd March 2019, the deceased was taken to CWM Hospital in an ambulance.
    6. On 5th March 2019, Asena was arrested by police at CWM Hospital and escorted to Nasinu Police Station.
    7. On 5th March 2019, Asena was interviewed under caution by WDC 2996 Taylor in the presence of D/IP Vinod at Nasinu Police Station.
    8. On 5th March 2019, Asena was formally charged by DC Dradra at Nasinu Police Station.
    1. On 30th March 2019, Nathaniel Khan passed away at CWM Hospital.
    1. On 2nd April 2019, Dr. Daniella John conducted the post-mortem examination of the deceased at the CWM Hospital.
    2. On 5th March 2019, Asena was medically examined by Dr. Kulae Tuisabeto at the Makoi Health Centre. The existence of the Medical Report is not disputed however contents of the same is disputed.
    3. It is agreed that between 2nd and the 3rd day of March 2019, Asena hit the deceased on the head with a 4 x 2 piece of timber.
    4. It is agreed that the cause of death of Nathaniel Khan was a result of the injury he sustained from the act mentioned in above paragraph “o” namely that Asena hit him on the head with a 4 x 2 piece of timber.
    5. It is agreed that the answers given by Asena to WDC 2996 Taylor in her caution interview conducted on 5th March 2019 at Nasinu Police Station were given voluntarily, without oppression and of her own free will.
    6. The medical findings and content in the Post Mortem Examination Report of the deceased conducted by Dr. Daniella John on 02nd April 2019 is not in dispute.
    7. It is agreed that the admissibility of the following documents are not in dispute and the same will be tendered by consent:-
      1. The Birth Certificate of the deceased;
      2. The Medical Cause of Death Certificate of the deceased;
      3. The Post Mortem Examination Report of the deceased;
      4. The Photographic Booklet dated 02nd April 2019.

The Prosecution evidence

  1. WDC 2996 Loata Taylor interviewed the Accused under caution on 5th March 2019 at the Nasinu Police Station. She tendered the original record of the interview as part of her evidence. She said the Accused appeared emotional and sad during the interview.
  2. Dr. James Kalougivaki who heads the Forensic Pathology Unit of the Fiji Police Force was called as substitute doctor for Dr. Daniella John who conducted the post mortem examination on the deceased, and who was on maternity leave at the time of the trial. The report was tendered by consent, the medical findings in the post mortem examination forming part of the admitted facts.
  3. On examination of the scalp, there was bleeding beneath the skin with the presence of subgaleal bruising indicative of severe blunt force trauma. A fracture was noted on the left floor of the skull extending up to the left side of the skull. There was bleeding under the first covering of the brain, over the right front and middle of the brain. There was bleeding in the cavities of the brain, a result of severe trauma to the brain or head.
  4. The immediate cause of death was extensive right subdural haemorrhage (bleeding under the first covering of the brain), with antecedent causes being the rest of the trauma or injuries noted in the brain, including bleeding and bruises within the cavities in the brain; skull fracture and severe head injury.
  5. IP Tevita Savou was the Crime Officer at the Nasinu Police Station at the time of the alleged offence. He testified of the numerous reports and complaints of assault and ill-treatment made by the Accused against the deceased at the Station every week, sometimes once, sometimes twice a week. The Accused would ask the officers to warn her husband and officers from the uniformed branch at the Station would attend to the report and warn the deceased. At other times, he would attend himself and warn the deceased, but the violence continued. In one of the reports, the deceased was charged for assaulting the Accused, causing her bodily harm.
  6. All the Prosecution civilian witnesses who were neighbours and friends (Pita Murti, Joti Joyti, Rusila Tinai) and the deceased’s elder brother (Duke Khan) testified of the ongoing abused and violence perpetrated by the deceased on the Accused in the course of their relationship.
  7. Pita Saniel Murti’s house is about two metres from the Accused and deceased’s home at Muanikoso. He has known the Accused and deceased for about 6-7 years. He said they were good people but quarreled and fought every day. The deceased would swear loudly and get violent with the Accused and also the neighbours, including him and his family. He saw and heard the Accused and the deceased fight every day. Nathaniel would scream and swear at the Accused. He would hit the Accused and throw stones and things in the house at her. The Accused would scream for help and cry and when she tried to escape, Nathaniel would chase her around the house, even follow her outside and try to hit her there. He said Nathaniel would threaten to kill the Accused. The Accused would sustain injuries and many times the Police would come to their home.
  8. No one would go to help the Accused when she called for help because everyone was afraid of the Nathaniel.
  9. Nathaniel and the Accused had two young children and sometimes when there was a big fight, he and his wife would remove the children and bring them to their home.
  10. Around midnight on 2nd March 2019, the deceased came to his home asking for food. He was very drunk and talked loudly. His wife called the Accused that Nathaniel wanted to eat. He heard the Accused calling Nathaniel to come eat. Nathaniel swore at the Accused and did not want to go home.
  11. In the end, he had to tell Nathaniel to leave because he was being aggressive and they did not want him in their house.
  12. Afterwards, the Accused came to call him. She looked like she had been crying. She said that she had assaulted Nathaniel and for him to come and see. He and his wife went up to the steps of the Accused’s house, saw Nathaniel lying down and then returned to their home.
  13. The next morning, the Accused came to ask for a phone to call Nathaniel’s brother, Duke who came and took Nathaniel to the hospital.
  14. Joti Joyti Devi is Mr. Murti’s wife. Her evidence about Nathaniel’s relationship with the Accused is consistent with that of Mr. Murti. She gave evidence that Nathaniel drank alcohol almost every day and used to beat the Accused sometimes two to three times a week. He would throw things at her and threaten to kill her. Sometimes the Accused would run outside to save herself and Nathaniel would pull her clothes and she would be without clothes outside the house. The Accused sustained injuries as a result of the assaults. It was normal for them to see Nathaniel and the Accused fighting everyday. She told the Accused to leave Nathaniel but the Accused said no as he was her husband.
  15. On the night of 2nd March 2019, Nathaniel had come to their home very drunk and made noise. After he left, she heard him fighting with the Accused. He was swearing in the iTaukei language.
  16. After a while, the Accused came and asked them to come and see Nathaniel. They went and saw Nathaniel lying on the floor. She thought he was lying down because he was drunk and would wake up in the morning.
  17. Rusila Tinai was another close neighbor of Nathaniel and the Accused at Muanikoso in 2019. She used to visit the couple often as she was friends with the Accused. During those visits, she witnessed Nathaniel swearing and saying bad words to the Accused. She saw Nathaniel assault the Accused.
  18. On the night of 2nd March 2019, she stopped over at the Accused’s house. While she was sitting with the Accused inside the house, Nathaniel came in and swore at the Accused, using “big swear words”. He was very drunk and swore loudly at the Accused. He wanted to hit the Accused but she intervened to try and stop him. The Accused told her she was scared.
  19. After a while, she went home and when she returned, Nathaniel was lying down in the house. The Accused told her she had hit Nathaniel. She did not think much of it and thought Nathaniel was just sleeping as he was drunk.
  20. She recounted an incident when Nathaniel had assaulted the Accused with a piece of timber, fracturing the Accused’s hand and injuring other parts of her body. She had accompanied the Accused to the Nasinu Police Station and then to the hospital.
  21. She said Nathaniel would embarrass the Accused in front of her. She witnessed Nathaniel assault and chase the Accused around the house, the Accused person crying for help, and Nathaniel threatening to kill her.
  22. Duke Khan is Nathaniel’s elder brother who also lived with his family at Muanikoso Settlement, not very far from Nathaniel and the Accused’s home in 2019. He said Nathaniel and the Accused argued a lot. Nathaniel drank a lot of alcohol and it was when he was drunk that there would be fights. Sometimes it would be verbal fights. At other times, Nathaniel would hit the Accused and give her a “rough time”. He witnessed the Accused getting a “hiding” many times, saying the Accused had a really rough time.
  23. On the morning of 3rd March 2019, he received a call from the Accused saying that Nathaniel was not waking up and for him to come and see what was wrong with him. She was shivering and crying. When he went to check, Nathaniel was snoring as if something was stuck in his throat. He got a cab and took Nathaniel to Bhanabhai Hospital. Later, Nathaniel was transferred to CWM Hospital where he died about three weeks later.

The Defence case

  1. The Accused chose to give evidence. Following a previous relationship, she lived with the deceased at Muanikoso from 2014. The deceased drank alcohol everyday and would swear and cause trouble at home. He wanted her to listen to him all the time and when she did not, he would swear at her, beat her up, and threaten to kill her. He used “big swears” against her and her parents’ modesty. He would punch her or hit her with an extension cord. He would hit her about three times in a week. She would run around inside and outside the house, calling for help. No one would come to help her and the deceased would keep hitting her. The neighbours did not intervene as the deceased would swear at them and also because the neighbours were used to them fighting.
  2. Sometime in 2018, the deceased had hit her with a 4 x 2 piece of timber in the presence of her friends. Someone had called the Police who came and took her to the Station. She was told to get a medical report. She had gone to the hospital but did not go back to the Police because she loved the deceased so much.
  3. At another time, he had thrown a beer bottle at her face. She had not reported that matter either to the Police.
  4. Sometimes the neighbours would take the children, at other times, the deceased’s brother Duke would take them so they do not see what the deceased was doing to her.
  5. There were times when she wanted to leave him. Their neighbours did tell her to leave him, but because of their two children, she could neither leave the deceased nor take her problems to her family. A friend and a sister came to stay with them because of what the deceased was doing to her, but he did not care who was present when he got angry with her.
  6. On the morning of 2nd March 2019, she and the deceased drank 8 cans of Joskes with one of the deceased’s friends. More alcohol was consumed when other friends turned up with more drinks. Afterwards, the deceased and his friends left to drink elsewhere while she finished her work and looked after the children.
  7. In the evening, her friend Rusila came home to charge her phone when they heard the deceased returning, shouting and swearing on his way home. She was scared when she heard his voice. She told Rusila the deceased would hit her.
  8. The deceased went to their neighbours Joti and Pita, calling Pita’s mother for food. All the while, he was swearing. She heated up his food as she heard the neighbours telling him to go home.
  9. When he did come home, she had already heated up the food but he did not want to eat the food she had prepared, saying he would throw the food away. Rusila had tried to stop him and left after a while.
  10. The deceased was drunk and staggering and tried to hit her so she stood back from him and tried to go outside. He pulled her roughly and she also pulled her hand and held onto the grill door, trying to escape. The deceased was still pulling her when she reached under the house, got a piece of 4 x 2 timber with one hand and, while the deceased was trying to hit her, she started hitting him with the piece of timber. She said there was nothing going through her mind at the time and the thought just came to her to pick up the timber and hit him with it. She said she never intended anything serious to happen.
  11. She hit him on the leg, twice on the head and on the shoulder. After the hit to his head, the deceased lay down. She became scared and started shaking, realizing she had done something seriously wrong. She had never hit him during their relationship and had hit him on this night because of what he had been doing to her throughout.
  12. She pulled him inside and put his head on a pillow then went to call her neighbours to come and see him. The neighbours were not so concerned and said he was just sleeping. She lay down beside him and waited for the morning to come.
  13. The next morning when she was not able to wake up the deceased, she called his brother to come check on him. They were not able to awaken or revive him so they took him in a taxi to the hospital. Three weeks later, the deceased died. She was sad as she had not intended to do what she did and had not intended for the deceased to leave her and their children.
  14. She was caution interviewed at the Nasinu Police Station and also taken for medical examination for old injuries she had received in a fight with the deceased.
  15. A video was shown of the Accused being assaulted outside by the deceased. The Accused confirmed it was she and the deceased in the video taken by a neighbour.
  16. Volonia Likutabua is the Accused’s cousin. She stayed with the deceased and Accused for a few months from 2017 to 2018. She said the couple fought almost every day. The deceased would swear at the Accused and also threaten to kill her. The obscenities were directed at the Accused and her mother and father. The deceased would even swear at the Accused’s relatives visiting with them. She recalled an incident where the deceased had thrown the Accused in the face with an empty beer bottle.
  17. Dr. Kulae Tuisabeto medically examined the Accused on 5th March 2019 on the basis of alleged domestic violence over the five years prior to the examination. She noted a hard swelling on the left forearm and a deformity to the fifth finger, possible causes being trauma or injury. No fresh injuries were noted.
  18. Vinod Prasad is the neighbour who recorded on video an incident when the deceased had assaulted the Accused outside of their home. He tendered this as part of his evidence.
  19. Like the other witnesses, Mr. Prasad said there was a lot of violence at the deceased and Accused’s home. Most of the time he would hear the Accused shouting as if being beaten, and sometimes calling for help. The couple’s two children would be in the house, crying. The deceased would swear in the iTaukei language and threaten to kill the Accused.

Analysis

  1. The identification of the parties is not disputed. It is an admitted fact that the Accused was in a de facto relationship with the deceased for about five years and had resided at Muanikoso Settlement.
  2. The Accused admitted on oath that she had struck the deceased on the knees, twice on the head and twice on the shoulders with a 4 x 2 piece of timber.
  3. It is also an admitted fact that between the 2nd and 3rd day of March 2019, the Accused had hit the deceased on the head with a 4 x 2 piece of timber.
  4. Under section 135 of the Criminal Procedure Act 2009, the admission by an accused person or his/her lawyer of any fact or element of an offence constitutes sufficient proof of that fact or element. In Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) at [14], the Court of Appeal stated the effect of admissions under section 135 as being that

... when a fact or an element of an offence has been admitted by an accused or his lawyer in the prescribed manner (section 135(2)) then that fact or element has been established in the sense that it has been proved to the required standard. The fact or the element thus established is no longer in issue at the trial and need not be the subject of any further concern to either the assessors or the trial Judge.

  1. I find it proved beyond reasonable doubt that the Accused had, between the 2nd and 3rd of March 2019, struck the head of the deceased, Nathaniel Khan, with a 4 x 2 piece of timber.
  2. The deceased died at the CWM Hospital on 30th March 2019. The post-mortem examination report of the deceased was tendered by consent. The medical findings and contents of the report are not disputed. Dr. Kalougivaki in explaining the findings of Dr. Daniella John stated that there was bleeding beneath the skin; fracture on the left floor of the skull extending up to the left side of the skull; and bleeding under the first covering of the brain as a result of severe trauma to the head.
  3. The immediate cause of death was extensive right subdural haermorrhage (bleeding under the first covering of the brain), with antecedent causes being the rest of the trauma or injuries noted in the brain including bleeding and bruises within the cavities in the brain; skull fracture and severe head injury.
  4. It is an agreed fact that the deceased had died as a result of the injury he sustained when the Accused had hit him on the head with the piece of timber.
  5. I find it proved beyond reasonable doubt that the conduct of the Accused in hitting the head of the deceased with the piece of timber caused the death of the deceased.
  6. The Prosecution alleges that the Accused was reckless as to causing the death of the deceased by her conduct.
  7. A person is reckless with respect to a result if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
  8. The blows to the deceased’s head with a 4 x 2 piece of timber were forceful enough to cause traumatic brain injury resulting in death. Hitting a person on the head with such a piece of timber would give rise to a risk of death or at the very least, serious harm, occurring. Hitting them twice on the head would result in a substantial risk of death occurring and a reasonable person in the circumstances then known to the Accused would have taken the risk taken by the Accused at the time to be substantial. I am of the view that the Accused was aware of the substantial risk that death would occur as a result of striking the deceased’s head with the timber. On the circumstances known to her, taking the risk was not justified. Of this, I am satisfied beyond reasonable doubt.
  9. On the evidence, all the elements of murder have been proved beyond reasonable doubt.

Provocation

  1. The defence has raised the defence of provocation.
  2. Section 242 of the Crimes Act deals with provocation as follows:

(a) done to an ordinary person; or

(b) done in the presence of an ordinary person to another person-


(i) who is under his or her immediate care; or

(ii) who is the husband, wife, parent, brother or sister, or child of the ordinary person –


to deprive him or her of the power of self-control and to induce him or her to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.


  1. Provocation is not a complete defence resulting in a “Not guilty verdict. Instead, it is a partial defence reducing what would otherwise be murder, to manslaughter. Where the defence is raised, the Prosecution bears the burden of disproving the defence beyond reasonable doubt.
  2. The consistent evidence from civilian witnesses for both the Prosecution and the Defence is that the Accused and the deceased’s relationship over a period of about five years was marked by verbal, emotional and physical abuse to such an extent that the neighbours no longer bothered when they fought or heard the Accused being beaten or calling for help. Neighbours of the couple, friends and close family testified of the volatile and violent behavior of the deceased against the Accused. These witnesses said the deceased uttered extremely offensive swears at the Accused and her parents, and made serious threats to kill the Accused. She would be beaten inside and outside the house, sometimes she would be seen by the neighbours without her clothes when the deceased assaulted her. The presence of other people at the couple’s home and the proximity of neighbours did not deter the deceased from attacking the Accused when he was angry. Nor could Police intervention put an end to the violence and abuse.
  3. The Crime Officer at the Nasinu Police Station testified of the Accused making numerous complaints and reports of violence against the deceased at the Police Station. The Police warned the deceased many times but the violence continued.
  4. The graphic scenes video recorded by a neighbour and tendered as evidence were as disturbing as they were distressing, showing the deceased punching, dragging and pulling the Accused outside their home as he assaulted and yelled at her.
  5. Dr. Kulae Tuisabeto noted a hard swelling on the Accused’s left forearm and a slight deformity on the fifth finger of the same hand. The Accused and Rusila Tinai testified that the deceased had struck her on the arm sometime in 2018 with a 4 x 2 piece of timber.
  6. When caution interviewed by the Police on 5th March 2019, the Accused said that on the night of 2nd March 2019, the deceased had been swearing at her in the house, calling her bad names and uttering obscenities against her mother and father. She had heated up his food and asked him whether he wanted to eat. He continued to swear at her and said he did not want the food she prepared and might throw the food away. He then started to pull her blouse and tried to punch her. She got frustrated and, being afraid that he might do something worse to her, she got a piece of timber from outside and struck him with it. When asked about her intention in striking the deceased, she said the deceased had been torturing her for so long she could not control her temper that night.
  7. On oath, she stated that as she was struggling with the deceased on the night of the 2nd March 2019, he trying to pull her into the house and assault her while she was trying to pull herself free and escape out of the house, nothing was going through her mind. The thought had just come to her at the time to pick up the timber and hit him with it.
  8. There is a credible narrative of provocation in the form of verbal, emotional abuse, and physical abuse, ongoing and cumulative over a long period of time on the part of the deceased.
  9. Between the 2nd and 3rd March 2019, the deceased again repeatedly swore at and threatened the Accused. Though she had prepared and heated up food for him, he went asking for food from the neighbours. He told the Accused he did not want the food she prepared and might throw it away. This would have added to her humiliation as a wife in the view of the neighbours to whom the deceased had gone asking for food. Pulling her clothes and trying to assault could very well have been the last straw for what had been years of abuse and violence.
  10. There is credible evidence in the Accused person’s answers in the cautioned interview and on oath, of a loss of self-control. The loss of self-control was as a result of provocation in the form of obscenities, threats, an attempt to assault the Accused on this night and the countless instances of physical violence on the many occasions earlier. Though she said that she had been frustrated and had been afraid that the deceased might to something worse to her, I accept as also true that she could not control her temper that night. The provocation on this night may not have been as serious as the previous occasions, but must nevertheless be considered in the light of the relationship between the parties and specifically the ongoing abusive and violent conduct of the deceased over the years as recounted by the Accused and witnesses for both the State and the defence. Seen in this context, the provocation on the Accused was quite grave.
  11. In Codrokadroka v State [2013] FJSC 15; CAV07.2013 (20 November 2013), the Supreme Court stated at [16]:

The source of the provocation can be one incident or several. To what extent a past history of abuse and provocation is relevant to explain a sudden loss of self-control depends on the facts of each case. However accumulative provocation is in principle relevant and admissible.


  1. The loss of self-control was sudden and the Accused acted immediately and in the heat of the moment.
  2. I have considered whether an ordinary person of the Accused’s age and gender with ordinary powers of self-control, would have been provoked and done as the Accused did. I am of the view that an ordinary person would have, or might well have reacted and done as the Accused did if subjected to the provocation she had experienced again and again over the years. At the very least, there would remain great doubt on the absence of provocation.
  3. For the reasons above, I find the Accused not guilty of murder but guilty and convicted of manslaughter by reason of provocation.

Siainiu F. Bull
Acting Puisne Judge


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


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