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R v Kitekei'aho [1990] TongaLawRp 8; [1990] Tonga LR 201 (16 November 1990)

[1990] Tonga LR 201

SUPREME COURT OF TONGA

R

v

KITEKEI'AHO & TONGA

Supreme Court, Nuku'alofa
Webster J
Criminal cases No. 59 - 64, 116 - 118, 137/1990
6, 7, 8, 12, 13, 14, 16 November 1990

Criminal law -, manslaughter by negligence duty of care must exist

Manslaughter by negligence - duty of care must exist

Evidence -fact that evidence against accused is almost entirely from the record of police interview and own evidence to the court does not prevent conviction

Evidence - record of interview - fact that not signed by accused does not prevent it being used as evidence

Evidence - confession- by woman accused - fact that policewoman not present does not of itself render it unfair

Evidence- confession - fact that accused was frightened or hoped that confession would lead to lighter sentences does not of itself render confession unfair

The first defendant was charged with incest, concealment of the birth of her baby, and Infanticide.; the second defendant was charged with manslaughter by negligence and concealment of birth. The first defendant pleaded guilty, but the second defendant denied the charges which were heard in the Supreme Court without a jury.

HELD

Convicting the second defendant on both charges:

1. Although the evidence against the second defendant consisted almost entirely of her interview and confession to the police and her evidence to the court, this could support a conviction;

2. Although the record of interview had not been signed by her, this did not prevent it being given in evidence;

3. Although no policewoman had been present at the interview this did not of itself prevent it being given in evidence;

4. The fact that she had told obvious lies tended to show that she was guilty;

5. The second defendant could be guilty of manslaughter by negligence only if she was under a legal duty to take care of the baby; she was under such a duty because she was one of the principal occupiers of the house in which the baby was born, she had freely chosen to act as midwife to the first defendant, and there was no other adult in the house to protect the baby from being suffocated by the first defendant;

6. The second defendant assisted with the concealment of the birth since she had held the bag in which the dead baby had been put and which she knew was being taken by the father to be buried.

N.B. On 7th June 1991 the Court of Appeal set aside the conviction for concealment of birth but confirmed the conviction for manslaughter. See [1991] Tongan Law Reports.

Counsel for prosecution: Mr K. Whitcombe
Counsel for the second defendant: Mr L. Veikoso

JUDGMENT