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Republic v Uilama [2008] NRSC 17; Criminal Case No 13 of 2008 (20 December 2008)

IN THE SUPREME COURT OF NAURU

Criminal Case No. 13/08

BETWEEN

THE REPUBLIC OF NAURU
Complainant

AND

ODESSA UILAMA
Defendant

Ms. Katie Leroy for the Prosecution
Vinci Clodumar for the Defendant

Date of Hearing: 20 December, 2008

Decision on disputed facts

The prisoner was originally charged with murder:-

Statement of Offence:

Murder contrary to Section 301, 302 of the Criminal Code Act of Queensland 1899 (1st Schedule) adopted.

Particulars of Offence:

Not guilty of Murder but guilty of manslaughter. Plea accepted.

That on the twenty seventh day of April 2008 at Nauru ODESSA UILAMA did willfully and unlawfully murder WILSON DOGUAPE.

He pleaded not guilty of murder but guilty of manslaughter. The prosecution accept the plea to manslaughter.

It happened in the early hours of the morning after the General Election last April. Both victim and prisoner were drunk. They lived close by each other and were acquaintances, if not friends. They argued over the results of the election. The argument lead to a fight. The fight went on for some time.

Finally the victim fell against a tin clad chicken pen causing a gash on the back of the head. His wife took him home (he was unwilling to go to the hospital) and he lay down. The gash bled: within a few hours the victim was dead. Had he gone to the hospital his life may have been saved.

Both Prosecution and Defence made written submissions on penalty. When I studied the submissions out of Court, I saw for the first time that there was a conflict between the two submissions. Each contended the other party to have been the aggressor. The Prosecution alleged that the accused had deliberately banged the victims head against the jagged angle of the chick pen.

From the prosecution submission:-

"The deceased has then stood up for the last (time) when the prisoner has pushed the deceased against a tin clad chicken pen. The deceased has then gained his feet when the prisoner has grabbed the deceased head and hit it several times against the protruding edge corner of the tin wall of the chicken pen. The Prosecution say that the laceration caused to the head of the deceased was from this protruding edge corner..."

To the contrary, Mr. Clodumar’s submission for the prisoner was that the prisoner pushed the deceased who fell against the tin sheet of the chicken pen:

The prisoner did not act deliberately to push him into the chicken pen.

The disputes: whether the prisoner deliberately caused the gash on the head or whether it was an accident.

To allow me to decide the dispute the prosecution called three witnesses who saw what happened: two by standers and the victim’s wife.

Moana Quadina ( a girl of sixteen):-

......"At last when Odessa pushed Wilson – Wilson fell and hit his head on chicken cage. Odessa grabbed Wilson under the chin and pushed him into the chicken cage twice and three times. Wilson fell down – stoop up, blood on the back. Wanted to fight again Odessa but someone came and stopped them".

Humson Tatum (a matured man):-

......"Wilson came towards Odessa and hit him and Odessa grabbed Wilson by the chin and pushed him into the cage – once. Wilson’s wife came to stop them."

Tammy Doguape (the victims wife):-

......."Odessa kept hitting him – chest pushed and punched. Still pushing husband to chicken shed. Odessa pushed him to the cage – grabbed him by head and pushed him into the cage four to five times. Grabbed him under chin. Wilson didn’t fall, I pulled him away."

None of this evidence was challenged in cross examination; neither the prisoner or anyone on his behalf gave evidence.

Beyond reasonable doubt the prisoner deliberately pushed the victim against the chicken pen causing the gash on the back of the victim’s head and from which he bled to death in a few hours.

I shall sentence the prisoner on that basis.

Odessa Uilama:-

You pleaded guilty to manslaughter. You and the victim were, in the early hours of the morning after the General Election last April, arguing over the results. The argument turned into a fight. Both you and the victim acted aggressively but crucially I have found that the fight ended after you had deliberately bashed the victim’s head against the tin clad chicken pen causing a gash in the back of his head. The victim bled to death in a few hours. But you deliberately did this makes the manslaughter more serious. A great tragedy.

You are thirty-one years old and originally come from Tuvalu. You are in a relationship with one child.

This is your first conviction. You pleaded guilty. These things are in your favour and mean a lesser term of imprisonment than otherwise. I also bear in mind in your favour that if the deceased had gone to the hospital as he should have, he may not have died and you would have been facing a less serious charge even though still a very serious one.

Mr. Clodumar says you are remorseful and have resolved never to drink alcohol again. I hope you will keep to the resolution which is much to your credit.

You will be imprisoned for three years to date from the 27th of April since when you have been in custody.

Robin Millhouse QC
CHIEF JUSTICE