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Public Prosecutor v Massing [1997] VUSC 34; Criminal Case No 004 of 1997 (19 September 1997)

IN THE SUPR SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA

CRIMINAL CASE No. 04 OF 1997

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PER">PUBLIC PROSECUTOR

-v-

JIMMY MASSING

Coram: sticeerliver A. Saksak

Counsel: Mr Willie DanieDaniel for the Public Prosecutor
Mr Stephen Joel, Public Solicito the Defendant

JUDGMENT

The Defendant was coms committed to this Court by the Senior Magistrate, on 10th January 1997. The Defendant was remanded in custody since that date. On 18th August 1997 the Defendant pleaded not guilty to one charge of Intentional Assault Causing Death contrary to Section 107(d) of the Penal Code Act CAP 135. The Defendant was remanded in custody until his trial on 15th September 1997.

Before the Prosecution opened its case the Statement of Innocence under Section 81 of the Criminal Procedure Code Act [CAP 136] was read aloud and explained to the Defendant in Bislama.

Briefly the facts of the Case are that on 25th December 1996 at or about 8.30 o’clock in the night the Defendant punched one Albano (the deceased) once on the face. The deceased fell to the ground. Then the Defendant again kicked the deceased on the abdomen once with his bare foot. The incident took place at Meltungon Village West Ambrym. There was music and dancing. The defendant drank wine and home-brewed drinks with four or five other men. The deceased also had consumed some home-brewed drinks. The deceased asked one Annie Moses for a dance. After the first dance the deceased asked the girl for another dance. The girl refused and left the dancing area. The deceased followed Annie to her father’s house. The deceased grabbed Annie who was crying. It was then that the defendant came to the scene. He spoke words to the effect that would stop the deceased from the further harassing Annie. When the deceased persisted and refused to leave Annie alone, the defendant applied a punch to the face. The deceased fell to the ground and the defendant kicked him in the abdomen with a barefoot. The defendant went to report the assault to his father. The defendant is Annie’s adopted father. Annie is the defendant’s brother’s daughter.

The prosecution produced 5 witnesses altogether. Annie Moses gave evidence to confirm the facts as given above. She told the Court that the deceased had insisted on dancing with her and that the deceased had been abusing her and that he had asked her for sex. She told the court that when the Defendant saw the Deceased doing this to her the Defendant followed them and talked to the deceased. She said that the Defendant had grabbed the deceased. She saw the defendant hit the deceased on the face once. She saw the deceased fall to the ground. She saw the Defendant kick the deceased on the belly with a bare foot.

Pascaline Massing is Albano’s sister. She confirmed that the men were drinking home-brewed alcoholic drinks. She said that the defendant had come to their house and told them that he had "killim" Albano, the deceased. She told the Court that when they arrived at the scene Albano was already dead.

Bai Robert confirmed that the men were drinking in the village. He did not see how the fight took place and he did not know how Albano died.

Rose Mothy Jacob the Staff Nurse who saw the body of the deceased told the Court that some men had come to her house and asked her to go the village to see Albano. She told them to bring the deceased to the Health Centre which had some medical facility to attend to the deceased if need be. She said that the deceased was brought to the Health Centre at about 1 o’clock in the early hours of 26th December 1996. She told the Court that on seeing the deceased there was no breathing, no pulses, no apex and no blood pressure. She concluded that Albano was dead. She told the Court that there were no injury or bruises but that his abdomen looked distended. Asked what this might infer, she told the Court that her suspicion was internal bleeding.

Detective Police officer Allan Row Bani told the Court that he obtained cautioned statement from the Defendant on 27th December 1996. He told the Court that the Defendant had admitted fighting the deceased on his face once and then kicking him once on the ground on his belly. The reason for the assault was that the deceased was harassing his "daughter".

The Defendant gave evidence himself. His version of facts were consistent with the facts given by the Prosecution witnesses. He pleaded a defence under Section 23 of the Penal Code Act [CAP 135] which reads:

"SELF-DEFENCE NECESSITY, PREVENTION OF OFFENCES ETC.

23(1) No criminal responsibility shall attach to an act dictated by the immediate necessity of defence of the person acting or of another, or of any right of himself or another, against an unlawful action, provided that the means of defence be not disproportionate to the seriousness of the unlawful action threatened."

(2) Without prejudice to the generality thereof, subsection (1) shall apply to the intentional killing of another in defence of an attack causing a reasonable apprehension of death, grievous harm, rape or sodomy.

(3) ....

(4) No criminal responsibility shall attach to the use of such force as is reasonable in the circumstances for the purpose of-

(a) preventing the commission of an offence (not being an offence against a person acting; or

(b) effecting or assisting the unlawful arrest of any offender or suspected offender or any person unlawfully at large."

At the end of the Prosecution Case, I had no difficulty in finding that the prosecution had made out a prima facie case against the defendant. Indeed counsel for the defendant conceded that it was so obvious that the perpetration of the offence was not denied but submitted that under section 23 of the Penal Code Act the actions of the defendant were excusable.

Mr Joel argued that section 23 is a complete defence if a reasonable action is taken to stop the commission of a crime. He submitted that what is reasonable should be ascertained by the seriousness of the act or offence about to be committed. Here the probable offence would have been rape. Under section 91 of the Penal Code Act, rape carries a maximum of life imprisonment. The defendant charged under section 107 (d) of the Act carries a maximum of only 10 years imprisonment. Therefore counsel submitted that under these circumstances the defendant’s action was excusable and he should be afforded a complete defence under section 23 of the Act, and that no criminal responsibility should lie. Alternatively, Mr Joel submitted that if the Court could not accept this defence, the defendant’s responsibility should be diminished under section 27 of the Penal Code Act which reads:-

"PROVOCATION

27(1) Criminal responsibility shall be diminished in the case of an offence immediately provoked by the unlawful act of another against the offender or, in his presence, his spouse, descendant, ascendant, brother, sister, master or servant, or any minor or incapable person in his charge, provided that the reaction constituting the offence be not disproportionate to the degree of provocation.

(2) Without prejudice to the generality of subsection (1) the intentional killing or wounding of another shall be deemed to be not disproportionate to provocation caused by violent blows or injuries.

(3) In order that criminal responsibility be diminished, provocation must be of such degree as to deprive a normal person of self-control."

Counsel for the prosecution argued to the contrary. He submitted that section 23 of the Penal Code Act did not afford any defence to the Defendant. He argued that self-defence and necessity were not a defence to the Defendant in this case as the facts were clear that there was no threat from the deceased to warrant retaliation by the Defendant in the manner he did. Mr Daniel referred to the English Cases of R. v. Commonwealth (1995) 2 Crim. App. Case Rep. 607 and Palmers v. R (1971) App. Case 814 in which the Privy Council followed the decision of the Court in the Case of R. v. McInnes 55 Crim. App. Rep. 551.

Looking at the evidence both from the Prosecution and the Defence, it is abundantly clear that the Defendant hit the deceased once on his face causing him to fall to the ground and then applying a kick to the abdomen. This followed after a brief encounter with the deceased. I set out below part of the examination-in-chief as conducted by Mr Stephen Joel as follows:

SJ: Yu bin dring hamas wine?

JM: Mi ting 4 or 5 bottle wine.

SJ: Hamas long yufala idrink ol wine ia?

JM: 5 long mifala.

SJ: You bin drong?

JM: No ino tumas. Mi save wanem mi bin mekem.

SJ: Yu bin luk wanem I happen?

JM: Mi luk Albano I fosem smol gel. Smol gel I ron wei. Mi folem tufala.

SJ: Hamas distance blong yu wetem tufala?

JM: Abaot 15 metres.

SJ: Wanem nao Albano ibin mekem?

JM: Hemi ron bihaen long smol gel.

SJ: Yu bin harem any toktok?

JM: No.

SJ: Yu bin mekem wanem?

JM: Mi pulumaot smol gel.

SJ: Wanem taem long naet inciden I tek ples?

JM: Mi no remember.

SJ: Hemi tudak?

JM: Moon laet.

SJ: Wanem I happen?

JM: Smol gel iron long haos blong papa blong hem be doa ilock. Albano I holem smol gel mo stap squissim hem. Mi luk hem (Albano) iholem smol gel. Mi askem long Albano se "Ol, yu stap mekem wanem ia." Taem ia nao mi faetem hem.

SJ: Wanem I hapen taem yu faetem Albano?

JM: Hemi foldaon long graon. Mi ting se hemi olraet nomo mo mi ron igo long haos blong talemaot.

SJ: Hamas taem yu faetem Albano?

JM: Wan taem nomo long fes blong hem.

SJ: Hamas taem yu kickim hem?

JM: Wan taem nomo long belly.

SJ: Yu gat shoes or no gat?

JM: No gat.

In cross-examination conducted by Mr Willie Daniel this is what happened:-

WD: Yu talem long Kot se yufala I drink 4 or 5 bottle wine, hemi tru? Mo yufala 5 idrink?

JM: Yes.

WD: Hemi isemak olsem wan man I drink wan bottle wine hem wan?

JM: Yes be mi no drong. Mi save wanem mi bin mekem.

WD: Yu talem long Kot se yu bin folem Albano mo smol gel. Hamas distance?

JM: Abaot 100 metres.

WD: Wanem yu bin luk Albano imekem?

JM: Hemi holem smol gel. Mi pulumaot smol gel mo mi faetem hem (Albano). Hemi foldaon long graon mo mi kickim hem long bel blong hem wan taem nomo.

I have placed emphasis on some parts by underlining which form the basis of my finding in this Case.

The Defendant was charged under Section 107(d) of the Penal Code Act which reads:-

"INTENTIONAL ASSAULT

107 No person shall commit intentional assault on the body of another person.

Penalty:

(a) .........

(b) .........

(c) ........

(d) If the damage caused results in death, although the offender did not intend to cause such death, imprisonment for 10 years."

Applying this law to the facts, I find that the Defendant did intend to assault the deceased. And I find further, the deceased died as a result of the assault. I reject the argument and submission that the Defendant’s actions were excusable under the provisions of Section 23 of the Penal Code Act. From the facts as given in evidence I find that the actions of the Defendant went beyond what was necessary to be excused under Section 23. In my view, to rely on Section 23 of the Act the Defendant needed to show that there was real threat of grievous bodily harm to either himself or his adopted daughter. There was no such threat. Further, the Defendant used more that enough force necessary in the circumstances. From the evidence it is clear that the Defendant fought the deceased once on his face. That would have been enough. But the Defendant went further. Whilst the blow from his fist had sent the deceased to the ground where he laid helpless, the Defendant saw fit to deliver a kick to the deceased’s abdomen. That in my judgment is clearly excessive and therefore the Defendant’s action in that respect was unlawful.

I accept however that the Defendants action was provoked. The girl was his adopted daughter. He had every right to protect her but again the force used by him was manifestly excessive. From the facts, I find that the actions of the deceased immediately prior to the assault was of such a degree as to have deprived the Defendant of his self-control. Under section 27(3) of the Penal Code Act therefore the Defendant’s responsibility is diminished.

Under these circumstances the least sentence this Court could impose on the Defendant is a total of 2 years imprisonment. I note that the Defendant has been in custody from 10th January 1997, for 9 months. This is deducted from the 2 years. That means that the Defendant has to serve the remainder, which is 15 months.

Further to that term of imprisonment, the Defendant is ordered to pay the sum of VT54.000 as Prosecution costs. This Order binds the Defendant until he pays the sum whether it be while he is serving his term or after his release from prison.

DATED AT PORT-VILA, this 15th day of SEPTEMBER, 1997

SEALED: 19th September, 1997

BY THE COURT

OLIVER A. SAKSAK
JUDGE