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Public Prosecutor v Ierogen [2002] VUSC 40; Criminal Case No 011 of 2002 (21 June 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

CRIMINAL CASE No.11 OF 2002

PUBLIC PROSECUTOR

-v-

RICHARD IEROGEN

Coram: Chief Justice Vincent Lunabek

Mr. Daniel Evans for the Public Prosecutor

Mr. Hilary Toa for the Defendant

Date of trial:

Place: Port Vila.

Date of Judgment: 21 June 2002.

JUDGMENT

I. INTRODUCTION

1. Choice of the language

This is the judgment of the Court in this case. The trial took place at Port Vila, Efate and the proceedings were conducted in Bislama and English. The judgment is written in English.

2. Nature of the charge

The accused Richard Ierogen was committed to this Court, charged with the offence of intentional assault on the body of another person causing damage which results in the death of that person, contrary to Section 107 (d) of the Penal Code Act [CAP. 135]. The charge is particularised as follows:-

“That on or about 12^th January 2002, sometime in the early hours, Richard Ierogen intentionally assaulted his wife, Heather Ierogen in their house at Ohlen Area, Port Vila, Efate, as a result of which, Heather Ierogen died.”

3. Pleas

The accused pleaded “not guilty” to that count. The plea was noted and the trial proceeded on that count.

4. Statement of presumption of innocence

The statement was read out, explained to the accused. The Court was satisfied that he understood his right under Section 81 of the Criminal Procedure Code (CPC) Act [CAP. 136].

II. STANDARD OF PROOF AND ESSENTIAL ELEMENTS OF THE OFFENCE TO BE PROVED BY THE PROSECUTION

This is a criminal trial and as in every criminal trial, it is for the prosecution who brings the charge to prove it. It is for the prosecution to prove each and every allegation of fact in this case. There is no burden on the defence whatsoever. The prosecution must prove all the essential elements of the offence charged against the accused beyond reasonable doubt. Before I can convict the defendant Richard Ierogen of the charge of intentional assault on the body of Heather Ierogen causing damage which results in her death, contrary to Section 107 (d) of the Penal Code, I must be sure of his guilt, nothing less will do. That is the same as saying that the prosecution must prove beyond reasonable doubt. If at the end of the day, I am left with a reasonable doubt as to the defendant’s guilt, then the defendant will be entitled to the benefit of that doubt and be acquitted.

The essential elements of the offence as charged under Section 107 (d) of the Penal Code that the prosecution must prove beyond reasonable doubt before the accused can be convicted on that charge, are:-

1. That the accused, Richard Ierogen, intentionally assaulted the body of the victim Heather Ierogen;

2. That the assault caused damage/injury to the victim’s body;

3. That the damage caused resulted in the death of the victim, Heather Ierogen.

III. SUMMARY OF EVIDENCE

1. The prosecution case

The prosecution case is that the defendant admitted that he had hit the deceased on the head and lip (Dr. Williams) confirmed by Tom Ierogen. Dr. McNamara’s evidence that he had seen the x-ray (XB2) and that it clearly showed a depressed fracture on the left side of the skull.

At the end of the prosecution case, Section 88 of the CPC was read and explained to the defendant.

2. The defence case

The prosecution fails to do post mortem on the body of the deceased in order to find out the cause of the death. The medical records of the deceased show that she was admitted in hospital in 1998 for suicide (Leipakoa).

The defendant is a dedicated worker, he has drive and committed (Jioj Komusei).

The defendant did not give evidence. He has exercised his right to remain silent.

The law is spelt out in the case of PP –v- Sheddrack Joseph – CR No. 4 of 1999.

3. Discussion on evidence

i) Credibility

I have listed and considered the evidence of all prosecution witnesses in particular that of Dr. Williams. I accept the evidence of Dr. Williams. I have no reason to disbelieve her. I believe that the evidence taken as a whole compels the finding that:-

I am satisfied beyond reasonable doubt that the defendant, Richard Ierogen, assaulted Heather Ierogen on 12 January 2002, as a result of which she died.

VERDICT

I find the defendant, Richard Ierogen, guilty of the offence as charged.

Dated at Port Vila, this 21^st day of June 2002.

BY THE COURT

Vincent LUNABEK

Chief Justice.

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