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Public Prosecutor v Warawara [2011] VUSC 348; Criminal Case 40 of 2011 (16 December 2011)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)


Criminal Case No. 40 of 2011


PUBLIC PROSECUTOR


VS.


JEROME WARAWARA


Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk


Mr Simcha Blessing for State
Mr Daniel Yawha for Defendant


Dates of Trial: 12th – 15th December 2011
Date of Oral Verdict: 16th December 2011


VERDICT


  1. The defendant was tried in relation to one charge of Intentional Assault Causing Death contrary to Section 107 (d) of the Penal Code Act [Cap. 135] (the Act). It states –

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


Penalty:


(a) Not applicable;

(b) No applicable;

(c) Not applicable;

(d) If the damage caused results in death, although the offender did not intend to cause such death, imprisonment for 10 years."
  1. The burden of proof as required by Section 8 of the Act is one of proof beyond reasonable doubt and that burden rests on the prosecution.
  2. The prosecutions adduced evidence from 8 witnesses namely:-
  3. Despite Section 88 of the Criminal Procedure Code Act Cap [136] being read to the defendant, he through Counsel elected to exercise his right to remain silent and not call any evidence.
  4. The elements to be proved by the prosecutions beyond reasonable doubt are:-
  5. As to the first issue Jean Pierre Kenny from a distance of 38 metres saw the defendant punch the deceased on the face. As a result, the deceased fell backwards and hit his head against the cement step in front of Kwang Sing shop. Isabelle Dick confirmed seeing the defendant punching the deceased on his face causing him to fall backwards and hitting his head against the cement step. She saw this from a distance of 35 metres. Simon Bani saw from a spitting distance from the deceased, the defendant punch the deceased on his face causing him to fall backwards and hitting his head against the cement step. These witnesses confirm and corroborate each other. There was no evidence by the defence to the contrary and in rebuttal. The Court concludes the prosecution has proved beyond reasonable doubt that the defendant had assaulted the deceased. Defence Counsel conceded the prosecutions had clearly proved this element.
  6. The second element of whether the assault was intentional is decided also on the evidence of Jean Pierre Kenny, Isabelle Dick and Simon Bani who all said the deceased on first approach was abusive and used vulgar language against the defendant and his friend Varea Jacob. He was picking a fight with Varea Jacob who was in turn attempting to talk the deceased out of it. The defendant however approached and without saying a word threw the only punch that knocked the deceased backwards causing him to hit his head against the cement step. Under those circumstances, there can be no doubt that the assault was intended. This element is therefore proved beyond reasonable doubt. Defence Counsel conceded also the prosecutions had clearly proved this element.
  7. Defence Counsel argued the prosecution had failed in proving the final element to the required standard when they failed to call the doctor who did the autopsy to confirm his Report.
  8. The issue is whether there was damage and the damaged caused the death of the deceased.
  9. The Record of Interview of Varea Jacob was tendered into evidence as Exhibit P4 without objection. At Question 46 he was asked by Pc Peter Solwie whether he saw the deceased's blood in his car (taxi). His answer was: "Yes, long mouth blong hem we sped blong hem I kam go long glass blong window."
  10. Elly Visi some three hours later when the defendant and Simon Bani brought the deceased back home saw a lump or swelling at the back of the deceased's head. Her evidence went further to show that he could no longer walk but merely dragged his feet on the ground as he was taken on the shoulders of the defendant and Simon and placed on a chair. That he could no longer talk or open his eyes. The only movement he had was to continuously rub the back of his head where the lump or swelling was.
  11. The photographs taken by Pc Cook Thompson show bruises on the upper and lower lips. A photograph show a lump or swelling at the back of the deceased's head. Further, photographs shows the head of the deceased having been opened to show the full view of the brain with blood and bleeding. These photographs were tendered as part of the prosecution evidence.
  12. The blood on the deceased's mouth in the car shows that the punch thrown by the defendant had caused damage or injuries to the deceased's body. That was the direct result of the defendant's punch. But the indirect result came from the impact of the fall. He fell backwards and hit the back of his head on the cement floor. That caused the swelling at the back of the head of the deceased. The autopsy and the photographs of it show bleeding in the brain.
  13. The doctor who produced the autopsy report was not available to confirm his report and findings. However, the photographs taken by PC Cooks Thompson corroborate the injuries caused by the punch and that sustained as a result of the fall from the punch of the defendant. In the absence of the doctor's confirmation, the Court is duty bound to make a ruling as to what in view of the evidence, had caused the death of the deceased. And as a reasonable person, the only conclusion I can reach is that it was the swelling at the back of the head of the deceased that caused the bleeding in the brain which ultimately caused the death of the deceased.
  14. I am therefore satisfied that from the evidence, the prosecution has proved beyond reasonable doubt that the punch and fall inflicted upon the deceased by the defendant had caused damage to his body which eventually resulted in his death. Intention to have caused the death is immaterial.
  15. Counsel Mr Yawha referred the Court to the cases of Malsoklei v. Public Prosecutor [2002] VUCA 28 and the case of Luciana M. Picchi v. Public Prosecutor [1996] VUCA 9 in support of his submissions that without the doctor's confirmation, the third element was not proved. That submission is rejected. In Malsoklei's case there were no photographs available therefore, the case is irrelevant. In Picchi case, the principle laid down by the Court of Appeal is clear, however in this case the police took photographs of the autopsy which are part of the evidence by the prosecution which have not been rebutted in any way. The case of Richard C Ierogen v. Public Prosecutor (1999) has some striking similarities to this case and is accepted as applicable.
  16. In light of all, that has been said I now return a verdict of guilty against the defendant as charged. Accordingly, I enter a conviction against him.
  17. I defer sentence pending submission of a Pre-Sentence Report by the Probation Service within 2 weeks from the date hereof.
  18. As no objection has been made by the Prosecutor in relation to extended bail, the defendant will remain on bail but on conditions that:-
  19. I record that defence counsel made two oral requests. The first was when he requested for the defendant to give evidence and call defence witnesses on Friday 16th December. As the Defence had closed its case by advising the Court on Thursday 15th December that he wished to exercise his right to remain silent, the request was refused.

Secondly, before the Prosecution closed its case on Thursday 15th December Mr Blessing requested an adjournment to February 2012 to allow the doctor who did the autopsy who is currently overseas to return to Vanuatu and give evidence to confirm his findings. The application was strenuously opposed by Mr Yawha. On the basis of this objection the Court refused the adjournment.


DATED at Luganville this 16th day of December 2011.


BY THE COURT


OLIVER A. SAKSAK
Judge

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