Regina v Ne'emia [1992] SBHC 71; HCSI-CRC 24 of 1992 (22 October 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 24 of 1992

REGINA

V

NE’EMIA

High Court of Solomon Islands
(Muria ACJ)

Criminal Case No. 24 of 1992

Hearing: 15 October 1992
Judgment: 22 October 1992

J. Faga for Prosecution
A. Radclyffe for the Accused

MURIA ACJ: The Accused, NE’EMIA BOBERIO had been charged with one count of Grievous Harm contrary to section 219 of the Penal Code. It was alleged that on 12 May 1992 the Accused unlawfully did grievous harm to one Bill Ferguson. The Accused pleaded Not Guilty to the charge.

The onus is on the prosecution to satisfy the Court beyond reasonable doubt of the guilt of the Accused. At the trial, the prosecution called five witnesses. The Accused gave sworn evidence and called a witness. Having heard the evidence both for the prosecution and the defence, I find the following, facts.

The Accused has since April 1992 been living with the Victim’s (PW1) wife. As a result the victim’s wife left him and their four children. On a number of occasions prior to the date in question the Victim drove to the house which is owned by the Accused’s brother-in-law and in which the Accused and the Victim’s wife have been residing. In almost, if not, all of those occasions the Victim visited the said house during the night times.

On the night in question of the 12 May 1992 at about 9.30 to 10.00 o’clock at night the Victim drove to the house where the Accused and the Victim’s wife were staying. The victim was drunk at the time. The occupants of the house appeared to be asleep as no lights could be seen from the house. Upon arrival outside the house the Victim tooted the horn of his car loudly for about ten times. The tooting of the horn of the car was so loud that the neighbours were awaken. The purpose of tooting the horn was to disturb his wife and the Accused. When his wife and the Accused had awaken, the Victim drove off and proceeded to the 24 hours-shop (Native Corporation) beside the Service Station. The Accused, undoubtedly, was angry and so he ran down the hill from the house and followed the Victim’s car until he caught up with the Victim at the 24 hours-shop. There was some dispute as to what had happened immediately when the Accused arrived at the shop. But on the evidence, I am satisfied beyond any doubt whatsoever that immediately upon arrival, the Accused got hold of the Victim by the collar of his shirt and pulled him to the side of the store where it was dark. There, the Accused and Victim had a struggle for about five minutes. In the course of that struggle the Victim fell. When the Victim was lying on the ground, the Accused held onto the collar of the Victim’s shirt and hit the Victim with his right hand. After hitting the Victim, the Accused opened the door to the passenger’s seat at the back and forcefully thrust the Victim into the car, head-first. It resulted in the Victim landing in the car on his belly. The Accused also went into the car and was punching the Victim a number of times. As a result of being punched and slapped by the Accused, the Victim felt weak. The Accused again pulled the Victim out from the passenger’s seat and pulled him to the driver’s seat. There the Accused, instead of opening the door, forcefully pushed the Victim into the driver’s seat through the window of the driver’s door. After doing that the Accused left the Victim. After the Victim was taken to the Police Station he discovered that his left arm was injured. The X-ray report shows that the Victim suffered a left colles’ fracture.

The Court with counsel visited the scene of the incident with a view to ascertaining as clearly as possible the scene where the incident as described took place.

Section 219 of the Penal Code under which the Accused had been charged provides:

“219. Any person who unlawfully does grievous harm to another is guilty of a felony and shall be liable to imprisonment for fourteen years.”

It is thus for the prosecution to prove that the Accused unlawfully ‘did’ grievous harm to the Victim. The words ‘grievous harm’ are defined in the Code (S.4) viz:

“any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense.”

The Code further defines the word ‘harm’ to mean:

“any bodily hurt, disease or disorder whether permanent or temporary.”

The first question to be asked is whether grievous harm was done to the Victim. The evidence on the injury came from the Victim and the doctor’s report. The Victim stated that he was injured at his left arm following the incident and that he discovered his arm was hurting when he arrived at the police station. Dr. Pikacha who is the Chief Medical Officer (Surgery) in his report confirmed that the Victim suffered from a left colles’ fracture which he said was normally due to a fall on an outstretched hand. On the evidence I am satisfied that the harm suffered by the Victim in this case amounts to grievous harm as defined in the Penal Code.

The next question which must be considered is whether it was the Accused who ‘did’ the grievous harm. The evidence as what the Accused did to the Victim outside the 24 hours-shop that night varied in some respect. But generally the evidence from the witnesses including that of the Accused were consistent on the question of assault on the Victim. The Victim in his evidence stated that the Accused firstly, grabbed him and threw him to the ground and then the Accused picked him up again and forcefully threw him into the car. PW2 testified that he saw the accused grabbed the Victim by the collar and punched him and pulled him to the car along the ground. While in the car the Accused punched the Victim who was in the driver’s seat. PW3 gave similar account to that given by PW2. PW4 who was all the time standing outside at a distance of about 5 metres away from the Accused and the Victim gave his version of what he saw. He saw the Accused approached the Victim from behind silently and grabbed the Victim by the collar of his shirt and forcefully dragged him to the left outside the store. PW4 further stated that the Victim fell and when he was still on the ground, the Accused held onto his collar and hit him. The Accused then went to the Victim’s car, started the engine and moved the car nearer to where the Victim was lying down. The Accused got out of the car, grabbed the Victim and threw him into the back seat of the car. The Accused went into the car from the other door and while in the car, the Accused punched the Victim on a number of occasions. The Victim did not fight back.

The Accused gave evidence on oath. He admitted assaulting the Victim but he said this was because he was provoked by the Victim’s swearing. The Accused agreed that when he arrived at the 24 hours-shop, he held the Victim by the collar of his shirt and forcefully dragged him to the dark side of the front of the store near the ladder. This the Accused said was to avoid being in the ‘eyes of the public’. The Accused said he tried to talk sense into the Victim but the Victim would not listen. So he (the Accused) opened the driver’s seat and seated the Victim properly down at the driver’s seat. Then the Accused said he asked the Victim to move to the passenger’s seat so that he could drive the Victim home but that the Victim continue to nag him and swore at him. That the Accused said made him angry and slapped Victim a number of times. The Accused denied throwing the Victim forcefully into the car and also denied causing injury to the left arm of the Victim.

The Victim called a witness who is his brother-in-law. He confirmed the incident over the tooting of the horn on 12 May 1992 and the Victim’s previous visits to his house. Although this witness’ evidence did not deal with the incident at the 24 hours-shop it certainly supported the Accused’s motive for running after the Victim that evening.

I observed each of the witnesses and the manner in which they gave their evidence. All the prosecution witnesses, were giving their evidence of the incident that took place on the 12 May 1992 from the positions they were at during the night. I accept that the storekeepers described only part of what they saw from the positions they stood in the store. PW4 was the one who was outside the store, standing only 5 metres away from the Accused and the Victim and watching what the Accused was doing to the Victim. I do not accept that any variance of the evidence given by the storekeepers and Caspar Bae necessarily amounts to a conflict of evidence given by those witnesses. That there was assault upon the Victim by the Accused during the incident is uncontrovertible. I observe the Accused gave his evidence. He clearly admitted the assault although he tried to have the Court believed that the assault was not as heavy and serious as the prosecution alleged. I observed the Accused to be potentially of a violent character. This was dearly reflected by himself on the witnesses box.

It will be observed that section 219 of the Penal Code uses the ordinary transitive verb ‘does’ which in this case is linked with the offence itself. Thus making the offence itself being defined by its result and the doer of the act that causes that result must inevitably be the person accused of doing the act. Of course, the act must be done unlawfully since it is the unlawful nature of the act that makes the doer of it liable to the punishment as prescribed. In this case, having found there was grievous harm, the prosecution must prove that the grievous harm was done unlawfully, that is, the doing of the grievous harm was contrary to law and not justified in law.

The case for the prosecution in this case is clearly based on the alleged assault by the Accused upon the Victim. That assault must be proved to be unlawful and not excused by law. If the assault was excused by law then it cannot be unlawful which must result in the Accused not criminally responsible for the act constituting the offence charged and therefore not guilty of the offence charged.

In this regard section 9 of the Penal Code provides that the accused to be criminally responsible for the act complained of, the act must be willed or the event of that act was not accidental, that is, the consequence of the act complained of was foreseeable as a probable consequence of his act. The provision is expressly made subject to provisions in the Code relating to negligent acts and omissions. It states:

“9. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

Thus I must be satisfied to the required standard that the act by the Accused of doing the grievous harm, that is, the assault, was unlawful and that the result which is the grievous harm, was foreseeable as a likely consequence of that act. The test is an objective one based on what the ordinary reasonable man thinks was likely to result and which did result. See R -v-Knutsen [1963] QD R 157, 186.

Applying the above principles and in the light of the circumstances as I found them in this case I am satisfied to the required standard that the assault by the Accused upon the Victim was not excused by law and as such it was unlawful. The consequence of that unlawful act was, as I have found, the grievous harm done to the Victim, a consequence that was likely to happen from the act of the Accused that night.

I am satisfied beyond reasonable doubt of the Accused’s guilt and I convict him of the offence of grievous harm.

(G.J.B. Muria)
ACTING CHIEF JUSTICE