R v Ngelea [1986] SBMC 2; CRC 251 of 1986 (2 January 1986)

IN THE MAGISTRATES' COURT FOR THE CENTRAL DISTRICT

(JKR STANFORD-SMITH)

Criminal Case No. 251/86

R

v.

NGELEA

February 1 1996 at Honiara
Judgment: February 1 1986

The defendant stands charged with causing grievous harm to Dennis Wate on the 27.9.86 at Naha Police Station.

The facts that are not disputed are that on the evening in question the victim had been drinking and later returned home. His route took him past the Naha Police Station. He had on his shoulder a radio cassette playing loudly. He was told to turn it down by Police Officer, which he did. The facts then vary. The victim stated that he was then arrested forcibly and taken to the charge office. Once in the charge office Wate was told to spread eagle against the wall and searched. He was told to remove his shirt and then his trousers. The latter he refused. The officer then grabbed his wrists, one being forced up behind his back and another officer grabbed his head and he was forced down to the floor. Whilst in that position of being held by both arms behind him and his head down so his chest was not touching the floor but his legs and trunk were he was kicked by the defendant once on the upper arm. His arm broke and he was then thrown into the cell. In cross examination he maintained that he didn't fight with, or resist the Police once in the charge office. He did outside initially when they grabbed the cassette as he didn't know why they wanted to take it. He denied grabbing anyone's testicles. Mr. Lewis gave evidence that having heard the victim's account the fracture was consistent with such a blow by a shoe or instrument, and that it was extremely unlikely to be caused by steady pressure. He stated that such a fracture would be immediately noticeable and sometimes audible. He could not discount other causes but they would be unlikely. I accept his evidence.

The defendant statements were then admitted by consent.

In the statement dated 27^th day of (unknown) I assume September he stated that Wate grabbed him by his testicles but he released the grip by pulling and he had no knowledge how Wate's hand was broken or fractured. In his statement of 14^th October 1985 he states whilst searching Wate. Wate punched him and grabbed his testicles, which he released and then placed him in the cell. In the cell Wate continued to attack the defendant and PC. Maisa. Wate in fact then grabbed Maisa's testicles and then the defendant's. The defendant then got Wate to release them. He doesn't explain how but Wate's arm was broken in the process. He said Wate was not drunk. In an additional statement on the 29.10.85 he takes up events once in the cell and states he was grabbed again by the testicles. He then grabbed the victim's right elbow with his left hand and the victim's wrist with his right hand and pushed the victim's hand away very hard. The defendant then said that his hand was broken. He noticed it was not straight. The defendant gave evidence that after being arrested outside he was brought to the charge office. On searching him they found a shell necklace which they said he must remove, he refused and took a swing at the defend hitting him on his left eye. The defendant grabbed him, Wate lost balance and fell to the floor. He held the defendant shorts grabbing his thight [sic] and trying to bite him. (PC Maisa was there) and his (the defendant) testicles were grabbed. He then held the victim [sic] wrist and hit the victim's elbow with the ball of his hand, then hit him again with his forearm on the victim's upper arm. He heard his arm break like a stick. We then all [sic] put him in the cell. After the incident the defendant then felt pain in his scrotum and took pain killers and on the 20.03.86 he saw Dr. Paia who put him on a course of penicillin this was some five months after the incident, the doctor was not been called and I read the report with extreme caution. This was not put to the prosecution Medical Expert. In cross-examination the defendant then put the accused in the cell and repeated his later account. PC Maisa gave sworn evidence that after searching the victim he refused to take off his necklace and as the defendant went to remove it he was punched by the victim and grabbed his testicles. Having placed in the cell he attack the defendant again when the defendant hit the victim's arm as described by the defendant, except he didn't notice the arm was broken, only later when the victim shouted out. In cross examination he admitted not putting any of the further assault details in his written statement not seeing that they were important. There were various inconsistencies in his statement. I remind myself of the onus upon the prosecution that the elements of the offence must be proved beyond reasonable doubt. In reviewing the evidence and the accounts given by them, I found that Wate's evidence was clear and consistent. I accept that he has reason to change the account as he is pursuing a civil claim but even treating the evidence with caution I find I have no reason to destabilise the account given. Mr. Lewis was very fair in his opinion which can be summarised by saying that the injury was consistent with sharp blow and likely to be caused by steady pressure. The defendant's ??? [missing words]

In his first statement there is no account of the cell incident and he states he had no knowledge of how Wate's arm was broken. In his second statement he goes into more detail saying Wate punched him and grabbed his testicles, having released the grip and put him in the cell, there was a further attack when PC Maisa grabbed by the testicles as well. PC Maisa did not state this at all in his evidence. Something that would be both painful and unforgettable. The defendant again doesn't explain how the arm got broken. Finally in his third additional statement more detail is given and it was clear that the arm was broken when hit the second time by his forearm. The defendant gave sworn evidence consistent with his last statement and in fact said he heard the arm break like a stick. Having seen the defendant gave evidence and compared his earlier statement I find it difficult to accept his accounts. If the incident occurred in the manner the court is being asked to accept, why didn't the defendant make a full statement at once. The fact that the arm was broken was very unfortunate but it could be explained and would not necessary give rise to criminal liability. If he was being attacked in such a way his defending of himself would be lawful and proper. I am of opinion that the defendant is not telling the truth. PC Maisa's evidence support the defendants account very closely except at no point did he say was/be the subject of any attack. He didn't realise the arm was broken yet the medical evidence was clear it would be dramatic and immediately noticeable, the defendant actual heard it.

Having seen the defendant and his witness gave evidence and compared the number of accounts I find I cannot accept their account which at its best sounds feeble and its worst connected to protect the defendant and conceal what really happened. Having dismissed the defence's witnesses' explanation, the onus still lies upon the prosecution. I have accepted the victim's account which is supported by the medical evidence as far as the injury being consistent with a blow. I have to be satisfied beyond reasonable doubt that the injury occurred in a manner alleged by the prosecution and upon the evidence before me I am so satisfied and convict the accused accordingly.

1/8/86

Antecedents

Born 1954. Tasimboko. Married. No children. Standard 7. Police 1977-$168 per fortnight. No previous convictions. Co-operation.

Mr. Brown:
Married. Child expected in June 1986. Obvious as a result carrier is ruined subject to action taken by P & PSC. 9 years work. That will be dramatic. Case brings home difficulty of being a Policeman, must have some sympathy. Wate was being anti-social. Had been drinking. Was stroppy. Over reaction by defendant when restraining, no intention to break arm with kick. Close line between when force becomes unlawful. Police had had difficulty with. No permanent injury. Civil case pursuing. Lack of intent effect on a livelihood.

MR. FREEMAN
On injuries. Last general report. 6 weeks to heal. Not effect function of arm. No permanent injury.

Adjourn to 2.4.86 at 8:15 am for sentence - $50 C/R.

SENTENCE

The defendant stands convicted of Causing Grievous Harm to Dennis Wate after a trial. I pass no comment upon the defendant's plea of not guilty but give credit for the fact he has no previous conviction and has given nine years service to the Royal Solomon Islands Police. He is a married man with a child due later this year.

The offence is an aggravated offence in that it was committed by a senior police officer after an arrest, in front of police recruits. The kick was unwarranted and vicious. It is a sad event for the Police who must have the confidence of the public if they are to command respect. This is an isolated incident but it must be [sic] bring home to all Police Officers that in doing their duty, which is difficult at times they must only use force that is reasonable and warranted. There can be abuse of power.

There is no question of use of any weapon in this assault on Wate and the injury come from a single blow. It was done in the heat of the moment and therefore in the scale of offences of this type it is in the lower part. I cannot avoid passing a custodial sentence for an offence of this nature in which the public interest has to be served although the court appreciates the tragedy to this officer's personal life and his professional calling. Having considered all matters I sentence this defendant to 15 months imprisonment.

Right of appeal explained.

JKR STANFORD-SMITH
Principal Magistrate Central