Regina v Emmett [2012] SBMC 8; Criminal Case 192 of 2010 (25 February 2012)

IN THE CENTRAL MAGISTRATES COURT

Criminal Case No. 192/2010

REGINA

V

WILLIAM EMMETT
RONALD DOUGLAS EMMETT
MICHAEL WARD HAMMOND

Dates of Hearing: 7,8,12,13,14 April &27,28 June& 29 July&
28,29 &September 29November 2011
Date of Submissions: 12 December 2011
Date of Judgment: 25 February2012

Pros: Mr Andrew Williams & Sgt Sandy
Mr Chris. Hapa for 1st and 2nd Defendants
Mr Wilson. Rano for 3rd Defendant

Judgment

(1) The defendants William Emmett and Ronald Douglas Emmett are jointly charged with one count of assault which read as follows:

Count 1: Statement of Offence

Assault causing actual bodily harm contrary to 245 of the Penal Code.

Particulars of Offence

On 18 July 2009 at Honiara in the Guadalcanal Province unlawfully assaulted Ken Wollett thereby occasioning him actual bodily harm.

(2) The defendants William Emmett, Ronald Douglas Emmett and Michael Ward Hammond are jointly charged with another count of assault which reads as follows:

Statement of Offence

Assault causing actual bodily harm

Particulars of offence

On 18 July 2009 at Honiara in the Guadalcanal Province unlawfully assaulted Richard Majchrzak thereby occasioning him actual bodily harm.

(3) The defendant William Emmett pleaded guilty to count 1. He admitted to punching Ken twice on the head but disputes the allegation that he continued to punch and kick him whilst he lay on the floor.

(4) On the 18/9/09 between 6.15 pm to 7.00 pm, the 2 complainants namely Ken Wollett and Richard Marjchrzak were assaulted at the Point Cruz Yatch Club.

(5) The defence with respect to count 1 is that it was only William Emmett who assaulted Ken Wollett and Ron Emmett did not assault and could not him as he was always at a distance from Ken Wollet.

(6) With respect to count 2 the defendants have stated:

• 1st defendant William Emmet said that he did not see what happened to Richard Marjchrzak – and all he saw that there was a group of people around him. He denies assaulting him;
  
• 2nd defendant Ron Emmett said that he saw Richard Majchrzak picked up a chair and he was at his table at the leaf hut with the Iabeta Beneteti. (DW4) and remained at his table and did not go anywhere near Richard Majchrzak so he could not have assaulted him;
  
• 3rd Michael Hammond denied approaching Richard Majchrzak and also denied punching or kicking him.
  

(7) Ken Wollett's account of how he was assaulted was as follows:

• he was seated at his table reading a book when Ronald Emmett came to him and swore at him and knocked off his book.
  
• he heard William Emmett say to him that "you say I am drunk" and felt a blow to the back of his head which knocked him to the ground;
  
• Whilst he was on the ground, he saw Ronald Emmett joined William Emmett and they were both swearing and punching him.
  
• people intervened and he got hold of someone's leg and this person( James Opa) fell on him.
  
• he was still lying on his back when William Emmet ran in and kicked him on the left side of the ribs.
  
• he was able to get to his feet and was punched again by William Emmett on the head and he fell to the ground and trying to get up when William Emmett and Ronald Emmett started punching him until they were restrained.
  

(8) William Emmet said that after he punched Ken Wollet twice on the head he was pulled off to the side of the bar by Mike Hammond and he stayed with him and he restrained him from punching or assaulting Ken Wollet further. Ronald Emmett's version is that he was at the leaf hut with Iabeta (DW4) and he was restrained by him and so he could not go anywhere near Ken Wollet.

(9) Ken Wollet assault was witnessed by Richard Marjchrzak. He saw both William Emmett and Ronald Emmett beating up Ken Wollett.

(10) James Opa (PW3) saw William Emmett and Ronald Emmett kick Ken Wollet when he was on the ground.

(11) This is a case which really boils down to the credibility of witnesses. Richard Marjchrzak only got involved as he felt very aggrieved at Ken Wollet being punched and kicked whilst he was lying on the ground/floor. He found this behaviour to be very unmanly and cowardly. It was then that he walked over to the leaf hut table where all the defendants were seated after the assault on Ken Wollet. Iabeta claimed to be with Ronald Emmett all the time but did not see Richard Marjchrazk approach their table. That begs the question as to whether Iabeta was really there? If he was there he would have seen Richard Marjchrzak as he made a big issue about the assault on Ken Wollet and according to Michael Hammond he was bellowing like a bull.

(12) This incident took place on 18/7/09 and all the defendants were taken to the Central Police station on the same day but for some unknown reason the defendants William Emmett and Ronald Emmett were not interviewed by the police until 9/2/10 and 8/2/10. In his Record of Interview Ronald Emmett said that Iabeta stopped him from going to Ken Wollet.

(13) Iabeta evidence appears to be very orchestrated All he said was that he was not the defendant Ronald Emmett right from the start till the finish of the assault of Ken Wollet and he just held on to him. Although he said he was with him for that period of time he did not see him go to Ken Wollet and knock off his book nor did he hear him swear at Ken Wollet. All this happened just prior to this incident on Ken Wollet and how did he not see all this if he was indeed there? I don't believe Iabeta to be a credible witness.

(14) Michael Hammond said he pulled William Emmett away from Ken Wollet – to the corner of the bar whilst in the record of interview to the police William Emmett said that "I walked away". That is in conflict with the version given by Michael Hammond

(15) I accept the evidence of Ken Wollet and his description of the assault and kicks is consistent with his injuries that he received amongst other things fracture of 7th and 8th left ribs. Ken Wollet version was supported by James Opa and Richard Marjchrzak in most material particulars. It is possible that James Opa and Richard Marjchrzak did not see the whole incident but they witnessed most of it.

(16) I therefore found that the prosecution has proved the charge on Ct 1 against William Emmett and Ronald Emmett beyond all reasonable doubt and I find them guilty of the charges and I convict them accordingly.

Count 2

(17) Richard Marjchrzak is the complainant in count 2. He went over to the 3 defendants at their table to show to his disgust and disapproval at the way Ken Wollet was assaulted. He called them cowards for hitting Ken Wollet whilst he lay on the floor helpless.

(18) Following his words to them he saw Mike Hammond approach him and he asked him to stay back and he continued to approach him whilst the 2 other defendants William Emmett and Ronald Emmett went behind him and he felt a blow to this heard and was knocked to the ground. Whilst he was on the ground he was kicked and punched and later he said it was only punches – it rained down –from different sides.

(19) Richard Marjchrzak in his evidence in chief did not say as to who were punching him when he was on the ground. He did not mention any of the defendants by name. In cross examination Mr C. Hapa put the following questions.

Q:	"I put it to you that those persons kicking and punching may have been totally different from Mike and 2 Emmetts?
A:	May be it was self inflicted – it's a silly question – so I give a silly answer. If it walks like a duck then it's a duck – it's not an elephant. I was trying to protect myself.
Q:	Therefore you did not have time to see anyone of them?
A:	I saw them – I saw them.
Q:	You saw whilst you were on the floor?
A:	Yes I saw them.
Q:	Is it not the case that you only saw the feet?
A:	I saw them

(16) This line of cross examination by Chris Hapa took place without any objections from Mr Wilson Rano so Mr Rano's client is bound by the answers given by Richard Marjchrzak. His response was that it was all 3 of them who punched and kicked him and that is sufficient to prove the charge against all 3 defendants.

(17) Further there is evidence of James Opa who witnessed the punching of Richard Marjchrzak by William Emmett and also the kicking by William Emmett and Ronald Emmett although he did not see Mike Hammond assault him but his version of the punches and kicking by William Emmet and Ronald Emmet corroborates the evidence of Richard Marjchrzak. Also the injury sustained by him is consistent with the assault that was inflicted on him.

(18) Richard Marjchrzak was a truthful witness. He used some colourful language to describe the incident. In examination in chief he was quiet honest and sincere about not seeing who landed the punch which made him fell on the ground but immediately before the punch and fall he was facing Mike Hammond and the 2 other defendants William Emmett and Ronald Emmett were behind him in a pincer move.

(19) In all the circumstances, I find that the prosecution proved its case beyond all reasonable doubt on count 2 against all 3 defendants and I find all of them guilty of the charge and I convict them accordingly.

Shafi Khan
Principal Magistrate