Public Prosecutor v Ierogen [2002] VUCA 34; CA 07-02 (1 November 2002)

IN THE COURT APPEAL OF
THE REPUBLIC OF VANUATU

APPELLATE JURISDICTION
Criminal Appeal Case No.7 of 2002
BETWEEN:

PUBLIC PROSECUTOR

-v-

RICHARD CLIFFORD IEROGEN

Coram: Hon. Justice Bruce ROBERTSON
Hon. Justice John von DOUSSA
Hon. Justice Daniel FATIAKI
Hon. Justice Oliver SAKSAK

Counsels: Mr. Hillary TOA for the Appellant
Mr. Daniel EVANS for the Respondent

JUDGMENT

On 6^th May 2002 the appellant appeared before the Supreme Court charged with intentionally assaulting his wife thereby causing damage that resulted in her death Contrary to Section 107 (d) of the Penal Code Cap 135. The appellant pleaded ‘not guilty’ to the charge and the trial proceeded over several days before the Chief Justice.

The prosecution’s case was that on the evening of Friday 11^th January 2002 the appellant and his wife, attended a farewell party organised by the National Bank of Vanuatu. At about 10.30 p.m. the appellant and his wife left the party and went to the Smugglers nightclub where both consumed a large amount of alcohol during the course of the night until their departure in a taxi at about 3.00 a.m. on Saturday. On the way home the appellant and his wife purchased more alcohol which they consumed together with the taxi driver.

The appellant and his wife eventually arrived home at about 5.00 a.m. and went to bed but did not sleep immediately. There is some suggestion of a bit of ‘horse-play’ occurring between the appellant and his wife during the course of which the appellant struck his wife on the left side of her head and on her upper lip causing her to fall on the floor and lose consciousness albeit that she continued breathing. The appellant then doused his wife with some water but that failed to wake her up.

A short while later at about 6.00 a.m. the appellant noticed that his wife had stopped breathing. After several unsuccessful attempts at resuscitation an ambulance was called and one eventually arrived. The appellant’s wife was rushed to the Vila Central Hospital. At about 8.30 a.m. she was seen by Dr. Susan .E. Williams. All attempts to revive the appellant’s wife failed and she was eventually pronounced dead at about 9.00 a.m. by the Consultant Physician in attendance.

The prosecution called eleven witnesses to reconstruct the events of the night and morning in question but there were no eye-witnesses as to what occurred between the appellant and his wife in their bedroom on the early morning hours of Saturday 12^th January 2002 after they had returned home and before the appellant’s wife was rushed in an unconscious state to hospital. That crucial evidence came from Dr. Susan E. Williams who attended to the appellant’s wife when she was first brought to Vila Central Hospital.

In her evidence Dr. Williams described how, in the course of eliciting the wife’s relevant history from the family members that had brought her to the hospital on the morning of Saturday 12^th January 2002, she had spoken to the appellant who had told her that he and his wife had both been drinking alcohol and they had had an argument and he had hit her on the left side of the head and she fell down unconscious.

Dr. Williams spoke again with the appellant the following day Sunday 13^th January 2002 and he confirmed to her that: ‘...he hit (his wife) on the side of her head once and on her right upper lip once. It was now about 6.30 a.m. After he hit Heather, she was unconscious but still breathing...’.

Dr. Williams recorded both inculpatory admissions in reported speech in two contemporaneous reports that she had compiled at the time soon after they were made by the appellant.

On full external examination of the appellant’s wife after she was pronounced dead, Dr. William’s noted that there was a small vertical cut on her right upper lip which was bleeding a little and had a small bruise. On examining the X-rays of the wife’s skull she detected a very light depression on the left parietal bone. Dr. Williams opined that the blow to the left side of the wife’s head may have caused bleeding leading to an extradural blood clot. These injuries were entirely consistent with the appellant’s earlier inculpatory admissions to Dr. Williams and the trial judge was satisfied from the evidence that the appellant had intentionally assaulted his wife as a result of which she had sustained fatal injuries to her head.

In order to confirm her conclusions Dr. Williams showed the wife’s head x-rays to Dr. Basil McNamara the Consultant Surgeon at Vila Central Hospital who expressed the view that the fracture seen in the x-rays was consistent with a blow from a blunt instrument and there was a high probability of underlying brain injury occurring. This was even more likely if the injury was in the temporal region. In his expert opinion such a combination is a classic example of death being caused by brain injury secondary to a fractured skull. The appellant did not give evidence at his trial and the defence called two witnesses who merely testified as to the appellant’s character.

On the 21^st June 2002 the appellant was convicted by the Chief Justice for the offence of intentionally assaulting his wife causing injuries that resulted in her death contrary to Section 107 (d) of the Penal Code. On 19^th July 2002 the appellant was sentenced to 3 years and 5 months imprisonment being an effective sentence of 4 years with an allowance for the time already spent in custody.

The appellant now appeals against both conviction and sentence on the following grounds:

(a) The trial judge erred in fact and in law in finding that there was sufficient medical evidence to warrant a conviction and failed to take in account the deficiencies of the medical evidence in reference to the cause of death or that if he did very little weight was given to those deficiencies in light of the injustice caused to the Appellant;

(b) The trial judge erred in fact and in law in finding that the Appellant caused the damage that resulted in death of the deceased, Heather Ierogen.

(c) The trial judge erred in fact and in law in finding that the Appellant caused the damage that resulted in death of the deceased, Heather Ierogen.

At the hearing of the appeal appellant’s Counsel sought to challenge the reliability of the evidence of Dr. Williams not on the basis that the appellant had not made the inculpatory admissions that she testified he had made to her on the 12^th and 13^th January 2002 but rather because she had been prevented by the police from speaking to the appellant a third time when he might have retracted or explained his earlier inculpatory admissions to her. There is no possible merit in this complaint which remains entirely a matter of conjecture as to what the appellant might or might not have said to Dr. Williams had she not been denied a third opportunity to speak to him.

Needless to say it was always open to the appellant had he desired to do so, to retract his first inculpatory admission when he saw Dr. Williams on the second occasion but he did not. Equally the appellant could himself have elected and testified at his trial as to what he intended to tell Dr. Williams had he been given a third opportunity and/or explained why he had not retracted his earlier admission when he saw her the second time. Instead, the appellant elected to remain silent, as was his undoubted right, and the Chief Justice was obliged to decide the issue on the basis of Dr. Williams’ unchallenged evidence of the appellants’ inculpatory admissions to her.

We can do no better than repeat what the Chief Justice said in his judgment in dealing with this issue. His lordship said:

‘The defence submitted that the defendant made such admission to Dr. Williams because he was shocked. This submission is rejected. There is no plausible reason why the defendant would tell lies to Dr. Williams that he hit the deceased. The fact that he was in shock does not provide a satisfactory explanation for having made up such a story. Quite often the contrary. In this instance case, the defendant made the admission so soon after incident occurred, the admission was against his own self- interest, and the admission was made in a circumstance where it was entirely voluntary, this means that it is highly likely that the defendant was telling the truth. That is what the defendant did in this case.

On the basis of admission by the defendant that he had hit the deceased twice: once on the lip and once on the left side of the deceased’s head, and the X-ray findings (Exh. B2), there is a reasonable inference to be drawn that the defendant had intentionally assaulted the body of the deceased.

I am therefore satisfied that the combination of the admission by the defendant and the X-ray findings is proof beyond reasonable doubt that the first element of the offence as charged, is proved on the criminal standard required’.

We can find no error in his Lordship’s reasoning on this aspect of the case. This ground of complaint is accordingly dismissed.

The second ground of appeal was argued by the appellant’s counsel on the basis that the medical evidence was insufficient to support the Chief Justice’s conclusion that the injuries sustained by the appellant’s wife caused her death. Again we cannot agree.

The number, nature and location of the injuries found on the wife’s skull and lip were entirely consistent with the appellants’ inculpatory admissions to Dr Williams and was independently confirmed by X-rays which revealed a depressed fracture of her skull consistent with a blow by a blunt instrument. The expert opinion of the Consultant Surgeon Dr. Basil McNamara, which was not seriously challenged, was to the effect that a blow to the head could result in lethal brain injury and in the appellant’s wife’s case was the most likely cause of her death.

The Chief Justice in his judgment rejected various alternative theories advanced by the appellant’s Counsel as possible causes of his wife’s death including suicide and acute alcohol poisoning. He then considered the absence of a post-mortem examination of the wife’s body and noted the deeming provisions of Section 109 of the Penal Code.

Counsel also forcefully submitted that the prosecution’s evidence failed to establish that the appellant, assuming he had assaulted is wife, intended to cause her serious or grievous bodily harm.

This submission is based on a fundamental misconstruction of Section 107 which reads: ‘No person shall commit intentional assault on the body of another person’. In our view the offence is complete on proof of an ‘intentional assault’ whether or not any damage or injury is caused thereby or intended. We are fortified by the existence of paragraph (a) which expressly covers circumstance where ‘no physical damage is caused’ to the victim of an intentional assault.

We accept that the appellant was charged under paragraph (d) which requires proof of some damage or injury to his wife which resulted in her death but that requirement does not mean that either consequence must be intended, only that the fact of injury and the resultant death be established.

In the present case the Chief Justice carefully and fully considered all of relevant evidence which he described as ‘overwhelming’, and which satisfied him beyond reasonable doubt that the appellant had intentionally assaulted his wife causing damage or injury to her head which resulted in her death. We are not persuaded that there was any error or misdirection in that conclusion which was plainly supported by the evidence that his Lordship accepted.

Needless to say, if counsel’s submission is correct and it was necessary for the prosecution to establish in addition to an ‘intentional assault’, a further intention on the appellant’s part to cause serious or grievous harm to his wife, then, in our view that would constitute the more serious offence of ‘intentional homicide’ under Section 106 of the Penal Code and not the offence with which the appellant was charged.

The submission is accordingly dismissed as being without merit. All grounds of appeal having been rejected, the appellant’s conviction must be and is hereby upheld.

We turn finally to consider the appellant’s appeal against the sentence imposed on the ground that it is ‘manifestly excessive”.

In support of the appeal against sentence appellant’s counsel urged the appellant’s relative youth, his previous good character, and the responsible position he held in the National Bank of Vanuatu prior to his conviction and which he has now lost as a result of his incarceration. We further accept that the wife’s death was unintended.

The Chief Justice in his sentencing remarks said:

‘I have considered with care your counsel’s submission on your behalf. I take into account that you are a man of good character and has no previous convictions.

However, I cannot help but think that the evidence in this case against you were compelling in respect to the offence as charged and upon which you are convicted of.

In sentencing you, I bear in mind that it is in the community’s interests that the sentence I impose on you will have a deterrent effect on you, so that you will not re-offend.

This case warrants a term of imprisonment. The appropriate sentence is 4 years imprisonment. You have already spent some time in jail, as from 6th January 2002 to 19th July 2002, a total of 6 months and 7 days. The period of 6 months and 7 days shall be deducted from the 4 years period.

The defendant, Richard Ierogen, is sentenced to 3 years and 5 months imprisonment”.

We are unable to detect any error in principle or in the length of the sentence imposed and although appellant’s counsel states that the appellant is deeply remorseful for what has occurred we note that the appellant rigidly maintained his ‘not guilty’ plea throughout the trial in the face of what the Chief Justice describes as ‘compelling’ and ‘overwhelming’ evidence.

We are grateful to counsel for the Public Prosecutor who placed before us the decisions in Public Prosecutor v. Sheddrack Joseph and Public Prosecutor v. Joseph Malesu where, in somewhat similar circumstances, the court considered the appropriate starting point for an uncontested case of an Intentional Assault Causing Death was 5 years imprisonment.

In the latter case the Chief Justice laid down the appropriate sentencing guideline in the following terms:

‘The sentence to be imposed by the Court, under Section 107 (d) of the Penal Code Act, in disputed cases, depends on the particular circumstances and situations of each cases.

In situation where the defendant had a weapon (such as a gun, a knife or other dangerous objects) and use it to cause bodily harm to the body of another person and as a result of which the victim died, the sentence to be imposed in a disputed case ranges from 8 to 10 years.

In situations where the defendant uses his fist and legs to cause serious injuries to the body of another person and causes the victim’s death as the result of the injury, the sentence t be imposed is around four (4) to seven (7) years’.

Plainly in the present case, the Chief Justice adopted the lower end of the appropriate range as the starting point in sentencing the appellant. In doing so his Lordship extended to the appellant a considerable degree of leniency.

In light of the foregoing we are not persuaded that the appellant’s sentence was either ‘manifestly excessive’ or wrong in principle. We do not consider that the sentence should be interfered with.

The appeal against the sentence imposed on the appellant is accordingly dismissed.

DATED at PORT VILA this 1st day of November 2002.

Bruce ROBERTSON J.
John von DOUSSA J.
Daniel FATIAKI J.
Oliver SAKSAK J.