Coram: Chief Justice
Vincent Lunabek
Mr. Daniel Evor
the Public Prosecutor
Mr. Hilary Toa for
the Defendant
Date of triapan>
Place: Port Vila.
Date of Judgment: 21
June 2002.
JUDGMENT
I. ;&nbssp;&nnbsp;&bsp;&nsp;&nsp; p;&nbbsp;&nsp; &nsp; p;
span>
INTRODUCTION
&nt">
1.
pu>Choice of the
language
This e judgment
of the Court in this case. The trial took place at Port Vila, Efate and thnd the
proceedings were conducted
in Bislama and English. The judgment is written
in English.
2. p;&nb Nature of the
charge
The accuschard Ierogen was
committed to this Court, charged with the offence of intentional asal assault on
the body of
another person causing damage which results in the death of that
person, contrary to Section 107 (d) of the Penal Code Act [CAP. 135]. The
charge is particularised as follows:-
ass="MsoNoMsoNormal" style="text-align: justify; margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“Th or about 12th
January 2002, sometime in t in the early hours, Richard Ierogen intentionally
assaulted his wife, Heather Ierogen in
their house at Ohlen Area, Port Vila,
Efate, as a result of which, Heather Ierogen died.”
3. p;
span>Pleas
The accused pleaded “not
guilty” to that count. The plea was noted and the trial proceeded on
that count.
4.
spanspu>Statement of
presumption of innocence
span lang="EN-GB"N-GB" styl style="foe="font-size: 12.0pt">
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The statement was read out,
explained to the accushe Court was satisfied that that he understood his
right under Section
81 of the Criminal Procedure Code (CPC) Act [CAP. 136].
II. &nbbsp;& p;&bsp;   &nnbsp;;&nspp;&nsp;
sp;
STANDARD OF PROOF AND ESSENTIAL ELEMENTS OF THE OFFENCE TO BE PROVED BY D BY THE
THE
PROSECUTION
This is a criminal
trial and as in every criminal trial, it is for the prosecution who brings
the charge to prove it.
It is for the prosecution to prove each and every
allegation of fact in this case. There is no burden on the defence
whatsoever. The prosecution must prove all the essential elements of the
offence charged against the accused beyond reasonable
doubt. Before I can
convict the defendant Richard Ierogen of the charge of intentional assault
on the body of Heather
Ierogen causing damage which results in her death,
contrary to Section 107 (d) of the Penal Code, I must be sure of his guilt,
nothing less will do. That is the same as saying that the prosecution must
prove beyond
reasonable doubt. If at the end of the day, I am left with a
reasonable doubt as to the defendant’s guilt, then the defendant
will be
entitled to the benefit of that doubt and be acquitted.
The essential elements of the
offence as charged under Section 107 (d) ofd) of the Penal Code that the
prosecution must prove beyond reasonable doubt before the accused can be
convicted on that charge, are:-
1. & &nsp; &nbssp; &nbssp;
Than>That the accused, Ri Ierogen, intentionally assaulted the body
of the victim Heather Ierogen;
>
2. nbsp; p; &nbp; &nbssp; &nbssp;
That the the assault caused damage/injury to the victim’s bo/span
3. p;&nbbsp;&nsp; &nsp; p; &nnsp;&&nsp; &nbp;
Thet tmage caue caused resulted in the death of the victim, Heather
Ierogen.
III. &nbbsp;&&nsp;;&bsp;&bsp;&nbp; &nbbsp; n>spa SUMMARY OF
EVIDENCE
1. style="font:7.0pt "Tiot;Times New Roman""> &nbssp;&n The
prosecution case
The prosecution case is that
the dant admitted that he had hit the deceased on the head and land lip (Dr.
Williams) confirmed
by Tom Ierogen. Dr. McNamara’s evidence that he had seen
the x-ray (XB2) and that it clearly showed a depressed fracture on
the left
side of the skull.
At the end of the prosecution
case, Section 88 of the CPC was read and explained to the defendant.
2. &nnbsp; span>The defence
case
The prosecution fails to do
post mortem on the of the deceased in order toer to find out the cause of
the death. The medical
records of the deceased show that she was admitted in
hospital in 1998 for suicide (Leipakoa).
ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The defendant is a dedicate worker, he has drive and committed (Jioj Komusei).
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
The defendant did not gi evidence. He has exercised his right to remain silent. ent.
The law is spelt outhe
case of PP –v- Sheddrack Joseph – CR No. 4No. 4 of 1999.
3. &bsp; ;&nbssp;
p;
Discussion on
evidence
<
i)ot;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Creity<: 1">
<
I have listed and
considered the evidence of all prosecution witnesses in particular that of
Dr. Williams. I accept the
evidence of Dr. Williams. I have no reason to
disbelieve her. I believe that the evidence taken as a whole compels the
finding that:-
ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
I am satisfied beyond
onable doubt that the defendant, Richard Ierogen, assaultedulted Heather
Ierogen on 12 January 2002,
as a result of which she died.
VERDICT
I find the defendant, Richard
Ierogen, guof the offence as charged. ged.
Dated at Port Vila, this 21st>
day of June 2002.
BY THE COURan>
class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Vincent LUNABEK
class="MsoNormal" align="cgn="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
Chief Justice.
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