Public Prosecutor v Aron [2003] VUSC 32; Criminal Case No 046 of 2002 (18 June 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No. 46 of 2002

PUBLIC PROSECUTOR

-v-

JOSEPH ARON

Coram: Chief Justice Vincent Lunabek

Counsels: Kayleen Tavoa for the Public Prosecutor
Mr. Hillary Toa for the Defendant

JUDGMENT

This is the judgment of this case. The defendant, Joseph Aron, is charged with the offence of Intentional Assault, contrary to Section 107(c) of the Penal Code Act [CAP. 135].

Particulars of the offence are set out below:

Joseph Aron you are from Tongoa Island, you live in Port-Vila. On or about 1 October 2002 at the Manples Area, in Vila, you intentionally assaulted Thomson Willie’s with a hard piece of wood as a result Thompson felt on the ground and sustained a permanent injury on hid body.

The defendant pleaded not guilty.

His rights under Section 81 of the Criminal Procedure Code was read and explained to him.

Section 107(c) of the Penal Code reads:

“No person shall commit intentional assault on the body of another person.

Penalty: (a) ...

(b) ...

(d) if damage of a permanent nature is caused, imprisonment for 5 years;

...”.

The following are the essential elements of the offence:

1. There is an assault on the body of the victim, Thomson Willie.

2. The defendant assaulted the body of the victim.

3. The person sustained injury on his body as a result of the assault.

4. The injury sustained is of a permanent nature.

Before I can convict the defendant, the law is that the prosecution has the duty to prove each and all essential elements as I set them out above beyond a reasonable doubt.

The defendant is not required to prove his innocence. If the defendant elected to give evidence as the accused did in the present case, I must consider his evidence and assess them on equal basis as any evidence of the prosecution’s witnesses.

The onus or burden of proving guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never slights... The prosecution must prove beyond a reasonable doubt that an accused person is guilty of the offence which he is charged before he can be convicted. If I have a reasonable doubt as to whether the accused committed the offence with which he is charged, it is my duty to give that accused the benefit of the doubt and to find him not guilty on the charge. Proof beyond a reasonable doubt has been achieved when I as a Judge of fact feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfies the conscience so that I as conscientious judge of fact (juror) feel bound or impelled to act upon it. Conversely, when the evidence I have heard leaves me as a responsible judge of fact which some lingering or nagging doubt with respect to the proof of some essential elements of the offence with which the accused is charged so that I am unable to say to myself that the prosecution has proven the guilt of the accused beyond a reasonable doubt as I have defined these words then it is my duty to acquit the accused. If I believe the accused and he did not commit the offence of what he did lacks some essential elements of the offence of if the evidence of the accused either standing alone or taken together with all of the other evidence leaves me in a state of reasonable doubt I must acquit him. But if upon consideration of all of the evidence, the arguments of counsel and the charge I am satisfied that the accused has been proven guilty beyond a reasonable doubt as I have defined these words above, it is my duty to convict the accused. I must say that it is rarely possible to prove anything with absolute certainty. So the proof or the burden of proof on the prosecution is on to prove guilt beyond a reasonable doubt. When I speak of reasonable doubt I use the words in their ordinary natural meaning, not as a legal term having some special connotation. A reasonable doubt is an honest and fair doubt based on reason and common sense. It is a real doubt, not an imaginary or fanciful doubt which might be conceived by an irresponsible judge of fact (juror) to avoid his or her plain duty.

On 30 September 2002, Eddie Willie and his wife organized their daughter’s birthday party at their house at Manples Area, Port-Vila. They invited their families and friends including the defendant, Joseph Aron and his wife Alice Aron and their children: Jeanette, Roberta and others.

Alice Aron is Eddie’s sister. Eddie Willie has the following brothers: John Berry, Pakoa Loking, Noel Willie, Willie Fred Kaidum, David Willie, Thompson Willie and Jacob Willie. All attended the birthday party except Pakoa Loking. The birthday party took place on 30 September 2002 at about 6.00PM. Those invited drunk kava and alcohol.

All of Eddie’s brothers live at Manples Area. The defendant and his wife Alice, too, live at that time at Manples. They rented a house owned by Thompson Willie, one of Alice’s brothers at Vatu 7,000 per month.

At the birthday party, the family and relatives gathered together: the family included women, children and the male members of the families. At the end of the birthday party, children and women went to bed. Others including the defendant continued on. The music was playing. Drinks were served on the table. David Willie who was too drunk slept underneath the table. His son Lon David played the music. The defendant, his brother in law Thompson Willie and Timothy danced.

From time to time, Leon was asked by Thompson Willie to increase the volume of the music.

While dancing, the defendant and Thompson Willie had some discussions. It was apparent that Thompson Willie complained about the non-payment of the rent of his house by the defendant and his wife.

A Timothy intervened. The defendant slapped him and was sent to his house. The music went on and the volume went on increasing.

The defendant and Thompson Willie continued to talk over the issue of the rent while dancing.

David Willie was still sleeping underneath the table. He then got u and say words to the effect: “Fuck” and went ahead towards the defendant and his him on his cheek. The defendant felt by placing one of his knees on the ground. He then lifted himself upon by holding the trousers of Thompson Willie who was just standing next to him.

David Willie, then, got afraid of the defendant and went to a dark corner where the traditional cooking place is located. At that place, there were stones used to cook the traditional food “lap-lap”.

Thomson Willie, then, was discouraged because instead of dancing, they were fighting. He decided to go home to his house. The defendant followed him. That was about 3 to 4.00AM in the morning of 1 October 2002.

At that point of time, the following persons were at the scene: the defendant, Joseph Aron, David Willie, Fred Willie, Leon David, Roberta Aron, Jeannette Aron. Others were not there as yet. Then, Thompson Willie felt on the ground after receiving compact object like stone on his head.

The prosecution called witnesses and they testify that they saw the defendant hitting Thompson’s head with the hard wood.

The defendant says that the defendant did not throw stones on Thompson.

The defence says also that when Thompson was on the ground, the defendant run towards him and tried to help him. The defendant knelt to lift the shoulder of Thompson.

At that time, John Berry came, took a hard wood and hit the defendant’s shoulder first. John Berry hit the defendant again but the defendant sided himself from the struck and John Berry hit the head of Thompson.

The defendant gave evidence to this effect. Roberta Aron, Jeannette Aron testified to this effect also.

The Court is confronted with 2 versions of the facts.

I have had opportunity to observe the witnesses in during their evidence and observe their demeanour during their evidence.

If the Court believed the prosecution witnesses, can the defendant be safely convicted on the basis of the evidence of the prosecution. All of the prosecution witnesses gave evidence about the defendant hitting the head of Thompson. Some of the prosecution witnesses referred to the defendant throwing cups or stones on the body of Thompson before he felt on the ground.

There is no evidence from the prosecution to show that at any stage, the defendant got stones before he could throw them on Thompson.

The evidence before the Court was David Willie, after assaulting the defendant, got afraid wand went to the place where traditional cooking place was prepare and there were stones around.

The evidence of the defence is that David Willie threw stones on the defendant. He missed the defendant and hit Thompson.

This constitutes a doubt on the prosecution evidence. That doubt is not a fanciful doubt. It is a reasonable one and that must be interpreted in favour of the defendant.

On the whole of the evidence, the prosecution fails to prove that the defendant is the one who assaulted Thompson Willie.

It is my compelling duty to acquit and discharge the defendant from the charge of Assault contrary to Section 107(c) of the Penal Code.

Verdict: Joseph Aron - Not guilty.

Summary of the defendant’s evidence

The defendant, Joseph Aron is from the Island of Tongoa. His is married to Alice in 1982. They have 6 children. The children are Marie Noelle (married), Jeannette, Roberta, Josephine, and two other boys. He lives in Vila for about 40 years. The family Aron reside at Man Ples Area. They live on the land belonging to Janet’s father. The defendant has 7 brother-in-laws namely, John Berry, Pakoa Lokin, Noel Willie, Willie Fred, David Willie, Thompson Willie and Joseph Willie. The defendant lived at Manples Area for 6 years. The defendant has a good relationship with his brother-in-laws. He has helped them a lot in the past. In the Tongoa custom, a brother-in-law never disputes with his brother-in-law. It is the fact that only the brother-in-laws could dispute among themselves. The defendant said he never disputes with his brother-in-laws. The defendant’s wife is the first born in the family. When the defendant’s brother-in-laws have need of any thing, they raised it to their sister who in turn approached the defendant for help. The defendant’s father is still alive, However, his wife’s father died in 2000.

In 1987, the defendant lived in a house built by his friend. By the end of 1987, his wife was transferred to work in the USP sub centre in Santo. The defendant and his family all went to Santo and lived for 5 years (1988-1992). The family returned at the end of 1992. Pakoa Lokin told the defendant to leave the Manples Area. The defendant then went to live in Seaside Area, which became his residential home at the present.

In 1992, the defendant attended meetings and worked for the community. The defendant had a good relationship with his in laws at that time. The defendant was elected as a chairman of the Council of Chiefs, representing the seaside Tongoa people. He was a NUP councillor. He contested Municipal Elections and was elected as a Councillor of the Municipality.

The defendant said during the incident, he was already a Municipal Councillor. On 30 September 2002 Eddy Willie and his wife made a birthday party for their daughter. Families were invited including the defendant and his wife. The defendant slept at the victim’s house at that time of the incident. The defendant and his wife rented the house. Birthday party took place in space, 10 meters away from the defendant’s house. The victim lived 4 meters away from the defendant’s house. Eddie Willie called the defendant to join them have some drinks. The defendant joined others drink kava. John Berry and others were at the meeting. David took some alcohol drinks and red wine. John Berry took his food and left. Eddie stood up and said a few words. Eddie wanted to fight Thompson and removed his shirt for him (objection raised). Eddie pushed Thompson (victim). David was very drunk. Eddie led David to the table where the defendant was staying. Eddie told the defendant to buy some more drinks (objection raised). The defendant asked Eddie to get a taxi. The defendant, Thompson Willie and another person got the taxi to Ohlen where the defendant bought more drinks from a black market. They then returned to the usual place. Eddie said other people will drink rum Cola. The defendant, Eddie and other men drank Whisky. The Cola was mixed by some boys. That was around 1.30AM in the morning. The victim (Thompson) danced like Indians on a music played by Leong David. David Willie slept under the table. The victim invited the defendant to dance with him. Timothy who is from Pentecost went and joined them. When David stood up the defendant’s wife was upset. She told others to leave. The defendant was still dancing with Thompson (victim) Fred and Timothy. Thompson talked to the defendant and Timothy. Timothy was angry and he said if you intend to assault my brother, assault me too. The defendant slapped Timothy. Timothy went to bed. I told him not to dispute. Thompson and Fred were still dancing. There were no people left. Thompson told the defendant what have you done to Timothy? The defendant told Thompson that Timothy talked a lot. It’s better for him to go for sleep.

Willie Fred told Leong David to increase the volume of the music. David Willie stood up and said ‘fuck’. He was holding a moxe in his hand. He hit the table with the moxe and it broke into 2 pieces. David Willie ran towards the defendant. He thought the defendant will assault Thompson. He punched the defendant on the left side of his mouth. The defendant knelt down. He kicked the defendant. Thompson was standing close to David. The defendant held on Thompson’s trousers and stood up. The defendant said David Willie was afraid of him. The defendant told both Thompson and David not to treat him badly. The defendant’s mouth was bleeding. David ran towards the area where “laplap” is made. He looked around for something. Thompson wanted to go home because they could not dance anymore. He walked to his house. The defendant followed Thompson. Thompson told the defendant to go and sleep because others wanted to fight. The defendant followed Thompson because they live next door to each other.

David took a stone and stoned Thompson’s head. The place was dark. There were banana leaves and lap-lap leaves. Thompson fell to the ground. I held him and tried to lift him up. When the stone hit Thompson, he said “awe tete” then he fell to the ground. I was standing around 15-20 meters from the house. David intended to stone me. He missed his target and the stone hit Thompson. The defendant told Thompson to run away. The defendant heard the sound of the stone when it hi Thompson. The defendant said “ston i fairap long hed blong hem big wan”. The defendant pushed his hand and held he back to his belly. Thompson did not talk to the defendant. John Berry cam through the leave lap-lap at the same instant. He came through when Willie Fred shouted. He held a big wood in his hand. He intended to his the defendant but he missed him. He hit the defendant on his left shoulder. He kicked the defendant. David jumped on his chest.

The defendant said the wood was heavy. He his the defendant second time and missed him, he hit Thompson. The defendant was kneeling on his right side. John Berry was standing on the defendant’s left side. Thompson was lying down. The defendant told John Berry that he did not know about anything. He should ask the defendant first. John Berry then threw the wood away. That was about 3.00am in the morning.

Lucy who is Eddie’s wife cried out on the door of her house. John Berry then asked for Eddie’s mobile phone. He said ‘Joseph i kilim Thompson i ded finis’. Eddie then phone the police. John Berry shouted and told every body that the defendant killed Thompson. The defendant said the prosecution witnesses did not know what they are talking about. John Abel was a witness but he did not know what happened. David Willie and his son actually saw what happened. John Berry asked people to wash Thompson with water. Police arrived at around 4.30AM. The defendant asked someone to torch the way for the police to put Thompson on the truck/

David held an axe towards the defendant. He told the defendant that Thompson was dead. The police arrested the defendant. The defendant said it is unfair. The defendant said he would not follow the police unless they arrested John Berry and David Willie. The defendant woke Pakoa Lokin up and told him his version of the story. They all went to the police station. The defendant was detained in cell No.6. Later the defendant was bailed. However, later the police arrested him and remanded him in custody. The defendant said they arrested him without a warrant of arrest. The defendant said he respects his brother-in-laws. The incident happened by mistake. He said the mistake was that John Berry intended to hit him but missed him and he hit his own brother, Thompson Willie.

Dated at Port-Vila this 18^th June 2003

BY THE COURT

Vincent LUNABEK
Chief Justice