Public Prosecutor v Le Blanc [2005] VUSC 98; CRC 033 2005 (10 August 2005)

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

Criminal Case No. 33 of 2005

PUBLIC PROSECUTOR

–v-

VERONIQUE LE BLANC

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Bartels for Accused

Date of Hearing: 8, 9 & 10 August 2005
Date of Oral Ruling: 10 August 2005

ORAL RULING IN RELATION TO
NO CASE TO ANSWER SUBMISSION

At the conclusion of the prosecution case in this trial, the accused, through her counsel, has applied for a ruling from the Court that there is no case to answer.

The Criminal Procedure Code [CAP 136] recognizes in section 164 (1) that such an application may be made. Section 164 (1) says as follows:-

"If, when the case for the prosecution has been concluded, the judge rules, as a matter of law that there is no evidence on which the accused person could be convicted, he shall thereupon pronounce a verdict of not guilty".

The accused in this case faces a charge laid under section 107 (d) of the Penal Code [CAP. 135]. That provides as follows:-

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

And the penalties are set out and the allegation in this case is that the damage caused by the assault resulted in death, although the offender did not intend to cause such death. That is the charge as presently laid.

There has been 3 days of evidence, submissions and rulings in this trial pending this application. One of those has already been detailed in an oral ruling which will be delivered in writing shortly, but the essence of the case on behalf of the accused is that there is no sufficient evidence to establish the identity of the assailant committing the assault and resulting in the death of the deceased.

Of course as far as a charge under section 107 is concerned, there are essential ingredients. The first essential ingredient is the one that is challenged in that the person named in that charge is the same person appearing in Court who carried out the assault, second, that the assault was intentional and third, that the damage caused resulted in the death of the deceased.

It was immediately conceded by the defence early in the trial, that the element of the injury caused to the deceased resulting in his death was not in dispute. That is clear from the medical evidence of Doctor Basil McNamara. The second element of intentional assault is a matter which is contingent of course upon proving the identity of the assailant as the perpetrator and it is that identification element that is challenged by the defence.

What happened occurred in the early hours of Christmas day 2003 at about 4am, when neighbours of the accused and her husband, the deceased, heard a disturbance. There were some noises of raised voices from a person recognized as the accused and a short noise of a child's voice. There were noises, such as one of the witnesses Mr. Do described, of a big fight and a 'big boom'. Mr. Do and his girlfriend looked out their windows. They were next door to the scene. They saw no one. A police patrol happened to be very close by the area. The accused telephoned the police asking for help and they were there within a matter of a minute or two and likewise saw no one else in the vicinity of the house.

The police who arrived saw a hole in a sliding glass door, glass scattered in various places and clearly not only the deceased, who had a severe injury to his head and other injuries but also the accused who had from the photographs and the evidence an injury to the back of her head which the doctor accepted went around to the outside area of her ear where there was blood and also a broken arm. The victim and the accused were taken to hospital and treated and subsequent investigations were carried out by the police. The significant part about it, unfortunately for the prosecution, is that after the police had attended the scene for a matter of two or three hours, the police who originally attended went back to the station because it was the end of their shift. No one else attended the scene until some hours later, so it was insecure from a forensic point of view for a matter of hours and in fact certain senior officers who subsequently went to the scene to carry out an inspection didn't go there until 4pm or so on the same day and I refer to Inspector George Twomey and Senior Sergeant Tallis.

The defence base their no case to answer submission on the lack of quality of circumstantial evidence which, it is submitted, is insufficient to satisfy the burden of proof of beyond reasonable doubt. Authorities were provided to me and I have taken those into account. The defence has accepted that the evidence from the prosecution establishes the death of the deceased sometime after because he was in hospital for some time before he actually passed away. The defence accepted from the medical evidence that the damage caused resulted in death which was from the injury sustained to his head from a blow from a blunt instrument. The prosecution has established, the defence conceded, that at the time of the assault there was present in his house, the accused and their son but they have not established, it is submitted, the identity of the assailant as this accused. That is because in a statement from the accused admitted by consent she said that "he was already inside attacking us...he hit me first and I went to take the knife in the kitchen my hand was numb, I saw him attacking my husband, my son was on the bed watching them, my husband tried to attack the intruder, he was holding a timber or whatever... one day you will find out the real suspect... I did not hit Pierre... I started screaming when the intruder came in until I called you... you have to prove that something happened first".

Although that statement was admitted by consent it may not have been technically admissible because there were no admissions by the accused in it and no declaration against interest. However the whole prosecution case has been an attempt to discredit that explanation.

On the other hand, the prosecution submitted that as far as the element of identification of the accused as being the assailant is concerned, there are certain circumstantial facts which ought to be enough to satisfy this Court as presently constituted not only of the guilt of the accused but in particular at this stage of the case that there is a case to answer and the circumstantial facts that the prosecution rely on are these:

First that the witnesses Michael Do and Susan Farran heard at the time of the disturbance in their area, the voice of the accused and her child but no male voice.

Second, that the accused called out for help and she was crying at the time.

Third, that Mr. Do and his girlfriend Julie Aru looked outside their window from the house and did not see anybody next door at the house of the accused and the deceased.

Fourth, that when the police arrived shortly afterwards there was no one in the immediate vicinity either on the roadway or in the vicinity of the house itself.

I must admit to being somewhat surprised by the prosecution not referring to other circumstantial facts, which might have assisted it, but they have made their submissions and rely upon those circumstantial facts that I have outlined. I suppose on reflection the other circumstantial facts which might have been called in aid by the prosecution involved the size of the hole in the glass of the sliding door and the position of the broken glass, some outside on the veranda and some inside the house, leading, the prosecution might have argued, to an inference that it was, to coin the old phrase, "an inside job", where the glass had been broken from the inside out rather than outside in but as I say the prosecution has elected not to deal with that particular possible circumstantial fact.

On my careful review of the evidence, I am perhaps not surprised that they have adopted that course because in that regard the evidence of the prosecution has been, dare I say it, riddled with contradictions and inconsistencies because some witnesses referred to the hole as being large, some referred to it as being small, some talked about glass outside, others talked about glass being inside and the conclusion of an Australian Federal Police agent who gave a careful and detailed report indicated that on the information available to her, a theory that the glass had been broken from the outside could not be discounted and was likely. So all in all the prosecution evidence in relation to the glass is in tatters and it is perhaps for that reason that the prosecutor wisely chose not to advance that as a circumstantial fact.

In addition, a significant factor concerning the glass and the scene was a matter to which I have already adverted because the scene was left unsecured for a matter of hours not long after the events had occurred with possible contamination of the scene, which the Australian Federal police officer refers to. Thus any evidence about the scene just leads to speculation as far as the glass and the size of the hole etc is concerned. Significantly also no photograph was taken of the hole in the glass of the door.

In addition, there was a further factor when some days later, and perhaps I am not surprised with of the prosecution not adverting to that fact also, I think it was on 27 December 2003, the accused and others were seen removing the remains of the glass from the sliding door and sweeping up the glass that had remained there. I would have thought that that would not have mattered too much because any forensic observations should have been completed long before then and although during the evidence there was perhaps an attempt to paint a picture against the accused of her illicit and guilty involvement with the cleaning up of the glass, I find there to be nothing in those circumstances because it was, after all, days later, and she wanted to move back into the house with her child and any forensic examination should have taken place long before then despite the fact that it was around Christmas time.

But in any event, I have referred to the circumstantial facts upon which the prosecution relies.

In response to that the defence submitted that it would be not only implausible but dangerous for this Court to draw any inferences from the circumstantial facts which have been outlined and that the facts as given by the prosecution and the case as presented by the prosecution was so weak, tenuous and vague that it would be dangerous for this Court to rely upon that case and to call upon the accused to respond to it. The evidence, the defence submitted in reply, failed to establish the identity of the person carrying out the assault and it would be unsafe for the Court to draw any inferences from it.

As far as inferences are concerned, as a Court I am entitled to draw inferences or conclusions from facts which have been proved to me in evidence. Conclusions are not guesses rather they are logical, reasonable and fair deductions from facts that have been proved. In this case, the prosecution asked me to draw the conclusion from all the circumstances that the accused was the person who wielded exhibit 4, the lump of timber, which caused the injuries and which resulted in the death of the deceased. It is for me as the judge to decide whether that is an appropriate and reasonable conclusion to draw from all the evidence which I have heard but of course I must not speculate nor must I guess. Where in respect of any aspect of the case, the evidence would support two conclusions of similar weight then to choose between them would be to guess and of course, I should not do that.

As far as circumstantial evidence is concerned, and that is the basis upon which the prosecution wishes the case to be decided, I refer to that as follows and I am grateful for the cases that both counsel have referred to me in particular the defence in relation to the Courts' rulings on circumstantial evidence in the past. Here there is no direct evidence tending to prove that the accused committed the crime in that no one saw her, on the evidence available to me, pick up the piece of timber and strike the deceased with it. No one can say or has said 'I saw her do it'. So the prosecution relied upon what is called circumstantial evidence. There is nothing inherently second-rate or dubious about circumstantial evidence. It simply involves the process which I have already referred to of drawing inferences or conclusion from evidence which I regard as reliable. When a series of reliably established facts connect with each other in a way that carries conviction to the mind of the judge, that can result in proof beyond reasonable doubt and of course in this case, the prosecution has the burden of establishing the essential ingredients beyond reasonable doubt. In relation to proven facts, taken individually each fact may not prove much at all but if when I put all of them together, I find a series of otherwise inexplicable coincidences that as a matter of common sense and logic the only conclusion that I can come to is that the accused is guilty, then that would be sufficient. But if the cumulative effect of the individual facts does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt. It is the cumulative effect that is important. As I have said earlier, the analogy is often drawn with a rope. A rope is made up of many strands of fibre. Separately the stands may not support much weight at all, but if sufficient of them woven together will do so, then that would be enough. So it is with circumstantial evidence. It is for me to say whether I am satisfied that such a combination of factual events satisfies me beyond reasonable doubt of the identity of the assailant of the deceased as this accused.

I go back to the submissions of the prosecution and the circumstantial facts upon which they rely. I have got to say that Mr. Kalmet was reasonable during the course of submissions in matters that I put to him. The first was that Michel Do and Susan Farran gave evidence that around the time that the incident was taking place they heard the voices of the accused and her child but no other male voices. Of course, the male voices who were not heard must include the deceased. Nothing was heard from him, likewise there is an available inference that if there was an intruder in the house or someone else there, he or she did not say anything and did not call out. There are two available inference as far as that circumstantial fact is concerned, and as I have just said in relation to the inferences, if there are two of equal weight then the one most favourable to the accused must be the one that the Court takes. Second, it was submitted that Michael Do stated that it was after the incident and the noise that he heard the accused's voice crying out and calling to him for help. Again there are two reasonable inferences and the one favourable to the accused is that she simply wanted assistance for what had happened to the deceased, her husband. So no adverse inference can really be drawn against the accused from that fact. The next one was that Michael Do and his girlfriend Julie Aru were looking out the window, through the hedge which had been recently cut and saw no one making his or her way away from the scene and the prosecution rely upon that as an inference which can be used and can be held against the accused. However, as I have put to the prosecutor, someone could have gone out from the house around behind it and over the back fence. That is another reasonably available inference and again that must be given in favour of this accused. Next, the evidence of the police officers who attended the scene very swiftly after a call had been received from the accused within a matter of even 1 or 2 minutes. I am fortified to hear that that sometimes happens because experience has shown that perhaps the police, no doubt due to their other duties, take a little longer to respond to telephone calls than 1 or 2 minutes, but it was fortunate that the circumstances allowed this to happen on that day. The circumstantial fact that the prosecution seeks to rely upon in relation to that is that again the officers gave evidence that no one was seen on the roadway or in the vicinity of the house, but again that begs the question of about someone exiting from the house and going the other way as no doubt any person wanting to make his escape would do. So again of the two available inferences in relation to that circumstantial fact, the benefit must be given to the accused again. Those are the circumstantial facts upon which the prosecution relies. The other factors that I have mentioned were not advanced and I have already dealt with those and I do not wish to take those any further.

I have got to say that in this case, the cumulative effect of individual facts put forward as circumstantial evidence do not reach the standard of proof beyond reasonable doubt. There are significant gaps left. There is no direct forensic evidence linking this accused with the blow and therefore with the death of the deceased. An addition fact, I suppose, which is in her favour is that she herself was injured and not insignificantly. She had the blow on the head, which can be clearly seen from the photograph. She had a broken arm which on the evidence of the Doctor is a typical injury suffered by someone who is endeavouring to defend himself or herself from a blow from a blunt object and again the Doctor was able helpfully to assist the Court by indicating that a sharp edged object which caused the injury to the head of the deceased could also have caused the injury to the accused if it landed on its flat. I would perhaps have thought that the prosecution, in an abundance of caution and by way of completeness, would have obtained exhibit 4 and had it available to put to the medical officer, to the Doctor, so that he could have made comments about the injuries sustained by the deceased and also the injuries sustained by the accused but for some reason he was not given that opportunity but no doubt in future cases, the prosecution will ensure that the alleged weapon is put to the medical officer for his comment and any conclusions which might be drawn.

The circumstances surrounding the death of Mr. Le Blanc about Christmas day 2003 are ones which, as far as the accused is concerned, might be seen by persons to be suspicious. But suspicion plus suspicion can only ever equal suspicion, it can never equate to proof beyond reasonable doubt. I have been at some pains to analyze the circumstantial facts put forward by the prosecution as assisting it in relation to satisfying me that there is a case to answer. When a submission of no case to answer is made it can be up held, for example, when there is no evidence to prove an essential element of the alleged offence or where the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. if a submission is made that there is no case to answer the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it there is a case to answer. I am not so satisfied from the evidence which has been placed before me for consideration and which I have considered carefully. I have go to say that I am constrained having heard the evidence of the prosecution to agree with the submission by the defence that this is a weak, tenuous and vague prosecution based largely on speculation and there is certainly insufficient evidence to satisfy me that the matter is such as to call upon the accused to answer the allegations made against her. I find that the evidence is so manifestly deficient that no reasonable tribunal could safely convict on it. As I say there are elements of suspicion but for the reasons I have already stated that is not enough in a criminal prosecution. There may have been other forensic investigations that the prosecution could have carried out but they were not done in this case. There may have been better management by the police in ensuring that the scene was kept intact so that proper investigation could be carried out. No doubt the time of year and the festive season all contributed to the difficulties that the police were acting under. But when all is said and done, I am satisfied that there is no case to answer in this prosecution and I rule as a matter of law, that there is no evidence on which the accused person could be convicted.

Under the terms of 164 (1) of the Criminal Procedure Code [CAP. 136], it is my duty therefore to pronounce a verdict of not guilty. There is no case to answer. The accused is accordingly discharged and she is now free to leave.

Dated AT PORT VILA, this 10^th day of August 2005

BY THE COURT

P. I. TRESTON
Judge