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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
CRIMINAL CASE No.106 OF 2012
PUBLIC PROSECUTOR
- v –
BRIAN MICHEL
REMO MESAK
JUDE HIWA
HENRY PAUL
Coram: Chief Justice Lunabek
Counsel: Mr Leon Malatungun for the public prosecutor
Mr Eric Molbaleh for the following 3 accused: Brian Michel, Remo Mesak and Jude Hiwa
Trial dates: 12-13 November 2012
Verdict date: 14 November 2012
JUDGMENT ON VERDICT
Defendants Brian Michel, Remo Mesak, Jude Hiwa and Henry Paul are initially charged with one count of intentional assault causing damage on the body of one Willie Sandy on 12 April 2012 which are of permanent nature; contrary to section 107(c) of the Penal Code Act [CAP.135]. The Criminal Information was dated 25 May 2012.
Defendants Brian Michel, Remo Mesak and Jude Hiwa entered not guilty pleas on the Information charge on 17 September 2012.
Accused Henry Paul did not attend the Court and a warrant of arrest was issued for his arrest on 4 September 2012 when the matter was first called before the Court. A trial was initially set for 3 days on 2, 3 and 4 October 2012. On 24 September 2012, trial dates were vacated and new trial dates were set on 12, 13 and 14 November 2012. At the beginning of the trial on Monday 12 November 2012, Accused Henry Paul did not attend. The warrant issued for his arrest was not executed. The Court proceeds with the trial of the 3 other accused (Brian Michel, Remo Mesak and Jude Hiwa).
On 12 November 2012, at the beginning of the trial, the prosecution amends the Information in this way:
In Count 1
Statement of offence
Intentional Assault, contrary to section 107(c) of the Penal Code Act [CAP.135]. It is particulars that:
Brian Michel, sometime on 12th April 2012, at Malapoa Road, you had intentionally assaulted one Willie Sandy causing permanent injury on his body,
In Count 2
Statement of offence:
Complicity to intentional assault, contrary to sections 30 and 107(c) of the Penal Code Act.
It is particularised that Remo Mesak, Jude Hiwa and Henry Paul, sometimes on 12 April 2012 at Malapoa Road, you aided, counselled, assisted or helped Brian Michel to assault one Willie Sandy causing permanent injury on his body.
Before the trial, accused Brian Michel entered a not guilty plea on count 1 charged against him. Accused Remo Mesak and Jude Hiwa entered not guilty pleas in respect to Count 2 laid against each of them. The trial proceeds on that basis. Before the case of the prosecution, section 81 of the Criminal Procedure Code [CAP.136] was read, explained and understood by the accused.
Criminal Trial Requirements
This is a criminal trial. As in all criminal trials, the law is for the prosecution to prove each and all essential elements of the offence charged against the accused person beyond reasonable doubt. The accused is not required to prove anything. It is not the task of the accused person to prove his innocence. In law, the accused person is presumed to be innocent until the prosecution prove all essential elements of the offence charged against him. Proof beyond reasonable doubt means that on the evidence at the end of the trial, if I am sure of the guilt of the accused Brian Michel, Remo Mesak and Jude Hiwa I must convict each of them as charged. If there is a reasonable doubt on any one or all of them, I must acquit that accused or all of them of the charges. When the accused person elect sto give evidence as in this case, I must consider and assess his evidence and the evidence of his witnesses on the same footing as the evidence of the prosecution witnesses.
For the accused Brian Michel to be found guilty of the offence of intentional assault causing damage of permanent nature on the body of another person contrary to section 107(c) of the Penal Code Act, the prosecution must prove beyond reasonable doubt, the following essential elements of that offence:
For the accused Remo Mesak and Jude Hiwa to be found guilty of complicity to intentional assault causing damage of permanent nature, the prosecution must prove beyond reasonable doubt that:
The Prosecution Case
The thrust of the prosecution case is that on 12 April 2012, accused Brian Michel, Jude Hiwa, Remo Mesak and Henry Paul were under the influence of alcohol on the Tebakor Road near a Chinese shop leading to Malapoa College. Time was just after 3.00pm, the complainant of this case, Mr Willie Sandy, who is the Deputy Principal of Malapoa College walked on the same road with some girls students of Malapoa College. When they arrived, the defendants who were on the other side of the road called out to the girl students. The complainant did not respond nor the girl students. Then the defendants called out and said abusive words to the complainant and the defendants moved in to assault the complainant.
During the assault, the complainant tried to defend himself and escaped from the defendants. The defendants chased Mr Willie Sandy. They assaulted him by causing injuries on his body which are of permanent nature. Mr Willie Sandy lost two (2) of his teeth. He felt pain on his jaw which is still painful to this stage after he was treated at Vila Central Hospital.
The Summary of the Prosecution Evidence
Willie Sandy gave evidence to the following effect. He is a teacher and the Deputy Principal of Malapoa College. On 12 April 2012, just after 3.00pm, he walked on the road with some of his students on their way to their respective homes. The students were girl students. They walked towards Tebakor. On their way, near a Chinese shop, a group of boys were standing there. The boys said "Hello girls". He realised the boys were drunk. He advised the girls not to respond. The boys talked to him and said "Hi teacher". He did not respond. Then they abused him with words in the following terms: ("fuck you"). He continued to walk and turned his head to watch them. The boys told him "you wantem wanem" and at the same time they walked towards him.
He said Brian was leading the group. Brian came first and the others followed him. He continued to walk and they caught him up while he and the girl students were on the other side of the road. Brian asked him "you wantem faet". Brian threw his hands towards him. He gave away from Brian's punches. He heard others calling Brian trying to stop him. The accused surrounded him. Brian was facing him. The other defendants did nothing but surrounded him. He tried to walk. Brian continued to throw his hands. He faced with Brian who assaulted him. Willie Sandy punched Brian once which made Brian moved and there was a space. He ran out of that space towards Tebakor. A group of 5 boys chased him and blocked him. He was scarred and frightened. He was blocked from Tebakor direction. He changed his direction towards Malapoa College again. At that time, he said Jude Hiwa came and crossed his way on his front. They looked frightening. He sided with Jude Hiwa. He passed others and he ran towards Malapoa. He was wearing a pair of sandals. It was slippery. The group still run after him but Jude Hiwa was very close to him about 2 metres and Brian was 10 metres away from Jude. He saw Jude and Brian. He did not concentrate on others.
Brian caught him up. Brian was wearing a caterpillar safety boot of yellow colour. Brian kicked him with is safety boot on his right rip. At the time he was still up and running. Jude Hiwa was still chasing him up. Others followed the 2 but some distance away.
Something happened from his back. He ran on the other side of the road. Jude and Brian ran behind him. As soon as he reached the other side of the road, Jude pushed him and he fell on the side of the road. He fell on his hands and knees. While he fell on his knees and hold the ground with his 2 hands ready to get up, Brian kicked him on his mouth. He was knocked off. The impact of the kick with the shoes on his mouth was so strong. He lost 2 of his teeth. (He showed the 2 false teeth he got after his treatment). When Jude Hiwa pushed him, it happened so quickly that Brian kicked him on his mouth and he felt unconscious. Jude Hiwa's appearance was very violent. After he was unconscious, he recovered his senses but when he stood up he felt his head was dizzy. His mouth was numbed. His face was full of blood.
He recognised accused Brian and Jude and their involvement in the incident. After the assault on him, he was taken to the hospital by VMF truck. He was brought into the intensive care at the emergency room at the hospital. He was examined by the doctors. He had 2 cuts – one on his right cheek under his right eye and the other cut under his lips (right side). He was treated with pain killers and referred to X-rays. He was admitted for 4 days. He was taken into the theatre and received operations on his injuries on his body. The operation was for 4 hours after which he got admitted and spent 4 nights for his medical treatment.
After the operation, he lived on liquid – water, juice, milk for 4 months but no food. He experienced pain for about 6 months. He lost confidence in his workplace. He was affected by this incident. Because of the loss of his teeth, his speech was affected. He found it difficult to pronounce words and to instruct his students confidently. The students sympathised with him and respect him.
In his cross-examination, it was put to him and he denied that he said abusive words to the accused. He said he did not swear at the accused but they attacked him. They only attacked him. They did not attack the students. As soon as the accused approached him, the students ran away to their respective homes. He teaches at Malapoa College for 15 years.
He recognised Brian and Jude and related what they did to him on 12 April 2012. He confirmed at the time Brian threw his hands on him many times. He confirmed Jude and Brian chased him. He was challenged and he said the accused were under the influence of alcohol and he did not swear at them. He confirmed that when he threw his hands on Brian he punched his nose and Brian moved and there was a space for him to escape. At the time, he was panicking. He confirmed the actions of Brian and Jude. He said he did not know about the actions of others. He confirmed Brian kicked him first on his rip as he was running.
Doctor Lawrence Boe was sworn in. The Defence counsel did not challenge his evidence. Medical Reports and findings made by him and other doctors are not challenged. They are accepted by the defence. So he was not cross-examined on the medical reports. There were admitted and exhibited P1 and P2.
Douglas Niko gave evidence that he was 18 years of age. He lives at Tebakor. No work. A former Year 10 student at Lenakel School, Tanna. He was with the accused at the store. He was talking with a friend of his and he heard Brian said "hi girls" who walked with the principal. He said Brian is his uncle. He said he saw Brian was talking to the Principal. He went to the nakamal at the mango tree.
He saw Jude and Paul were crossing the road and at that time Brian was talking to the Principal on the other side of the road. They surrounded the Principal. Brian was wearing his yellow safety shoes. He denied he knew the Principal. He confirmed he held the Principal's hand when he was surrounded by the defendants and asked him to leave. He saw Brian and the Principal threw hands to each other and he left.
That is the end of the prosecution evidence and also the end of the prosecution case.
At the end of the prosecution case, the Court dismissed the charge laid against the accused Remo Mesak as there was no evidence involving him. The offence under sections 30 and 107(c) of the Penal Code Act were dismissed in respect to the accused Remo Mesak.
Section 88 of Criminal Procedure Code Act [CAP.136] was read and explained to the accused. They understood it.
The Defence Case
The accused Brian Michel denied that he intentionally assaulted the complainant causing permanent injuries on the body of the complainant Willie Sandy on 12 April 2012 as alleged.
Accused Jude Hiwa denied he is an accomplice in the intentional assault on the body of Willie Sandy on 12 April 2012, contrary to section 107(c) as charged against him.
The Summary of the Defence Evidence
Brian Michel gave evidence to the following effect. He lives at Rentabao. On 12 April 2012 he denied he swore at the Deputy Principal. He said "hi girls". He said he saw Mr Sandy stood up and he heard Mr Sandy swore at him saying ("deep skin").
He said he crossed the road and went toward Mr Sandy and asked why he swore at him. He said Sandy assaulted him on his nose and ran towards Tebakor and then ran back toward Malapoa as there were lots of people who blocked the road on Tebakor.
He said he kicked Mr Sandy on his rip. Mr Sandy ran forward and Jude ran after him and he came behind Jude. Jude called Mr Sandy to stop. Mr Sandy crossed the road. He said Paul pushed Sandy and he fell on the ground. He said then he kicked Mr Sandy on his right cheek. Jude came and took him away. He also said his other friend wore safety shoes and kicked Sandy's mouth. Paul was afraid of VMF and ran away. He confirmed Douglas held Sandy's hand and asked him to leave.
He was cross-examined. He said Henry Paul pushed Sandy and Sandy fell on the other side of the road. He confirmed he ran and kicked Sandy on his cheek below his right eye. He confirmed Jude was behind the Deputy Principal. Jude was very close to the Principal. Jude held him after he kicked the Principal's cheek. He confirmed he was having 2 cups of tusker beer. He was not too drunk. He did not loose control. When Mr Sandy fell on the ground, with his hands on the ground, he said he was in front of him and kicked Sandy's cheek with his safety boots.
He did not direct his kick to a specific part of Mr Sandy's body. He denied he applied force when he kicked Mr Sandy's cheek.
Under his re-examination, he has no plan to kick Sandy's mouth but he had just thrown his leg.
Mr Jude Hiwa gave evidence that he lives at Tebakor. On 12 April 2012, he ran behind the Principal and he wanted to asked the Principal why he and Brian were fighting. He said he called him to stop so that they can sort out the problem with Brian. When he called Sandy, Sandy crossed the road.
He ran behind Sandy and Brian ran behind him. He denied he pushed Sandy and caused his fall on the side of the road. He said Paul pushed Sandy and Sandy fell. He said he stood behind the teacher to put the boys out. He said he managed to pull Brian out from the teacher. When he pulled Brian out, Paul stood in front of the teacher with a safety boot. He took Brian to the nakamal. He said he tried his best to sort out the problem but it was too late.
Jude was cross-examined. He was not on the road with the other boys when Brian said "hi girls". He denied he consumed any alcohol. He arrived at the scene when the teacher ran from Tebakor and turned back to Malapoa direction. The boys blocked the Principal. The Principal ran passed him towards Malapoa. He confirmed the Principal was afraid of him and others. He confirmed the teacher was afraid of him too. He denied he made actions causing the teacher to be afraid of him. When the Principal ran toward Malapoa he and Brian ran behind the Principal while Paul ran on the other side. He confirmed Brian kicked the Principal with his safety caterpillar boot on his rip. The Principal crossed the road to the other side. He denied pushing the Principal. But he said Paul pushed the Principal and he fell on the road.
He confirmed they ran after the Principal. Brian kicked the Principal and he pulled Brian away. He confirmed that Brian applied strong force when he kicked the Principal. And Brian was at a close distance to the Principal. He agreed Brian could kick the Principal on any part of the Principal's head. He said it is possible that Brian kicked the Principal's mouth. There were lots of blood on the Principal's face. He was unconscious.
Discussions on Evidence
On 12 April 2012, accused Brian Michel kicked the complainant Willie Sandy on his right rip with his safety caterpillar shoes of yellow colour. (Evidence of Willie Sandy – admission of Brian Michel – confirmed by the evidence of Jude Hiwa).
On 12 April 2012, Willie Sandy received following injuries on his body (see the Medical Report and findings exhibited P1 and P2):
(1) Lip lacerations – right upper
(2) Laceration below right eye
(3) Multiple fracture teeth treated
(4) Scaphoid fracture.
On 12 April 2012 – Brian Michel admitted he also had kicked Willie Sandy on his right cheek below his right eye causing injury on Sandy's body.
On Willie Sandy's evidence, after he has fallen on the ground, he was on his knees and held the ground with his two hands ready to get up. Brian was in front of him. Brian kicked his mouth with his safety boots. The impact of the kick with the safety shoes on his mouth was so strong that he lost 2 of his teeth and was unconscious. His face was covered with blood.
Jude Hiwa's evidence supports Willie Sandy's evidence that Brian Michel was in front of Mr Sandy while Sandy was on his knees and holding the ground with his 2 hands. Brian used force when he kicked Willie Sandy in that position and taking the closeness and the force used, Jude Hiwa said it is possible that Brian Michel kicked Willie Sandy on his mouth. Brian Michel's own evidence was that he did not plan to kick any specific part of Willie Sandy's head. Brian's own evidence confirmed that he had just thrown his leg. It is rational to infer that he could not recall exactly the details of what he did as he was under the influence of alcohol and so he did not have full control of his actions. The Medical Report and Findings confirmed Willie Sandy's injuries on his right cheek below Sandy's right eye. The medical reports and findings show also injuries on the right upper lip where the teeth were removed.
There is rational inference on the material evidence and own admission of Brian Michel that he assaulted Willie Sandy on 12 April 2012 on his body and this included the forceful kick on Willie Sandy's mouth resulting in the loss of Sandy's two (2) teeth. The injuries below the right eye and the injuries on the right upper lip are very close to each other (less than 5 centimetres) and they are on the same right side of the Sandy's body. It is more probable than not that they would result from Brian Michel's kick with the safety boots on Sandy's body below his right eye. This is more so taken the fact that Brian was standing in from of Sandy; Brian was very close to Sandy's head; Sandy was on his knees and held the ground with is hands; Sandy's head and face look down; It is more probable than not that with the force used, the closeness of Brian, the special position of Willie Sandy, the impact of the kick on his right cheek below his right eye, would also cause the damage on the right upper lip resulting with the loss of Sandy's two (2) teeth.
The Court rejects Brian Michel version of facts that he did not kick Willie Sandy on his mouth. The Court is satisfied that the prosecution has proved beyond reasonable doubt all essential elements of the intentional assault causing damage of permanent nature on the body of Wille Sandy, contrary to section 107(c) of the Penal Code Act, against the accused Brian Michel.
As to count 2, the prosecution failed to prove on beyond reasonable doubt that Jude Hiwa intended to aid Brian Michel in the commission of the intentional assault, contrary to s.107(c) of the Penal Code Act. The Court accepts Jude Hiwa's evidence that he ran after Sandy to ask him to stop and so that he could sort out the difference between Willie Sandy and Brian Michel. There is evidence in support that he ran behind the Deputy Principal. There is evidence that he removed Brian after Brian assaulted Sandy. Jude Hiwa's evidence is that he had tried his best to stop Brian assaulting Willie Sandy but it was too late.
On the evidence, the Court accepts Jude Hiwa's evidence that he did not push Willie Sandy when Willie Sandy fell on the ground. Evidence of Jude and Brian are that Henry Paul pushed Willie Sandy on the side of the road. Willie Sandy might be mistaken when he said Jude Hiwa pushed him and he fell on the side of the road.
Verdict
DATED at Port-Vila this 14th day of November 2012
BY THE COURT
Vincent LUNABEK
Chief Justice0
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