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Supreme Court of Vanuatu |
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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
18th
June 2003
BY
THE
COURT
Vincent
LUNABEK
Chief
Justice
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