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Warawara v Public Prosecutor [2012] VUCA 11; Criminal Appeal Case 03-12 (4 May 2012)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

CRIMINAL APPEAL NO. 03 OF 2012

BETWEEN:

JEROME WARAWARA
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Ronald Young
Hon. Justice Daniel Fatiaki
Hon. Justice Robert Spear
Hon. Justice Dudley Aru

Counsel: Daniel Yawha for the Appellant
Kayleen Tavoa for the Respondent

Hearing: 30 April 2012
Decision: 4 May 2012

JUDGMENT

4 May 2012

1. On 9 September 2011 at the Kwang Sing Store in Luganville there was a confrontation between the appellant and Gilbert Roy. Mr Roy was intoxicated and abusive toward the appellant. The appellant punched Mr Roy on his face and Mr Roy fell hitting his head. Later that day Mr Roy was taken home and shortly afterwards he died. At trial in the Supreme Court the appellant was convicted of intentional assault causing death contrary to section 107 (d) of the Penal Code [Cap. 135].
   
2. The appellant appeals against this conviction alleging:-
   
   1. The Judge wrongly refused to allow the appellant and his witnesses to give evidence;
   2. The public prosecutor failed to call a doctor who performed the post mortem on Mr Roy which:-
      
      1. Resulted in an unfair trial; and
      2. Meant the prosecution had failed to proof beyond reasonable doubt that the assault caused Mr Roy's death.
         
3. The original appeal also contained an appeal against sentence but that was abandoned before us.
   

Facts

4. The basic facts were not seriously in dispute. On 9 September 2011, a drunken Mr Roy approached the appellant and his friend Mr Jacob Varea. He was drunk, abusing and threatening. Mr Varea spoke to Mr Roy attempting to calm him but suddenly the appellant punched Mr Roy in the face. Mr Roy fell backwards striking his head on the concrete step. He was then bleeding from his mouth. However he was not immediately taken home.
   
5. Some hours later when Mr Roy was taken home by friends he could not walk. He had to be supported by others. Nor could he talk or open his eyes. He had serious swelling to the back of his head. He died shortly afterwards.
   
6. The Judge in his decision noted that the real issue was whether the prosecution had proved whether the appellant's punch had caused or contributed to Mr Roy's death. The prosecution did not call the doctor who performed the autopsy who was apparently unavailable. The Judge did not permit the prosecution to call another doctor who had been present at the autopsy to give evidence about the cause of death. However the Judge after reviewing the evidence said that he was satisfied beyond reasonable doubt that the appellant's punch was a contributing factor to Mr Roy's death. In doing so he took into account the following factors:-
   
   1. That after being punched by the appellant Mr Roy struck his head on the concrete step;
   2. Mr Roy was bleeding after the assault;
   100. Mr Roy had a large swelling at the back of his head after the assault;
   4. When Mr Roy arrived home he could not walk, talk or open his eyes;
   5. Photographs taken by a police photographer at the autopsy showed bleeding in Mr Roy's brain and bruising to his lips and face.
      

6. The Judge was satisfied that these factors in combination were sufficient proof beyond reasonable doubt that the appellant had caused damage to Mr Roy which caused or contributed to Mr Roy's death.

This appeal

7. The first ground of appeal relates to the circumstances under which the Judge refused to allow the appellant and his witnesses to give evidence. The appellant's counsel submitted that on Thursday 15 December 2011 at the end of the prosecution's case at trial, counsel for Mr Roy had to decide whether to make a submission that there was no case to answer or whether to call evidence. Counsel says that he decided to make a no case to answer submission. However the Judge then said that he would hear that application the next day. Over night, counsel said he had further discussions with the appellant and they decided not to make a no-case to answer submission but to call evidence from the appellant and two other witnesses. Counsel says that when he informed the Judge of the change, the Judge said it was too late for the appellant to change his mind and he could not now elect to call evidence. The Judge then proceeded to hear closing addresses and give his decision as to verdict.
   
8. The notes of the trial judge describe a rather different series of events. After the Judge ruled on the admissibility of the post mortem report (refusing to admit the report in the absence of the doctor who had written the report) the Judge noted that the prosecution had completed its case and that the defence wished to make a no case submission. It was agreed between the Judge and counsel that this application would be made on the Thursday morning, 15th December. The Judge's notes show that the next morning, counsel for the appellant proceeded with his no-case submission. The submission was based primarily on the cause of death question. The Judge's notes record extensive submissions by both counsel. At the end of the note of the submissions the Judge recorded "I am satisfied the prosecution has established sufficient evidence to show a prima facie case against the defendant to require him to make a defence".
   
9. The Judge then noted that he had explained the provisions of section 88 of the Criminal Procedures Code Act [CAP 136] to the defendant in both English and Bislama. The Judge then noted counsel for the appellant said that "the defendant exercise his right to remain silent / will not call any witnesses. End of defence case." Counsel for the prosecution then asked for an adjournment of the case until the following day to prepare submissions. This was granted until the Friday morning.
   
10. On the Friday morning as the submissions were about to get underway the Judge's notes record that counsel for the appellant advised that the appellant changed his mind and he now wished to give evidence himself and to call witnesses. The Judge refused to allow the appellant to call evidence on the basis that the appellant had "elected not to give evidence and had closed his case". Further the Judge noted that he had previously explained the effect of section 88 of the Criminal Procedure.
    
11. This description of the events of the trial process means this ground of appeal cannot succeed. We are satisfied the Judge complied with the Criminal Procedure Code Act.
    
12. Section 164 sets out the procedure to be followed at the end of the prosecution case. It states:
    

"164. (1) 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.

(2) In any other case, the court shall call upon the accused person for his defence and shall comply with the requirements of section 88."

13. The appellant sought an order under section 164 that the appellant should at that stage be found not guilty. This application was refused. Sub section 2 then requires the Judge to call upon the defence to advise whether the defences wish to call evidence and for the Judge to comply with section 88. The Judge did both. Section 88 provides as follows:-

"88. In every trial in which a plea of not guilty has been entered, at the close of the case for the prosecution, and if the court shall decide that there is a prima facie case made out against the accused, the presiding judicial officer shall read aloud to the accused, whether or not he is represented by an advocate, the following statement –

"In making your defence in this trial, you are entitled, in addition to calling other persons as witnesses, to give evidence yourself on your own behalf, upon oath or affirmation and subject to cross-examination by the prosecution. However you are not obliged to give evidence and may elect instead to remain silent. If you do not choose to give evidence, this will not of itself lead to an inference of guilt against you."
and shall record this step in the proceedings."

14. Counsel for the appellant then advised the judge he elected to call no evidence and therefore the case for the appellant was closed. All that was then left for the trial were submissions and verdict as described in sections 170 and 171 of the Criminal Procedure Code Act. It was therefore within the Judge's power to refuse to allow the appellant and his witnesses to give evidence when the request to do so came after the close of the case for the appellant. The appellant had elected not to call evidence and his case was closed. No error in the Judge's approach has been identified. It was according to the procedure provided in the Criminal Procedure Code Act.
    
15. Counsel for the appellant submitted that even after he had closed his case s.166 (1) or s. 166 (3) of the Act supported the appellant's entitlement to change his mind and elect to give evidence. Neither provision supports that claim in this case. Section 166 (1) requires an accused to give evidence before any other defense witness where the accused "elects to give evidence." Here Mr Warawara did not elect to give evidence when called upon by the Judge.
    
16. Section 166 (3) provides:- " (3) An accused person who has elected not to give evidence and who considers that his position has been altered by the evidence or statement of a subsequent accused may re-elect and give evidence."
    

This subsection only applies when a co-accused gives evidence. An accused who has elected not to give evidence may re-elect after a co-accused has given evidence. Here there was no co-accused.

17. The other relevant factor in this case is that to establish there was a miscarriage of justice the appellant had to illustrate how the evidence he was unable to give himself or call might have influenced the verdict. No such evidence has been provided to this Court. In this case it appears the only defence raised was that the prosecution could not establish the cause of death. It was not suggested that any of the proposed witnesses could have assisted the Court on this aspect of the case. We therefore reject this ground of appeal.
    
18. We wish to add this, however. This judgment does not mean that a Judge cannot in particular circumstances allow, in the interests of justice, a defendant to change his election (whether to give evidence) before the verdict in the trial is gone into by the Judge.
    

Cause of death

19. The appellant's submissions were based on the proposition that it was dangerous for a judge to convict a defendant in a death case where there was no autopsy evidence to establish cause of death. The appellant says in this case there was medical evidence as to different causes of death. A Death Certificate given on 10 September, the day after Mr Roy died, said the cause of death was alcohol poisoning. When the autopsy was taken on 12 September a few days after death it showed serious bleeding to the brain. The appellant complains that he did not have a chance to cross examine the doctor who undertook the autopsy about the results of the autopsy and the cause of death.
    
20. We consider there are two aspects to this ground of appeal. The first relates to whether there was an unfair trial because the appellant was unable to cross examine the doctor who undertook the autopsy. The second aspect relates to the question of whether in any event the prosecution proved beyond reasonable doubt, at trial, that the appellant's assault contributed to Mr Roy's death.
    
21. In opening the Prosecution told the Supreme Court judge that they intended to call the doctor who had performed the autopsy on Mr Roy to establish the cause of death. As it turned out they were unable to do so. They accepted therefore that the Doctor's autopsy report was not admissible at trial. During the course of the trial the Prosecution told the judge however that they proposed to call another doctor who had been present at the autopsy but who had not signed the autopsy report. The appellant objected to this evidence being given. Perhaps surprisingly the judge agreed with the appellant's objection. In any event the prosecutor then asked for an adjournment of the trial so that he could call the doctor who had signed the autopsy report. The appellant once again successfully opposed the adjournment and so no doctor was called who had been present at the autopsy and who could give direct evidence of the cause of death.
    
22. An unfair trial can result where the defendant expects to be able to cross examine a witness the prosecution have given notice they intend to call, but for one reason or another they are unable to do so and the defendant is unable to call that person as a witness himself. The absence of such a witness can mean the defendant's case is unfairly compromised.
    
23. However, two factors in this case satisfy us no unfair trial or miscarriage of justice has resulted. Firstly, we have noted it was as a result of the appellant's opposition that no medical evidence was called to establish the cause of death. It is therefore hardly appropriate for the appellant to now complain about the absence of any medical evidence. Secondly, counsel at the hearing before us could not identify in what way he could have challenged the evidence of the doctors as to the cause of death. In those circumstances no miscarriage of justice has been established by the appellant.
    

Did the prosecution prove beyond reasonable doubt the course of death.

24. We are satisfied that the judge correctly concluded that there was sufficient evidence to establish beyond reasonable doubt that Mr Roy died from injury suffered to his brain when his head hit the concrete step after he had been punched by the appellant. The facts of the assault including the evidence from witnesses who saw Mr Roy's head hit the concrete step, and the evidence that he was then bleeding are relevant to this conclusion. The evidence that shortly afterwards he was in such a serious state that he was unable to walk, talk or open his eyes and the fact he died shortly afterwards also all point to the injury to Mr Roy's head from striking the concrete step as causing his dead. Further the autopsy photographs, which were admissible as they were taken by a police constable who gave evidence, show serious bleeding to the appellant's brain in the area where he had struck his head. Those facts taken together are, we consider, sufficient to establish beyond reasonable doubt the cause of death.
    

Conclusion

25. (a) We are satisfied there was no error by the trial Judge when he refused to allow the appellant and his witnesses to give evidence.

(b) No miscarriage of justice arose from the appellant's inability to cross examine the post mortem doctor.
(c) The prosecution established the cause of death was the brain injury suffered when Mr Roy's head struck the concrete step.
(d) Appeal dismissed.

Dated at Port Vila, this 4th May, 2012

BY THE COURT

_______________________________________________
Hon. Chief Justice V. LUNABEK