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Public Prosecutor v Nouwai - Judgment [2006] VUSC 87; CRC 046 2006 (23 November 2006)

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

Civil Case No. 46 of 2006

PUBLIC PROSECUTOR

-v-

JIMMY NOUWAI

Coram: Justice Tuohy

Mr. Alain F. Obed for Public Prosecutor
Mr. Yawha for Accused

Date of Sentence: 23 November 2006

JUDGMENT

1. Jimmy Nouwai stood trial on Count 1 of information containing 2 counts. Count 1 is a charge under s. 115 of the Penal Code which makes it an offence to cause any person to receive any oral or written threats to kill any person. The Prosecution case on this count is that on 14 July 2006 at Navolu village on Erromango the defendant threatened to kill Wendy Naimpin.
   
2. The other count in the information, to which Mr. Nouwai pleaded guilty on 6 September, is a count of intentional assault on Wendy Naimpin by striking her head with a stick at the same time and place.
   
3. Section 115 of the Penal Code provides:
   

"No person shall, knowing the contents thereof, directly or indirectly, cause any person to receive any oral or written threats to kill any person".

4. No information was filed in the Supreme Court after the defendant’s committal as it should have been. But at the start of the trial, both counsel accepted that the draft information attached to the complaint filed in the Magistrates Court would constitute the information for the purposes of trial.
   
5. Count 1 in that information is as follows in its original Bislama. That translate as follows:
   

"Jimmy Nouwai, you are from Erromango and you live at Dillon Bay. Sometime on 14 July 2006 at Navolu village on Erromango Island you intended to threaten this woman Wendy Naimpin that you would kill her making her very afraid of you."

6. It will be app................That charge does not follow the wording of s. 115 which I think has led to some lack of focus in the evidence. However no issue has been raised on behalf of the defendant about the form of the charge. It has been treated as a charge that the defendant caused Wendy Naimpin to receive threat to kill her.
   
7. Elements which must be proven on a charge under s.115 are:
   

(a) The defendant caused Wendy Naimpin to receive a communication

(b) That he intended to cause her to receive that communication

(c) That the communication was a threat to kill a person in this case, Wendy Naimpin

(d) That the defendant intended that the threat would be taken seriously by the person to whom it was made, Wendy Naimpin.

8. It is not necessary that the prosecution prove tht the defendant in fact intended to kill the person whose life was threatened.
   
9. Those aspects of the mental element which has to be proven on a charge of threatening to kill have been established by the New Zealand Court of Appeal the cases of R v Meek & R v Adams.
   
10. The New Zealand legislation concerning threats to kill is s. 306 of the Crimes Act 961. Section 8.306 (b) is virtually identical to s. 115 of the Penal Code Act of Vanuatu and the principles outlined in NZ cases apply equally to s. 115.
    
11. I turn to consider the evidence. The basic facts of the incident are not in dispute.
    
12. Wendy Naimpin who is also known by her married name of Wendy Tombou went with a group of other person to collect wild mandarin oranges from an area of land on Erromango. Exactly which land the oranges were collected form and who the rightful owner of that land is not material for the purposes of this criminal charge. What is material is that rightly or wrongly, Jimmy Nouwai believed that Wendy Naimpin had no right to take them.
    
13. After the mandarins had been collected the group travelled back home with them in a truck. The truck was driven by Mathew Nelon. In the truck with him was other persons.
    
14. On the back of the truck were Henry Atnielo, Trudy Nelon, Rose Nelon, Mariana Nelon, Annie Lovo and Wendy Tambou. They saw Jimmy Nouwai walking on the road carrying a stick. The truck stopped when it reached them. Jimmy Nouwai struck Wendy Tambou on the head with the stick. He was angry. Words were spoken by Jimmy Nouwai. Then the incident ended, Wendy Tambou flew to hospital in Vila, and a complaint was made to the Police.
    
15. All of the above was not in dispute. What was in dispute was exactly what Jimmy Nouwai said, who hi said it to, and what his intention was when he spoke.
    
16. The person called 5 witnesses, all of whom were in the truck and present at the time of the incident which gave rise to the charge. I record the material parts of their evidence that is the part relating to what Jimmy Nouwai said, who he said it to and what his intention was.
    
17. Wendy Tambou said that Jimmy Nouwai hit her on the hand and said "Hemi o fraet long loa mo loaia blong hem italem long Thomas Tambri long olgeta Family Walwilo blong oli save kilim ded mi" - "wetem man blong mi"
    
18. In English "He is not afraid of the law and his lawyer told Thomas Tambri and the family Walwilo that they can kill her"" - "with her husband".
    
19. She said she felt afraid. She said he was angry when he said this and spoke in a harsh way.
    
20. In cross-examination it is established that Wendy is in a position of Auntie to Jimmy Nouwai - that in early times very close, she had lived as a member of his family and that he had not before been violent to her. It is also established that the background of the dispute regarding the land ownership.
    
21. After the blow, she did not go unconscious but her head was spinning - she went down and holding her head with her hands.
    
22. Some questions designed to establish that the blow itself not indicative of intention to kill - (and of course, Count 2 was for intentional assault only, not something more serious). But the witness acclamant he hit her hard. It was after the blow that the words relating to her and her husband were said. Some questions relating to who the words spoken to, Trudy or witness Wendy - witness acclamant words said to her although present.
    
23. Long passage of cross examination designed to try to establish that witness was not made afraid by the words said or did not remain afraid. However the witness did not accept that. She was clear that at the time she believed he could kill her. Plain also that she understood that there had been a threat to kill.
    
24. Rose Nelou was present, sitting on the back of the truck. When asked what he said at the time, she said: "He said that he had the right over the land. The law gives him the right to kill Wendy" He said this after he hit Wendy. She said he was angry at the time. Then she said that the defendant told Trudy Welo that he had the right under the law to kill Wendy. Ms. Nelou said she was afraid.
    
25. In cross-examination when queried as to whether Jimmy Nouwai had made a threat to her or her and her husband also. Witness has been questioned at length about this aspect and the difference with her statement where no mention of Wendy’s husband, but she adamant that what she said in Court is what she heard.
    
26. Trudy Nelou was also on the truck
    

DATED at Port Vila on 23 November 2006

BY THE COURT

C. N. TUOHY
Judge