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Republic of Nauru v Benjamin [2010] NRDC 1; Criminal Case 76 of 2009 (9 April 2010)

IN THE DISTRICT COURT OF NAURU
(Criminal Jurisdiction)

CRIMINAL CASE NO. 76/09

BETWEEN:

THE REPUBLIC OF NAURU
Complainant

AND:

BLADE BENJAMIN
Defendant

Mr. Wilisoni Kurisaqila for the Prosecution
Mr. Vinci Clodumar for the Defendant in defense

Dates of hearing: 23rd & 24th February, 2010
Date of Judgment: 9/4/2010

JUDGMENT

Blade Benjamin pleaded not guilty to a charge of Grievous Bodily Harm contrary to section 320 of the Criminal Code (1st schedule) adopted 1899.

Section 320 of the Criminal Code (1st schedule) adopted 1899 provides as follows;

"Any person who unlawfully does grievous bodily harm to another is guilty of a crime and is liable to imprisonment with hard labor for seven years".

The particulars of the offence stated that Blade Benjamin on the 7th day of July 2009 at Nauru did unlawfully do grievous bodily harm to a person namely Clarence Notte.

The Prosecution bears the burden of proving the following elements beyond reasonable doubt to secure conviction;

1. The identity of the defendant being Blade Benjamin,

2. The date and place of the offence being on the 7th July, 2009 at Nauru,

3. That he did grievous bodily harm to Clarence Notte,

4. That the action was unlawful.

Brief facts

On 6thJuly 2009, in the evening, the defendant Blade Benjamin (herein after called the defendant and Clarence Notte (hereinafter called the victim) attended a birthday party together with as many as 15 to 20 (people according to the victims’ evidence). They started drinking beer at about 11.00pm. The defendant and the victim had an argument between them. The defendant left briefly and when he returned, he called the victim for a fist fight at a place about 100 meters opposite to where they were drinking earlier that evening. The victim said that during the fight he fell and the defendant kicked him and bit him on his right shoulder. After the victim fell on the ground, he stood up again and they fought again.

The defendant then refused to fight and said he had to go and would be back. He went across the road but the victim followed and punched him on his back and told him to stop as the fight was not over yet. The defendant kept walking towards his place and went inside his house. Hudson (the cousin of the defendant) was asked by the defendant to go out to fight the victim but Hudson refused to fight but talked with the victim outside the house. He told the victim to cool down and to go away. The victim called the defendant to come out for a fight. The defendant at some stage come out and kicked the victim and ran back into the house. He went to the other side of the house and found a chopper. This time he approached the victim from the side of the house. The defendant went passed Hudson Bam and Priven Notte toward the victim holding up above his head the chopper and swinging down in a cutting action towards the victim. The first strike was not connected. The second strike landed on the wrist of the victim as he was holding up his arm to block or prevent the chopper landing on his head. The wound resulting severed some of the victim’s tendons and caused the victim grievous injury.

Elements of the offence

Date, time and place

There is generally no dispute over facts on what took place earlier that evening between the defendant and the victim.

From the evidence there is no dispute as to the identity of the defendant. I am satisfied beyond reasonable doubt that Blade Benjamin was the person named in the charge as the defendant in this case. The same person is now in court tried in this case.

There is also no dispute as to the date, time and place the offence was committed. I am satisfied beyond reasonable doubt that the offence was committed in the early morning hour of the 7th July 2009. There is no dispute that it took place here in Nauru.

Grievous Bodily Harm

There is evidence from the prosecution that it was Blade Benjamin who did grievous bodily harm to the victim Clarence Notte. The victim’s evidence was that the defendant came to him from the side of the house and fought with the victim. The victim felt his left hand was num and notice that the defendant had something in his hand. Medical report shows the following:-

-Lacerated wound LH wrist 7cm x 1cm x 1cm, -bleeding left hand, -Radial pulse intact, -joint m/m (finger) can’t move.

Prognosis- Impairment of motions of left fingers (2) weakness in flexion of left wrist, (3) possibility of painful and unstable wrist, (4) Loss of sensation of left fingers, (5) Atropy of intrinsic muscles of left hand with deformity of fingers, (6) Cold intolerance due to severance of left ulnar artery, (7) The final function of left hand may be severely jeopardized.

There is no dispute that it was the defendant who caused grievous bodily harm to the victim. However, it is the defense case that the act that caused grievous harm was done in self defense.
The prosecution must disprove that the defendant was acting in self defense in order to prove that the act was unlawful.

The prosecution submitted that it was the accused who was the aggressor in the incident in which the chopper was used,.

From the evidence, I am satisfied that the defendant knew that as long as he remains in the house, the victim could not be a threat to him although he was shouting from the outside for the defendant to come out. I am strengthen in this view from the evidence of the defendant himself when he said that at some stage he came out of the house and kicked the victim but knew that he would lose the fight so he ran back into the house. The only reason why the defendant had to run back into the house was because he knew that he would be safe inside. There was nothing to suggest that the victim was threatening to run after the defendant into the house.

I am also satisfied that when the defendant decided to come out with the chopper to fight with the victim, the defendant became the aggressor. There was no threat coming from the victim at that point in time which necessitates the use of the chopper by the defendant. If shouting from the outside amounts to a treat at all, the use of the chopper by the defendant was not proportionate to such threat.

I am satisfied from the prosecution evidence that the act by the defendant which caused grievous bodily harm to the victim was not an act of self defense and is unlawful.

I am therefore satisfied beyond reasonable doubt that Blade Benjamin on the 7th day of July 2009 at Nauru did unlawfully do grievous bodily harm to a person namely Clarence Notte and I find him guilty as charged.

Nelson Laurere
Resident Magistrate Nauru