HKSAR v. HUSSEINI YAWUZA

DCCC 931/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 931 OF 2014

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Reasons for Verdict

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1.  The defendant has pleaded not guilty to one charge of inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212. Particulars are that on 1 August 2014, the defendant unlawfully and maliciously inflicted grievous bodily harm upon Mr Patrick Martin Mansfield on Cochrane Street, Central, Hong Kong.

The Background

2.  The incident took place on Cochrane Street near Hollywood Roa d, Central at about 2 am.  The victim, Mr Mansfield, and his wife, PW1 and PW2, had hosted a party in Lan Kwai Fong earlier that evening as they were leaving Hong Kong.  They went together to Cochrane Street to buy a kebab to take home to eat.  As they carried their food and walked up towards Hollywood Road to find a taxi, there was a verbal or physical altercation that involved the victim and the defendant that lasted less than 15 seconds.  The defendant then reverse-kicked the victim and ran away.  The reverse kick was a spinning reverse kick similar to those performed in taekwondo.  As a result of the kick, the victim fell to the ground, down two steps and suffered serious head injuries.  Defendant ran away as soon as he kicked the victim.  He was arrested the next evening at home after the police were given his name and address and informed he was the man who assaulted the victim.

3.  What happened in that less-than-15-second time span was not captured on CCTV, but the kick that felled the victim was filmed. There was also an independent sober witness.  PW3 stood close by and saw the defendant spin and reverse-kick the victim in the head area as well as the victim’s subsequent fall.  

4.  The issue in this case is whether the defendant honestly believed he had acted in self-defence, and if he did, whether the amount of force used reasonable.  The defendant admits he kicked the victim, but his evidence is that it was necessary to defend himself from the victim, the aggressor.  He intended to wave his leg at him to scare the victim chasing him and give himself some space to get away from the victim.  

Prosecution Case

5.  The victim and his wife had been celebrating their impending departure from Hong Kong at a party they hosted that began at about 7 pm in Lan Kwai Fong, Central.  They were ready to go home after 1 am but went to buy a kebab at the kebab shop on Cochrane Street to take home.  The victim had drunk a significant amount of alcohol, and his wife said he fell asleep at the counter of the kebab shop whilst waiting for their food. She had to wake up him to walk to a taxi.  She held onto his arm as they walked as he was unsteady on his feet.  The victim has no recollection what happened next but woke up eight days later in the intensive care unit (ICU) of Queen Mary Hospital.  To this day, he has no memory of what happened to him.  His medical reports are exhibited at P15, 16 and 17.

6.  PW2, his wife, recalls walking up Cochrane Street with the kebab to get a taxi; she thinks her husband bumped into someone as he walked up the hill.  She then let go of his arm and walked on without him.  He stopped.  She is not clear what happened next but recalls turning to see him fall downstairs and hit his head.  She saw two African men running away down a back lane.  She ran to his side and he was bleeding heavily from his left ear and unconscious.  Someone called an ambulance.  Her evidence was that she had earlier seen the African men to their right standing outside the bar as they walked up the right side of the street and passed them.  She thinks her husband bumped into someone there.  She does not know how her husband and the African men ended up on the left side of the path before he fell.  She agreed she had had a lot of alcohol too but not as much as her husband.  She told the police she had been holding him by the arm because he was swaying, unsteady on his feet and struggled to walk in a straight line.  She identified herself and her husband from the CCTV video footage, Exhibit P2, taken from a restaurant on the left side of Cochrane Street. 

7.  PW3, an independent witness, was at another takeaway restaurant with a female friend buying food.  He said he had only had two drinks all night and was sober.  They are clearly seen in the CCTV footage of Exhibit P2 and the still frame photographs taken from P2, Exhibit P2A. His head can be seen facing up Cochrane Street.  In the footage and in the Photographs 1 to 3 of P2A, one can see the victim and his wife walk past PW3 and his friend.  PW3’s evidence was that he noticed the victim come back down the two steps as seen in Photographs 6 and 7 of P2A.  When he paid attention, he saw two African men facing the victim and an Asian female who were all 2 to 3 metres from him but about 1 metre apart from each other.  He had a side view of the group.  The two African men were facing down the hill whereas the victim and his wife were facing up the hill.  The couple was stood with their hands by their sides.  He did not see her physically restrain the victim nor did he hear her shouting.  He said the whole incident happened very quickly.  One of the African men suddenly executed a spinning reverse high kick which connected with the victim’s head area.  PW3 agreed it was a martial-arts-type kick.  He said the force of the kick knocked the victim off his feet; he fell down two steps and landed horizontally on the ground.  The two African men then fled down a back alley.

8.  PW3 described himself as having good peripheral vision, and just before he noticed the four facing off, he did not hear or see any other physical altercation.  Very soon after he first noticed the group, the African man kicked the victim, but prior to that, nothing got PW3’s attention.  The first physical action or assault he saw was the reverse high kick.  He did help PW2 and then drove around in a police vehicle to see if he could spot the two African men in the vicinity.  His evidence was not challenged by the defence.

9.  That same afternoon, on 1 August 2014, the police received information the defendant was the assailant and got his home address.  They proceeded to his home in Sham Tseng, arriving just after midnight.  His then pregnant girlfriend, now wife, let the police in their home to wait for the defendant to return.  He returned at about 1.10 am.  He was arrested for wounding and cautioned.  Under caution, he wrote in the arresting officer’s notebook that he did kick someone but in self-defence, Exhibit P8.  A house search was conducted and the clothes, shoes and cap he was wearing at the material time were seized.  The defendant was detained and two video-recorded interviews were conducted the next day on 2 August and 3 August respectively, P6 and P7.  In essence, he admitted he kicked the victim and physically demonstrated his spinning reverse kick in the interviews.  He explained the victim had punched him first for no reason and continued to attack him, leaving him no choice but to defend himself.  He had no intention to hurt the victim, just to scare him away.  The notebook entry and both video-recorded interviews were challenged and dealt with by way of the special procedure during the course of the trial.

10.  Prosecution also relies on the CCTV footage from various cameras in the location, P2, 3 and 4.  There are helpful still photographs taken from the footage, P2A, 3A and 4A.  P2A photographs show the victim and his wife walk up Cochrane Street after buying food.  They walk past PW3 and his friend at 1:48:44 am in Photograph 2.  They walk out of the camera frame.  Then at 1:49:00 am, one can see the victim’s legs come down the two steps he had just walked up and go around a banister in the middle of the path, Photograph 6.  One can see PW3 has turned his head towards the victim and one can see the defendant’s legs above the two steps and to the left of the path.  He is wearing black or dark shoes and khaki or beige trousers.  The victim walks up the steps towards the defendant at 1:49:01 am, and the defendant’s feet are by then spread apart and he adopts the stance needed to perform a spinning reverse kick, Photograph 8.  In Photograph 9 at 1:49:02 am, the defendant’s right leg is not visible and must be in the air.  Only his left foot is visible.  In Photograph 10, still at 1:49:02 am, his right leg is on its way down, having spun around and kicked the victim in the head or neck. The victim’s knees can be seen bending or buckling to the left.  In Photograph 11, still at 1:49:02 am, the victim is falling, his back is visible, and the defendant’s feet are both seen almost level to the ground.  When one compares the stance of his feet in Photograph 8 to the position of his feet in Photograph 11 and 12, one can see he executed a spin, raising his right leg and kicking the victim over.  I will say here that the defendant agreed this is what he did in his oral evidence although he did not know if his right foot connected with the victim’s body.

11.  In Photograph 12, at 1:49:03 am, the victim has fallen down the stairs and his head is on the ground.  In Photograph 13 of the same time, the defendant’s feet are pointing towards Ezra Lane, already getting ready to run away.  In Photographs 14 to 17, you see the defendant run down that lane out of sight and the victim’s wife rush to his side.  In all the photographs, one can see PW3 has turned his body and head, looking up Cochrane Street in the direction of the commotion.  In the photographs of Exhibit P1, particularly Photographs 11 to 14 of the scene after the victim was taken to hospital, one can see the victim’s blood had run down Cochrane Street. Photograph 11 clearly shows the two steps and banister as well as the mouth of Ezra Lane to the left as recorded in the CCTV footage, P2.

12.  The CCTV footage of P3 is from a restaurant camera in Ezra Lane.  Prosecution relies on it to show the defendant was in that lane for a while prior to the assault and not, as he said, only in Cochrane Street to obtain food after having visited two bars.  Defendant at first denied he had been in the area for at least 15 to 20 minutes prior to the assault.  Yet the footage of P3 played in court shows at 1.31 am the defendant in Ezra Lane for several minutes and at times looking for or checking on something.  After viewing the video footage, he says he went there to urinate, and when pressed further, he said he had dropped something around there.  When asked, he could not recall what it was he was obviously looking at or for.  Clearly, he was being economical with the truth.  Later and according to the time on the footage, he is seen running past the same camera along Ezra Lane at 1:46:47, after he had kicked the victim.  I add here that I accept that there is no evidence the timing on the CCTV footage is accurate.

The Defence Case

13.  Defendant gave evidence in both the special issue and the general issue.  The defence case is that the victim was the aggressor and without provocation punched the defendant in the face as he walked past him on Cochrane Street.  The defendant was waiting for some food ordered and was stood to one side of the street.  He was with a friend but this friend had gone into a bar.  The defendant then followed the victim and asked him why he had hit him.  The victim turned and hit him again, this time in the upper arm.  The defendant turned to run away but was pursued by the victim. During the chase in circles around the banister of the two steps seen in the photographs, the victim hit him at least two more times.  The defendant could not shake the victim off and as he hit him a fifth time, the defendant waved his leg at him to scare him away and then he ran away.  He did not want to fight with the victim, so he did not use his hands.

14.  The defence case is that the defendant did reverse-kick him but did not kick with force and did not know if the kick connected.  He ran away before he even saw the victim fall to the ground.  He knows another African man also ran away following him down Ezra Lane but it was not his friend and he did not know who it was.  He was trying to run away from the victim after he started to chase him and only kicked out at the victim to defend himself.

The Special Issue

15.  Prosecution called eight police officers in the special issue.  Prosecution must prove beyond reasonable doubt the notebook entry and the two video-recorded interviews were made voluntarily.  The defendant has no duty to prove anything.  PW4, DPC8235, received a call not long after the assault from an informant who gave him the defendant’s name and address.  A team of officers went to his home just after midnight on 2 August 2014.  They were invited in by the defendant’s girlfriend. Not long after he came home, PW4 arrested the defendant for wounding the victim and cautioned him.  They communicated in English.  The defendant started to say something but the officer stopped him and asked him to write down what he wanted to say.  PW4 thought it best he write it down as he was afraid with the defendant’s accent, he would not hear him properly and hear something different.  The defendant then wrote in his notebook, Exhibit P8.  The voluntariness of this notebook entry, P8, was challenged.  The objections to this notebook entry are set out in the document MFI-B.

16.  The defendant was first taken to Tsuen Wan Police Station and served a POL153, P11, a notice to persons in custody explaining his rights.  This document was not challenged and he was told and understood his rights in English.  He read it to himself as well.  He was then taken to Central Police Station, arriving there at about 3.30 am.  He was handed to the Duty Officer.  The following afternoon on 2 August, at about 4 pm, he was served another POL153, Exhibit P12, with the assistance of a Twi interpreter.  This is not challenged.  A record of interview commenced shortly after this.  This was done with the assistance of the same Twi interpreter, PW14, and an English-Chinese interpreter, PW12.  This interview, P5, was not challenged but it was not substantive.  It was stopped before it began proper as PW14 complained to the police that he had not seen them unwrap four new discs and put them in the recording machine before the interview started.  Being cautious, he suggested they start again with four new discs, and the interviewing officers agreed.  P6 began immediately after P5 was terminated and finished at 7.11 pm.

17.  The second challenged video-recorded interview was conducted the next day at about 2.16 pm, P7.  Prior to its commencement, another POL153 was served on the defendant with the assistance of the same Twi interpreter, Exhibit P13.  This is not challenged.  The objections to P6 and P7 are set out in MFI-A.  The interview of 3 August was for the purposes of clarifying what was said on 2 August in the interview, P6.  The sketch of P6C drawn during that interview to illustrate what happened during the incident was a mess and indecipherable.  A new sketch was prepared and referred to again.  The defendant drew again on this sketch but with more restraint, Exhibit P7C.  

18.  The police witnesses were sure the defendant did not ask them for a lawyer before or during the interviews.  He did not tell them he needed a Hausa interpreter and that he did not understand the Twi interpreter, PW14.  No one promised him bail if he co-operated during the interviews.  He did get particularly emotional in the interview of 3 August but was asked several times if he was fit enough to continue. Each time he composed himself instantaneously, waiting to continue the interview. The police officers denied all allegations of impropriety, oppression and inducements put to them.  

19.  The defendant gave evidence in the special issue as did his wife.  The next evening after the incident when he got home at about 1 am, he was shocked to see the police in his home.  There were five to six inside his home where he lived with his pregnant partner and young daughter. He communicated with the police in basic English only and says his mother tongue is Hausa.  He speaks little Twi, a different African dialect of Ghana.  He was questioned about his whereabouts the night before and an injured man.  His wife and child were crying and he was not cautioned.  He says he did write in the police notebook but was told to write in it and told what to write.  He wrote with the police assistance and Detective Sergeant 51111 even wrote a couple of the words himself.  Yet the defendant alleges at the same time he wrote this himself because he was told to tell the truth by the police and his wife.  He also says what he wrote in the notebook is from his heart, he did not lie, and everything he wrote is the truth and what happened.

20.  The defendant’s wife gave evidence and said in-chief that the very emotional defendant was questioned at length before he was told to write in a notebook.  He was told to write because he was crying so much he could not speak.  The police helped him with his spelling when he asked for help.  She said the police told him to write down the words “self-defence”.  In cross-examination, she said what the police officer wrote in his notebook she assumed were questions put to the defendant, but she was busy looking after their daughter at the same time.  She was shown Exhibit P8 and asked if the officer wrote out pages 1 to 3 and then read it to the defendant.  She said she thought so but did not recall clearly.  She says her husband wrote on pages 4 and 5 and agreed there were no questions in pages 1 to 3.  In her evidence, she agreed she and the defendant communicated in English only.  Her evidence was weak and at times contradictory.  She describes what she saw and heard but at the same time when questioned more closely says she was distracted and had to look after her daughter.

21.  The defendant said in the vehicle on the way to Central Police Station Detective Sergeant 51111 told him he could go home after the police station.  This officer said he saw the state of his daughter and wife and would help him if he co-operated with the police; that is why he has a deep impression of this officer.  He was the only one who was kind to him and calmed him down.  Detective Sergeant 51111 also spoke at length to the defendant at his home when he was arrested.  He heard the defendant explain what happened that night and told the defendant he was defending himself.  He put the notion to the defendant that he was acting in self-defence, and then the defendant was told to write this in the notebook.  He also told the defendant he did not need a lawyer because he would tell his superior that he acted in self-defence and he would help him prove his innocence.  The defendant was sure that Detective Sergeant 51111 was present at his home.

22.  At Central Police Station, he was asked what language he spoke and he told the police that he spoke Hausa.  He was told by Detective Sergeant 51111 a Twi interpreter was the only one the police could arrange and if he did not do an interview that day, he could not go home.  He was induced by this detective sergeant and told if he co-operated, he could go home after it.  The objections set out a request by the defendant to contact his family to get him a lawyer which was refused.  This was put to the police officers.  However, in his oral evidence, the defendant said he was allowed to call his wife and then call a lawyer but was unable to locate that lawyer.  It was also suggested that Detective Sergeant 51111 was in the toilet of the District Court with the defendant on 25 February, the second day of the trial. This detective sergeant gave evidence and said he was not part of the arresting party of the defendant and nor was he present at the defendant’s home as he was not actually on duty that evening.  His movements are recorded in his police notebook.  He met the defendant for the first time just before the first video-recorded interview on 2 August.  He also checked his diary and was in Xiamen, China on holiday with his family on the second day of the trial and was not in the District Court Building as alleged.  He was in China with his family between 22 and 26 February. 

23.  All other officers in the arresting party were adamant Detective Sergeant 51111 was not there at the defendant’s home.  PW8, DPC885, said he was sure, when asked, Detective Sergeant 51111 was not present because the team was already led by another detective sergeant, 53456, PW6.  I am sure that Detective Sergeant 51111 was not part of the arresting party nor induced the defendant on the way back to and at the police station.

24.  The defendant said he did not really understand the Twi interpreter provided, and before the interviews he told the police and the interpreter this but was ignored.  He wanted a Hausa interpreter but was ignored.  There is no mention in the interviews of this communication problem, and when one watches the interviews, there is no indication they could not communicate with each other.  In fact, it is clear the defendant is proficient in both Twi and English.  He often answered the questions put in English before they were translated and corrects the interpreter’s English.  It is noteworthy that he appeared eight times in the Magistracy Court and the District Court before trial with a Twi interpreter arranged to assist him, and there was no complaint.  The first request for a Hausa interpreter was a written request prior to the trial after the trial date had been set down in the plea court.

25.  PW14, the interpreter, said he barely understands Hausa as it is that different.  He knew the defendant could speak Hausa and knew he was from Ghana, having come across him in an association of Ghanaians in Hong Kong.  Despite this, they were not friends.  He is sure the defendant understood his Twi nor did he say he did not understand him, PW14.  He noted the defendant often answered before translation and in English.  This frustrated this witness and he interrupted the interview of 2 August and asked if he should leave as his interpretation was not needed when the defendant understood and answered the questions in English.

26.  In fact, I found this witness, PW14, acted unprofessionally in the first interview of 2 August, P6.  He became impatient, criticising the police officer’s questions and threatened to leave. He said he wanted to leave early as the interview was dragging on and his child was sick at home.  The interview did involve double translation and was lengthy.  It did not help that there were often interruptions from the defendant.  It did appear out of control and there was confusion at times.  The police forgot to caution the defendant when it started.  I am sure this was an omission rather than deliberate.  PW14 denied he did not translate everything the defendant said because the defendant would often repeat himself or the questions put to him.  He would become emotional and mutter about himself incoherently.  He would interrupt PW14 and the others.  As a result the interpretation was interrupted.  PW14 said when he came back the next day, the police explained the previous interview was not good.  This time he only did his job; he only interpreted during this second interview and it went smoothly.

27.  The sole issue to be determined in relation to the admission in the police notebook and the records of interviews is the question of voluntariness.  If the prosecution prove beyond reasonable doubt on the whole of the evidence that the interviews and admissions were voluntary, then they are admissible.  If for any reason they were not voluntary, they are inadmissible. There is a safeguard in that an interview may still be excluded if it was obtained by unfairness or trickery.  The defence submits there are instances of impropriety, inducements, oppression and unfairness as well as breaches of the 1992 Rules and Directions on the questioning of suspects.

28.  After hearing submissions and reading the defence written submissions, MFI-C, I ruled that the police notebook admission written by the defendant himself, P8, was made voluntarily.  I also ruled the two subsequent records of interviews, P6 and P7, were made voluntarily but I exercised my discretion and excluded the first interview, P6.  As far as P7 was concerned, I admitted it into evidence but only placed weight on the conversations and answers given in English by the defendant.  I did not require the prosecution to edit the transcript as it was not practical, necessary or easy to do so.  I am sure the defendant is proficient in English and Twi.  That I found obvious from watching the interviews and hearing him in oral evidence correct the interpreter on many occasions.

29.  P6 and P7 had no certified translation of the Twi language of the transcripts of the interviews.  There are only two Twi interpreters in Hong Kong, and both were involved with this case at one stage or another.  There was no prior discussion between the parties to agree one of the two could, despite their involvement, certify the transcripts.  It would not be fatal there was no certification as it is an aide-mémoire to the interview itself, and it could have been resolved with live evidence from an interpreter during the course of the trial referring to the video itself. However, there were defence allegations not everything the defendant said was translated.  PW14 disagreed but qualified his answer.  Despite the fact I was satisfied the interview was conducted voluntarily with no language issues, this aspect still concerned me.  When P6 commenced, the defendant was not cautioned before it began.  This also concerned me.  Moreover, the interpreter interjected during the interview with an uncalled-for personal opinion.  He also criticised the statement-takers and expressed impatience, once threatening to leave.  This may have affected the defendant who witnessed this.  To ensure a fair trial, I found there to be grounds upon which I should exercise my discretion and exclude P6.

30.  During P7, the interpreter was only professional and translated as required.  However, there was still no certified translation to answer the allegations made by the defence nor any interpreter called to deal with those allegations.  To ensure the defendant had a fair trial, I only placed weight on his English answers he gave during the interview.  It is clear he understood the questions translated into English and often replied without waiting for the translation.  I am sure he did voluntarily answer the questions without fear or inducement.  He was very emotional at times, and it has been submitted he was in no fit state to be interviewed at all but he said several times he could continue when asked, and for want of a better phrase, he “calmed down” as quickly as he became hysterical.  Despite his objections and serious allegations made against the police officers concerned, when asked in-chief why he agreed to take part in the third interview, P7, he said he wanted to tell the police that what he said in the other interviews were not lies.  Even if I am wrong and should have excluded this interview as well, the prosecution can rely on the notebook admission, P8.

31.  This admission I am sure was made voluntarily. The officer was correct to ask the defendant to write down whatever he wanted to say.  In such a situation where the officer was not fluent in English and the defendant spoke English with an accent, it was prudent on the part of that officer to ensure a record of what is said under caution is accurate.  Allegations of impropriety were made, and the defendant said he did not write the admission and self-defence explanation on his own initiative.  However, he contradicted himself on several occasions.  For example, he agreed in oral evidence in cross-examination that what he wrote was the truth and from his heart.  He said “what I want to write there is the truth, so I write there”, but then he said not long after this answer that “I will not say now that what I wrote is true, I not understand what they tell me to write”.  Of course, the truth of the content is of no concern when considering the admissibility, but when taken through what he wrote, he agreed what was written there was what happened to him.  The prosecution submitted this tallies with his evidence he wanted to write and tell the truth.  So he took the pen and notebook voluntarily.  I did not consider the content to determine the issue.  

32.  It was suggested to him that his handwriting was joined-up writing which does not sit well with the allegation that many words were spelt out for him letter after letter by the police officers.  He agreed the sentence to “throw my leg” were his own words.  To him, it meant the action was “gentle and very soft” whereas the word “kick” would mean an intentional action.  Lastly, he agreed to the question put that what he wrote in the notebook, P8, was written by him voluntarily and he added “I agree I wanted to tell them the truth”.  His contradictions were not addressed in re-examination.  His evidence was weak and contradictory I am sure because it was fabricated.  I was satisfied the admission in the notebook after he was arrested and cautioned was voluntary and his own words.  He wanted to tell the police he acted in self-defence, and that is what he did.

The Law

33.  The defendant admits he kicked out at the victim but did so in self-defence.  It is the prosecution’s duty to prove the case against the defendant beyond reasonable doubt, and it is for the prosecution to convince the court he was not acting in lawful self-defence.  The defendant does not have to prove that he was, just as he does not have to prove his innocence.

34.  Lawful self-defence means a person acts in lawful self-defence if in all the circumstances he honestly believes it is necessary for him to defend himself and the amount of force he uses in doing so is reasonable.  This definition leads to two questions.  Firstly, did the defendant honestly believe or may he have honestly believed that it was necessary to defend himself?  If the prosecution has convinced the court that the defendant did not kick the victim in the honest belief that it was necessary to defend himself, then self-defence simply does not arise in this case.  However, if the court decides the defendant was or may have been acting in that belief, then the second question must be posed.  Taking the circumstances as the defendant honestly believed them to be, was the amount of force which he used reasonable?  It is recognised that a person defending himself cannot weigh to a nicety the force used to make sure it is no more than reasonable.  Everything will depend on the particular facts and circumstances of each case.   

35.  To summarise the test to be applied, it is that the defendant may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself.

36.  In the written final submissions from the defence, at paragraph 5 of MFI-D, Mr Donald has quoted from Archbold 2015 edition, paragraph 20-45 and precisely and briefly summarises the law in respect of self-defence.  He submits the defensive response must be proportional to the attack or imminent threat of harm.  There is no rule of law that a man must wait until he is struck before striking in self-defence.  If another strikes him, he is entitled to get his blow in first if it is reasonably necessary to do so in self-defence.  I repeat a person only acts in self-defence if in all the circumstances he honestly believes that it is necessary for him to do so to defend himself and if the amount of force he uses is reasonable.

37.  The defence does not challenge the fact the victim suffered really serious bodily harm amounting to grievous bodily harm.  The defence do not challenge the injuries were caused as a result of the kick from the defendant and the resultant fall down the steps.

My Findings

38.  I repeat the fact that the prosecution has the burden of proof and must prove the case against the defendant beyond reasonable doubt.  The defendant has no duty to prove his innocence.  In this case, the defendant admits he kicked the victim, the victim fell as a result and suffered really serious bodily injury.  In the circumstances of the case, the defence submits he honestly believed he was in danger, had been assaulted several times already by the victim and kicked out once to protect himself to get away.

39.  The defence submit in MFI-D the victim was the aggressor as described by the defendant.  It was submitted the victim had been involved in an assault incident of a similar nature in 2011.  He was previously charged with common assault, assault occasioning actual bodily harm and assaulting a police officer.  He was charged on 3 June 2011 and the date of the offences was 2 June.  The Brief Facts of that case were set out in MFI-1 as were the Eastern Court Magistracy Papers obtained during the course of this trial.  The cover sheet of the court file records the defendant, the victim here, was acquitted of all charges after trial on 1 November 2011.  The victim was cross-examined about that trial and gave evidence that he was set up, framed, and the magistrate found there to be no case to answer for all the charges.  In paragraph 19 of the final submissions, Mr Donald writes, “It was, it appears, the implied impression by the court that because of that acquittal, that incident was of no relevance to the current case” and refers to an authority, R v Thorne [1978] 66 Cr App R 6, page 15 to show an actual acquittal does not mean that the witness was lying.

40.  In that authority quoted, the main prosecution witness was an accomplice.  He had testified in other trials that had resulted in acquittals.  That trial court refused a defence application to call a police officer to cross-examine him about those previous acquittals.  The Court of Appeal found that refusal correct; the fact an informer may have given evidence for the prosecution against other accused in other trials which did not lead to convictions does not entitle the defence to cross-examine a police officer about those verdicts of acquittals to try and show that the informer was biased against the appellants in the instant case or prove that he was a liar or that the pattern of acquittals in the other cases undermined the informer’s credibility.  It is in this context Mr Donald has taken a sentence and quoted it.  With respect, I find it out of context.

41.  Mr Donald submits that this previous incident establishes consistency of conduct and that PW1 was inclined to get involved in public disturbances in the early hours of the morning after drinking alcohol.  He submits he gets drunk and in both cases attacked innocent people unprovoked.  This submission is baseless.  There is no evidence he attacked an innocent person or persons in 2011.  The fact he was charged does not make it fact or true.  His acquittal of all charges exonerates him.  There cannot be said to be a pattern here nor any evidence of an inclination to attack innocent people.

42.  Both PW1 and PW2 say they were affected by alcohol consumption when this happened.  PW1 has no recollection of anything after stopping to buy a kebab.  PW2 did not see the kick nor what preceded it. She thinks her husband bumped into someone.  On their own, their evidence would be of little use but the prosecution relies on the evidence of the CCTV footage and PW3, an independent witness, as well as the admissions made by the defendant.  The defence submits PW2 knew her husband was the protagonist but is protecting him.

43.  PW3’s evidence is important, and being a stranger to all parties, I do not believe he was biased or anything but independent.  His evidence was unchallenged.  He was sober and close to the incident.  I am sure his evidence is reliable and credible.  I am sure he first noticed the victim to his left and behind him when he came down the two steps and around the banister.  He was then kicked.  PW3 pointed this out when shown Photograph 6 of P2A.  He did not notice anything prior to this.  When I consider the defendant’s evidence, PW3 did not notice the victim chasing the defendant around in a circle, up and down those steps around that same banister “a few times”.  He did not notice the victim hit or punch the defendant four times prior to the victim coming down the steps in Photograph 6.  He did not hear anyone shouting stop.  He said he had good peripheral vision and if that was the case and if there was a commotion such as that described by the defendant very close by, he would have noticed it much earlier I am sure.  In fact, anyone nearby would have seen and heard this commotion described by the defendant if it happened.

44.  I doubt it happened.  That is why PW3 did not see or hear anything of the sort.  Moreover, the CCTV of P2 did not capture the chase before the kick.  The defendant said in answer to my direct question that he was chased around the banister of the two steps by the victim a few times. He draws on the sketch P7A during the video-recorded interview to demonstrate this chase up and down and around the stairs and banister.  If this happened, we would see it and certainly their legs at least on the CCTV footage, and that is another reason I doubt it happened.  There is a lapse of 15 seconds according to the timer on that CCTV camera where the victim disappears out of sight, approaching the defendant, but then reappears again coming down those two steps.  Something obviously happened between the defendant and the victim within that time period but I am sure it was not as described by the defendant. I am sure he has fabricated the chase and numerous assaults by the victim to make out he kicked the victim in self-defence.

45.  What is not challenged or disputed is the defendant kicked the victim down the steps.  The submission the victim was drunk and therefore unstable on his feet or the path sloped downwards steeply is neither here nor there.  I am sure PW3 saw the defendant execute a spinning reverse high kick and made contact with the victim in his head, face, neck or jaw area.  At that time, the victim had his hands by his side.  He was not physically attacking or threatening the defendant.  The momentum or force of the kick “knocked him off the stairs”.  I do not believe the defendant’s evidence this was the first time he kicked out like this.  He described it as an intent to wave his leg to scare the victim away.  This is a technically very difficult and skilful kick not executed by amateurs, and the CCTV footage photographs show the defendant executed it perfectly.  He would not have executed this kick instinctively if he did not know how to do it.  The question is: did he kick the victim in self-defence?

46.  I have considered the two questions I referred to above.  Having considered the facts and evidence I find proved by the prosecution, I am sure the defendant exaggerated the exchange between himself and the victim prior to kicking him down the stairs.  I do not believe he was hit four times and chased so he feared for his safety.  However, there is a time lapse of 15 seconds where during that short period of time something happened between them.  It was just, I am sure, not as described by the defendant.  Is it possible the defendant honestly believed or may have honestly believed that it was necessary to defend himself?  Whilst rejecting the defendant’s version of events, it is possible that despite that, he had such a belief; only just possible.  He may have felt it necessary to exaggerate to sound convincing.  I do not reject that possibility.

47.  Therefore, I go on to ask the second question and repeat it here.  Taking the circumstances as the defendant honestly believed them to be, was the amount of force which he used reasonable?  I am very sure it was not reasonable.  I accept a person if acting in a panic and instinctively will not have time to weigh up what is reasonable, but in this case, on these facts, the force was disproportionate, the action taken uncalled for.

48.  I rejected the defendant’s evidence on this issue.  The defendant was asked why he did not just run away when he felt under threat, and he said he was waiting for his food he had ordered; an odd answer. He said if he had not been waiting, he would have turned and run away.  Yet he also said at the same time he was only thinking about wanting to escape from the victim.  When asked about the kick itself, the defendant said he did not recall how he performed the kick.  He explained when the police asked for a demonstration, he just took a guess at what he did.  He did not know how his foot got as high as the victim’s face.  He had no intention to raise his leg up and did not know how it raised up as he was being beaten by the victim.  I am sure the defendant said all this to try and distance himself from the truth and, that is, he knew what he was doing and chose to perform this martial arts kick at the victim, reckless whether he suffered an injury or not.  It was entirely unnecessary to kick in this way and can only be excessive force not commensurate to the situation that night.  I believe PW3’s evidence that when the defendant kicked the victim, the victim had his hands by his side and was not threatening the defendant.  The answer to the second question is no.

49.  After applying the test and the two questions it poses, prosecution has convinced me the defendant was not acting in lawful self-defence.  I am sure as the victim walked past the defendant on Cochrane Street, something did happen.  Whether he bumped into him or they had a verbal altercation, it happened in a matter of seconds, less than 15 seconds according to the CCTV timer of P2.  The victim backed off and went back down the two steps.  The defendant moved from the right side of the path to the left side and faced the victim as he walked back up the stairs towards the defendant.  Defendant prepared himself to execute the spinning reverse kick by adopting the stance required and then kicked the victim after he got to the top of those two steps.  I am sure that is what the CCTV and photographs show, supported by the evidence of PW3 who witnessed it.

50.  I am sure beyond reasonable doubt when the defendant kicked at the victim in this dangerous manner, he was acting recklessly.  I am sure the defendant himself saw the risk of injury to the victim and despite that went ahead and kicked him in this manner.  As a result, the victim suffered really serious bodily harm.  The defendant unlawfully and maliciously inflicted grievous bodily harm upon PW1, the victim.  Accordingly, the defendant is convicted as charged.