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State v Maybir [2011] FJMC 1; Criminal Case 1247 of 2010 (6 January 2011)

IN THE MAGISTRATE'S COURT OF FIJI ISLANDS AT NADI

CRIMINAL CASE NO: 1247/10

STATE

V

NOEL ALEXANDER MAYBIR

Mr. Vuetaki for accused
Sgt. Newal for prosecution
Date of Judgment: 6 January 2011.

JUDGMENT

INTRODUCTION:

[1] Statement of Offence: Assault Occasioning Actual Bodily Harm contrary to section 275 of Crimes Decree No. 44 of 2009.

[2] Particulars of Offence: Noel Alexander Maybir on the 17th day of December 2010 at Nadi in the Western Division assaulted one Luc Delhumeau thereby occasioning him actual bodily harm.

BACKGROUND:

[3] Luc Delhumeau (complainant) is a German who is working as a Chief Pilot in Fiji. He stays at Voilolo Beach. He came to Fiji on 17. 08. 2009. At about 11pm of December 17, 2010 he went to ED's Bar. He was sitting at the Main Bar and having drink and conversation together with his friends. And he was pushed from behind and punched. When he tern around he felt he was bleeding. He went to the toilet to check his face in the mirror. Thereafter he asked his friends to take him to the hospital as soon as possible. Doctor gave him anaesthetic and he had on his mouth 5 stitches and his head patched up. The complainant did not know the person who assaulted him. He asked the manager of the Bar to show the person who assaulted him. Later on his friends identified the person who assaulted him.

PROSECUTION'S EVEDENCE:

[4] The complainant, one Darko Tupek and PC 3794 Vikas gave evidence on behalf of the prosecution.

[5] In examination in chief complainant stated that when he was drinking and having conversation together someone pushed him from behind and punched and he received injury on his mouth as a result of the punch. And also he stated that he received 7 stitches on his mouth. Medical Officer's Report was handed up by the prosecution as Exhibit 1.

[6] Under cross examination he (the complainant) stated that there was no Christmas Party on 16. 12. 2010 and incident happened on 17. 12. 2010. He admitted that he went to the ED's Bar with 5 or 6 friends. In cross examination he further said:

"There was one table in the Main Bar. I was playing pool with the Fijian girl. I played three or four games. She had a hand bag. She put the bag on the floor. I can't remember whether she gave the bag to other man. I went to the Bar after play. I was alone with the girl. I went to the Bar with 3 friends. Others joined. Accused came to the girl to talk. He was jealous.

I can't remember whether the accused came after the girl. I never and ever talked to the accused. I can't remember what accused said to me. I didn't tell she is with me. I never touched the accused"

[7] In re-examination the complainant said that he never tried to punch the accused.

[8] Then Darko Tupek gave evidence for the prosecution. He in examination in chief said that:-

"On the 17th day of December 2010 at about 3am I was at ED's Bar. Something unexpected happened. Luc was there with his girl someone punched him for no reason. I saw this one. Luc went down. I was just defending him"

[9] Under cross examination he claimed that he said "you want some or what?"

[10] In re-examination he said that he said so after the incident.

[11] The third prosecution witness PC 3794 Vikash testified that "on the 17th day of December 2010, I interviewed one Alexander in English. He is in the Accused Box. He signed it. I too signed. This interview took placed in question and answer form. I didn't force the accused to give statement" the caution interview was tendered as Exhibit 2 by the prosecution.

[12] Under cross examination witness Vikash admitted that he never asked what caused the fight.

[13] In re-examination he said that he gave accused to change his statement. This part of the caution interview was marked as Exhibit 3 without objection from the accused.

ACCUSED'S EVIDENCE:

[14] Noel Alexander Maybir, accused gave evidence on his behalf. He in examination chief stated that:

"I am an Australian citizen. I arrived in Fiji on 15 December 2010. I went to a dinner party on December 16 2010 and went to ED's Bar at 2.00am (17.12.2010). I had drink. I was very happy I was enjoying Christmas. I was in Main Bar, in front of Pool Table. My uncle was sitting with me. I had couple of beer. Two were playing Pool. One is a Fijian. Other one is a foreigner. I can recognize if I saw him again. (He identifies the complainant). I never met the Fijian girl. I had no relationship at all. She was carrying hand bag and playing pool at the same time. My uncle asked her "would you mind to have your hand bag?' She was delightful. She placed her bag next to him and went to the guy. The gentlemen went out with her hand bag. After the game finished they went to the Bar together. I wanted to tell her things such happen. She was sitting there. She didn't look comfortable at all. I thought of enquiring whether she's ok. I asked you're ok. The gentleman was right there. The girl was on my right. There's a gap between them. There were 3 or 4 others. The gentleman walked behind me. I said I'm talking to the lady. He snap held my shoulder and gave me a big shout. He threw a punch on me. I was standing beside his friends. I thought something trouble here. I thought his friends were behind him. I feared. I was afraid of the big party. He didn't punch he missed. Then I punched him. The gentleman fell down on the floor. I did not punch again. Tupec was there hanging around me. He is a foreigner. I was afraid. He asked me "do you want some of this?"..... I did not raise my shirt and challenge anybody. Thereafter I went home. When I was home 2.00pm Friday police took me. I was interviewed by Mr. Prakash. I told him about the fight. I told him the reason behind me for the punch. He told me tell your lawyer and the Magistrate to decide. I didn't have time to think when I punch. I told the police my side of story"

[15] Under cross examination he did deny that he interfered with the complainant and the girl and claimed that he (complainant) pushed me behind then I punched him in the exercise of my self defence and I didn't have time to think.

[16] In re-examination he said that when they play pool he didn't get anger. He was not interfering with her (Fijian girl) and when the punch was coming he acted so quickly. The interviewing officer never asked what the cause for the fight was.

[17] Voreqe Bernard, one of the witnesses for the accused gave evidence. He works for the ED's Bar as barman and waiter. At night on December 16 he was at work till 3.00am next morning. This witness in examination in chief stated that:

".... I saw something happened. Two people were playing Pool, Luc and other girl. I know Luc because Most of the times he came to the Bar. I can recognize the accused. He also was there that morning. He was sitting with other man, Tony Stephen. ... Tony offered a bottle of drink to her. She accepted the offer. Tony told her to put her bag on the chair he was sitting. The girl gave the bag to Tony and he kept it where he's sitting. She continued playing the game. While playing Luc came and took the bag. The girl and Luc were sitting at the Bar after play. I was standing at the Pool Table. I could see the girl from where I was standing. Then the accused person went to the girl and talked at the first bar. At that point of time Luc came and pushed the accused touching his right shoulder. While pushing the accused he gave a punch that was missed. Then accused gave a punch and Luc fell down. It happened so fast....."

[18] Under cross examination he stated that he was ten metre away when he saw Luc threw a punch on accused and lights were not dim so that he could see the incident. He also stated that he saw accused giving a friendship hug and at that time at that time Luc came and push the accused. He very strongly denied any financial assistance from the accused.

[19] In re-examination he stated that Luc and his friends told him that they had already reported the matter to police.

[20] Then Antony Stephen gave evidence for accused. He said that Noel (accused) is his nephew and he lives with him after arriving in Fiji on 16.12.2010. This witness in examination chief testified that:

"......... I was sitting and I can see right across. The girl was finding difficulty with the bag. I said 'can I have your bag so that you can play freely' she kept the bag near the chair where I was sitting. I went to toilet. The bag was missing. Luc has taken the bag. I saw the girl pulling the bag from him. Noel went to ask the 'girl are you ok?' Then Luc pushed him and gave a punch.....I recall Prakash. I heard Noel putting his side of story to police. I heard Noel telling to him 'Luc pushed me and punched me'. He (Prakash) said 'you have to give this statement in court. I left it open'.

[21] Under cross examination he definitely denied the suggestion made by the prosecution that he is giving false evidence. He also denied the suggestion that he gave money to the girl to give evidence on behalf of the accused.

[22] In re-examination he stated that Joes (girl) took from him $70.00 and she never returned. He asked her give the money back. There was group of Luc's friends.

SELF-DEFENCE:

[23] Accused admitted that he assaulted the complainant but he did so in the exercise of his right of self defence.

[24] Section 42 of the Crimes Decree No.44 of 2009 deals with self defence. That section enacts as follows:

"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence.

(2) A person carries out conduct in self defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass —

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional infliction of death or grievous harm —

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This section does not apply if —

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.

(5) for the purposes of sub-section (4) conduct is not lawful merely because the person carrying it out is not criminally responsible for it".

[25] "Where an issue of self defence is raised there are no prescribed words which must be used in a summing-up. All that is needed is a clear exposition in relation to the particular case, of the conception of necessary self defence. Where there has been an attack so that defence is reasonably necessary it should be recognized that a person defending himself cannot weigh to a nicety the exact measure of necessary defensive action. If a jury is of the opinion in a moment of unexpected anguish the person attacked did only what he honestly and reasonably thought was necessary, that should be regarded as most potent evidence that only reasonably defensive action was taken. A jury should be directed that the defence of self-defence must fail only if the prosecution have proved that what the defendant did was not by way of self-defence but that if the prosecution do prove this, the issue of self-defence must be eliminated from the case": Palmer v. R. [1970] UKPC 2; [1971] A.C. 814; 55 Cr. App. R. 223, P.C.

[26] Self-Defence, in law, defence of one's person or property from threatened violence or injury by the exercise of force. In most U.S. jurisdictions, a person may practice self-defence against assault or unlawful attack by the use of force, provided the person uses no more force than is necessary to accomplish that result.

[27] In the at hand accused when giving evidence said that the complainant pushed me behind and threw a punch (missed) on me then I gave a punch he fell down on the floor. The incident happened when the accused asked the Fijian girl that 'are you ok?'

[28] Voreqe Bernard, the barman and waiter when testifying on behalf of the accused said that when he was around the Pool Table the accused was talking to the girl Luc (complainant) pushed him from behind and gave a punch that was missed then accused gave a punch to Luc fell down on the floor. He said there was light in the bar so that he could clearly see this. The complainant too, in his evidence stated that there was light in the Bar at the time of incident. The witness Voreqe in cross examination stated that he did not drink that time since he was on duty. He answered clearly and quickly in cross examination. He appears to be an independent witness. He vehemently denied receipt of any financial assistance from accused for giving evidence. He said in court that he is telling to court what he saw. Hence I may regard his evidence as potent.

[29] The complainant in this case pushed the accused from behind and gave a punch at him that was missed. In the circumstances the missed punch must be considered as an assault.

[30] At the caution interview the accused was putting his side of story and he told the interviewing officer that 'Luc punched me and I punched him' this was not recorded by the interviewing officer. Accused said in evidence that when he said this he (interviewing officer) told him to make this statement to court or to his lawyer. Stephen, witness for the accused also confirmed that Prakash (interviewing officer) told the accused to tell his side of story to court or his lawyer. Prakash under cross examination admitted that he did not ask the accused what caused the fight.

[31] The Fijian girl had given her hand bag to Stephen (accused's uncle). He was keeping the bag near the chair he was sitting. When he went to toilet the complainant had taken the bag. Accused was talking to the girl. Then the complainant pushed him from behind and threw a punch that was missed and accused reacted and gave a punch to him (complainant). The complainant did not tell the accused that the girl is with him.

[32] If more force is used than is necessary to repel the attack, the person will be liable both civilly and criminally for assault. Under these conditions both the assailant and the person assailed may be guilty of assault.

[33] The complainant and the accused had consumed drinks. The fight had taken place over the Fijian girl. She was not called to give evidence by either party. The complainant admitted in evidence that he went to the ED's Bar with his friends two or three.

[34] The complainant pushed the accused and threw a punch (though missed) with his hand. Then the accused repelled it with a punch. It is in my opinion a blow for blow. The Accused did not use any weapon when he acted in response. He punched once. It happened so fast. There was no time for the accused to think of other options like complaining to the security officers. He carried out this conduct in self defence believing such conduct is necessary in the circumstances. There is no evidence in court that the accused raise his shirt and challenged anybody.

[35] The prosecution in this case have failed to prove beyond reasonable doubt that the accused used more force than necessary when exercising his right of self defence.

[36] A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence [section 42 of the Crimes Decree No.44 of 2009].

[37] In conclusion, I therefore find the accused not guilty as charged. I acquit him accordingly.

[38] Twenty eight (28) days to appeal.

ORDER:

Accused is acquitted.

M H Mohamed Ajmeer
Resident Magistrate
Nadi, Fiji Islands.

Dated at Nadi this 6th day of January 2011.