England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6 March 2008

1. MRS JUSTICE SWIFT: This is an appeal by the appellant by way of case stated from his conviction on 5 February 2007 by Haverfordwest Magistrates' Court for an offence of common assault, contrary to Section 39 of the Criminal Justice Act 1998.
2. The relevant event occurred on 12 February 2006 outside a restaurant called "Made in India" at Pembroke Dock. The appellant had been watching a rugby match in a public house and had consumed alcohol to an extent that, as he acknowledged in his evidence, he was drunk. He had left the public house, it seems, due to an argument with his brother. He was walking past the restaurant with his girlfriend, Jennifer Russell. As he did so, he exchanged a greeting with Mr Shishu Ullah, who worked there and was outside the restaurant. The respondent alleged that the appellant then became aggressive, asking Mr Ullah what he was looking at and throwing a punch at him which missed. Mr Ullah went into the restaurant whereupon, the respondent said, the appellant banged on the windows and shouted "black bastard". Mr Ullah came out of the restaurant with a baseball bat which, it was said, he intended to use to scare the appellant. When the appellant came towards him, still shouting racial abuse, Mr Ullah hit him with the baseball bat on the leg and the shoulder before running off.
3. The appellant's account was that he was not the aggressor and uttered no abuse; nor did he bang on the restaurant windows. He merely asked an Indian man - whom he did not know - what he was looking at and he was then struck with the bat. As a result, he said, he suffered bruising to his calf, shoulder and head.
4. It is clear from the Magistrates' Case Stated that they accepted the respondent's version of events thus far.
5. The respondent went on to allege that two employees of the restaurant, Mr Mohammed Sadiqur Rahman and Mr Abdul Roshik, came out of the restaurant to find out what was going on. At that point, it is said, the appellant struck Mr Rahman in the left eye with his right hand. It is said that he did this without any warning or provocation and without any exchange of words having occurred between the two men. Mr Rahman did not retaliate and returned to the restaurant. It was alleged that the appellant then attempted, unsuccessfully, to punch Mr Roshik before being taken away by his girlfriend.
6. The appellant told the magistrates that, following the attack with the baseball bat, he tried to defend himself. He swung his arms up but did not recall making contact with anyone. He was disorientated after being struck with the baseball bat and did not remember any punching. His evidence was supported by Jennifer Russell, who gave evidence on his behalf.
7. The respondent's contention was that the appellant had been the aggressor throughout. He had provoked the incident involving Mr Ullah. By the time Mr Rahman came on the scene, Mr Ullah had left. Mr Rahman displayed no aggression. The appellant struck him in the eye without provocation.
8. In support of its case, the respondent called Mr Ullah and Mr Roshik to give evidence. Mr Roshik had witnessed the incident involving Mr Rahman. Mr Ullah had not. Mr Rahman was not called to give evidence.
9. The appellant's case was that he was not the aggressor. His action in swinging his arms out had been in self-defence and, in any event, he had not actually made contact with Mr Rahman. He contended that, because Mr Rahman himself had not given evidence, it was not possible for the court to be satisfied to the criminal standard of proof that he had not consented to the assault by the appellant, or that the assault had not been in self-defence.
10. The magistrates accepted the respondent's evidence. In their Case Stated they set out their findings of fact which included the following:

"S. Immediately Mr Rahman arrived outside the premises, the appellant, without provocation, warning or any exchange of words, turned and with his right hand hit Mr Rahman to his left eye. Mr Rahman did not at any stage act aggressively and did not demonstrate any signs of aggression towards the appellant or anyone else.

T. Mr Rahman was at all stages passive, did not do anything to indicate that he consented to the assault, did not retaliate and returned to the restaurant immediately after being assaulted.

U. Mr Roshik presented as an honest and reliable witness, and he was present throughout the incident and his view of the assault that took place was unimpeded."

At C, the magistrates found:

"The Appellant's defence that he was acting in self defence is completely without foundation."

And at E:

"At no stage did the victim of the assault Sadiqur Rahman consent to being assaulted."

11. The magistrates set out their findings on the issues in the case which were, as far as material, as follows:

"A. That the respondent did prove its case beyond reasonable doubt and that Sadiqur Rahman was assaulted and beaten.

B. That the respondent disproved any suggestion of any issue of self defence.

C. That no provocation had been issued by Sadiqur Rahman at any stage, and he did not consent to the assault that took place.

D. That, as Sadiqur Rahman did not at any stage threaten, assault or otherwise provoke the Appellant, the Appellant's assault on Mr Rahman did not amount to self defence. That the Appellant's act of shouting out to the restaurant employee, 'black bastard' and banging on the restaurant window were discriminatory and aggressive acts.

E. That Mr Ullah had already run away when the Appellant punched the complainant.

F. It was not possible to conclude that the Appellant was acting in self defence if in fact he threw a punch which connected with the complainant when he was not having to defend himself.

G. In all the circumstances, it was right and proper to return as our adjudication that the Appellant was guilty of the charge of common assault upon the complainant."

12. The question for this court is stated in these terms:

"Were we entitled on the evidence adduced, to find that the Prosecution had proved its case beyond reasonable doubt to make the findings that we did and convict the Appellant?"

13. At the hearing before this court, the appellant, who was represented by Miss Claire Templeman, conceded that the magistrates were entitled to make the finding that they did in relation to consent, so that is no longer in issue.
14. Miss Templeman reminded the court of the well known principle of law that, once a defendant has raised an issue of self-defence, it is for the prosecution to disprove it beyond reasonable doubt. She argued that, since the complainant did not give evidence about the incident, the magistrates could not possibly be satisfied to the criminal standard of proof that, in punching Mr Rahman (as the magistrates found he did), the appellant was not acting in self-defence. She contended that no reasonable tribunal could have found as the magistrates did in relation to that issue.
15. For the respondent, Mr David contended that the fact that Mr Rahman did not give evidence did not preclude the magistrates from making the finding they did in relation to self-defence. He argued that, given the fact that, by the time Mr Rahman emerged from the restaurant, Mr Ullah had left the scene and presented no continuing threat to the appellant (and given also the evidence of Mr Roshik that his colleague had displayed no signs of aggression towards the appellant before the blow was struck), the magistrates were entitled to be satisfied to the criminal standard of proof that the appellant had not acted in self-defence.
16. I accept Mr David's submissions. It seems to me that the magistrates, who heard the evidence and had the opportunity of assessing it, were fully entitled on the evidence before them to conclude that the respondent had succeeded in discharging the burden on it to disprove self-defence. I do not understand the suggestion that they were unable to make such a finding in the absence of evidence from the complainant himself. After all, it is a common situation in a murder trial for self-defence to be raised and to be disproved by the prosecution in a case where, by definition, the complainant is not available to give evidence.
17. Here, the magistrates had evidence from an eye-witness who had been present throughout the incident between the appellant and Mr Rahman and who had, as the magistrates found, an unimpeded view of the incident. They judged him to be an honest and reliable witness. They accepted his evidence. Plainly they were entitled to be satisfied on the basis of that evidence that, at the time of the punch, the appellant was not acting in self-defence.
18. I would therefore answer the question in the affirmative and I would dismiss this appeal.
19. LORD JUSTICE RICHARDS: I agree.
20. MR DAVID: I have an application for costs in the sum of £750 in this matter.
21. LORD JUSTICE RICHARDS: What do you say about that application?
22. MISS TEMKPLEMAN: I would be in difficulty arguing against that given the court's findings. The only observation I have is that it was a very short matter. It was an arguable case and the decision merited a hearing. So far as costs go, I do not think I can dissuade your Lordships.
23. LORD JUSTICE RICHARDS: Whether it was an arguable case is not something we need to pass judgment on. The appellant will pay the respondent's costs in the sum of £750.