The Queen v Jefford
[2011] WASC 272
•30 SEPTEMBER 2011
THE QUEEN -v- JEFFORD [2011] WASC 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 272 | |
| 30/09/2011 | |||
| Case No: | INS:4/2011 | 26 - 30 SEPTEMBER 2011 | |
| Coram: | MARTIN CJ | 30/09/11 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Reasons given | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN PETER WILLIAM JEFFORD |
Catchwords: | Criminal law Manslaughter Trial of issues Whether accused deliberately stabbed deceased or whether injury inflicted as a result of a failure to take reasonable care Turns on own facts |
Legislation: | Criminal Code (WA), s 248, s 266, s 280 |
Case References: | Medan v The Queen [2011] WASCA 142 R v Buzzacott [2010] SASC 298; (2010) 108 SASR 218 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
PETER WILLIAM JEFFORD
Accused
Catchwords:
Criminal law - Manslaughter - Trial of issues - Whether accused deliberately stabbed deceased or whether injury inflicted as a result of a failure to take reasonable care - Turns on own facts
Legislation:
Criminal Code (WA), s 248, s 266, s 280
Result:
Reasons given
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Category: B
Representation:
Counsel:
Prosecution : Mr A L Troy
Accused : Mr A G Elliott
Solicitors:
Prosecution : Director of Public Prosecutions (Cth)
Accused : Legal Aid (WA)
Case(s) referred to in judgment(s):
Medan v The Queen [2011] WASCA 142
R v Buzzacott [2010] SASC 298; (2010) 108 SASR 218
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
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- MARTIN CJ: (This judgment was delivered extemporaneously on 30 September 2011 and has been edited from the transcript.)
Introduction
1 On 2 June 2011, Peter William Jefford entered a plea of guilty to the offence of unlawfully killing Mohammed Nasir Abdul Aziz, contrary to s 280 of the Criminal Code (WA).
2 As Buss JA observed in Medan v The Queen [2011] WASCA 142 recently:
A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. A plea of guilty does not, however, constitute an admission of all of the facts stated in the Crown's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. Accordingly, it is always open to an offender who has pleaded guilty to apply for a trial of issues in relation to any facts relevant to the sentencing outcome that are not the essential facts necessary to constitute the offence [78].
3 Mr Jefford has exercised his right to apply for a trial of issues so as to determine the facts relevant to the commission of the offence to which he has pleaded guilty. In some cases, the contentious issue which necessitates a trial of issues for the purposes of sentence will relate to what might be described as secondary aspects of the sentencing process, such as the circumstances of the offender, or the mental or physical condition of the offender. In other cases, the contention between the prosecution and the defence relates to the precise conduct and state of mind of the offender at the time of the offence, and the circumstances in which the offence occurred. This is one of those cases.
4 The legal principles governing a trial of issues of this kind are not in dispute. The facts found by the court for the purposes of sentence must be consistent with the finding of guilt - in this case, by means of the entry of Mr Jefford's plea. To the extent that facts consistent with the finding of guilt are contested, they must be proved by the prosecution beyond reasonable doubt (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Buzzacott [2010] SASC 298; (2010) 108 SASR 218 [22]).
5 In the present case it is not disputed that the death of Mr Aziz was caused by a knife wound to the upper left part of his chest, just below his collarbone. Accordingly, Mr Jefford's plea of guilty establishes that he
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- caused that wound to be inflicted. And in the circumstances of this case, there is no doubt that the relevant knife (which is an exhibit) was in Mr Jefford's hand at the time it entered the chest of Mr Aziz. What is in contention between the parties is the circumstances in which the knife wound occurred, and in particular, whether the prosecution has established beyond reasonable doubt that Mr Jefford deliberately stabbed Mr Aziz, knowing and intending that the knife would and should enter his body, in circumstances in which he was using an unreasonable degree of force in his own self-defence. On the other hand, on behalf of Mr Jefford it is contended that the prosecution has failed to establish that fact beyond reasonable doubt with the consequence that I should sentence Mr Jefford on the basis that the fatal wound was inflicted by Mr Jefford accidentally, but in circumstances in which he had failed to use reasonable care or to take reasonable precautions in the use of the knife.
6 It is appropriate to set the legal context for these competing contentions. Section 248 of the Criminal Code provides that an act is lawful if done in self-defence. Self-defence is defined by that section to apply to an act if:
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
7 Section 248(3) of the Code provides that if a person unlawfully kills another in circumstances which, but for the section, would constitute murder, and the act that causes the person's death would be an act done in self-defence but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be, then the person is guilty of manslaughter and not murder.
8 The prosecution contends that this section applies to the facts which I should find, namely, that Mr Jefford stabbed Mr Aziz in circumstances which would constitute murder, because Mr Jefford intended to cause death or intended to cause bodily injury of such a nature as to endanger or be likely to endanger life, but in circumstances in which the act causing the death of Mr Aziz would have been an act done in self-defence but for the fact that it was not a reasonable response to the circumstances in which Mr Jefford believed himself to be.
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9 Section 266 of the Criminal Code provides that it is the duty of every person who has in his charge anything of such a nature that in the absence of care or precaution in its use or management, might endanger the life, safety or health of any person, to take reasonable care and use reasonable precautions to avoid that danger, and further provides that such a person is held to have caused any consequences which result to the life or health or safety of any person by reason of any omission to perform that duty.
10 On behalf of Mr Jefford it is contended that as the prosecution have failed to establish, beyond reasonable doubt, that Mr Jefford deliberately stabbed Mr Aziz, I should sentence Mr Jefford on the basis that he breached his duty to use reasonable care in the control of his knife, with the result that he is liable for the consequences of that breach of duty, namely, the death of Mr Aziz. That process of reasoning leads to the conclusion that Mr Jefford unlawfully killed Mr Aziz contrary to s 280 of the Criminal Code, which creates the offence of manslaughter.
11 There are other more general legal principles which apply to the resolution of these competing contentions, and which I bear strongly in mind.
12 First, as I have noted, the prosecution carries the burden of proving the facts which it contends I should find for the purposes of sentence beyond reasonable doubt. That burden does not change at any point during the trial of issues. Mr Jefford carries no burden of proving anything, and in the event that the prosecution fails to prove the facts for which it contends to the requisite standard, I should proceed to sentence upon the view of the facts open on the evidence, consistent with the finding of guilt, which is most favourable to Mr Jefford.
13 Because of that allocation of the burden of proof, no inference is to be drawn from Mr Jefford's failure to give evidence, or to lead other evidence in support of his contentions.
14 The standard of proof beyond reasonable doubt is the highest standard known to the law. It is not a standard of proof that can be satisfied by speculation, suspicion or surmise.
15 In this case, there is no direct evidence of Mr Jefford stabbing Mr Aziz. Rather, the prosecution relies upon inferences to be drawn from the evidence as a whole. However, I cannot and should not draw the inferences for which the prosecution contends if, on the evidence as a whole, a reasonable hypothesis inconsistent with those inferences has not been excluded beyond reasonable doubt.
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16 I have applied each of these principles to the fact-finding task which I am required to undertake.
The non-contentious facts
The forensic pathology
17 Evidence was given by Dr Clive Cooke, the Chief Forensic Pathologist. Dr Cooke conducted a post-mortem on the body of Mr Aziz a few days after his death. He produced a written report of his findings upon examination which was tendered in evidence. That report summarises Dr Cooke's findings in the following terms:
The examination showed a penetrating (stab) injury to the top of the left side of the chest just below the collarbone. A penetrating wound track extended downwards and towards the right, passing into the top of the left lung for a short distance (approximately 15 mm) after having cut the rear wall of the main artery to the left arm (6 mm cut into the posterior wall of the left subclavean artery). There was bleeding into the left side of the chest cavity with collapse of the left lung. There was a small abrasion to the back of the right hand, between the second and third hand knuckles. There were changes of medical resuscitation attempts. There was no evidence of natural disease (exhibit 15).
18 Photographs taken during the course of the post-mortem were also tendered in evidence. They depict the fatal knife wound which was approximately 25 mms in length, measured at the surface of the skin situated immediately below the collarbone and adjacent to the left shoulder of Mr Aziz. The photos also depict a very small surface scratch adjacent to the wound. A photograph of the slight abrasion to the hand of Mr Aziz was also tendered.
19 Dr Cooke was shown the knife which the parties accept caused the fatal wound. He was then asked how much force would have been required to cause the wound with that knife. He observed that the amount of force used would depend upon a number of factors, including the pointiness or sharpness of the knife. In the view of Dr Cooke, the knife which he inspected appeared to be a very pointed, sharp knife which would reduce the amount of force required.
20 Dr Cooke also observed that the greatest resistance to the passage of the knife externally is from clothing and skin, and if there was only thin clothing, a knife like the one he inspected could pass easily through the skin.
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21 I digress to observe that there was no evidence before me as to the clothing worn by Mr Aziz at the time of his death, but given that his death occurred on Christmas Island, which is in the tropics, it seems inherently unlikely that he would have been wearing heavy clothing.
22 Dr Cooke went on to observe that internal resistance to the passage of a knife can come from cartilage or from bone. However, in the case of Mr Aziz, the wound track did not go through either cartilage or bone, but passed through muscle between ribs and then into the chest cavity. In those circumstances, Dr Cooke concluded:
So I think the passage of that knife would be with just a mild amount of force. I don't think it would need a lot of force for a knife like that to penetrate into the body (ts 334).
23 Dr Cooke expressed the view that the likely angle of entry of the knife was more like 45 degrees to the plane represented by the chest of Mr Aziz, rather than perpendicular to that plane. He considered that there were a myriad range of circumstances and positions in which the bodies of Mr Aziz and the holder of the knife might have been positioned so as to cause the wound.
24 Dr Cooke also expressed the view that even if Mr Aziz had been medically treated immediately after being wounded, it is likely that the wound would still have been fatal due to the difficulty of arresting blood loss from the major artery which was severed.
The topography of the area
25 The offence, and all relevant circumstances pertaining to the offence, took place at Lily Beach which is situated on the north-eastern coast of Christmas Island which is, of course, one of Australia's offshore territories. Lily Beach is an area of sand which adjoins a cove fed by the waters of the Indian Ocean. Access to the beach is by way of a track capable of carrying vehicles and which passes between a parking area adjacent to the beach, and a road known as Ethel Beach Road, which it meets at an intersection. Along the track, closer to the carpark and the beach than to the intersection with Ethel Beach Road, is a trough which commonly contains a puddle of water, adjacent to a tree which is situated on the southern portion of the track. On either side of the track there is natural bush of varying density, interspersed with rocks. On the beach adjacent to the carpark are two structures which were described by the witnesses as gazebos.
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The events preceding the altercation
26 The offence was committed in the early hours of 4 July 2010. During the preceding day, Mr Jefford and his friend, Mr Cayde Thomas, had been fishing from the jetty in the harbour at Christmas Island. For that purpose they had all the usual gear, including rods, tackle, bait and knives. Mr Jefford had taken the knife, which ultimately caused the death of Mr Aziz, fishing with him, and retained it in his pocket after the fishing expedition concluded. The knife is as Dr Cooke described - namely, sharp and very pointed. It has a blade which is capable of being folded into the handle.
27 Mr Jefford and Mr Thomas were drinking while they were fishing. When they finished fishing early in the evening, they continued drinking at a pool hall. After that they went to Lily Beach where they had heard there was a party under way.
28 The party at Lily Beach was to celebrate the birthday of a young woman who was a resident of the island. The evidence establishes that people started arriving at the party during the course of the evening (which was a Saturday) but does not establish the precise number of people in attendance. However, it is clear that there was a fairly substantial group present. As a result of an earlier ruling which I made, the evidence given in relation to the events which occurred at the party prior to around midnight on the evening of 3 July 2010 was very limited, as it did not appear to me to bear directly upon the issues which I am required to resolve.
29 The origin of those issues is to be found in an altercation which commenced around 1.30 am in the morning of 4 July 2010, or thereabouts. However, prior to that altercation, perhaps around midnight, a birthday cake was cut, and pieces of the cake were distributed to guests at the party. It seems that Mr Jefford's knife may have been used to cut the cake. It also seems that Mr Jefford assisted in the distribution of the cake to guests.
30 The altercation to which I have referred was a consequence of steps that were taken to re-erect a tent belonging to Mr Tye Ranger, and which had fallen over. Mr Jefford and others were assisting in the re-erection of the tent. For that purpose, Mr Jefford had a hammer which he was using to hammer tent pegs into the beach. In the course of that activity, differences of opinion arose between Mr Jefford and some young men who were members of the Malay community resident on the island. As a result of that difference of opinion, one or perhaps two of the young men
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- attempted to take the hammer from Mr Jefford. In response, Mr Jefford threw the hammer away across the beach.
31 Those events set the context for the more contentious issues which followed. Before turning to those issues, I should observe that the evidence establishes that the night was dark, and that the only source of light was a bonfire situated on the beach and later, as I shall mention, from the headlights on a vehicle driven by Mr James Keogh.
32 The evidence also establishes that many present had been drinking extensively during the evening preceding the critical events. Many of those who gave evidence were likely to have been affected by alcohol at the time of the events they attempted to describe, and their perception of events was further inhibited by the lack of visibility due to the darkness of the night and the limited sources of light. The combination of these factors has led to evidence being given by a number of witnesses which conflicts in a number of respects. In that context, I will turn now to the findings which I make in respect of the contentious evidence.
The contentious evidence
33 Before setting out the findings of fact which I make, I will make some general observations about the witnesses who gave evidence.
34 Fourteen witnesses were called to give evidence of the events which occurred at Lily Beach that night. As I have mentioned, in many respects, their evidence is inconsistent as to the precise sequence of events and in relation to details with respect to times, people and places. However, with some exceptions to which I will refer, I gained the impression that all witnesses were doing their best to recall the events, but their capacity to do so with complete accuracy was, in many cases, inhibited by the factors to which I have referred.
35 There were, however, two witnesses who I regard as somewhat unsatisfactory. They were Mr Jayden Bass and Mr Faizul Pereira. Mr Bass affected to have very little recollection of the events in question, and was unable to provide any reliable or useful evidence. Mr Pereira was plainly a key participant in the events of the evening, and made a number of admissions which were contrary to his personal interest. However, there were significant aspects of his evidence which were in conflict with all other witnesses, most notably the proposition that he tackled Mr Jefford to the ground and applied a martial arts hold around his neck. He also admitted in the course of cross-examination that evidence he had given in chief was false. For these reasons I approach his evidence
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- with considerable scepticism, although I accept, as counsel for Mr Jefford suggested I should, his evidence to the effect that after the altercation at the tent to which I have referred, he shouted to Mr Jefford, 'I am going to kill you'.
36 There was a tendency amongst a number of the eye witnesses to diminish their own role in events, and to misrepresent their motives. For example, a number of witnesses stated that they were pursuing Mr Jefford in order to speak to him, or simply to find out where he was. I have no doubt on the evidence as a whole that the dominant objective of the group that chased Mr Jefford was to fight with him.
37 However, notwithstanding the discrepancies between the witnesses on matters of detail, the general sequence of events which can be drawn from the evidence regarded as a whole is relatively clear. My view of that sequence is also assisted by witnesses whose evidence I found particularly credible, including Mr Dylan Freeman, Mr Keogh, Mr Michael Smith (although he clearly placed Mr Jefford on the wrong side of the track leading up from Lily Beach), Mr Syukri Ramlan (with an exception to which I will refer), and Mr Thomas (despite the significant quantity of alcohol which he had consumed in conjunction with a valium tablet).
38 I find the general sequence of events, established by the preponderance of the evidence to be as follows.
39 Following the altercation in the vicinity of the tent to which I have referred, Mr Jefford went to the carpark. He was followed by Mr Pereira who, as I have mentioned, was shouting aggressively at him, including, at one point, threatening to kill him. There were other young male members of the Christmas Island community, mostly of Malay ethnic origin, with Mr Pereira.
40 When they arrived at the carpark, there was more shouting and threats. Mr Thomas joined Mr Jefford at this point. A number of members of the island community demanded that they leave the party immediately. Mr Jefford and Mr Thomas accepted that suggestion and made to leave by walking up the track. However, at about this point, they were assaulted, and one or perhaps two punches were thrown at each of them. They attempted to evade their attackers. Mr Thomas moved a significant distance up the track between Lily Beach and Ethel Beach Road, whereas Mr Jefford ran into the bushes on the northern side of that track. They were pursued by a group which included mostly members of the ethnic Malay community resident on the island, but which also
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- included at least one member of the ethnic Chinese community, and some Caucasians.
41 The group pursued Mr Thomas who could be seen further up the track. They caught up with him quite a distance up the track, quite close to the intersection with Ethel Beach Road. However, there does not appear to have been any further violence at this point, perhaps because Mr Keogh, who had been driving his car away from the party, having seen the group gathered around Mr Thomas, reversed his vehicle and picked him up, so as to take him out of harm's way.
42 After Mr Keogh had driven away, Mr Thomas told him about Mr Jefford and suggested that they needed to return in order to pick him up so as to remove him from danger. Mr Keogh agreed, and after travelling some distance to find a point where he could safely turn his vehicle, returned to the intersection with the track to Lily Beach, and travelled down that track. Although estimates of the precise length of the period between Mr Keogh driving his vehicle up the track from the beach to the time when he returned varied, I accept his evidence to the effect that the period would have been about four minutes.
43 During this time, the group that had gathered around Mr Thomas returned down the track towards the beach, looking for Mr Jefford. Many were calling for him to come out of the bushes, and one of the group was using his mobile phone to provide light so that he might see where Mr Jefford was.
44 Mr Jefford was ultimately located in the bush where he had been hiding on the north side of the track. The evidence differs as to precisely how he was found, but I think it most likely that he was located by Mr Zhafri Kassim, who was in company with Mr Ramlan.
45 When Mr Jefford was found, a cry went up to the effect that he had been found which attracted the other members of the group who had been looking for him.
46 There was conflicting evidence as to the precise point at which Mr Jefford was located. Some witnesses placed him close to the intersection with Ethel Beach Road, others placed him closer to the puddle to which I referred. All placed him somewhere between these two points. However, nothing turns on his precise location.
47 There is conflicting evidence as to the precise means by which Mr Jefford emerged from the bushes on to the track, although it does not
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- seem to me that a great deal turns upon this. Some witnesses suggest that Mr Jefford was dragged from the bushes, whereas others suggest that he ran out, of his own volition, after being found. In my view, the latter version is more likely, although, as I have said, not much turns upon this.
48 What is, I think, clear is that at the time Mr Jefford emerged from the bushes, he had armed himself with the knife which had been in his pocket, and the blade had been folded out from its resting position in the handle of the knife. I accept, as counsel for Mr Jefford suggested I should, the evidence of a number of witnesses to the effect that at the time Mr Jefford emerged from the bushes, he had his arm extended, with the knife in his hand, and was yelling words to the effect, 'I'll stab you' perhaps with some words of abuse.
49 Mr Ramlan gave evidence to the effect that he observed Mr Jefford emerging from the bushes, and that as he did so, he saw Mr Jefford swing what he had in his hand across Mr Kassim's knee, which caused Mr Kassim to fall down. While it is clear that Mr Kassim was stabbed in the leg adjacent to his knee, his evidence was that he suffered the wound later, while he was one of the group assaulting Mr Jefford as he lay on the ground. Although Mr Kassim was not the most reliable of the witnesses, it seems to me to be most unlikely that he would have given false or erroneous evidence as to the point in time at which he suffered the injury to his knee. Accordingly, I do not accept this particular aspect of Mr Ramlan's evidence.
50 However, Mr Ramlan also gave evidence to the effect that when he saw Mr Jefford emerging from the bushes, he turned to run up the hill, away from the beach. He felt a blow to his back, near his right shoulder, which was very painful. After he checked himself, he discovered that his hand was covered in blood, and that he had been stabbed.
51 As I have mentioned, aside from the aspect of Mr Ramlan's evidence relating to the injury to Mr Kassim, which I do not accept, I found Mr Ramlan to be a generally credible witness. Unlike many of the other witnesses, he had not been drinking alcohol at all that evening. Unlike a number of other witnesses, he did not appear to be putting a complexion upon events which diminished his involvement or implausibly suggested innocent motives. He accepted that he had concealed the identity of his friends who had been involved in the attack upon Mr Jefford when interviewed by police, but that is understandable in the circumstances given that he is 16 years of age.
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52 Mr Ramlan also gave evidence to the effect that he was not one of the group punching and kicking Mr Jefford after he fell to the ground. It was not put to Mr Ramlan in cross-examination that this was not true or that his evidence as to the time at which he suffered his injury was wrong. Mr Pereira was the only witness who put Mr Ramlan as one of the group surrounding Mr Jefford, but as I have mentioned, I have difficulty with Mr Pereira's evidence generally, especially where, as on this issue, it is not corroborated by any other testimony. I note also that Mr Kassim gave evidence to the effect that Mr Ramlan was stabbed in the back.
53 It is very difficult to see how Mr Ramlan could have suffered a stab wound to the back of his right shoulder in any other than the circumstance which he described. Although it was suggested to me by counsel for Mr Jefford in the course of his closing address that he might have suffered that wound in the course of the fracas when Mr Jefford was on the ground, that proposition was not put to Mr Ramlan and it is in any event implausible. If, as counsel for Mr Jefford accepts I should find, Mr Jefford was on the ground with a group around him raining blows upon him, and kicking him, even if one of that group was Mr Ramlan, it is highly improbable that Mr Ramlan could have suffered a stab wound to his back in the course of that activity.
54 For these reasons, I accept Mr Ramlan's evidence to the effect that he was stabbed in the back just after Mr Jefford emerged from the bushes and before Mr Jefford fell to the ground and was assaulted by a group of men. I will return to the significance of that finding later in these reasons.
55 As I have mentioned, it is common ground that after emerging from the bushes, Mr Jefford was felled to the ground. I have found that this occurred after Mr Ramlan was stabbed in the shoulder. There was inconsistent evidence as to the precise means by which Mr Jefford was felled. Some suggested that he was tripped, whereas there was other evidence to the effect that he was punched to the ground. Again, it seems to me that nothing much turns upon the precise means by which Mr Jefford was brought down.
56 There were also differences in the evidence as to the precise posture adopted by Mr Jefford while surrounded by the group. The preponderance of evidence was overwhelmingly to the effect that he was not standing upright during this incident, although some witnesses had him on the ground on his back, others on his side, and others on his knees with his torso upright. It is, of course, possible that Mr Jefford may have
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- been in different positions during the course of the incident, including some or all of those mentioned.
57 There is also conflicting evidence as to precisely who comprised the group standing around Mr Jefford, although it is clear that it included at least Mr Pereira, Mr Kassim, Mr Shadrie Amin, Mr Shazrin Rosli, Mr Anuar Arman, Mr Azmie Armnoor, and Mr Safwan Sharif. I also find that the group included the deceased, Mr Aziz, and counsel on behalf of Mr Jefford did not suggest I should find otherwise. It seems possible that there may have been more people surrounding Mr Jefford, although it is not clear from the evidence precisely how many may have been involved. At all events, it is clear that most, if not all, were punching or kicking Mr Jefford, or both.
58 The evidence establishes that during this time, Mr Jefford was waving his arms around, endeavouring to strike blows upon those who were assaulting him. It is clear, and I find, that he must have been doing so with the knife in his hand, as a number of members of the group surrounding him suffered knife wounds during this time. Mr Pereira sustained three injuries consistent with the use of a knife - two significant wounds to his leg and one wound in his left buttock. As I have already noted, Mr Kassim suffered a significant knife wound to an area behind his knee. Mr Amin sustained an injury to his left hip which required stitching, and Mr Rosli sustained an injury to his right thumb, which did not require treatment.
59 At this point, Mr Keogh and Mr Thomas returned in the vehicle driven by Mr Keogh. The headlights of that vehicle illuminated the group standing around Mr Jefford. At least some members of that group, or perhaps others standing by, mistakenly thought that the vehicle which was approaching was a police vehicle, and a cry went up to that effect. This caused the group to scatter, and Mr Thomas was able to assist Mr Jefford to enter Mr Keogh's vehicle which then left the scene.
60 It was around this time that some of the group which had surrounded Mr Jefford came to realise that they had been stabbed. Mr Aziz was one of them. He and others were conveyed to hospital for treatment, although tragically, in the case of Mr Aziz, that treatment was incapable of saving his life.
61 During the journey from Lily Beach back to Poon Saan, Mr Jefford made a statement to the effect that he had stabbed a number of his attackers. According to Mr Keogh, he stated that he had stabbed four of
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- them. Mr Thomas' recollection did not extend to Mr Jefford identifying any number of people that he had stabbed, but did extend to a recollection that Mr Jefford had indicated that he had stabbed a number of his attackers. Mr Thomas confirmed that following that disclosure, he suggested to Mr Jefford that he should dispose of the knife before the police could find it. He had understood that Mr Jefford had acted upon that advice. However, the prosecution accepts that the police subsequently located the knife as a result of information provided by Mr Jefford.
62 During the journey back to Poon Saan, Mr Jefford attempted to call the police. Upon their return to Poon Saan, he and Mr Thomas attended the police station. Mr Thomas stated that they did so for their own safety and I accept that evidence.
63 A number of photographs taken of Mr Jefford in the condition in which he was at the time he presented himself to the police station were tendered in evidence. They show that Mr Jefford's hands were covered in blood, and that he had suffered a wound to one of his hands, consistent with a wound from the knife. The photos also depict a number of abrasions and bruises to other parts of his body, consistent with the evidence which has been given as to the various punches and kicks which he received.
Analysis
64 As I have noted already, the critical question which I am required to resolve is the question of whether the prosecution has established beyond a reasonable doubt that Mr Jefford intentionally inflicted the wound upon Mr Aziz, but in circumstances which would have fallen within the definition of self-defence, but for the unreasonable force used. I am satisfied that the prosecution has established facts which support that conclusion for the following reasons.
65 First, there is no doubt that Mr Jefford and Mr Thomas would each have reasonably apprehended a serious threat to their personal safety, following the incidents on and near the beach. Mr Pereira had threatened to kill Mr Jefford, and they had each been assaulted in the vicinity of the carpark. When they attempted to leave the party, they were pursued by a large group which they would have realised was likely to inflict further assaults upon them. The severity of the threat which Mr Jefford apprehended he faced makes it more likely that he would have intentionally used force in order to resist or deflect his attackers. However, although the circumstances presented to Mr Jefford clearly
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- posed a significant threat to his physical safety, there is no suggestion that he could reasonably have believed he was at threat of anything other than a beating, and in particular, no suggestion that he faced, or could reasonably have apprehended that he faced, an attack which was likely to be life threatening.
66 Second, when Mr Jefford emerged from the bushes on to the track, he threatened to stab those in the vicinity. While it is possible that the threat was intended to discourage further assaults, it is also possible that Mr Jefford meant what he said. The likelihood of that possibility is reinforced significantly by the events which immediately follow.
67 Third, one of those events was Mr Jefford stabbing Mr Ramlan in the back. For the reasons I have given, I am satisfied that this occurred before Mr Jefford was felled to the ground, and therefore before Mr Aziz suffered his fatal wound.
68 In my view, this finding is of great significance to the conclusions properly drawn as to Mr Jefford's intention at the time Mr Aziz was fatally wounded. The fact that Mr Jefford deliberately inflicted a wound upon Mr Ramlan prior to wounding Mr Aziz makes it much more likely that he intended to wound Mr Aziz.
69 Fourth, on any view of the facts, Mr Jefford was on the ground in one position or another, surrounded by a group who were assaulting him at the time Mr Aziz, who was one member of that group, received his fatal wound. It is clear from the evidence that instead of using his arms to defend himself from the blows and kicks that were raining upon him, Mr Jefford was striking out at those who were attacking him. It follows that he was attempting to land blows upon his attackers, including Mr Aziz. Mr Jefford must have been aware that he retained the knife in one of his hands. He must also have been aware that it was likely that the knife would wound those he was endeavouring to strike.
70 Fifth, it is clear that Mr Jefford wounded six people with his knife during the course of the events that I have described, one of them fatally. It seems to me to be inherently improbable that wounds of that number, and of that kind, could be inflicted accidentally or unintentionally.
71 Sixth, Mr Jefford's hand was cut during the course of these events. It must have been cut by the knife he was holding. This strongly suggests that the knife was striking the bodies of those he stabbed with some force, and that he must have been aware that the knife was striking people.
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72 Seventh, following the incidents in question, Mr Jefford disclosed to each of Mr Keogh and Mr Thomas that he had stabbed a number of his assailants. Obviously he must have been aware of that fact. That awareness is inconsistent with any conclusion to the effect that the wounds were inflicted unintentionally.
73 It may be that none of these matters would, viewed in isolation, be sufficient of itself to make out the prosecution case to the requisite standard. However, viewed in combination, they compel the conclusion that Mr Jefford deliberately stabbed Mr Aziz.
74 During the course of argument, I suggested to counsel for Mr Jefford that it was difficult to envisage any circumstance in which Mr Aziz could have suffered the fatal wound which was inconsistent with the wound having been administered deliberately by Mr Jefford. I put that proposition to counsel because of the evidence, which it was conceded that I should accept, to the effect that Mr Aziz was likely to have suffered the fatal wound while standing above Mr Jefford while he was on the ground. I put to counsel that, given their respective positions, it was difficult to see how anything other than a deliberate blow aimed at Mr Aziz could have caused his wound.
75 In response to that suggestion, counsel put the hypothesis that Mr Jefford may have been tripped or otherwise felled after emerging from the bushes with his arm extended, and with the knife in the hand of that arm. Counsel put that Mr Jefford could have remained with his arm extended after falling on to his back, and that Mr Aziz may have been accidentally impaled upon the knife when bending over to strike Mr Jefford.
76 That hypothesis seems to me to be so implausible and so unlikely as to be incapable of giving rise to any reasonable doubt. First, the evidence establishes that Mr Aziz was not in the immediate vicinity of Mr Jefford at the time he was felled. Accordingly, it would have taken a little time for Mr Aziz to come to the spot where Mr Jefford was felled, during which time, in the ordinary course of things, Mr Jefford would be likely to have retracted the arm in which he held the knife, either to brace his fall or in an attempt to regain the upright position.
77 Second, none of the witnesses described Mr Jefford as having his arm extended, in a fixed or static position, while on the ground. To the contrary, all witnesses described Mr Jefford as swinging his arms around, in an attempt to strike his assailants. That evidence also excludes any
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- reasonable hypothesis that Mr Jefford was simply flailing around, without any intent to strike, together with the seven specific considerations to which I have referred.
78 Accordingly, the hypotheses put by counsel for Mr Jefford draw no support from the evidence, and are inherently improbable.
79 For these reasons, I am satisfied that the prosecution has established beyond reasonable doubt the facts which I have found, and in particular have established that Mr Jefford inflicted the fatal wound upon Mr Aziz deliberately and intentionally, and I will proceed to sentence on that basis.
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