Swift J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0039/2013 THE QUEEN V MICHAEL JOSEPH FISCHETTI Appearances: Mrs. Marilyn Brandt on behalf of the DPP for the Crown Mr. Charles Clifford on behalf of the Defendant Before: The Hon. Mr. Justice Malcolm Swift (Actg.) Heard: 3rd to the 5th February 2014 JUDGMENT INTRODUCTION
The Defendant stood trial on two (2) alternative Counts arising out of a single incident, namely Count 1 (Wounding with intent to cause grievous bodily harm contrary to s.203 of the Penal Code (2010 revision)) and Count 2 (Wounding contrary to s.204 of the Penal Code (2010 Revision)).
The particulars of Count 1 are that the Defendant on the 16th day of March 2013 at the Esso Service Station West Bay Road, Grand Cayman, unlawfully and maliciously wounded Edenis Miguel Rives with intent to cause him grievous bodily harm. The particulars of Count 2 are identical but without the requirement of intent to cause grievous bodily harm.
I have considered the legal definitions of both Counts. It is unnecessary in this judgment to set out those definitions as it is common ground that the resolution of this case depends on findings of fact on the issues in dispute rather than on any analysis of the law.
The Crown’s case in short is that the Defendant punched Edenis Rives ("the Complainant") on the chin so hard that he caused a wound beneath the chin and broke his jaw. If it is proved that the Defendant caused that wound beneath the chin by delivering a deliberate punch and that he did so unlawfully (that is - not in self defence) and with the intention of causing grievous bodily harm (that is - really serious harm), he must be guilty of Count 1. If all the ingredients of Count 1 are proved with the exception of the intent to cause grievous bodily harm, but it is nevertheless proved that the Defendant intended to cause some harm falling short of really serious harm, then he must be guilty of Count 2. It goes without saying that, if I am unsure that the Defendant caused the wound, or that he did so deliberately, or that he may have been acting in self defence, so that the injury may have been lawfully caused, he is entitled to be acquitted.
This is a Judge alone trial and in conducting it and in composing this Judgment, I have gratefully followed the legal analysis of Quin J. in R —v— George Dexter Evans Indictment No 18 of 2011 paragraphs 67 to 71.
I fully understand that I must advise myself on the applicable principles of law, give myself the appropriate warnings as necessary and state clearly my reasons for acting as I do so that my reasoning is clear and I have in mind the decision of Rowe J. in K. Richards —v— R 2001 CILR 496 where he said:— "When a trial judge sitting alone has advised himself to the applicable principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge's mind upon the matter should be clearly revealed."
I also keep in mind the guidelines of the Court of Appeal stated in R —v— Dave Kennedy Whittaker Cr. App. R. No 14 of 2006 and in Randy Martin —v— R Cr. App. R. No 2 of 2010. In the Whittaker case the Court adopted the words of Lord Lowry LCJ in R —v— Thompson 1977 NI 74 where he said at P83:— "While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give a full and balanced picture of the facts for decision by others. His task is to reach conclusions and to give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an Appeal, it may be seen how his view of the law informed his approach to the facts." In the Martin case the Court adopted the reasoning of Lowry LCJ in R –v- Thain 1985 NI 457 at P478 where he said:- "From these cases the following guidance may be discerned. A judge sitting in a criminal case without a jury, in rendering his decision and giving his reasons for so concluding, is not required to review every fact and to detail each argument on which the prosecution and defence rely as if he were summing up to a jury. The judge must set out the conclusion reached and make clear the reasons for arriving at that conclusion. He is required to have regard to any difficult or unusual points of law and to show how those points of law have in anyway impacted the conclusion that he has reached."
In essence my task is to reach conclusions and to give reasons in support of those findings. I am not required to review every fact in the case or to detail every argument as if I was summing up to a jury. I am required only to state my conclusions and to give clear reasons for those conclusions.
I must begin by reminding myself of the steps in the process of proof in this case. The questions for me to answer are:- a. Was the Complainant wounded? b. If so, did an act of the Defendant cause the wound? c. If so, was that act deliberate? For these purposes that means - was the wound caused by a deliberate punch? d. If so, was the Defendant’s act unlawful? For these purposes that means – was the wound caused otherwise than in lawful self-defence? e. If so, was the deliberate and unlawful act accompanied by an intention to cause grievous bodily harm? f. If not, was the act accompanied by an intention to cause some injury however minor? THE EVIDENCE
Edenis Rives (who I shall call the Complainant – in order to avoid confusion with Mr. Rivers the taxi driver) said that he was struck in the face at least 3 times at different points in the incident by someone or possibly by more than one person. He suffered a broken jaw (a fracture of the coracoid of the left mandible), a 5cm wound below the chin, a 2cm cut below the lower lip and, as revealed in the photographs, an injury below the left eye. The broken jaw is certainly a serious bodily injury but is not in itself a wound. On the other hand, the cuts below the lower lip and below the chin are certainly properly described as wounds. There is clear evidence that the wound below the lower lip was caused inside the gas station and there is no evidence that the Defendant caused it. I therefore concentrate on the question of how, where and by whom the wound beneath the chin and the fractured jaw were caused. I shall ask myself whether I can be sure that the wound below the chin and the fractured jaw were caused by the same single impact. Therefore one question is whether, on this evidence, I am able to find so that I am sure that the Defendant delivered a punch which caused either the wound beneath the chin or the fractured jaw or both.
The Complainant was a customer at the Esso Service Station on West Bay Road in the early hours of the morning of the 16th March 2013. He and his cousin, who was in his company, had been drinking and they were affected by drink. There he met, purely by accident, a girl named Melissa who was also shopping there. They were friends. She was however the girlfriend of the Defendant who was sitting outside in a taxi awaiting her return. The Defendant saw Melissa and the Complainant greet each other and I have seen on CCTV footage that they hugged and embraced each other. The Complainant also appears to introduce Melissa to his cousin who also greets her in a similar manner. It was all quite harmless and normal. But not to the Defendant. The Defendant himself describes in his Police interview what he saw as "grabbing on my girlfriend", "grabbing her and pulling her close". He was, in my judgment, completely misreading the situation and was provoked into a jealous reaction by what he saw. He made his way quickly inside the Esso station where, as I saw on the CCTV recording, he confronted the Complainant. I am completely satisfied that Mr. Fischetti brought this whole unhappy situation about and was entirely responsible for causing the brawl (as Mr. Clifford, his counsel, describes it) which ensued.
According to the Complainant, the Defendant was threatening to kill him because he had hugged his girlfriend. "I'll fucking kill you. Why you fucking holding my girl?" were the words used. He also threatened to kill the Complainant's cousin – by which description I assume he means Umberto Campo – which triggered a fracas in which Umberto hit the Defendant and they fought with each other. It is clear from the CCTV that Melissa was trying to act as peacemaker and to calm the Defendant down. The Complainant’s account was challenged but he refuted the suggestion that he was not telling the truth about the Defendant’s words and actions. I have no hesitation in accepting the account given by the Complainant concerning the events inside the Esso station which mirror what I saw on the CCTV footage.
The action then moved outside. The Complainant says that his cousin – this time I think he meant Eduardo Swaby - told him that he, the Complainant, had sustained a wound under his lower lip at some stage whilst inside the station. The Complainant did not know how he had sustained that injury and what had caused it. Mr. Swaby also cannot account for how it was caused. Therefore, despite being satisfied that the Defendant was entirely responsible for bringing about the violent exchanges inside the station, I cannot conclude that the Defendant was in any way responsible for the injury sustained by the Complainant below his lower lip.
Outside on the forecourt, the action continued. The CCTV recordings show the Complainant (obviously by this time very upset) clearly wanting to move towards the Defendant but being prevented from doing so at first by a girl whose identity is not entirely clear to me – and at that time the Defendant is standing facing the Complainant but not moving towards him. The Complainant moves around the girl and makes towards the Defendant and the action then moves off camera to the right where Mr. Jonathan Rivers, the taxi driver, says he saw Umberto Campo hitting the Defendant numerous times from behind to the back of the head.
Within a few seconds, the Defendant is seen running across the forecourt (from right to left on the CCTV footage) in pursuit of the Complainant who is backing away quickly from him. The Defendant appears to throw a punch at the Complainant as they cross the screen but that punch does not appear to make contact and they disappear off screen to the left. Others follow - males and females. We see no more of the action but it is clear that the Complainant, the Defendant and others of both sexes had moved away in the direction of Burger King to the left of camera. An argument has been advanced that the broken jaw and chin injury may have been sustained inside the Esso station so that the Complainant was already suffering that serious injury when he was being prevented by the girl from moving towards the Defendant, and later as he ran backwards across the forecourt. I have seen the CCTV images and I am completely satisfied that the behaviour of the Complainant outside on the forecourt is not that of a man with a broken jaw. He is fully conscious, clearly very talkative and very mobile. Although the Complainant has no memory of how he sustained the jaw injury which knocked him out, he remembers events leading up to that point, and the evidence of Mr. Swaby strongly suggests that the jaw injury could only have occurred after the Complainant is seen retreating off screen – pursued quickly by the Defendant. I therefore find that the Complainant sustained the jaw injury after being chased by the Defendant and that the jaw injury caused him to stay on the ground until the emergency services arrived. How then was that jaw injury caused?
The Complainant does not know. He woke up later in hospital. Eduardo Swaby says that, outside the Esso station, he saw the Complainant and the Defendant fighting face to face and saw the Defendant being held back by two girls who were saying to him “stop - let’s go”. Mr. Swaby says that the Defendant pulled away from the girls and walked towards the Complainant. He then hit the Complainant – a blow or lick straight in the face – which knocked him to the ground. Until that point he says the two men were squaring up to each other like boxers but he says that no blows had been exchanged. However Mr. Swaby says that he then saw the Defendant follow up his punch by going to the Complainant who was lying on the ground and making as if to punch him again while he was down. That is when Mr Swaby says he intervened to stop what would have been a piece of sheer unwarranted retaliation. Mr. Swaby was cross examined and it was suggested that he had not seen everything he related – he denied that assertion but accepted that there may have been some short gaps in what he saw. He remained unshaken in his account. Accordingly I have concluded that Mr. Swaby may not have seen everything that led to the final punch – which he says was delivered by the Defendant and which knocked out the Complainant. In particular he seems to have missed the Complainant punching the Defendant and the actions of Umberto Campo.
However we heard from Jonathan Rivers, the taxi driver who had brought the Defendant to the Esso station, who was effectively tendered to the defence as Mrs. Brandt asked no questions in chief. In cross-examination he said that he saw Umberto Campo hitting the Defendant some 6-8 times from behind at a time when the action was off camera to the right. He also said that he then saw the Complainant hit the Defendant. I accept his evidence about that. I have concluded that Mr. Swaby missed that blow and I am quite certain that it was this blow from the Complainant which led to the pursuit across the forecourt seen on the CCTV footage. Why, however, did Mr. Rivers fail to see any subsequent blow by the Defendant to the Complainant and why did he fail to see anything that could have accounted for any injury to the chin or jaw suffered by him? I am quite certain that Mr. Rivers is correct in describing what he saw Umberto Campo doing. In fact I can say now that I found Mr. Rivers to be an entirely convincing witness whose evidence I accept in its entirety. Every time his evidence was tested against the CCTV footage, his account was confirmed. However when the Complainant was pursued off screen by the Defendant, it is clear that Mr. Rivers did not follow the action as did others. He remained where he was and it is likely that he simply did not see what happened near Burger King (off to the left of camera) where Mr. Swaby says the final blow was struck, or that his attention was diverted by the threatened imminent attack on his taxi by Umberto Campo who, by this time, had a rock in his hand. Mr. Rivers’ account is also consistent with the injuries the Defendant sustained during the incident.
The Defendant has not given evidence. I asked the usual questions of his counsel and was assured that the Defendant was fully aware that I would be entitled, if I thought it proper to do so, to draw an inference adverse to his defence from his failure to go into the witness box and to have his account given in interview tested in cross-examination. The Defendant has in effect relied upon his account in interview.
I shall not relate the contents of the Interview in this Judgment. It is enough to refer to the following matters. The essence of the Interview was that the Defendant was maintaining throughout that he acted in self defence. His description includes apparent acceptance that he swung a punch at the Complainant after he had himself been struck blows outside the gas station. “I just swung at the first person I saw” – P3. “he was the first person I saw after I’d been hit a couple of times” – P3. He later said he swung at the Complainant but did not remember his punch making contact – P9.
I do however bear in mind that the Defendant has not given evidence and allowed his story to be tested in cross-examination. In particular the pursuit of the Complainant across the screen, and what happened afterwards, when set against his account in interview, has not been capable of being investigated. I draw the conclusion that the Defendant is aware that this is a weakness in his defence and has deliberately avoided having his story put to the test lest further exploration revealed that he was not telling the whole truth in his interview. I draw that conclusion as an inference adverse to the case for the defence. However it is only one small element of the case and is not in itself determinative of guilt.
The medical evidence was read. The attending physician recorded the injuries to the Complainant but did not specifically say that the wound under the chin and the fractured jaw were, or may have been, caused by a single impact. The evidence from Mr. Swaby is of a single blow. The Defendant himself speaks in his interview of a single swing although he says it didn’t land. The only evidence of an injury to the Complainant sustained before that point is the injury below the lower lip which occurred inside the station. My conclusion is that the wound under the chin and the fractured jaw were inevitably caused by a single heavy blow delivered off screen to the left after the pursuit of the Complainant by the Defendant.
In addition to assisting in putting the interview into evidence, Detective Sergeant Anderson Taylor told me about his attempts to obtain witness statements which were, in the main, unsuccessful. I do not, of course, rely in any way upon the absence of evidence in this case and remind myself where the burden of proof lies.
Having reminded myself of the burden of proof, I keep well in mind that the Crown must make me sure of guilt before I can return a guilty verdict.
I answer the questions I posed earlier in this judgment as follows and first draw the following conclusions from the evidence I have heard:- I am satisfied so as to be sure that:- a. The Defendant started the incident by his jealous reaction to the perfectly harmless friendly encounter between his girlfriend and the Complainant; b. Umberto Campo started the brawl by punching the Defendant inside the station. He also provoked the Defendant by hitting him from behind when the incident had moved outside. Somehow (but I do not know how), the Complainant sustained a cut below his lower lip whilst inside the station; c. The Complainant had become riled by these events and at some stage, around the time when Umberto Campo was provoking the Defendant, the Complainant hit the Defendant. I accept that the Defendant may have been hit whilst two girls were attempting to persuade him to leave; d. I am satisfied (mainly from watching the CCTV) that the Defendant then pursued the Complainant across the forecourt, and I am satisfied on the evidence of Mr. Swaby that the Complainant was then punched and knocked down. Although I think that Mr. Swaby did not see everything and missed the punch the Complainant admits he threw earlier at the Defendant, I accept Mr. Swaby’s evidence about the punch which floored the Complainant and found his account reliable. It is really uncontradicted by any other evidence. Although I found Mr. Rivers to be a reliable and truthful witness, I conclude that he simply did not see the final act in this sorry business; e. I am therefore satisfied that the Defendant punched the Complainant after chasing him across the forecourt, after the Complainant had first hit the Defendant. Such behaviour cannot amount to self-defence as the danger is over, the threat no longer exists if the person who attacks you is running away and there can be no question of self-defence arising in such circumstances. In short the Defendant, no doubt under a degree of provocation, retaliated by chasing the Complainant and punching him; f. I am also satisfied that the Defendant punched the Complainant once; g. I am satisfied on the evidence of Mr. Swaby that the blow knocked the Complainant out. There is no evidence that the Complainant was struck again by anyone after he was knocked out. There is no evidence that, before he was punched by the Defendant, the Complainant had any serious injury other than the wound below his lower lip. I am satisfied that the wound below the chin and the fractured jaw were both caused as a result of a punch by the Defendant which was of sufficient force to render the Complainant immediately unconscious. I am therefore satisfied that the punch caused the injuries to the jaw, and to the chin, and that they were individually and collectively serious injuries; h. I saw the Defendant on the CCTV recording chasing a retreating Complainant. He was in hot pursuit. I am satisfied that, by this time, the Defendant had lost his self-control and was intending to hit the Complainant.
I answer the essential questions relating to the Indictment therefore as follows:- i. Was the Complainant wounded? Yes, he sustained a wound under his chin; ii. Did an act of the Defendant cause the wound? Yes, he punched him under the chin; iii. Was that punch deliberate? Yes, the Defendant swung a punch at the Complainant; iv. Was the Defendant’s act unlawful? Yes, the punch was delivered in retaliation for being punched by the Complainant. It was not self-defence because the Defendant chased his victim who was fleeing; v. Was the deliberate and unlawful punch accompanied by an intention to cause grievous bodily harm? No, I am completely satisfied that, although the Defendant chased the Complainant because he was provoked, the punch was a wild swing unaccompanied by any specific intent to cause really serious harm. I draw no adverse conclusion from Mr. Swaby’s suggestion that the Defendant was about to strike his victim when he was down. The fact is that, for whatever reason, he didn’t do so; vi. Was the act accompanied by an intention to cause some injury however minor? Yes, that is the likely result of taking a swing at someone if the swing lands and that possibility was in the Defendant’s mind.
I have also had the benefit of submissions from both counsel and of written submissions on behalf of the Defendant from Mr. Clifford. Of course I have given due weight to those submissions. I am unable to conclude however that the Defendant was not responsible for causing the injury to the Complainant's jaw and chin.
Accordingly I conclude that the Defendant is not guilty on Count 1 but is guilty on Count 2 and that is my finding. Dated this the 5th day of February 2014 Honourable Mr. Justice Malcolm Swift (Actg.) Judge of the Grand Court