The Queen v. Choi Hok Man

CACC000016/1989

Headnote

The Court held that:

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Coram: Hon. Power, J.A., Barnett & Saied, JJ.

Dates of Hearing: 12 & 13 July 1990

Date of Delivery of Judgment: 17 July 1990

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JUDGMENT

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Power, J.A.:

1. The applicant faced 3 counts. Each offence was alleged to have been committed on 9th April 1988 at 67 Berwick Street, Shek Kip Mei. In each count a second unknown person was alleged to have participated.

2. The first count charged murder, the victim being Kwok Chi-chung.  The second and third counts charged wounding with intent, the victims being Suen Man-wah and Wan Kim-hung. The applicant was found guilty after trial before Ryan J. and a jury and now applies for leave to appeal against those convictions.

3. It was Crown case that the 3 victims were playing machines in the Wick Po Amusement Games Centre when one of them, it would appear to have been Wan, had a vernal altercation with the applicant who then left and returned 7 or 8 minutes later with an unknown person. Both were armed with poles and they attacked the victims from behind, inflicting injuries which in case of  Kwok, led to his death. Wan had a cut over the left side of the rear part of his skull, which required stitching, and small abrasions on his left forearm. Suen had a cut over tire right rear side of his skull, which required stitching, and a fracture of the second and third metacarpals of his right hand which was put into a plaster cast. The alarm went. The two men ran off and Suen said he threw a stool at the departing men.

4. The applicant gave evidence saying that he had been at the Games Centre on that evening and that he had a verbal altercation with Wan, that he was not, however, disturbed by this and left the centre. He said that after speaking to his friend Ip Chai he went to make a telephone call. He said on his return to the games centre he saw Ip Chai under attack and that Wan who was holding a stool was about to attack Ip Chai and so he picked up a broken broom handle and went to his assistance.

5. The first ground argued by Mr. McCoy, who appears for the applicant, is:

"1.        That the learned judge wrongly granted the Crown's application to declare Madam Li a hostile witness. The judge, having declared at page 155 D that she was giving evidence on 'vital issues', failed to exercise his discretion on the correct principles or at all, in that:-

(a)	he ruled in favour of the Crown before the Defence were given any
	opportunity to oppose the application and was therefore in breach of the
	fundamental rule of natural justice: audi alteram partem."

It is true that the trial judge initially made a ruling after hearing only Crown counsel. The matter did not however rest there. After the ruling, the following exchange took place:

"Court:

Yes, well, in the light of the statement and the evidence that has been given today, I propose to grant the application.

Mr. Kynock:

My Lord, may I just be put on record as firmly opposing the application.

Court:

You wish to make a statement about it?

Mr. Kynock:

My Lord, yes, the witness has given...

Court:

I am sorry, Mr. Kynock. I didn't realise with the hesitation that you wished to make a submission."

Mr. Kynock then addressed as follows:

"My Lord, yes. The witness has come to court, as I understand it, called by the prosecution as being a complete and neutral witness. The fact that she hasn't given evidence in accordance with a statement which she made to the police at ten past eight on the following day, the 10th of April, doesn't mean to say that she is hostile. It may very well be that what is in the statement isn't right or accurate. She is giving evidence here on oath and for the prosecution to say to her that is what a police officer elicited from you, not on oath, in a police station, is highly prejudicial so far as the defendant is concerned.

The jury will not know, I suspect, what to make of this and that there is no reason at all to believe that she is hostile to the Crown. She hasn't displayed any hostile elements by her attitude in the witness box. She has simply not given evidence completely in accordance with the statement which she made to the police. The statement, incidentally, that I have in my committal bundle isn't even dated and had I not been given this document at the beginning of the trial by Mr. Smith who was acting very properly in doing this I wouldn't have known what this document contained at all. In the event, it doesn't say very much different from what the undated statement, the shortened version, has said ...

Court:

Well, Mr. Kynock, I can't agree. In my view she is giving evidence on vital issues which are entirely contrary to what was said in her statement and I am of the view that she has adopted a hostile attitude to the Crown.

Mr. Kynock:

Well, my Lord, if your Lordship is of that opinion, of course, your Lordship has already granted the application.

Court:

I was prepared to hear you on it if you could convince me otherwise but there is nothing that I have heard from you that convinces me other than that this witness ought to be turned hostile.

Mr. Kynock:

My Lord, the effect of her answers or the effect of her evidence on being treated as hostile, of course, will depend upon her answers which she now gives."

6. As can be seen from the foregoing passages the defence clearly was heard before the witness was cross-examined upon the basis that she was hostile. We are satisfied that there is nothing in this ground.

7. The next grounds argued were:

8. The complaint here is that the trial judge gave no consideration to the demeanour of the witness, the degree of inconsistency between her evidence and her statements and the fact that there was not shown to be any connection between the witness and the accused. We are unable to see any warrant for suggesting that he did not have in mind all of these matters when ruling that he would declare the witness hostile. He made his ruling "in the light of the statement and the evidence that has been given today". He must clearly had in mind the demeanour of the witness, who was in the process of giving evidence, and the degree of inconsistency which was manifest. Further, he cannot but have been aware that the evidence had not revealed any connection between the witness and the accused. He did not, it is true, set out the matters which he had taken into account when arriving at his decision but he was not required to do so. We adopt the words of Roberts C. J. in CHEUNG Ting-wai Crim. App. 160 of 1979, where he said, in similar circumstances:

"But we agree with the passage in Wu which states that it (inconsistency) is not the only factor. The judge should, for instance, consider the degree of inconsistency as well as the fact of it, its importance to the trial, and the demeanour and attitude of the witness. But, having done so, he is entitled to declare a witness hostile on the ground of inconsistency alone.

In this case, the judge gave no reason for his ruling, and we do not consider that he was under any obligation to do so. There is nothing to suggest that he did not exercise his discretion properly, that he did not consider the matters which he should have considered, or accept that he believed, as the judge in Wu's case did, that he had to declare the witness hostile if he found inconsistencies".

In the present case there is, equally, nothing to suggest that the trial judge failed to consider matters which he should have when exercising his discretion.

We turn now to :

It is the submission of Mr. McCoy that in all cases, a judge is required before declaring a witness hostile, to hold a preliminary inquiry, in the nature of voir dire, in the absence of the jury. This submission rests largely upon dicta in Wu Man-choi v. The Queen [1979] H.K.L.R. 174. In that case it was argued that, in the absence of any finding by the judge that the inconsistent statements of a witness, whom the Crown were asking to have declared hostile, were voluntary, the judge's ruling that the witness was hostile could not stand. Huggins J. said at 178:

"The witness did in fact give detailed evidence as to the alleged coercion, but most of it came after the judge's ruling and there was no evidence given on the other side as to the manner in which her statements had been taken ....... Although it was suggested that the statements were not the witness's statements, they clearly were: she signed them knowing full well what they said and thereby intending to make them her statements. The inconsistency is not disputed, but mere inconsistency, while a material factor in deciding whether a witness is hostile, is not the only factor......... If the inconsistency is explicable on the ground that the previous statement is said (i) to be untrue and (ii) to have been made in circumstances under which an untrue statement might have been made, the credibility of the witness is not necessarily destroyed. An inquiry therefore becomes necessary and it is an inquiry which ought to be conducted in the absence of the jury, because if the inconsistent statement is shown to have been the result of coercion the jury ought not to be made aware of its existence. However, when an inquiry is conducted in the presence of the jury and the witness is found by the judge to be hostile on the basis of an inconsistent statement, no real harm will have been done and the fact that the inquiry has not been held in the absence of the jury would not be justification for allowing an appeal."

9. Mr. McCoy submitted that a judge was required, once the Crown asked that the witness be declared hostile, to make inquiry from the witness as to the circumstances of the taking of the statement and if the witness indicated that the statement was untrue and had been improperly obtained, the judge was required to hold a voir dire to ascertain the truth of these allegations. He submitted further that unless it was established that the statement had been given freely and voluntarily, it must be excluded altogether and, presumably, the witness must be allowed to go on and give evidence without challenge. Wu's case was referred to in CHEUNG Ting-wai's case (supra) by Roberts C.J. as follows:

"In one aspect we feel that Wu goes too far, in suggesting that a voir dire ought to be conducted, in the absence of the jury, before a witness is declared hostile, in some circumstances as when the statement is alleged to have been obtained under coercion or to have been inaccurately recorded.

We would prefer it to be left to the discretion of the judge as to whether he inquires as to the voluntary nature and accuracy of the statement in the presence or absence of the jury; and as to whether he conducts such inquiry as he may feel necessary on these questions before or after he has declared the witness to be hostile."

10. We are satisfied that this is the proper view and that it is a matter for the trial judge as to whether or not he conducts a preliminary hearing before declaring a witness hostile. The trial judge in the present case did not see fit to do so and was, we are satisfied, entitled to approach the matter in the way he did. There is, therefore, nothing in this ground for appeal.

11. The next ground argued was:

This ground relies upon the following statement by the judge to defence counsel:

It is suggested that this statement placed the burden of proving that the witness was not hostile on the defence. We are quite satisfied that, on a proper reading, this passage has nothing to do with the "burden" of proof. The trial judge was not there dealing with any question of onus but was referring to the merits of the argument of Mr. Kynock. What he was saying was that he would have acceded to the argument had he found merit therein but that he was satisfied that there was none.

12. We turn to the next ground:

"2.      That the learned judge, having declared Madam Li a hostile witness, made further material errors with respect to her evidence in that :-

(a)	he permitted the introduction by the Crown of a further untimed and undated statement, inconsistent with the first statement without the circumstances of the supposed statement, sufficient to designate the particular occasion, being established."

The argument advanced in this regard rests upon a submission that s.12 of the Evidence ordinance had not been complied with. This section reads as follows:

"12.

A party producing a witness in any proceedings shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness, in the opinion of the court, proves adverse, contradict him by other evidence or, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony, but, before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement."

13. It was suggested that the circumstances of a second inconsistent statement, which was also put to the witness, had not been designated sufficiently to indicate "the particular occasion" of its making.

14. The object of this section, we are satisfied, is to enable a witness to identify the occasion on which he is alleged to have made a statement, whether orally or in writing, so that he may have the opportunity to refute the alleged statement. Clearly the identification of the occasion is of more moment in relation to an oral statement than a written one. Here, the witness had her statement before her and identified it as being hers. Nothing more needed to be done. There is nothing in this point from which, we must acknowledge, Mr. McCoy quickly passed on.

15. We turn to the next ground which is that:

"2(b)

(the trial judge) permitted the Crown to re-examine the witness after cross-examination by the Defence."

Mr. McCoy submits that, once tile prosecution had been allowed to cross-examine, no right existed to re-examine, and that the judge had no discretion to allow it so to do. He referred to Cross on Evidence (6th Edn.) p.272 which states:

"Although there does not appear to be a reported case on the point, it is believed that judges take different views on the question whether a party who has obtained leave to treat his witness as hostile has a right to re-examine him."

He referred also in this regard to Booth (1982) 74 Cr.App.R. 123 where the Court of Appeal remarked, at 131:

"We feel compelled to observe that (counsel for the appellant) was given considerable latitude in examining his own (hostile) witness anyway, even to the extent of conducting a re-examination, the right to do which is by no means well established."

16. We are satisfied that whether or not the Crown should be allowed to ask further questions in re-examination of a witness who has been declared hostile is a matter for the discretion of the trial judge; the exercise of which must be governed by the circumstances of the particular case. In the present case the witness, just before the initial cross-examination of the Crown concluded, had admitted that both of her statements, which did not vary materially one from the other, were true accounts of what she had seen and heard. In cross-examination, she resiled completely from this admission and stated, in effect, that her statements were in all material particulars incorrect. She seemed to be alleging that they had been cobbled together by the police officer using, in part, a distorted version of the information which had come from her. We are satisfied, in such circumstances, that the trial judge's allowing the Crown to ask further questions was a proper exercise of his discretion.

17. The next ground was that:

18. In the case referred to, the Appeal Court held that the trial judge was right to warn the jury that the hostile witness's credibility had been seriously damaged and to leave it to the jury whether or not they were prepared, in the outcome, to place any weight on that evidence. The Appeal Court, at 445, approved of the following observations which were made by the trial judge:

"'But let me make it clear to you, his credibility, has been seriously damaged, seriously impeached.' and, 'The basis on which the witness was cross-examined was discrepancy between his evidence and his statement and if one allows a witness to be impeached or discredited, then the amount of reliance you should out on his evidence after that is very limited indeed.'"

In the present case the trial judge said:

"His wife also gave evidence and you know that the Crown applied to have her turned, as we say, hostile, that is that she was not a person who was telling the truth and you will recall she was a very reluctant witness. In my view she was a very reluctant witness, you may agree with me or not, and she was shown to have made earlier statements which were contradictory of the evidence she was giving in the witness box and my suggestion to you, and again it is entirely a matter for you, is that she was so unreliable and contradictory as to be a witness that you shouldn't place any weight on her whatsoever and you certainly shouldn't regard as evidence the portions of her statement which she didn't agree with. That would not be proper for you to do so. So she is, you may well feel, a person whom you shouldn't have regard to."

The ground, as framed, (Mr. McCoy was prepared to concede this) misstates the position as the trial judge did not direct "the jury that they should not place any weight upon her evidence at all". As can be seen from the passage cited above, he clearly took a strong view of the evidence of this witness and expressed that view to the jury, but he left it open to them, if they saw fit, to dissent therefrom. The judge was in our view entitled to take a strong view of the evidence of the witness.

19. In her evidence in chief, she said that there were people walking to and fro prior to the fight and that one had walked past her left side. She said that she then heard sounds of commotion and a male voice uttered foul language. She said that she then looked over her left shoulder and saw a fight with several, she qualified this to 4 or 5, people involved. She said that there  was confusion and that she was unable to tell whether the person who walked by her was one of the participants. Her evidence then became difficult to follow. She said that 2 or 3 men were playing a machine but that she didn't know more than that there was a fight. She then said that the first thing she saw that gave her an impression of a fight was a stool being thrown. She then said that she was not able to remember at what stage she saw this and that she also saw objects similar to metal pipes or poles. She then said that the only time she saw such an object was when one person was running away and that she did not see him do anything with the object because she had hidden herself. She then said that she saw nothing before he ran away - only a fight, confusions, stools flying. She then said that it "seemed to be just one stool" and that after the man rah away, an injured person fainted. It was at this stage that application was made to have her declared hostile.

20. In summary, her evidence to this point was that a man, who may or may not have taken part in the fight, walked past her just before the fight and that she heard a commotion, turned and saw a fight in progress, hid herself and thereafter only saw a stool being thrown and a man with a pipe running away. The statement, which she admitted had been read over to her and signed by her on the 10th of April, the day following the incident, was as follows:

"All along we played that games machine until about 1:15 to 1:20a.m. on the 9th of April 1988 when I saw two males walk past my left liana side to my rear. Then I heard a male's voice from my left rear calling out "fuck your mother". I immediately turned my head over my shoulder to have a look. I saw two males holding rod-like objects about 2 feet long hitting the heads of the two males who were playing at a games machine and were sitting there. The two males who were being hit tried to get up to put up resistance but were hit continuously by person or persons. Then someone pressed the alarm bell. The two males who hit people then ran out of the main entrance. One of the males who were being hit ran out of the door. Before he left he also told another person who had been hit to go with him. But the other male remained silent and he then cell down on the ground and became unconscious."

21. In the context of the trial, there being only one accused facing the charges, the discrepancies between the statement and the evidence were clearly concerned with vital issues. Indeed, it would be difficult to conceive of a more diametrical clash than that which arose therefrom. In her second statement, which she also admitted she had signed, she said:

"At 1:15 to 1:20a.m. on April 9th 1988 when I was still playing machine games inside that shop I saw two men, one of them was about 16 to 18 years old, medium build, ordinary hair style, 5'6" tall, wearing a blue windbreaker with white sleeves and the other was unknown, walking past my left hand side and to my back. Then I heard a man shouting on the left hand side and from the back "fuck your mother". I turned my head to have a look. I saw the two men who had just walked past me each holding an iron water pipe - like cudgel which was about 2 feet long and hitting the heads of the two men who were sitting down and playing with games machine. The two injured persons attempted to stand up to put up a resistance. However, they were beaten by somebody continuously. Those two assailants escaped towards the front door on hearing the alarm sound. Later I saw one of the two injured persons follow and run to the door. Before going, he told the other injured person to run but that injured person could not utter anything. Then he fell on the floor and lost consciousness."

The witness was asked by Crown Counsel:

"Q.	And what you told the police on both the 10th of April this year and at the time of the making of the second statement is a true account of what you saw and heard in the Games Centre, isn't it?
A.	Right."

The explanation she offered to Crown Counsel as to why she gave a different version in her evidence to that given in her statement was:

22. "I could only tell what I could remember."

23. Under cross-examination by defence counsel, she said that she was trying to tell the truth in her evidence and she denied that she had given the information in her statement of the 10th of April to the police. She was asked:

"Q.	Was that information given to you by the police - - sorry, did you give that information to the police?
A.	No."

Later the following exchange occurred:

"Q.	There is a very long pause. Is it right that neither account in fact is completely accurate, and that your evidence this morning was accurate?
A.	What I said this morning was accurate."

She had in these answers completely resiled from her earlier admission that the facts in the statement were correct. In re-examination on one important aspect of the matter she again reversed her position:

"Q.	And if you could have a look at the statement dated the 10th of April - you have been asked a number of questions about this statement, in particular, para.5 - you'll see the sentence there: 'I then saw two men walk past by my left side to my rear"?
A.	Yes.
Q.	And you did tell the police officer that, didn't you?
A.	Right."

24. Given the foregoing, we are satisfied that the trial judge was entitled to express, in the terms he used, the strong view which he took to the jury.

25. It is further complained that the trial judge did not, when dealing with the evidence of Madam Li, go on to set out the evidence and indicate the areas in it which were favourable to the applicant. It is true that he did not do so but the jury had heard the evidence and we have no doubt, given the cross-examination by defence counsel, that they were perfectly well aware of its significance, if accepted, for the defence.

26. We turn now to:

"4.

That the learned judge, whilst rightly laving the issue of provocation to the jury, unfairly commented that a time break of seven or eight minutes took the issue of provocation away from the case. In so doing, the learned judge wrongly influenced the jury in their consideration of what was essentially their task: to determine in the light of the evidence whether they might infer a sudden and temporary loss of self-control. And further that the learned judge in his repeated use of the expression 'sudden' and the contrast with the '7 minute break' wrongly and unfairly misdirected the jury as to the ambit of provocation."

27. Having correctly set out the law as to provocation, the trial judge made the following observations to which objection is taken:

"If you come to consider this question of provocation then you would need to consider all of the acts and words said and in particular you would nave to have regard to the break in time, that is when the accused went away from the scene following the altercation with Wan and you know that it was, according to the evidence, if you accept it, seven or eight minutes later that the attack was said to have occurred. This break is relevant because provocation is only available in a case of sudden and temporary loss of control. In circumstances which show the accused had time to think and formulate a plan would negative any claim to a sudden and temporary loss of self-control. It is entirely a matter for you if you come to the question of provocation, but you might well feel that this break in time taxes it away from this case. But it is entirely a matter for you."

we are satisfied that the trial judge did leave the question of provocation to the jury. He made it plain that it was for them to make their determination as to whether a break of seven or eight minutes would be a sufficient time for a person, after, as the evidence revealed it, a not particularly aggravating verbal exchange, to regain his self-control. We are satisfied that no complaint can be made of the use of the word "sudden" by the judge. He was using the classic phrase which is invariably employed when describing provocation. An illustration of this can be seen in the passage from the judgment of Lawton L.J. in Ibrams & Gregory 1982 74 C.A.R. 154 at 160 where he said:

"Later in the same summing-up, in another passage which was also approved by the Court of Criminal Appeal in Duffy, are these words: ([1949] 1 All E.R. at p.932H). Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the essence of provocation."

We are satisfied that the direction of the trial judge was in the circumstances, a quite proper one.

We how turn to:

"3.

That the learned judge failed to put, or to put adequately the main defence of the appellant, namely, rescue in defence of a friend and self-defence. The judge made no reference to these defences at all, whilst giving his directions to the jury on the law. Towards the end of his review of the evidence, at Page 23 E, he made a very brief mention of one principles, as though by way of afterthought, but failed to explain or to illustrate in a way which the jury could understand, the essential elements of the defences and the burden of proof in respect thereof. In so doing, the learned judge appears to have overlooked the law as illuminated in R v Durry [1967] 1 QB 63.''

28. It is true that the learned judge gave his principal directions as to the law at the beginning of his Summing-up. They end at page 11 of the transcript. He then dealt with the evidence and in particular with that of the applicant (pp.19 to 23) and only at p.23 do the observations with regard to self-defence appear. These were as follows:

"If you feel that he might be telling the truth about how he got involved in the fight, or what he calls a fight, that is that he was never involved until he saw his friend threatened and he intervened only to prevent his friend being injured, and you feel that if that is so, that the force he used was reasonable, that is, only such force as was necessary, for the defence of his friend, then he would be entitled to be acquitted in respect of all three charges and on any alternative verdicts that I might have told you about. So that is a matter that is also entirely for your decision."

we wish to emphasize that we see no objection to the judge's having placed his directions as to the law on self-defence immediately after the evidence of the applicant. Indeed we are satisfied that this was a very sensible place at which to direct the jury's mind to this matter. The judge had just reviewed the evidence of the applicant indicating exactly what he said about his intervention and his defence of himself and it was apposite that he should then turn to the law in this regard.

29. It was the complaint of Mr. McCoy that the trial judge failed to direct the jury as to how they should approach the assessment of what was reasonable and necessary force, failed to direct them on the application to these circumstances of the law regarding joint enterprise and common intention failed to remind them as to the necessity, given the form which this summing up had taken, for the Crown to negative self-defence and failed to tell them that no onus in this regard lay upon the accused.

30. It is necessary when dealing with this ground to look with care at the evidence of the applicant. He said that after the initial verbal exchange with Wan he did go away and that, as he was going in the direction of the Chiu Hang Food Shop, he met Ip Chai who asked him what the matter was. He said that, after some hesitation, he told him of the incident and that Ip Chai said that he was going to the centre and that he told Ip Chai that he was going to make a phone call. He said that, when he returned shortly afterwards to the games centre, he entered and saw Ip Chai fighting with two people and saw a third person, who was Wan, take up a stool. He said that he then took up a broken mop handle that was lying on the floor and that, as Wan was trying to attack his friend with the stool, he hit Wan's hand with the pole "intending to cause him not to attack my friend". He said that he warded Wan off with his left hand and hit him with the mop handle with his right hand but he did not see where the blow lanced. He said that he then heard the alarm and ran and that, when so doing, he looked back and saw Ip Chai also running and that Ip Chai had a pole. In cross-examination, he said that he had hit Wan's left forearm and that Wan had then attacked him with the stool holding it in one hand and that he then hit Wan but was unable to say where. He said that he struck him four or five times in all but could not say if he had struck him on the head. He reiterated that he did not strike either of the other men. As can be seen from his evidence he denied any knowledge of an intention on the part of Ip Chai to attack anyone. He denied any joint enterprise between himself and Ip Chai so to do and he said that his only actions were directed against wan first in an attempt to prevent him assaulting Ip Chai and then in self-defence.

31. The trial judge told the jury that if they felt "he might be telling the truth" and had used only reasonable and necessary force, then he was entitled to be acquitted in respect of all three charges. This direction was, in our view, both inadequate and misleading. Given his evidence it seems to us clear that the jury should have been told that, if they felt he might be telling the truth, he was entitled to be acquitted both on the murder charge and on the charge of wounding Suen. This must be so as, if the jury thought it might be that he had entered into the matter only to protect Ip Chai from an assault by Wan and had then had to defend himself from an assault by Wan, he was clearly not involved in the inflicting of injuries on the other two men. He was, indeed, in a position of a passing police officer or, indeed, an ordinary passerby who intervenes to prevent an assault. Such a person could not be said to have been involved in anything that happened prior to his intervention nor, indeed, if the person he attempts to assist takes advantage of the assistance to inflict further injuries upon another party could it be said that he was in concert with him and was, thereby, criminally involved in that further assault.

32. Mr. McCoy further complains that, even if the direction had been given to acquit on the other two counts the direction as regards self-defence in relation to the Wan count was inadequate. He submits that the direction should have been in accordance with the law expounded in Palmer v. R. (1971) A.C.814 and R v. Shannon (1980) 71 Cr.App.R. 192. He adopts as correct the statement by Ormrod L.J. in R. v. Shannon at p.197 where he says:

"But on the issue of self-defence he (the trial judge), effectively, excluded the state of the accused's mind. In other words, by leaving that issue to the jury on the bald basis of 'Did the appellant use more force than was necessary in the circumstances?,' the learned judge may have precluded the jury from considering the real issue, which, to paraphrase Lord Morris in Palmer v. R. was 'Was this stabbing within the conception of necessary self-defence judged by the standards of common sense, bearing in mind the position of the appellant at the moment of the stabbing, or was it a case of angry retaliation or pure aggression on his part.'"(Our emphasis.)

33. It is Mr. McCoy's submission that the jury should have been told that, when they came to consider whether the force used was reasonable, they must bear in mind the position of the applicant as a person under attack by a man armed with a stool and to ask themselves whether it was reasonable for a person in such a position to lash out with a broken broom handle without, apparently, knowing where his blows were going to land. We are satisfied that such a direction should have been given.

34. It is the final submission of Mr. McCoy that the jury should also here have been reminded that the onus was on the Crown to disprove self-defence and assistance to a person under attack and that there was no onus upon the applicant. We note that when the judge gave directions with regard to provocation he was careful to remind the jury that there was no onus on the applicant to establish that he was provoked. Though we are not persuaded that the omission to do this in relation to self-defence would, in itself, have been a fatal flaw we consider that it would have been desirable, in the circumstances of this summing-up, to have given such a direction. We are, however, satisfied, as we have indicated, that the jury should have been told that they must bear in mind the position of the applicant at the time when he said he was under attack when determining whether he went beyond necessary self-defence.

35. In the premises we are satisfied that each of the convictions must be quashed.

36. We allow the applications, treat the hearing of the applications as the hearing of the appeals, allow the appeals and order that the convictions be quashed.

Representation:

Mr. A.E. Schapel (Crown Prosecutor) for the Respondent.

Mr. G.J.X. McCoy (Messrs. So & Co.) for the Applicant.