R v Hadchiti (No 2)

Ex tempore judgment

1. [1]

   The case was opened on the basis that it was the accused who inflicted the fatal injury and that he was assisted in an attack on Billy Mack, immediately he entered the garden at Londonderry. The accused has admitted that it was he who inflicted that fatal wound and in order to meet the Crown case, gave evidence as to the struggle over the knife in which the wound was inflicted in self defence.

2. [2]

   In cross-examination, without objection the accused was asked whether it was he or someone else who inflicted the fatal wound. The accused did not depart from his admissions.

3. [3]

   In closing address the Crown has submitted that the accused's evidence should not be accepted. Further, that it may not have been the accused who inflicted the fatal wound, but that it may have been inflicted by someone assisting him.

4. [4]

   The accused has objected to the case being put on this new basis relying on King v R [1986] HCA 59; (1986) 161 CLR 423, where a new trial was ordered in circumstances where the Crown case was put on a new accessory basis during summing up, on the Crown's application. It seems to me that this is a similar situation. It involves a change in course which is prejudicial to the accused. If it were accepted by the jury, his case on self defence could clearly not be made out.

5. [5]

   In the result, it seems to me that if the Crown wishes to press the case against the accused on this new basis, not put to the jury in opening or part of the case statement served on the accused and clearly not the case which the accused set out to meet, that unfair prejudice would result for the accused.

6. [6]

   In that event there seems to be three options, the first for the Crown to revisit its address and confine the case to that on which it opened, namely that it was the accused who inflicted the fatal wound and that others were involved in assisting him in the attack on Billy Mack; the second for the jury to be discharged and a new trial ordered; and the third for the Crown to continue, but for me to direct the jury on the basis of the case as originally put. The last option seems only available if it were considered that the resulting prejudice to the accused would not be irreparable.

7. [7]

   The parties need to consider how they wish to proceed. In the first instance that is a matter for the Crown to determine. 28 April 2016 - Now marked restricted 28 August 2017 - Publication restriction lifted