29 April, 2010
Its all about saying sorry... Part II
Sheikh Islam said both Giri and Karki kicked the man on the ground. He maintained this both in evidence and in cross-examination.
Islam stated that “Jewel came out of the Illusions nightclub and those people rushed behind him, and I didn’t think that some thing is going to happen… they followed him … it was not less than five, six, ten peoples, I think… I saw that they started bashing to Jewel, when I came out of Illusions… they all was on him, especially [Karki, Giri and Nog]… they were bashing and kicking Jewel, and at the same time I saw Jewel fell down on the street, and it was bleeding, heavily bleeding, and the last I saw [Karki] who was kept kicking continuously.
Q: You say Jewel, you told us, fall down?
Q: When he fell down, did you see him on the ground?
Q: Was he doing anything, or was he just lying there?
A: Already, he became unconscious… the last person, who was Karki, who was still kick him. I saw it very clear… he was unconscious, lying on the floor, and they guy, he was, just kept on kick his head…”
Islam said he also saw Giri kick Jewel.
Mahburbur gave evidence (through an interpreter) that he saw two to three men kicking Jewel after he fell to the ground. In his police statement he had said “a group of about ten males” had been assaulting Jewel. He was asked about this discrepancy in court and said he had never told the police it was a group of ten men. He said “I mention three, or four, a couple, like this, that come for the Jewel”.
“I said ‘Jewel, please, I want to go home’. And after we come out together, Jewel behind, [Islam] middle, I come first. And all of the guys follow us… After when we come outside and I try to the, cross the road, but they one who’s pushed the Jewel. They tried to - Jewel, just to walk away, and they try to catch for the Jewel, and started for the, his start for the fighting. Hit for the Jewel. And they take for the Jewel for the corner, close to the telephone booth, and there is a happening start… they short guy is jump, and because when he saw that the Jewel is just walking, and he jump and catch, and he start everythings.
Q: You say he jumped and caught Jewel?
A: From behind?
Q: Did the first man, the short man, did the short man take hold of Jewel?
Q: From behind?
A: Behind. They are hitting the Jewel, Jewel bleeding… suddenly I don’t know whose come and hit, hit for me… next is the guy, the both guys who’s start from the beginning, all come and start the fight, hit to the Jewel… all of a sudden Jewel fall down and they come and hit with the boot… they were punching, kicking.”
Mahburbur said that when Jewel fell to the ground, he was “senseless” and “groaning“. Mahburbur was hit himself during the melee and in his statement said he lost consciousness. In cross-examination he was not sure whether he did actually lose consciousness, but he was definitely knocked down, and had to be helped across to the other side of the road.
Jewel was rushed to St Vincent’s Hospital with severe head injuries, and lapsed into a coma from which he never recovered.
The post-mortem examination concluded that the primary cause of death was complications from injuries to Jewel’s head and face. In addition to numerous facial cuts and bruises to his face and head, Jewel’s cheek was fractured and he had brain damage from the trauma to the head. The medical examiner was not able to say which particular injury was fatal.
As a result, both Giri and Karki were charged with Jewel’s murder, on the basis of a ‘joint criminal enterprise’, or ‘common purpose’. This meant the jury could only convict both men if they were satisfied beyond reasonable doubt that they shared a common intent to assault Jewel, and that they were aware it was possible Jewel could be really seriously hurt, even killed. By relying on a ‘joint criminal enterprise’ the Crown did not have to prove who dealt the fatal blow.
Ivesh Karki, in his recorded interview with police, admitting striking and kicking Jewel “once”.
Neither gave evidence at trial.
Eyewitnesses had both men kicking Jewel after he fell to the ground.
Damien Disola was a security guard working at Hungry Jacks on Darlinghurst Road at the time.
He said that his attention was first attracted by the screams he could hear. In his statement to police he said that he saw Karki kicking Jewel as hard as he could, about three to four times. He then saw Giri pushing Karki away, but before they left, Karki “returned and kicked [Jewel] a further two to three times, hard to the head and face… these kicks also appeared to be very hard. He then stomped once on the side of Jewel’s head with his right foot, before kicking him once more in the face with his right foot. The last kicks seemed extremely hard.”
His evidence in court, was that he saw Jewel fall to the ground, but did not see how. He said he could not see whether Jewel attempted to get up. “They kicked him to death and they ran away”. He said both Karki and Giri were doing the kicking, “putting a lot of weight into their kicks”.
He was cross examined as to why he gave police a different version of events at the time, and he said that since it was three years and three months since the events, his memory at the time was probably better than it is now. In re-examination he repeated that he thought it was Giri who was mainly kicking and stomping on the deceased.
Jim Diamond was working as a doorman at the Pink Panther club, about two doors down from Illusions. He also described two men kicking Jewel on the ground. He said one man kicked once, and the other two or three times.
He said he saw four people emerge from Illusions, two of whom were arguing for about five minutes. They walked up the street, and then one man hit Jewel, who fell to the ground, about ten feet away from where he was standing. “It knocked him out, so it must have been a hard punch… the other fellow started kicking him in the head… hard.” Jim said as far as he could see, Jewel “just wanted to get away from him”.
Daniel Thompson, a Kings Cross resident, said that he saw Jewel trying to walk away, when one man approached him from behind, ran up and gave Jewel “an open sort of slap”. The second man then punched hi, and “a bit further up, basically en masse, the group sort of attacked this guy and he fell, he went down on the floor”. He said that Jewel was “not that interested in having a fight or anything like that” and did not fight back. “Basically the whole group… just really starting having a really frenzied kicking attack on the guy”.
“Q: When you say ‘started a frenzied kicking attack on the guy’, what did they do?
A: Just basically sort of going in and kicking him and then perhaps they’d sort of come back out and then sort of go back in and land another kick on him, sort of round his body, head, fairly indiscriminately - about twenty times. Some guy sort of made some comment about ‘I’m going to get the police’ and the guy, the guy who was in quite a bad way, and the majority of the group sort of basically moved away and started to, like, I think they probably realised this guy was pretty badly hurt and they sort of moved, the majority of them moved away from the guy, past Hungry Jacks, walked up off in that direction. It was basically two guys left standing over the guy who was on the ground, looking like he was unconscious at this point, and one of the guys basically just stomped on the guy’s head three times with his right foot.
Q: When you say ‘stomped on his head’, what did he do?
A: Just basically raised his foot up and pretty much with full force just stomped on his head.”
Under cross-examination, he agreed it could “possibly” be difficult to “realise whose feet were doing what”.
Simon Page was with Daniel Thompson. He gave a statement to police describing one man kicking Jewel on the grounds, and said the kicks “did not appear to be very hard”. In court, he said he arrived on the scene late to see one or two men kicking Jewel on the ground.
Orapai Tarai was the duty manager at Hungry Jacks that night, and also gave a statement to police. She said she saw some punching, and then saw Jewel fall to the found. She said she saw only one man kicking, and the others were trying to stop the fight. She repeated this evidence at the committal proceedings, but at the trial she said she saw two men doing the kicking, and each more than once. In cross-examination she was not able to satisfactorily identify which man did what, but in re-examination she repeated that she saw two men kicking, and one also stomping.
Anthony Bayes only saw one man kicking, while the other was trying to retrain him. He was unable to give a clear description of his attackers. In cross-examination he admitted he was a drug user/dealer, and that he had not been entirely truthful with police because it was not in his interests to do so.
The forensic pathologist was asked about injuries found on Jewel’s left hand. Dr Cala had described the bruising on his arm and hand as being caused by a defensive action, rather than a punch. He said if Jewel had struck somebody with a closed fist, the mark would most likely be over the area of the knuckles, not where he had found it. He did not think the bruising showed that Jewel was the aggressor. He was cross-examined on this:
“Q: What I’m saying to you is, if he struck somebody not with a closed first, but with the open back of a fist, or something of that nature, that bruise would readily be explained?
A: It could be.”
Nevertheless, while there was not enough evidence to show that Giri alone, or Karki alone, caused Jewel’s death, the Crown case was that this was a ‘joint criminal enterprise’. It only needed to prove both men were involved in the assault. The jury returned a verdict of guilty for both men.
The Judge found that each man participated in a savage and cowardly assault, having kicked to death a defenceless and eventually unconscious man. Each man had the required mental intent for murder, even without relying on a joint criminal enterprise - at very least, they showed a reckless indifference to human life.
Both men appealed their conviction and sentence. They argued that the defences of ‘provocation’ and ‘self-defence’ should have been left to the jury to consider. However the Appeal Court found that there was nothing in Jewel’s conduct that amounted to provocation. Both men had been drinking, there had been some mild taunting leading to a scuffle, which was broken up by friends. At one point when Karki challenged him outside the club, Jewel disappeared.
Self-defence was not established either, in the eyes of the Appeal Court. It found that on the evidence, it seemed that Jewel had been rushed at from behind by at least one man, and knocked to the ground, after which he never regained his feet, and quickly became unconscious and died. There was no evidence of any attempted retaliation by Jewel, and certainly nothing that would put either man in fear for his life.
Much was made of the discrepancies in the various eye-witnesses accounts, however the Court found that such differences were understandable, given the fact that they each saw events at different times from different places, with varying distances. Also, changes in evidence between the initial statement and the evidence given at trial is to be expected, particularly where there is a delay of up to three years, as in this case.
Nitin Giri’s lawyers argued that he was less guilty than Karki, as Giri only became involved when Jewel went back into Illusions the second time. However the Court felt that on the facts, Giri’s conviction was inevitable. Eyewitness descriptions showed he was prominent in the group that was menacing Jewel before he was hit by Giri. Giri was also present and intentionally assisting and encouraging (aiding and abetting) Karki in kicking Jewel. The kicking was obviously intended to inflict grievous bodily harm at the least. If Giri was in fact calling a halt to the kicking by pulling Karki away, it was most likely because he realised it was time to flee, rather than out of any concern for the victim.
The Appeal Court concluded that conviction was inevitable for both men. The attack on Jewel was obviously intended to cause grievous bodily harm, by its savagery alone.
Both men were sentenced to 17 years in prison, with a non-parole period of 12 years. They are both due for release in September 2011.