Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
IN THE GRAND COURT OF THE CAYMAN ISLANDS
2
CRIMINAL SIDE
3
4
IND NO: 0008/2021
5
6
7
REGINA
8
9
v.
10
11
GIOSER ACOSTA GONZALEZ
12
13
14
15
Appearances:
Ms. Alliyah McCarthy for the Crown
16
17
Ms. Carina Clare of Samson Law for the
18
Defendant
19
20
21
Before:
Justice Roger Chapple (Actg.)
22
Heard:
25th, 26th and 29th March 2021
23
24
25
HEADNOTE
26
Criminal Law – Wounding with Intent – s.203 of the Penal Code.
27
28
29
30
VERDICT JUDGMENT
31
32
33
34
35
36
37
38
39
40
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
1.
This defendant, Gioser Acosta Gonzalez, faces an indictment containing one count,
2
alleging against him an offence of WOUNDING WITH INTENT, contrary to s.203
3
of the Penal Code (2019 Revision). The particulars of the offence are that Mr
4
Gonzalez “on the 24th day of October 2020 at Turtle Crescent, West Bay, Grand
5
Cayman, Cayman Islands unlawfully and maliciously wounded Richard Nelson
6
Ebanks with intent to cause him grievous bodily harm.”
7
8
2.
The defendant pleaded not guilty to that charge and elected trial by judge alone. I
9
heard the evidence in this case over two days, on Thursday 25th and Friday 26th
10
March 2021. Closing submissions from both attorneys were heard on Monday 29th
11
March 2021. I have then taken time to reflect upon the evidence placed before me
12
and arrive at my conclusions.
13
14
TRIAL BY JUDGE ALONE
15
16
3.
Given that this is a trial by judge alone, I have reminded myself, borne in mind and
17
followed the legal analysis helpfully provided by Quin, J in R v George Dexter
18
Evans1 I must advise myself on the applicable principles of law, give myself
19
appropriate warnings as necessary and state clearly my reasons for acting as I do, so
20
that my reasoning is clear.
21
22
4.
The judge’s duty and method of approach when sitting in a judge alone trial was
23
recently analysed by the Caribbean Court of Justice (CCJ), on appeal from the Court
24
of Belize, in the case of Dionicio Salazar v The Queen2. I have found that judgment
25
useful and have followed its guidance. The CCJ quoted with approval from the
1 Indictment No 18 of 2011 paragraphs 67 to 71
2 [2019] CCJ 15
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
judgment of the Court of Appeal in Northern Ireland in R v Thompson 3 in which it
2
was said of the duty of a judge sitting alone in a bench trial:
3
4
“He has no jury to charge and therefore will not err if he does not state every
5
relevant legal proposition and review every fact and argument on either side.
6
His duty is not as in a jury trial to instruct laymen as to every relevant legal
7
aspect of the law or to give (perhaps at the end of a long trial) a full and balanced
8
picture of the facts for decision by others. His task is to reach conclusions and
9
give reasons to support his view and, preferably, to notice any difficult or
10
unusual points of law in order that if there is an appeal it can be seen how his
11
view of the law informs his approach to the law.”
12
13
5.
The CCJ continued:
14
15
“Equally, a judge sitting alone and without a jury is under no duty to “instruct”,
16
“direct” or “remind” him or herself concerning every legal principle or the
17
handling of evidence. This is in fact language that belongs to a jury trial (with
18
lay jurors) and not to a bench trial before a professional judge where the
19
procedural dynamics are quite different (although certainly not similar to those
20
of an inquisitorial or continental bench trial).”
21
22
“As a rule, the judge will consider the prosecution’s evidence first. If that
23
evidence seems strong enough to carry a conviction, the judge will consider the
24
evidence of the defence. The judge will then look at the totality of the evidence
25
to reach a final decision. It is there where the intercommunication and
26
overlapping take place. It is after this polymorphic process that the judge needs
27
to arrange his or her judgment in a logical order which will not always be able
28
to reflect the complicating thinking process as such.”
29
30
SUMMARY
31
32
6.
In the course of this trial, I heard oral evidence from four witnesses, namely:
33
34
i.
Richard Nelson Ebanks
35
36
ii.
Brad Elliott Ebanks
37
38
iii.
April Manderson
39
40
iv.
The defendant
41
3 [1977] NI 74
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
7.
The statements of two police officers, Officer 494 Rayan Chambers and Detective
2
Sergeant Anderson Taylor, were read to me by agreement. I should add that both
3
those statements contained agreed expurgations.
4
5
8.
In addition, I had benefit of formal admissions made by prosecution and defence
6
pursuant to s.34 of the Evidence Act 2021. I set them out in full below:
7
8
i.
“On the 24th of October, the complainant Richard Ebanks and the
9
defendant Gioser Acosta Gonzalez got into an altercation.
10
11
ii.
The complainant was treated in the emergency room at Georgetown
12
hospital by Dr Prathigudupu for the following injuries:
13
14
<0000>
Three lacerations in the range of 2cm to 5cm on the
15
occipital aspect of the skull that were repaired by using
16
staples
17
18
iii.
Gioser Gonzales was present at the scene of the incident on 24th October
19
2020 and was correctly identified by the complainant as the man he had
20
an altercation with.
21
22
iv.
On Monday, the 2nd of November 2020 the defendant was arrested and
23
cautioned for the suspicion of wounding at the West Bay police station.
24
He was then interviewed in the presence of his attorney, Jonathon
25
Hughes. He read a prepared statement during the interview and
26
answered questions put to him by the officers.”
27
28
9.
I was also assisted by a series of photographs of Mr Ebanks’ injuries and of the yard
29
where it is agreed the altercation took place some photographs marked by witnesses,
30
and two drawings, made by Mr Richard Ebanks and Mr Brad Ebanks in the course
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
of their oral evidence, of the appearance of what they say was the weapon with which
2
the defendant struck Mr Richard Ebanks. The video recording of the defendant’s
3
police interview at the detention centre was played to me, as was an audio recording
4
of a 911 call made by Mr Richard Ebanks to emergency services as he was driving
5
himself to hospital following the altercation.
6
7
10.
The altercation, it is agreed, was about repayment of some money ($20 or so)
8
Richard Ebanks had lent to the defendant. The altercation took place at the yard
9
where the defendant lives with his fiancé April Manderson and members of her
10
family. Others were present in the yard (particularly Mr Ricky Manderson (April’s
11
father) and Mr Rayburn Ebanks) but were not called by either side to give evidence
12
before me. It is not for me to speculate as to why they were not called or what they
13
might have said, had they given evidence. It is also common ground that the
14
admitted injuries were occasioned to Mr Richard Ebanks whilst he was at the yard.
15
There is otherwise no agreement between Mr Richard Ebanks and the defendant.
16
Rather, there is a head on conflict of evidence between the prosecution and the
17
defence cases as to what happened at the yard and how Mr Ebanks came to sustain
18
his injuries.
19
20
11.
In short summary, the prosecution case is that the altercation between the two men
21
consisted initially of little more than words and posturing. Mr Ebanks poked the
22
defendant several times in the shoulder with his finger, having become annoyed
23
when the defendant said he was not able immediately to repay the money owed. The
24
defendant soon became very angry. There came a time when Mr Ebanks turned
25
away from the defendant to move his van, at which point, the defendant struck him
26
two blows to the head with a hatchet.
27
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
12.
In equally short summary, the defence case is that Mr Ebanks, from the defendant’s
2
first dealings with him that day, was drunk, aggressive and belligerent. He demanded
3
the immediate return of the loan and became more irate when the defendant said he
4
did not have the money. Mr Ebanks pushed the defendant in the chest several times
5
with some force. The defendant, acting in self-defence, attempted to prevent those
6
blows which led to general fighting and grappling, in the course of which, as the
7
defendant was trying to restrain Mr Ebanks, his head made violent contact with the
8
concrete wall and/or wooden fence of Mr Manderson’s home on a number of
9
occasions. It was in this way that Mr Ebanks sustained his injuries.
10
11
THE BURDEN AND STANDARD OF PROOF
12
13
13.
The burden of proving the defendant’s guilt rests throughout upon the prosecution.
14
The standard of proof required is a high one. The prosecution must prove its case so
15
that I feel sure of it, if there is to be a conviction. Nothing less than that high standard
16
will suffice. If having considered all of the evidence, I am less than sure of the
17
defendant’s guilt, then he must be found not guilty. It is only if I am sure of each and
18
every one of the ingredients of the offence that I should find the defendant guilty.
19
20
WOUNDING WITH INTENT: THE INGREDIENTS OF THE OFFENCE
21
22
14.
In order to establish the defendant’s guilt, the prosecution must prove, so that I feel
23
sure that:
24
25
a.
The defendant wounded Mr Ebanks. Albeit that the mechanism by which he
26
came by his injuries is hotly disputed, there is no dispute that the defendant
27
caused those injuries. Further there is no dispute that the injuries amounted to
28
wounds – that is to say, all layers of the skin were broken.
29
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
b.
The defendant intended by his actions that Mr Ebanks would be caused really
2
serious harm
3
4
c.
When he wounded Mr Ebanks the defendant was acting unlawfully.
5
6
SELF-DEFENCE
7
8
15.
The defence case is that the defendant was not acting unlawfully. Rather, he was at
9
all material times acting in lawful self-defence. Once the defence of self-defence has
10
been raised (as it has been here), then it is not for the defendant to prove that he was
11
acting in self-defence. It is for the prosecution to make me sure that he was not acting
12
in lawful self-defence.
13
14
16.
In considering that defence, I must ask myself two questions:
15
16
a.
Did the defendant believe or may he honestly have believed that it was necessary
17
for him to use force to defend himself from attack or threatened attack?
18
19
b.
If so, was the amount of force he used reasonable in all the circumstances?
20
21
17.
I do not need, in the circumstances of this case, to dwell any further upon the law as
22
it relates to self-defence. That question will be resolved by my decision as to what
23
really happened in the Manderson yard on 24th October 2020. If, whatever may have
24
gone before, the defendant approached Mr Ebanks from behind and hit him twice
25
over the head with a hatchet, with sufficient force to cause the injuries which in fact
26
resulted, no question of self-defence could possibly arise. At that stage, if that is
27
how matters unfolded, Richard Ebanks posed no threat to the defendant. If on the
28
other hand, events unfolded as the defendant explained, then I could not be sure that
29
the injuries were caused unlawfully and thus he would be not guilty of any offence.
30
31
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
ALTERNATIVE VERDICT
2
3
18.
An alternative verdict is available to me in this case if I am satisfied so that I am sure
4
that all the ingredients of the offence charged are made out, save and except that I
5
am not sure that the defendant’s intention was to cause grievous bodily harm. If I
6
am less than sure about that, but sure that the defendant was acting ‘maliciously’ –
7
that is to say that he appreciated that his actions may cause some harm, albeit not
8
serious harm – then it is open to me to find the defendant not guilty of the offence
9
charged but guilty of unlawful and malicious wounding, contrary to s.204 of the
10
Penal Code.
11
12
THE EVIDENCE: DISCUSSION
13
14
19.
As I have said, there is a head-on conflict of evidence between Mr Richard Ebanks
15
on the one hand and the defendant on the other as to how Mr Ebanks came by his
16
injuries. Their accounts cannot be reconciled. There is no room here for honest
17
mistake or confusion. It can only be, realistically, that one or other of them is lying
18
to me. I, of course, must look at the evidence as a whole. I am not obliged to accept
19
everything a particular witness says or reject everything a particular witness says. It
20
is open to me to accept one part of a witness’ evidence and reject another part, if that
21
accords with common sense and reason. I am entitled also to draw reasonable
22
inferences from evidence that I accept, but I should draw a firm distinction between
23
reasonable inferences on the one hand and mere speculation on the other.
24
Speculation – which really amounts to no more than guessing – must form no part
25
of my deliberations. I am entitled to, and should, use my common sense, my
26
experience of life and human nature, bringing those to bear upon the issues I have to
27
decide.
28
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
20.
There are aspects of the evidence of each of the witnesses who gave evidence before
2
me that caused me some concern. By way of example, I think it highly likely that
3
Mr Richard Ebanks had taken rather more alcohol than either he or Mr Brad Ebanks
4
was prepared to admit in the course of their evidence to me. There were many points
5
of detail upon which the evidence of witnesses differed. However, I am not required
6
to come to a conclusion about each and every one of those differences. I am not
7
required to resolve each and every point or issue which is in dispute. I only have to
8
resolve such issues as will enable me to determine whether the ingredients of the
9
offence are proved so that I feel sure of them.
10
11
21.
As to the earlier part of the incident, it is clear that Mr Richard Ebanks became upset
12
when the defendant indicated that he was unable to repay the debt there and then. He
13
conceded this had “got him upset. I raise my voice. I was vexed. I pointed him in the
14
left shoulder.”
15
16
22.
The defendant in his evidence denied that Mr Ebanks had ever poked him although,
17
in the course of his police interview (page 8), he explained that the first contact
18
between them was when Richard Ebanks was indeed “pointing my chest”. I am sure
19
that is how things started. Mr Ebanks was the initial aggressor. The defendant took
20
considerable exception to being treated in this way and tempers became more heated
21
on both sides. The defendant and Mr Ebanks agree that the latter was sufficiently
22
irate to say that when the defendant eventually did find the $20 owed, he should
23
“wipe his fucking arse with it.”
24
25
23.
How the altercation started, who said and did what to who in the early stages of the
26
altercation is of less importance than how matters developed and how Mr Ebanks
27
came by his injuries, which of course is the crux of this case and where my
28
deliberations have centred.
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
24.
Mr Richards Ebanks told me that there came a time when he turned his back on the
2
defendant – he was going to move his van since it was blocking the road and another
3
vehicle wanted to get past. Mr. Ebanks said it was then that “I got a lick on the back
4
of my head. I was stumbling…. he licked me not once but twice. The licks stumble
5
me and I falling. He was maybe two feet away when he hit me. After the second hit,
6
I turned and saw he had a hatchet in his hand.” Mr. Ebanks said that the defendant
7
said further, “this is what you fucking get when you can’t fucking wait for when
8
people owe you money” – or words to that effect.
9
10
25.
The defendant told me that Richard Ebanks “started to pound me in my chest. I was
11
really intimidated. I pushed him; then we started fighting, punching each other. It
12
all happened very fast. Richard fell down onto the gravel – he didn’t actually go to
13
the ground. He held me by the waist or ribs and tried to lift me up. I got him in a
14
headlock. I was pulling him backwards, to stop him lifting me. We went to the wall
15
two or three times, because he kept losing his balance.” Mr Ebanks was threatening
16
to “chop” and shoot him. They separated but then came together again.
17
18
26.
The defendant said that he knew Mr Ebanks carried weapons in his van and was
19
fearful that, given the chance, Mr Ebanks would obtain and use such a weapon. He
20
The Defendant denied having struck the complainant over the head at any stage,
21
saying that Mr. Ebanks’ injuries were caused in the course of the tussle.
22
23
27.
Mr Richard Ebanks denied that there had been anything in the way of a tussle. As
24
appears in the formal admissions, at the start of his police interview, Mr Hughes read
25
out a prepared statement, as follows:
26
27
“Richard Ebanks came to my address looking for money. He said I owed him
28
money. He started to fight me and I put him in a headlock to defend myself.
29
During the wrestle, he hit his head on the wall a number of times.”
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
28.
The defendant went on to answer most of the questions asked of him. His account
2
of events in interview is consistent with the account he gave in evidence. In
3
considering what he said in interview and what he said in his evidence to me, I bear
4
in mind that although his understanding and command of English is good, it is not
5
his first language. Any apparent inconsistency or misunderstanding that may be
6
attributable to linguistic problems I have resolved in the defendant’s favour.
7
8
29.
Mr Richard Ebanks’ account of events is very largely supported by the evidence of
9
Mr Brad Ebanks. Mr. Brad Ebanks told me: “Malik Molina’s (as heard) baby mother
10
– she goes up behind the bus in her car. I overheard Richard say to Primo [all agree
11
that this is the name by which the defendant is generally known] “forget about the
12
$20, when you get it, wipe your arse with it.” Then Richard went to move the van.
13
At that time, I was still in conversation at the door and I heard someone shout “no
14
Primo.” Primo was pulling out a hatchet from his waist. At that time, he was by the
15
passenger side of the van. Primo caught up with Richard. Richard never turned
16
around. Primo hit him on the back of the head with the hatchet. His shades fell off.
17
Primo hit him again. Richard dropped the rum and the Heineken [he had in his
18
hands] and was falling to the ground.”
19
20
30.
The defendant’s account of events is largely supported by his fiancé, Ms April
21
Manderson. At the material time, they were not in a relationship although the
22
defendant was living at Ms Manderson’s home. They were, Ms Manderson
23
explained, reconciled about a week after these events.
24
25
31.
Ms. Manderson was a prosecution witness, although effectively merely called and
26
tendered for cross-examination. It was perhaps surprising that she was a prosecution
27
witness at all. Ms Manderson readily agreed with all suggestions put to her in cross
28
examination by Ms Clare. She told me that the defendant and Mr Ebanks were
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
“hugged up” trying to overpower each other. When she shouted, “Richard, let go”
2
he picked up his bottle of rum and went to his van. In re-examination, she said that
3
the two men both had each other in a headlock - something the defendant was later
4
to deny in his evidence. She said that it was their backs that were coming into contact
5
with the wall. After the event, she said she noticed some blood (just a drop) on the
6
brown fence, which she pointed out to the police when they visited the yard some
7
days later. There is no evidence from any police officer to that effect.
8
9
32.
Immediately after having sustained his injuries, Mr Ebanks, the complainant, got
10
into his van and drove himself to hospital. In the course of his journey he made a
11
911 call to emergency services. In the course of a lengthy conversation, Mr Ebanks
12
explained to the operator, amongst other things, what had happened to him and how
13
he had sustained his injuries. He said repeatedly that he had “got chop to my
14
head…with a hatchet… as I turn my back and walk up to go in my bus, he chop me
15
in my head Ma’am. He chop me.” The operator kept Mr Ebanks talking, making
16
sure the call continued until she was able to confirm that he had safely arrived at the
17
hospital. The call lasted for about 15 minutes.
18
19
CONCLUSIONS
20
21
33.
The cumulative effect of all the evidence I have heard is such as to lead me to the
22
firm conclusion that the defendant did indeed strike Mr Richard Ebanks twice to the
23
back of the head with a hatchet. I am sure that is how Mr Ebanks sustained his
24
injuries.
25
26
34.
The audio recording of the 911 call, which I have listened to again in the course of
27
my deliberations, is particularly compelling evidence.
28
29
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
2
35.
The previous consistent statement of a witness (for that is what the 911 call amounts
3
to) would not generally be admissible. But here, the 911 call properly becomes
4
admissible to rebut the defence suggestion of recent fabrication. The defence
5
suggests, as it must, that the account given to the 911 operator was, like Mr Ebanks’
6
evidence, fabrication. I have considered that suggestion with care, but reject it. The
7
call was made very soon after the event in what were undoubtedly difficult
8
circumstances for Mr Ebanks. He had very recently sustained three head wounds,
9
he was losing blood, trying to stem the flow of blood by holding his T-shirt to his
10
head, whilst driving himself to hospital and talking to the operator. Save that on one
11
occasion, Mr Ebanks referred to the weapon with which he had been struck as a pick
12
axe rather than a hatchet, his oft repeated account of events (including many
13
references to a hatchet) in that 15-minute call did not vary; rather it was wholly
14
consistent, both with the account he was giving to the operator and the account he
15
gave in his evidence to this court. He explained what had happened to him, where
16
it had happened and who had caused his injuries. His account to the 911 operator
17
was, I am sure, spontaneous - made while his mind was still dominated by the
18
incident in which he had been injured. He was obviously and understandably
19
concerned about his injuries and that he might lose consciousness. The idea that he
20
would have had the time, wit, ability or inclination to concoct an account of events
21
is one I can and do confidently reject. I am fortified in that view by noting that this
22
was hardly a sanitised or considered performance by Mr Ebanks to the operator. In
23
the course of the call, Mr Ebanks made this threat: “He make my blood bleed, yo. Yo,
24
so I wanna go back and kill him but I know I bleeding a lot of blood, so right now I
25
can’t do that right, but he better ask God to bless him, you know, because I go get
26
charge for murder for him, yeah.” I am sure that the account Mr Ebanks gave to the
27
911 operator was true.
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
36.
With some reservations, particularly as to the amount of alcohol consumed, I accept
2
in large measure the evidence given by Mr Brad Ebanks. He struck me as a careful
3
witness, giving his evidence in a thoughtful and measured way. Much of what he
4
said had the ring of truth about it. Some of the finer points of detail he gave – he
5
dwelt upon the fact that Richard Ebanks had driven off leaving his shades on the
6
ground – support his veracity. He denied suggestions of a general tussle between Mr
7
Richard Ebanks and the defendant and was clear that they were both in the middle
8
of the road and nowhere near Mr Ricky Manderson’s house – whose wall, on the
9
defence case, Mr Richard Ebanks had effectively head-butted two or three times in
10
the course of the alleged tussle. His evidence was not shaken by cross-examination.
11
Mr Brad Ebanks accepted that he and Richard Ebanks were close friends, but denied
12
any suggestion that their relationship went beyond friendship. Whatever the position
13
in that regard, I am satisfied that Mr Brad Ebanks, and Mr Richard Ebanks, were
14
telling me the truth about the how the injuries were sustained.
15
16
37.
I was troubled by the evidence of Ms April Manderson. She is now the defendant’s
17
fiancé and is carrying his child. Those factors do not of course by themselves mean
18
that she was not telling the truth. But I am left to wonder whether she in fact
19
witnessed the events that unfolded in the yard. She was clearly at home when
20
Richard Ebanks first arrived, asking to speak to the defendant, who was, at that stage,
21
in the bathroom. Save for that initial contact between Richard Ebanks and Ms
22
Manderson, neither he nor Mr Brad Ebanks mention her at all.
23
24
38.
Both Brad Ebanks and Richard Ebanks were asked who was present in the yard;
25
neither list her as one of those present. It was not helpful that she was called as a
26
prosecution witness. As I have said, she readily accepted all suggestions put to her
27
by defence counsel, Ms Clare in cross-examination, but Ms McCarthy, prosecution
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
counsel, could do little, within the rules of evidence and procedure, to test or examine
2
the veracity or reliability of her own witness. I was thus unable to see how this
3
“defence” witness might have stood up to any effective challenge to her evidence.
4
5
39.
I do not of course hold this against the defence, but it is a feature of the case. It is
6
difficult to picture the scene that Ms Manderson describes, where both men had each
7
other in a headlock yet it was the backs of both men that were making contact with
8
the wall/fence. Ms Manderson did not at any stage in her evidence say that she had
9
seen Mr Richard Ebanks’ head make contact with the wall/fence.
10
11
40.
Albeit that the evidence, taken as whole, drives me to the sure conclusion that the
12
defendant struck Mr Richard Ebanks two blows with a hatchet, I have paused to, as
13
it might be, double-check that conclusion by asking myself whether what the
14
defendant says might be true. However, I am sure, on all the evidence that he was
15
lying to me. I am sure that his evidence is untrue.
16
17
41.
Putting aside for a moment the rest of the evidence, the defendant’s account that
18
during the course of a prolonged struggle, Mr Richard Ebanks’ head managed to
19
come into forceful but accidental contact with the wall or fence two or three times
20
seems to me to be fundamentally unlikely. The medical evidence was reflected in
21
the formal admissions; there are several photographs of the head injuries sustained,
22
taken when Mr Richard Ebanks was at hospital. I remind myself that I am not a
23
medical expert. That said, the relatively clean and defined wounds sustained by Mr
24
Ebanks, appear to me to be very much more consistent with the prosecution case
25
than with contact with the flat rough surface of a concrete wall or wooden fence,
26
even bearing in mind the defence evidence that there were nails and wood splinters
27
protruding from the fence. I did not take those two factors into account when
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
arriving at my conclusion. Rather, they seem to me to be supportive of the
2
conclusion I had already reached on the other evidence in the case.
3
4
42.
I am satisfied so that I feel sure of all the ingredients that go to make up the offence
5
of which the defendant stands charged. I have considered the possibility that when
6
he struck Mr Ebanks, the defendant may not have intended to cause grievous bodily
7
harm, that is to say, really serious harm. An intention can be formed over a period
8
of time or it can be formed in a moment, perhaps when facing a difficult situation,
9
perhaps in a moment of temper. The essential question in this regard for me is
10
whether, at the time of striking those two blows to Mr Ebanks’ head, when no
11
question of self-defence could possibly arise, the defendant intended to cause really
12
serious harm. I am sure that he did. Realistically, what other intention could there
13
be when striking two blows with a hatchet to another’s head?
14
15
43.
Accordingly, I find the defendant guilty of wounding with intent, contrary to s.203
16
of the Penal Code.
17
18
COMMENDATION TO THE 911 OPERATOR
19
20
44.
I cannot leave this case without mentioning and drawing attention to the dedication
21
to duty of the emergency services operator who handled the 911 call from Mr
22
Richard Ebanks at just before 3pm on 24th October 2020. She was faced with a
23
difficult and potentially dangerous situation. Plainly Mr Ebanks should not have
24
been driving that afternoon, given the state he was in: he was badly injured and was
25
losing blood. He had taken his T-shirt off and was using that garment to stem the
26
flow of blood from his head wounds - so presumably he had at least one hand off the
27
steering wheel. It is clear from what he was saying that he was concerned about
28
losing consciousness. He was, to the operator’s knowledge, driving a large van or
Verdict Judgment: R v. Gonzalez (Gioser Acosta). Ind. 0008/2021 Coram: Chapple J. (Actg.). Date: 3rd
May 2021
1
bus. He presented an obvious and serious danger both to other road users and to
2
himself.
3
4
45.
Recognising those dangers, as she clearly did, the operator made sure that Mr Ebanks
5
remained on the line until she was satisfied that he had arrived safely and without
6
incident at the hospital. She achieved that by deploying considerable skill and
7
expertise. The call lasted some 15 minutes.
8
9
46.
No one who has listened to the audio recording of that call could fail to be impressed,
10
as I was, by the calm and professional way in which the operator handled Mr Ebanks.
11
She was, as appropriate, compassionate and concerned, but firm and authoritative
12
when required.
13
14
47.
I do not know who she was but I hope she can be identified in order that my words
15
of praise and my admiration for her conduct can be conveyed to her, to her immediate
16
supervisors and the Commissioner of Police.
17
18
48.
I commend her for her conduct, her skill and professionalism. She is a credit to the
19
emergency services and deserves the gratitude of the community
20
21
22
Dated this the 3rd day of May 2021
23
24
Justice Roger Chapple
25
Acting Judge of the Grand Court
26
27