R v Yasar Hussain

On 20 May 2025, following a seven day trial in the Crown Court at Luton before His Honour Judge Kay KC and a jury, the appellant was convicted of murder on count 1 on the indictment. He was acquitted on count 2, having an article with a blade or a point, contrary to section 139 of the Criminal Justice Act 1988. On 23 May 2025, he was sentenced to life imprisonment with a minimum term of 21 years (less time spent on remand).

With the leave of the single judge the appellant appeals against his conviction. There is no appeal in relation to sentence.

The issue in the appeal is whether the judge should have directed the jury as to the law of self-defence and, accordingly, left this as a possible basis on which to acquit the appellant.

The relevant facts are as follows.

The trial concerned the death of a Mr David Dosa who, on 15 August 2024, was stabbed in the neck in the communal area of a block of flats in which he lived at Farley Court in South Luton.

The appellant and Mr Dosa were known to each other, and the appellant's account was that he had gone to Farley Court on 15 August to buy cannabis from Mr Dosa. The appellant was aged 26 at the time and Mr Dosa was a 53 year old man who was hunched and walked with the help of a stick.

The appellant was captured on CCTV – and we have viewed the footage – arriving at Farley Court on an e-scooter at 2.01 pm. At the same time, Mr Dosa was returning to the flats with his dog. The two had a conversation whilst they were on the pavement. The appellant is than seen to kick out at Mr Dosa's dog as it approaches him, and he and Mr Dosa briefly exchanged words. A neighbour who witnessed this part of the incident said that Mr Dosa was "mouthing off", and "was moving his arms as if he was saying 'come on then, come on then'". She said that it looked as though it was Mr Dosa who was the one being aggressive and "shooting his mouth off". However, she could not hear what was being said.

Mr Dosa then took his dog back into Farley Court, left it there and returned to where the appellant was on the pavement outside the block. They can be seen on the CCTV footage having what appears to be a perfectly peaceful conversation, with Mr Dosa sitting on the wall for parts of it.

At around 2.03 pm, Mr Dosa walks back towards Farley Court and out of shot, followed by the appellant. The judge put it this way in his summing-up:

Another witness gave evidence that there did not appear to be any argument between them at this stage. On the CCTV footage the appellant is seen with his hands towards his waist, apparently reaching into a bag, and looking around, possibly to see who might be watching him.

There was no direct evidence as to what happened when the appellant and Mr Dosa got inside Farley Court (other than evidence that came from the appellant). However, after they had been there for around three minutes, the appellant is seen to run out, followed by Mr Dosa who had by now been stabbed and was bleeding heavily. Mr Dosa appears to be pursuing the appellant and is carrying his walking stick, rather than using it to assist him in walking. As the appellant runs out, he can again be seen with his hands at his bag or waistband before getting onto the e-scooter and leaving the scene at speed. Mr Dosa walks back into the block, where the evidence is that he knocked on the door of Flat 1, collapsed and died shortly afterwards.

As to what happened in the interim, the appellant stated in evidence that this drugs deal, and at least two others on earlier occasions, had been arranged by a Mr Parvez, who was a mutual acquaintance of his and Mr Dosa’s. He said that when he and Mr Dosa met, Dosa had invited him into the building. When they got inside, Mr Dosa was shouting about the drugs which Mr Parvez was providing to him. Mr Dosa, he said, went up a few stairs, the appellant assumed on his way to fetch the cannabis, but then turned and came back down to the appellant who was standing at the bottom of the stairs. The appellant's account was that Mr Dosa "smacked" him on the head with his walking stick and then on the back. He did not know with what. The blows, he said, were painful. Mr Dosa may have had a dog lead in his other hand at this point.

The appellant's account was that, having been hit, he fell to the ground and at this point he saw an unknown male at the end of the communal hallway by the back entrance to the block. He did not recognise the man and he could not give a description of him. The appellant told the jury that he just wanted to get out, as he was scared. He got up, pushed Mr Dosa on the chest and ran out as fast as he could. He said that he did not see any blood, nor how the wound to Mr Dosa's neck had occurred.

The post-mortem examination found that the cause of Mr Dosa's death was a single stab wound to the neck. The wound measured 2.5 centimetres by 0.8 centimetre on the surface of the skin, and was 6 centimetres deep. It was inflicted with a sharp implement which had at least one cutting edge. The blade passed into the neck, travelling slightly downwards and slightly from the back to the front, severing the left jugular vein. The injury was inflicted with at least moderate force. The pathologist, Dr Biddlestone, did not identify any defensive or offensive injuries to Mr Dosa consistent with a fight or struggle.

No weapon capable of inflicting the wound was recovered from the scene. The prosecution case was that the appellant carried the murder weapon to and from Farley Court either in his waistband or in a bag attached to his waist, which he can be seen fiddling with on the CCTV footage immediately before and after the stabbing. We note that in his sentencing remarks, the judge said that he was sure that it was indeed the case that the appellant had brought the weapon to the scene and had then taken it away with him.

Before and after the incident Mr Dosa can be seen on the CCTV footage holding a walking stick and a dog lead, both of which were recovered. Mr Dosa was not carrying anything else.

The appellant denied that he had taken a knife or other weapon to the scene and that he had stabbed Mr Dosa. He was not able to say how Mr Dosa came to be stabbed but he was clear that he did not do it.

Having fled the scene, the appellant took immediate steps to evade arrest. He switched off his phone and removed the SIM card, which was later recovered from a bin at his property. The phone was then factory reset. The next morning, the appellant left Luton to stay near his sister in Aylesbury where he was arrested on 20 August 2024.

On examination on arrest, the appellant appeared to have a bruise near his right eye and he had an abrasion on his back. He made no comment when he was interviewed under caution on 21 August 2024 but, at the end of his second interview, he shouted that he was not well, that it was not him, that it was never him, "it was him, he is a bastard, did it".

When the judge circulated his draft legal directions, Ms Karaiskos KC submitted on behalf of the appellant that manslaughter should be left to the jury and that the jury should be directed on the law of self-defence. The judge agreed with the former but declined to do the latter. In his ruling, the judge said that the question whether manslaughter should be left to the jury was "borderline". There were factors which pointed for and against doing so, but on balance there was a viable issue as to whether the wound to Mr Dosa's neck was inflicted with the requisite intent for murder:

As far as self-defence is concerned, the judge directed himself that:

He pointed out that any differences between the two men when they first encountered each other appeared to have died down or been resolved before they went into the block of flats. He rehearsed the appellant's account of what happened in the communal hallway and then noted that the appellant was a younger and faster man than Mr Dosa, who walked with a stick. He noted that the main injury to the appellant was to his back which, he said, was more consistent with a strike to the appellant as he was fleeing the scene. He noted that, in his view importantly, there was no suggestion from the appellant himself that he believed that he needed to use force to defend himself from Mr Dosa, which is the first limb of the test for self-defence. The judge then contrasted the evidential position with the evidence in R v Mula [2013] EWCA Crim 1293, where the defence was alibi but there was evidence, albeit from the complainant, which was consistent with the defendant believing that he was about to be struck.

The judge concluded as follows:

Ms Karaiskos argues that the judge's ruling was wrong and that consequently the jury's verdict is unsafe. She reminded us that where there is evidence before the court which, if accepted, would raise a prima facie case of self-defence, this issue should be left to the jury even if self-defence is not formally relied on by the defence, and she referred us to R v Bonnick (1978) 66 Cr App R 266; DPP (Jamaica) v Bailey [1995] 1 Cr App R 257, PC, and Mula to which the judge referred.

Ms Karaiskos' submission was that the evidence before the Crown Court in this case did disclose a prima facie case of self-defence. The authorities show that the judge was wrong to rely on the lack of any evidence from the appellant that he felt that he needed to use force to respond to what he perceived as an ongoing or imminent attack. Self-defence need not be formally relied on by the defendant in evidence. Nor was the contrast which the judge drew with the facts in Mula particularly illuminating, as each case turns on its own facts.

Ms Karaiskos argued that the evidence showed that Mr Dosa was being aggressive after the appellant kicked out towards his dog. The appellant's evidence was that when they were in the block of flats Mr Dosa had been violent towards him and had struck him to the head and back. The appellant had then run away and had been chased by Mr Dosa who was carrying the walking stick and a dog lead. The appellant also had injuries which were consistent with his account. She argued that the judge's reasons for leaving manslaughter were also reasons for directing the jury on self-defence, i.e. there was a single wound with limited penetration, which had been sustained in circumstances which the judge acknowledged were unknown. There was no apparent motive for the appellant to stab Mr Dosa and the evidence of Dr Biddlestone suggested that if the implement used to inflict the wound on Mr Dosa's neck was single bladed, the cutting edge was at the top of the wound. Ms Karaiskos' argument was that on one interpretation this would be consistent with the blade being upside down and therefore with a spontaneous reaction to something in the heat of the moment. She submitted that it was for the prosecution to prove unlawfulness as an element of the offence of murder, given that this was not conceded. That involved disproving self-defence and hence the need for a direction on this issue.

It is well established that a trial judge may be required to leave the issue of self-defence to the jury even though it is not formally raised by the defence, and even when the defence is alibi. In Bonnick, which was an alibi case, Stephenson LJ said:

This passage was approved by the Privy Council in Bailey, where Lord Slynn said this at page 260:

We note that in Bailey the prosecution relied on the facts that the defendant's case at trial was that he had shot the gun accidentally, and that he did not give evidence that he believed it was necessary to defend himself by firing the gun. This, their Lordships held, was not sufficient on the facts of that case to preclude self-defence, given that if accident was rejected it followed that the shooting was deliberate and this gave rise to the possibility that the defendant did so because he was in fear of himself being shot.

In Mula, which was a case under section 20 of the 1861 Act, the evidence on which the potential defence of self-defence was based came from the complainant given that the defendant relied on alibi. The complainant had said that he put the defendant's actions in punching him down to the fact that he had gone up to the defendant and that "maybe he thought I was going to ... strike him first." The complainant had also said that he and the defendant had to be pulled apart. There was, therefore, evidence consistent with self-defence before the court.

Applying these principles in the present case, we agree with Ms Karaiskos that the fact that the appellant had not said in terms that he was in fear of an ongoing or imminent attack did not, of itself, necessarily preclude the issue of self-defence being left the jury. It was not necessary for him to give evidence to this effect, provided that the other evidence in the case raised a prima facie case of self-defence. But we do not read the judge's ruling as saying that there was such a rule. In our view, in his ruling the judge was commenting on the particular evidence in the present case.

We also agree with Ms Karaiskos that each case turns on its own evidence but, by the same token, we accept the submission of Mr Larkin KC, who appears on behalf of the Crown, that the trial judge will often be in a better position to assess whether a prima facie case is raised on the evidence than the appeal court. This is particularly so where, as here, the appeal court does not have a transcript of all of the relevant evidence: see R v Harewood and Rehman [2021] EWCA Crim 1936 at [18]. The trial judge will often have a better “feel” for the case and be better able to assess the particular evidential points relied on by one party or the other in the context of the evidence as a whole.

We note that what the judge said in the present case was that the appellant "had not advanced any evidence of any belief that he needed to use force to defend himself, and certainly not by striking out with any knife or bladed article". Reading his ruling as a whole, the point which the judge was making was that there was no evidence of any actual or imminent threat to the appellant before he and Mr Dosa entered the communal area of Farley Court. The evidence that Mr Dosa chased after him when they left was also highly equivocal given that, by this point, Mr Dosa had been stabbed.

Such evidence of self-defence as there was therefore came principally, if not almost entirely, from the appellant's own account of what happened when they got into the building. However, his account was not capable of supporting the conclusion that there was a perceived actual or imminent threat or attack to which stabbing at Mr Dosa with a knife or bladed article was a reasonable or proportionate response. The appellant was not suggesting that he felt that there was a need to defend himself from an ongoing attack in this way, as the judge noted. But even assuming that this was for tactical reasons, and even assuming that his evidence about what Mr Dosa said and did once they were in the communal area of the flats was accepted, looking at the matter from an objective standpoint, the only reasonable and proportionate response on the evidence was for the appellant to back off or leave. He was fully able to do so, as his own actions in running away demonstrated; and Mr Dosa was an older man who walked with the assistance of a walking stick, albeit he may not have been heavily dependent on the stick.

The answer to the appeal is therefore that the evidence before the Crown Court, including the appellant's evidence, even if it was accepted, did not give rise to a prima facie case that he had killed in self-defence and that this was a reasonable and proportionate response to a threat which he perceived. We agree with the judge that leaving the defence of self-defence to the jury would have invited the jury to speculate as to what facts there might be which might have justified the appellant's actions. We therefore agree with the judge's conclusion. But, in any event, he was entitled to come to this conclusion.

Contrary to Ms Karaiskos' submission, we do not consider that there was any inconsistency between the judge's position on the issue of manslaughter and his conclusion on the question of self-defence. He considered that there was, just about, a feasible basis on which the jury could find that the appellant may not have intended to inflict really serious harm on Mr Dosa; but that did not make striking out with a knife or bladed article a potentially reasonable response to Mr Dosa's alleged actions. In any event, we note that the jury was ultimately sure that the appellant had intended at least really serious harm, even if they were not sure of the dimensions or nature of the weapon which he had used to inflict the wound to the neck (hence the acquittal on count 2). That finding, it seems to us, makes it vanishingly unlikely that the jury might have accepted, given the other evidence in the case, that the two limbs of the test for self-defence may have been satisfied.

Finally, we note that the judge was only obliged to leave the issue of self-defence, and the prosecution to disprove it, if a prima facie case of self-defence, and therefore lawful, violence arose on the evidence. As the judge held – and we agree – it did not. This is the answer to Ms Karaiskos’ argument that the prosecution had to prove that the killing of Mr Dosa was unlawful.

Accordingly, the conviction of the appellant is safe and this appeal is dismissed.