Defendants claim self-defence in trial that alleges they used excess force in Wellington fight

The fight occurred outside Calendar Girls in the Wellington Central Business District. Photo / Google Maps

A man on trial for allegedly beating a man while on a night out in town said he could barely see and feared for his life during the fight.

“I can just remember seeing the anger in his eyes, he’s got both his thumbs in my eyes, and I can remember seeing just for a couple seconds pitch black darkness,” Henry Atoni said while giving evidence in his own trial today.

“At that point, I did fear for my safety, for my sight, I did think I was blinded at some point and then there was a bite.”

Atoni’s co-accused Lelu Apineru also gave evidence as their trial in the Wellington District Court continued into its third day. They both face a charge of injuring with reckless disregard.

The two men are accused of continuing to punch Nicholas Crosby after he no longer posed a threat in a fight where the Kāpiti man, out for drinks with his partner and family, threw the first punch.

Defence lawyers Karen Bailey and Craig Smith called their clients to give evidence this morning – both were the only witnesses to give evidence in the defence case.

Both men gave their accounts of the lead-up to the fight, which occurred outside Wellington strip club Calendar Girls in the early hours of July 31 last year.

They were walking to get a “feed” when they both claimed they were approached by Crosby, who they say was behaving aggressively.

An exchange occurred between the men and then Crosby threw a punch at Atoni.

When Apineru saw his cousin punched, he went into “fight mode” and, worried for Atoni’s safety, he continued to throw punches.

Crosby was seen grabbing Atoni’s head, putting his fingers in his eyes and biting him.

“I was telling him to ‘let go’... just kept telling him ‘let go, let go, let go,” Apineru told the court.

Crown prosecutor Harriet Farquhar put to Apineru that the “vibe” was aggressive between both parties and Crosby’s partner Renee Hunter had asked the cousins to move along.

He agreed and later admitted he had punched Crosby in the head while Crosby lay on his back.

When asked by Farquhar why he didn’t punch him somewhere else, he said his actions were in the heat of the moment, and disagreed he could have acted differently.

The jury is set to deliberate tomorrow at the Wellington District Court. Photo / File

Atoni said Crosby had gestured to him and was behaving in a confronting manner moments before the first punch was thrown.

They had been minding their business before words were exchanged and the fight broke out, Atoni said.

“That’s when I started throwing punches,” he said. “Where my head would go his hands would follow.”

Atoni claimed he couldn’t see because Crosby attempted to gouge his eyes, he didn’t know who was involved in the fight and whether the punches he was throwing were connecting.

Farquhar told Atoni he could have walked away from the situation, but instead he and his cousin had the upper hand, punching Crosby while he was restrained, bloody and defenceless.

“It was in the heat of the moment,” Atoni said. “Fight or flight, fighting for my sight and my life at that point.” He said he was scared.

The two men’s evidence concluded the case for the defence, and closing addresses were then given by the Crown and defence lawyers this afternoon.

When giving her closing comments, Farquhar said it could not be denied Crosby had thrown the first punch, and individuals are entitled to defend themselves.

However what Apineru and Atoni did was beyond self-defence and, instead, it was an excess of force.

Farquhar said Crosby couldn’t fight back when he was being dealt multiple blows to his head, and their actions showed a reckless disregard for risk when he lay defenceless and bloodied on his back.

Apineru and Atoni, according to Farquhar, were guilty beyond reasonable doubt.

Bailey, on behalf of Apineru, said the Crown couldn’t prove her client injured Crosby in the way they described. She said he was acting in defence of himself and his cousin against a man who was a continued risk.

Smith, on behalf of Atoni, said he could not think of a clearer case of self-defence than what his client had experienced.

“This charge should never have been laid,” he said.

Both said the reliability of some witnesses called by the Crown, including Crosby’s partner, could not be fully relied on and evidence to prove their client’s guilt was insufficient.

Judge Andrew Nicholls will sum up the case tomorrow before the jury is tasked with deliberating the fate of both men.

Hazel Osborne is an Open Justice reporter for NZME and is based in Te Whanganui-a-Tara, Wellington. She joined the Open Justice team at the beginning of 2022, previously working in Whakatāne as a court and crime reporter in the Eastern Bay of Plenty.