The jury in the Ben Stokes trial has been asked to consider the possibility that Alex Hales inflicted the most serious of the injuries outlined in the incident.
The court has heard previously that Ryan Ali, who is standing trial for affray alongside Stokes, sustained a broken eye-socket in the fight in the early hours of September 25.
But while Stokes accepts he threw punches at Ali and Ryan Hale, his barrister, Gordon Cole QC, used his summing-up to suggest that Stokes’ fellow England player, Hales, may have inflicted the damage with a kick. As a consequence, he asked the jury to reflect on whether it was “reasonable” to attribute all the injuries to Stokes’ fists.
“You’ll see Mr Hales both stamp and, on one occasion, he appears to kick,” Cole said. “You know of injuries that were sustained.
“Sustained, perhaps, by Alex Hales’s intervention? Blows, kicks or stamps to the head area. Does it follow, as a reasonable inference, that all of those injuries are properly attributed to Mr Stokes? We say, no, the evidence is ambiguous.
“You’ve seen the kick that seems to be administered by Mr Hales that appears to have knocked the head of Mr Ali around. You’ve been shown the stills. He was clearly, you may think, kicked to the head.
“If that is right, is it fair to attribute any injury to Mr Stokes?”
Cole also sought to dismiss the suggestion that Stokes was “drunk” and “enraged” in the moments leading up to the incident as “complete nonsense”.
He showed the jury footage that, he submitted, showed Stokes and Hales walking “calmly” past Ali and Hale in the street a few minutes before the fight broke out and then, frame by frame, went through the 57-second footage that appeared in The Sun suggesting that Hale was attempting to approach Stokes with hands raised in the moments prior to Stokes hitting him.
“At 31 seconds, Mr Hale is still coming towards Mr Stokes,” Cole said. “At 33 seconds he is coming at Mr Stokes on the pavement. At 34 seconds you have Mr Hale on the pavement.
“41 seconds in, Mr Hale gets hold of Ben Stokes. That [next] 16 seconds doesn’t take you to the punch of Hale; it takes you to the slap of Ali. That’s 16 seconds to reflect with reason that enough is enough when you have been the victim of an attack.”
Cole also suggested that Stokes had only become after involved after Ali had raised a bottle and, in the second part of the incident, when Hale had returned to the scene with a metal bar.
“We say there’s absolutely no coincidence that Mr Stokes got embroiled at the start when weapons were being used and embroiled again when Mr Hale came back with the metal bar,” Cole said.
“A person may use such force in the circumstances as is reasonable to defend himself. A person cannot weigh to a nicety the exact measure of their defensive action. Nobody need wait until they are hit. In a moment of unexpected anguish, Stokes has done only what he thought necessary.”
Cole also quoted Justice Oliver Wendell Holmes in a 1921 case in America, in which he said “Detached reflection cannot be demanded in the presence of an uplifted knife.”
Earlier Nicholas Corsellis, acting for the prosecution, suggested Stokes had “acted deplorably”.
“[This incident] demonstrates Mr Stokes in a world and in a way that he is distanced from the admirable career he has had,” Corsellis said. “He acted deplorably when the red mist came down and struck with such force that one person was rendered unconscious.
“If he began using self-defence, he very quickly moved on and became the aggressor. This was a pursued cause of retaliation by Stokes.”
Corsellis also alleged Stokes was lying to the jury, in particular in recounting his version of events outside Mbargo nightclub and claiming he did not recall aspects of the incident.
“A witness starts off with a clean slate but may not end up with one,” Corsellis said. “There are occasions when a person comes before a jury and denies, explains or seeks to justify when it is clear they are lying. Of course I’m talking about Stokes and his behaviour outside Mbargo.
“There are aspects of Mr Stokes’ case where he has zero recollection: the cigarette butt, the homophobic abuse; the punch on Mr Ali. Selective memory, members of the jury. Either he can’t say, but the question is, is it ‘won’t say’ because of what the truth is?”
The judge is expected to provide his summing-up on Monday afternoon and the jury will then retire to consider their verdict.